BCM Proves Petitioner Should Undergo
Conservative Treatment Rather than Back Surgery

Ryan M. Regan tried Manuel Marquez v. Todd Moser d/b/a Moser Plumbing & Electric as a 19(b)/8(a) case on behalf of respondent before Arbitrator Giordano in Rockford. The two main issues at trial were what further treatment was appropriate for petitioner to undergo and was petitioner entitled to temporary total disability benefits for a period of 13 weeks after being fired for cause.

The Arbitrator found that petitioner should undergo the conservative treatment recommended by respondent’s IME including a Functional Capacity Evaluation followed by consideration of a work hardening/work conditioning program rather than the two-level microdiscectomy followed by physical therapy that petitioner’s treating physician had recommended. With regard to the temporary total disability benefits, Arbitrator Giordano found that petitioner should receive the 13 weeks of TTD as petitioner was off work on light duty restrictions during that time even though he had been terminated for cause. This part of the Arbitrator’s award was in line with the progeny of cases including the Sapp case.

It was felt that had Arbitrator Giordano ordered the two-level microdiscectomy which would have resulted in additional physical therapy and a longer period of temporary total disability payments, respondent’s liability for paying for the medical treatment and TTD could easily range up to $90,000.00 and beyond (this assessment does not take into account the impact of the surgery on petitioner’s ultimate recovery and consequent PPD entitlement).

As of October of 2008, petitioner had undergone an FCE.