Workers’ Compensation – Disability – Back Injury – Medical Opinions – Evaulation

Leovao v. Pike Electric, Inc. (Lawyers Weekly No. 11-08-0965, 16 pp.) (Bernadine S. Ballance, Commissioner) Appealed from Opinion & Award by Deputy Commissioner Robert J. Harris. I.C. No. 638089.

Holding: Plaintiff fell from a height of 10 to 15 feet, fracturing five ribs and injuring his neck and back. Although defendants have not accepted plaintiff’s neck and back injuries as compensable in this claim, they have not contended that either condition is unrelated to the compensable accident, nor did they preserve any such issue in the pre-trial agreement.

Defendants’ application to stop payment of temporary total disability benefits is denied. Defendants shall continue to pay such benefits until plaintiff returns to work or until further order of the Industrial Commission. Defendants shall pay related medical expenses, including a functional capacity evaluation; however, defendants are not required to pay for CT myelograms as recommended by Dr. Coric.

Plaintiff remains disabled. At a minimum, he remains under the permanent work restrictions assigned by Dr. Hoski on Oct. 5, 2007: no lifting more than 20 pounds, no pushing or pulling over 50 pounds, and only occasional bending, stooping, twisting, and climbing. Given plaintiff’s work-related and non-work-related physical limitations, his limited vocational and educational experience, and the differing medical expert opinions on his level of functioning, it would be futile for him to seek work that comports with his physical restrictions until he can obtain a functional capacity evaluation to obtain further information on what his functional capacity is and whether he is at maximum medical improvement.

Defendants’ surveillance materials show plaintiff lifting a few items of unknown weight and walking without a cane. These materials provide brief, sporadic snapshots of plaintiff’s life and comprise a miniscule percentage of the time that plaintiff was being watched by defendants’ private investigator. The Commission concludes that they are not probative on the question of whether plaintiff is malingering.