By Cassandra Roberts, Esq.
As promised, I am continuing to make CaseLaw Update available through the Detour & Frolic. And because I never met a case I didn’t like, I give you the following highlights……………..
From the January 18, 2017 Update:
- Dental Disfigurement due to missing teeth from heavy narcotic usage for work-related injury, check out Virgil Pugh & Kieran Sniadowski
- DME doc Fedder trumps treating doc Rudin in a surgery case in Barbara Zakarewicz
- There is no such thing as an after-the-fact “payment without prejudice”, see Ivan Taylor
- In another “Chris Baum Cherishable”, the Brenda Boyce decision contains a mini-treatise on the standard required for Res Judicata and Collateral Estoppel
- Priors on the down low…..IAB rescinds Agreement as to Comp where Claimant less than candid as to his pre-existings in Christopher Moore
- Taking a ride on the “resolved train” are Tamaryn Gardner and Kenyatta Brooks
- Ketamine on parade in Calvin Wilkerson and Sandra Thurston
From the May 2, 2017 Update:
- For a “casual employee” case, see Mary Lou Vail
- An example of “actual displacement” can be found in Walter Wright
- Bertha Schwartz is awarded residential nursing case
- The out-of-state medical provider amendment is not retroactive, so says the Stephanie Saulsbury case
- Vernon Robinson and a “popliteal pseudo aneurysm” related to work activity
My hope is to eventually have every CaseLaw Update archived, going back to the beginning, 20 plus years ago. A girl can dream, right? J
I log on this morning and what greets me but a gift from James Donovan of Doroshow, Pasquale, Krawitz & Bhaya. A little tidbit of wisdom he offers for my CaseLaw Update with the comment that this likely isn’t interesting enough for the Detour & Frolic. Says who? I think this case has just enough drama to merit a post and, thankfully, I get to be the judge.
William Wroten v. Lowes Home Centers, IAB#1358700 (4/17/17.) This is a claim for 23% permanent impairment to the left upper extremity and 37% impairment to the cervical spine. Take note as to that 37% on the C-spine as it will come back to haunt you, if you are the defense lawyer. So the matter is referred to Dr. Jonathan Kates for a defense medical evaluation. Curiously, although the employer had accepted the cervical spine as compensable, Dr. Kates did not agree and did not rate the cervical spine—apparently there was testimony as to a C-spine rating at his deposition, to which claimant’s counsel objected. . His rating for the left shoulder was 14%.
In the Board’s decision it considered the claimant’s evidentiary objection to the ad hoc Kates permanency rating. And struck it from the record. Ouch! Bottom line is that claimant was awarded his 23% left upper extremity and 37% cervical spine impairments based on the testimony of Dr. Rodgers.
And this raises an all too common plight of the defense—what to do when the defense medical expert wants to dispute a “causal relation-ship” which has already sailed. Let it be fairly said that when this happens at the hearing level, the Board is usually having none of it and it without question erodes the defense expert’s credibility. In this case, there is a suggestion that the dilemma might have been remedied with an addendum report adding a cervical permanency rating to the record pre-deposition.
Well done, young Donovan, well done!
This one comes to me from my dear one, Bob Richter, in his finest hour, along with DME doc Dr. Jason Brokaw. Dr. Brokaw is a pain management expert who has recently enjoyed his share of victories in the credibility contest. This case highlights an ongoing script for high-dose opioids which was non-certified by Utilization Review—quite remarkably, for an individual who was working heavy duty carpentry work.
So what was the diagnosis? Bulging discs at multiple lumbar levels (isn’t a bulging disc a clinical variation of normal?)
What were the meds? Oxycodone, 90 mg daily (6 daily), Flexeril and Ambien, plus Lidocaine cream
Co-morbidities? Obesity and 1 kidney (the kidney situation precluding the use of NSAIDs)
The outcome? The Board orders a weaning from Claimant’s current high level of opioid usage, with the following observations:
- Dr. Balu’s recordkeeping is so haphazard that a critical document (the Narcotic Noncompliance Documentation Report completed in April 2016) was not produced until December 2016.
- Of greater concern, is Dr. Balu’s failure to do what he himself states should be done…….. manage Claimant’s pain with the least amount of medication.
- Long-term opioid usage is not generally endorsed.
- Considering that Dr. Balu has, by his own admission, not even attempted to wean down the Claimant’s opioid usage, the Board accepts Dr. Brokaw’s opinion concerning that proper balance over that of Dr. Balu.
The case is Jeffrey Sprouse v. John L. Briggs & Co., IAB#1272196 (4/25/17). Let the good times roll on the medication weaning process……..next stop, medical massage?