Lambert v. Workers' Compensation Division

566 S.E.2d 573, 211 W. Va. 436
CourtWest Virginia Supreme Court
DecidedJuly 3, 2002
Docket30041-30043
StatusPublished
Cited by10 cases

This text of 566 S.E.2d 573 (Lambert v. Workers' Compensation Division) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lambert v. Workers' Compensation Division, 566 S.E.2d 573, 211 W. Va. 436 (W. Va. 2002).

Opinions

DAVIS, Chief Justice:

In two1 workers’ compensation eases, which have been consolidated for purposes of this Court’s review, claimants who have been awarded permanent total disability challenge the date determined to be the onset of their total disability. In each case the date of onset of total disability was set by the date of an examination report that concluded the claimant was permanently and totally disabled. Each of the claimants argues that the onset date of his total disability should have been established by an earlier event. In one instance the claimant argues that the onset date should be the date he underwent a below the knee amputation. In the remaining case, the claimant argues that the onset date should coincide with the date he was awarded social security disability benefits. We conclude that certain criteria should be considered in evaluating the evidence to- determine the onset date of permanent total disability, and that a social security disability award is persuasive evidence of the onset of permanent total disability. More specifically, we find that a social security disability award should be given considerable weight when it has been granted for a condition substantial[440]*440ly similar to that for which a permanent total disability award is sought.

I.

FACTUAL AND PROCEDURAL HISTORY

Following is a brief statement of the relevant facts pertaining to each of the two cases herein consolidated.

A. Harvey Lambert

On October 21, 1981, while working as a heavy equipment operator, Harvey Lambert (hereinafter “Mr. Lambert”) seriously injured his right leg when he had to jump from a truck he was operating after the drive shaft failed.2 Specifically, Mr. Lambert suffered a comminuted fracture3 to the lower right tibia with ankle dislocation, and a fractured right fibula. He attempted to return to his job after this injury, apparently working intermittently from January 1983 until sometime in 1995. However, he was unable to continue his employment as he could no longer maneuver clutches and perform other requirements of operating heavy equipment.

Following his leg injury, Mr. Lambert developed chronic osteomyelitis4 in the leg and, over a period of about fifteen years, he endured approximately twenty-eight surgical procedures attempting to save the leg. These procedures included debridement, a bone graft using part of his hip bone, a muscle graft using muscle from his left shoulder, and various skin grafts. Ultimately, on December 18, 1996, Mi*. Lambert required a below-the-knee amputation of his right leg. Shortly after the amputation, he developed deep vein5 thrombophlebitis6 in his left leg requiring the placement of a vena cava7 filter. He also developed pulmonary emboli8 in his left lung. In the years following the amputation, Mr. Lambert has suffered phantom pain in the right leg and soreness at the stump. He has also experienced pain in his hip and shoulder that is associated with his prior surgeries, and pain associated with changes in his gait resulting from the amputation. In addition to his chronic pain, Mr. Lambert also suffers from major depression. He apparently takes numerous medications for his various symptoms. He has been awarded a total of 59% permanent partial disability (hereinafter “PPD”) in connection with this injury, including 10% for the psychiatric residual of his major depression. According to the record in this case, Mr. Lambert completed his formal education only through the eighth grade. His history of employment has been in jobs requiring moderate to heavy exertion.

Mr. Lambert apparently applied for permanent total disability (hereinafter sometimes “PTD”) on more than one occasion prior to his amputation, but his requests were consistently denied. On May 26, 1999, he once again applied for PTD. In support of his application, he submitted the report of an examination performed by Dr. Bruce A. Gu-berman, a disability evaluating physician and certified independent medical examiner. In his report dated June 15, 1998, Dr. Guber-man concluded that “[cjonsidering the patient’s age, education, work experience and the objective evidence of his impairment re[441]*441lated to the October 21, 1981 injury, I do not believe that the patient is able to sustain gainful employment on a full time basis.... I believe that Mr. Lambert is permanently disabled from his prior type of employment.” Mr. Lambert also tendered the report of a vocational consultant, Mr. Anthony Michael, Jr., dated May 5, 1999. Mr. Michael similarly concluded

When considering this claimant’s vocational profile; an individual approaching advanced age (51) with a limited education (8th grade), no transferable work skills, severe physical limitations, moderate mental limitations and chronic pain it is this consultant’s opinion that there would be no jobs that this individual could perform and the claimant’s inability to work is directly related to limitations which have resulted from his work-related injury.

In a subsequent deposition, Mr. Michael was asked to speculate when Mr. Lambert actually became totally disabled. Mr. Michael explained that he had reviewed numerous medical reports regarding Mr. Lambert’s condition and, after expressing the difficulty of estimating a disability at some earlier point in time, he stated “the best I can determine, it looks like sometime in the years 1991, ’92 would be my best estimate.” In addition, Mr. Michael qualified his estimation by stating that he did not have any contact with Mr. Lambert in the early 1990’s. Finally, upon further questioning, Mr. Michael stated, based upon his review of Mr. Lambert’s medical records, that there did not appear to be any period of time following his amputation that Mr. Lambert would have been able to return to full time employment.

Dr. Bernard Nolan, an orthopedic surgeon, examined Mr. Lambert on behalf of the Division. In his report dated March 19, 1998, he stated “[i]n my opinion Mr. Lambert has reached maximum medical improvement. He is not working and, in my opinion, he is not capable of returning to gainful employment.”

A rehabilitation assessment was performed in June 1999, and it was determined that vocational rehabilitation services would not be useful to Mr. Lambert due to the residuals of his injury. The evaluator, Mr. John W. McCue, opined that Mr. Lambert’s “age and limited education, along with suitable gainful employment opportunities would hinder any attempt at feasible vocation rehabilitation opportunities.”

On August 13, 1999, Mr. Lambert was awarded Permanent Total Disability by the Workers’ Compensation Division. The Division determined the onset date of Mr. Lambert’s total disability was May 5, 1999, the date of Mr. Michael’s vocational evaluation report. In this regard, the Division stated that Mr. Michael’s report was “the first evidence received by the Division that states claimant is permanently and totally disabled from a vocational, as well as medical and psychiatric, standpoint.” Mr. Lambert appealed the Division’s determination of the onset date of his disability. The Workers’ Compensation Office of Judges affirmed the Division’s determination by order entered July 10, 2000, similarly concluding that Mr. Michael’s report was the

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566 S.E.2d 573, 211 W. Va. 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-workers-compensation-division-wva-2002.