Wednesday, July 27, 2011

Fail to provide expert: lose case

The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting that the Fund failed to produce an expert witness to refute claimant's conclusions and failed to provide sufficient evidence to discredit her testimony.   Thompson v Super 8 Motel, DOLIR 7-26-11. 

Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002.   Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment.   The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her   symptoms might also be consistent with an annular tear.   He couldn't comment on the significance of any annular tear.  "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."

ALJ:  Strange
Atty:  Green, Rodman
Experts:  Cohen, Straubinger, Shea

The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia.  A dissenting  commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis.  Gentry v Kraft Food Inc., DOLIR 8-11-11.