Thursday, March 12, 2009

Judge awards medical bills but denies disability in recurrent disc herniation case

Claimant is 50 year old long-term employee who states he hurt his low back in 2004 moving a 35 pound mold, and subsequently underwent two back surgeries and never returned to work. Claimant states although he had prior back problems the 2004 work accident made him worse and he was unable to return to his job and went on social security disability. The administrative law judge concluded claimant proved entitlement to some of the medical bills and temporary total disability, but denied any claim for permanent partial or total disability. The case is the recent 3-0 Commission decision affirming an award by Judge Kasten, Johnny Wyatt v Blair Packaging, DOLIR 3-12-09. 1 The case was affirmed in a per curiam order, 10-20-09 (ED 92756).

Claimant's expert concluded under pre-2005 law that the work injury represented a substantial factor in his need for surgeries after 2004, but that claimant's two previous back surgeries also at L5-S1 were a substantial factor.2 The employer's expert, Dr. Lange, found work was not a substantial factor, at all, and that back surgery put claimant at increased risk of re-herniation. The employer originally accepted liability, but then denied the case after survellience of claimant "participating" at a racetrack two months after the reported work injury.

Judge Kasten concluded claimant established that his work accident was a substantial factor and further aggravated his prior symptomatic medical condition resulting in the need for his 2004 surgery (his 3rd surgery at L5-s1). However, the claimant failed to prove his fourth back surgery, in 2005 (at L5-s1, and L4-l5) was casually related to his 2004 injury due to a favorable discharge after the 2004 surgery and reported worsening of his symptoms after driving a truck for several weeks with a different employer.

The court found bills related to the 2004 surgery related but rejected bills related to the 2005 surgery. No medical bills were awarded for bills discharged in a post-accident bankrupcty. Some of the bills had not been discharged, and the court rejected the defense that claimant's liability had been extinguished merely because the charges had been adjusted.

The claimant's experts asserted claimant was unable to return to gainful employment due to his pain complaints. Claimant's vocational expert asserted that workers older than 50 had a lot of difficulty working any type of new job. The court denied permanent partial disability noting the lack of expert testimony to allocate what specific disability was caused related to the 2004 surgery that was found to be work related. Claimant had acknowledged receiving 38% ppd disability for back injuries before the 2004 accident for recurrent disc herniations at the same level, but contends that 2004 accident made him much worse. Claimant's expert Dr. Zoffuto, amazingly, was "unaware of any way that that he could assign a value to each individual surgical procedure" and failed to provide any opinion on future medical to support an award of open medical care.


2 The Commission also recently affirmed a PTD award, finding a 2004 back injury a substantial factor in causing the need for anterior two level back surgery, when claimant had a previous one level posterior spinal fusion at one of the same levels. PTD benefits were awarded against the Fund, when claimant failed to return to work after a failed attempt. Kotraba v American Power Conversion, DOLIR 1-27-09 (Gorman) cf
Johnson v Duke Mfg., DOLIR 3-13-09 (involving prior and subsequent neck surgeries, and finding no causation on primary case to deny SIF benefits when recommendation for major surgery months before work injury).(Percy) Bowman v Radnor Holdings, DOLIR 3-13-09 (closed head injury, denying claim due to lack of supporting objective evidence and history of prior headaches and evidence of exaggeration.)