Suell v. State Accident Insurance Fund

THORNTON, J.

The sole issue in this workmen’s compensation appeal by claimant is the extent of his disability. The referee and Workmen’s Compensation Board found claimant to be permanently and totally disabled; the circuit court reversed, awarding claimant 50 per cent permanent partial disability based on its finding that claimant had failed to sustain Ms burden of proving total disability or that he comes within the odd-lot category.

We adopt the following background statement from the referee’s opinion and order:

“On April 27, 1972, claimant, then a 47 year old warehouseman, fell some 10 or 12 feet from a semi-truck while loading grain. He continued working for four or five days; then because of pain and swelling in the right leg and right hip he came under the care of D. H: Searing, M.D. Dr. Searing diagnosed severe strain of the collateral ligaments of the right knee and contusion of the right hip * # *

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“In August 1972 Mark A. Melgard, M.D., a neurological surgeon to whom claimant was referred by Dr. Spady, diagnosed a probable protruded intervertebral disc. # # # Dr. Melgard opined that claimant had a ‘moderate impairment as a result of his industrial injury’ * * *.

“Questionable presence of a herniated disc was found by Richard F. Berg, M.D., a medical examiner at the Board’s Disability Prevention Division, in April 1973 * * * and by the two orthopedic surgeons and neurologist constituting the Back Evaluation Clinic in May 1973. The BEC doctors considered his disability ‘mild’ * * *.

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“* * * In November 1973 claimant was examined by William R. Parsons, M.D., a neurosurgeon, who commented:

“ ‘The patient has low back and right leg pain, etiology undetermined. There may be a possible lumbar disc. This patient’s disability is not great enough for him to desire further diagnostic evaluation with a Pantopaque lumbar myelogram. He states in no way does he want to be operated upon and he does not want to have a myelogram’ * * *.

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“Prior to the industrial injury claimant had no problem which minimized his ability to perform heavy duty employment. Lay witnesses who appeared in his behalf testified that prior to his injury he was a very energetic, hard working and responsible workman and that subsequent to his injury he has been incapable of performing any type of labor. Claimant’s own testimony, which I believe to be true, is that by reason of severe back pain and pain in the leg he is unable to perform any substantial amount of work. He testified to being able to stand on his feet for only about 10 •minutes with the leg becoming weak and numb all the way down to the foot, that he is in misery after sitting for 10 or 15 minutes, and that he now walks with a kind of half step and is unable to walk more than a couple of blocks. The intensity of the pain restricts his ability to move to the point that sometimes he has to lift his leg with his hands. He testified that in lifting an object as light as a small breakfast room chair he feels like he is pulling apart in the low back.

“Claimant has performed no work since the industrial injury except for the few days immediately following the injury when he remained on the job. He has made some attempts to obtain light work without success.

“Psychological evaluation by Norman W. Hickman, Ph.D., a clinical psychologist, revealed poor intellectual resources, very serious educational deficiency, and that he ‘did not perform particularly well’ on special skill tests. * # *

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“The Fund argues that it is impossible to determine the level of claimant’s disability without the myelographic evaluation which claimant has refused. The Fund further argues that the refusal of the diagnostic procedure is unreasonable, that the level of disability cannot be demonstrated without the diagnosis and that any increase in the award would be made without adequate medical support # * *

The referee’s report reflects that claimant had been examined by eight medical doctors since his injury. All discussed the possibility or probability of a protruded intervertebral disc, but none apparently would make a positive diagnosis without the benefit of a Pantopaque lumbar myelogram. Dr. Parsons stated in his report:

“* * * This patient’s disability is not great enough for him to desire further diagnostic evaluation with a Pantopaque lumbar myelogram. 4Í- íf 4f JJ

Further, none of the other doctors who discussed claimant’s degree of impairment classified it as more than moderate.

While OPS 656.325 is inapplicable in the instant case because the State Accident Insurance Fund did not seek termination of all compensation benefits based on claimant’s refusal of a myelogram, nevertheless we believe that claimant’s refusal must be taken into consideration in determining whether claimant has established that he is permanently and totally disabled.

Taking into consideration all factors, we conclude there is no adequate medical support for claimant’s assertion that he is permanently and totally disabled, and that the preponderance of the evidence indicates that claimant is not permanently and totally disabled. We agree with the circuit court that claimant did not sustain his burden of establishing that he was permanently and totally disabled, and that claimant’s disability was no more than 50 per cent permanent partial.

Affirmed.