BCM shows that van driver who had a total knee replacement is not permanently and totally disabled

Mark F. Vizza tried this case on behalf of the respondent. It involves a petitioner who suffered an accident arising out of and in the course of employment in which he injured his right knee which necessitated a total knee replacement. Barry A. Clarke vs. Professional Transportation, 03 WC 36743. The petitioner also underwent a total knee replacement of the left knee, and was alleging that both were as a result of the accident arising out of and in the course of employment. The petitioner further alleged that as a result of these total knee replacements, he was unable to return to gainful employment.

He had been employed by the respondent as a van driver, and testified that he could no longer do the duties of a van driver. He had previous work experience as an air traffic controller, but had retired due to age. The petitioner alleges that he could not perform any functions and that he had looked for employment and could not find employment. It was brought out in testimony that he had applied for nine jobs since his release from medical care.

The petitioner's treating doctor indicated that the petitioner could return to driving a van if he was allowed to take a break every hour or so to prevent the development of blood clots. The respondent's independent medical evaluation found that the petitioner was not at risk to develop blood clots. A representative of the respondent testified that the petitioner's job was available and that they would allow him to take a break every hour to get out of the van and stretch his legs so he did not develop blood clots. The witness pointed out that this was contained in the employee handbook that an employee could at any time take a break if he felt one was necessary. The petitioner further testified that he never attempted to return to his job as a van driver.

The arbitrator found that the petitioner failed to prove that he was permanently and totally disabled. The arbitrator awarded the petitioner 65% loss of use of the right leg, and declined to find that the petitioner's condition of ill-being as to his left leg was related to any accident arising out of and in the course of his employment with the respondent.