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.
