Wednesday, January 20, 2010

Commission reverses temporary award for disc replacement

Claimant, 37 hurt her low back from two lifting incidents at a nursing home and administrative law judge Kasten issued a temporary award to provide treatment for a disc replacement, as recommended by claimant's expert Dr. Gornet. The commission reversed and awarded permanent partial disability of 2 1/2% for each incident. The commission found Dr. Gornet less credible as he relied on diagnostic studies performed 3 years after the accident, and he did not fully address the impact of other medical records documenting at times the absence of symptoms. The commission permitted an appeal of a temporary award even though the employer provided medical benefits, noting a tender of medical care was not inconsistent with a later denial of liability. The commission did not reach the issue whether the administrative law judge exceeded his statutory authority name a specific medical provider without a finding that the claimant's health and recovery was endangered. the case is Martin v Mark Twain Care Center, DOLIR 1-19-10. ALJ Kasten In Kaempfer v G.A Rich & Sons, DOLIR 3-22-11, the Commission modified an award and found the ALJ made an "improper" award to designate a specific provider but affirmed an award for future medical care. The claimant fell backwards and was awarded 67 1/2% PPD for his back and neck with an award of total benefits against the Fund. Claimant's previous settlement from an earlier accident involving the brachial plexus and ribs represented about 60% BAW. The Commission found the ALJ improperly excluded claimant's deposition and social security records. Similarly, in Eaton v AT&T, DOLIR 3-30-11, the Commission in a 2-1 decision concluded the ALJ exceeded authority to designate Dr. Schlafly as a treating physician in a temporary award. ALJ Kasten Atty: Meyers, Prosperi Experts: Margolis, Randolph, Chadauri, England Treater: Dr. Park (c4-c7, l3-s1 fusions), Kamath