The tale begins in June 2005 when a 43-year old claimant states his back and leg hurt lifting a shop vac out of a van. Claimant ultimately sought treatment in mid-July and by the end of the summer he was diagnosed with a disc herniation. By January 2006 claimant had a L3-5 fusion. In 2007 claimant was back in surgery again for a failed fusion and underwent revision surgery. He described constant back and hip pain. His surgeon felt he could work and could not explain claimant’s symptoms from a solid fusion. Claimant, as the company owner, apparently self-directed care back to his own personal surgeons (Kennedy and Robson) and pain management with Drs. Barry and Rachael Feinberg. Claimant’s testimony was unchallenged that he earned $1000 a week despite the lack of any documentation.When the last accident was of a magnitude to render claimant disabled by itself the prior conditions are ignored. In this case after claimant’s accident in 2005 he treated for several years, underwent two multi-level back surgeries, and the specials approached $400,000. Claimant described severe symptoms with any activity and a need to lie down frequently for pain relief. ALJ Kohner noted it was “confusing” that Dr. Poetz alternately appeared to argue that that the Fund was liable, unless it wasn’t, and then the employer was liable.
Dr. Poetz, claimant’s expert, did not testify there was any synergistic effect with prior back disabilities to invoke any Fund liability. In a different time this type of case was a slam dunk for fund liability with claimant's 7 year history of back pain, previous settlements for disability, a prior two-level fusion, and an incapacity to work for most of the 4 ½ years before his latest accident. The ALJ found Dr. Poetz’ opinions the last accident alone rendered claimant PTD was the only “clear forensic evaluation on this issue.” The ALJ noted the testimony was apparently admitted without objection to Dr. Poetz’ qualifications and that he “appears” to be a licensed physician to render such opinions.The ALJ awarded open medical and concluded expert testimony from Dr. Robson that he had nothing further to offer orthopedically could not be construed that claimant did not require any future care. The ALJ accepted that claimant may require imaging studies and additional conservative treatment. Claimant testified he treated his intractable back pain with Aleve and felt stronger medications impaired his ability to interact with his children.
These facts beg the question whether claimant was not already an odd-lot total even before the latest accident if the only way he could work was by being his own boss. The fact that claimant failed attempts to return to work after the 2005 accident appears to only reinforce that issue. The ALJ noted claimant started his own firm because he could not find any job in the labor market with his restrictions and as the owner he had the unique ability to control his own accommodations and avoid activities. Claimant had been out of work because of chronic back pain and had operated the business for only a few months before asserting he had a new injury.