IME doctor defeats treating physician

Julia McCarthy tried this case on the issues of ongoing TTD and a second surgery for petitioner.

This case involved an undisputed accident on November 14, 2006 to petitioner's left knee. He underwent arthroscopic surgery February 28, 2007 involving a partial lateral meniscectomy. Post-operatively, petitioner underwent physical therapy and was released to return to work with restrictions March 27, 2007. However, after only one day at work, petitioner returned for treatment on March 29, 2007 advising his left knee gave out and he had increased pain. Petitioner underwent further physical therapy and remained off work. Due to ongoing complaints, he underwent an MRI on June 1, 2007, which did not reveal any new injury to the knee.

Following the MRI of June 1, 2007, the treating orthopedic surgeon, Dr. Love, recommended aggressive re-conditioning with physical therapy.

The medical records reflected the petitioner was only seen on two occasions for physical therapy in June of 2007. Subsequently, he returned to Dr. Love on August 9, 2007 with ongoing complaints. At that time, she recommended repeat arthroscopic surgery.

An IME was carried out on behalf of the respondent with Dr. Walsh on September 4, 2007. Dr. Walsh reviewed the medical records and his findings based on the medical records and physical examination concluded the petitioner was at MMI. There was no indication for a second surgery. It was his opinion he could return to work without restrictions.

Depositions were taken of both the treating orthopedic surgeon, Dr. Love, as well as the examining physician, Dr. Walsh.

During the deposition, Dr. Love acknowledged there was nothing on the MRI of June of 2007 to indicate a recommendation for a second surgery. Following that MRI, she recommended aggressive therapy. Dr. Love's recommendation for surgery was based on the following:

1. Petitioner's subjective complaints of continued mechanical symptoms and complaints;

2. Weakness and muscle atrophy;

3. Equivocal Apley's and McMurray's testing;

4. Objective findings of slight effusion and joint line tenderness.

The doctor admitted during her deposition testimony that the subjective complaints were not reproduced on physical examination. She admitted that the equivocal Apley's and McMurray's test did not indicate or contra-indicate internal derangement. She also admitted that if subsequent to her examination there were no objective findings of effusion or tenderness, she would not recommend surgery.

Per the deposition testimony of Dr. Walsh, he saw the petitioner on September 4, 2007. Based on physical examination, there was nothing to indicate surgery. He noted the MRI from June of 2007 showed nothing to indicate surgery was necessary. He found the petitioner to be at MMI and capable of returning to work full duty.

The arbitrator noted that Dr. Walsh is a board certified orthopedic surgeon. Dr. Walsh is Phi Beta Kappa, a member of the Illinois Orthopedic Society and American Academic Academy of Orthopedic Surgeons. His most common surgery is knee arthroscopy. 95% of his practice is treatment of patients with the remaining 5% being medical record reviews and independent medical evaluations. Further, Dr. Walsh testified that board certification implies special expertise in your area of specialization. In order to be an attending orthopedic surgeon at the hospitals in which he practices, the doctor must be board certified.

Dr. Love testified she is not board certified and had twice failed testing for board certification.

The arbitrator found Dr. Walsh to be a more qualified physician and relied on his expertise and opinion in finding petitioner's physical condition did not warrant a surgical recommendation. Further, the arbitrator found the petitioner to be at MMI per Dr. Walsh's opinion and capable of returning to full duty work. Thus, claim for further TTD was denied.