Do Not Go Gently: Defending a Perm Total Claim

Petitioner, a truck driver, was in a work-related collision and hurt his back. Initial treatment providers recommended conservative measures. An independent medical examination report reflected a diagnosis of back strain that should have resolved.

Petitioner then sought treatment with another surgeon who recommended a fusion surgery which was done on July 28, 2009. Petitioner underwent multiple subsequent procedures including hardware removal, treatment for infections and eventually spinal cord stimulator placement. After being released from care, the surgeon opined that he was unemployable and permanently and totally disabled.

Depositions were taken of the various doctors prior to hearing. Our preparation revealed that in addition to his Comp case, Petitioner also had pending a civil action. Materials secured from that litigation, most prominently, the surgeon’s prior deposition testimony, proved invaluable.

The surgeon testified in his Comp deposition that petitioner’s disc tears or annular tears would occur from a torsional load or flexion extension injuries. He did not find an axial load would contribute significantly.

During cross-examination, we confronted him with his prior testimony that petitioner’s injury stemmed from axial impact versus flexion extension. Faced with this contradiction, the doctor admitted that his opinions “evolved over time” and acknowledged that now he disagreed with his own prior opinion.

As to his belief that Petitioner was permanently and totally disabled, probing on cross elicited his uncertainty as to how he reached that opinion. He admitted he did not hold himself out as a vocational counsellor and did not recall the factors that played into his decision to find the Petitioner unemployable and disabled.

The Petitioner asked the Arbitrator find him permanently and totally disabled and all treatment reasonable, necessary and causally related. That award carried with it a monetary value of $1,812,306.00.

Our position was that the initial surgery on July 28, 2009 was not reasonable or necessary and in fact was an intervening incident which broke the connection between the Petitioner’s current condition and the accident. We pointed out to the Arbitrator case law supporting that causal relationship.

In further casting the surgery as an intervening accident, we noted that the Petitioner’s symptoms changed both in specific complaints and pain intensity and laid out the history of both from the time the Petitioner first saw a treater through his last date of treatment. The evidence showed Petitioner’s specific complaints changed after the initial surgery and his pain intensity increased even with the use of a spinal cord stimulator.

Indeed, the Petitioner’s first two treating physicians and Respondent’s Section 12 examiner all agreed that surgical intervention was unnecessary. As a result of this initial surgery, the Petitioner underwent subsequent surgeries which changed his treatment course including procedures required due to infections and a spinal cord stimulator placement.

Of course we stressed the inconsistencies in the surgeon’s testimony regarding the mechanism of injury and the Petitioner’s ability to return to work.

The Arbitrator agreed with us finding that the surgeon lacked credibility and awarded 10% loss of man as a whole plus payment of medical and temporary total disability benefits through July 27, 2009 (the day before the Petitioner’s first surgery). The total award, including credits for benefits previously paid came to $59,549.55.

Respondent was able to obtain a successful outcome through focused trial preparation and an awareness of legal authority and its proper application.