Workin’ on the Down Low……………and a Decision in Guardado v. Roos Foods

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 By: Cassandra Faline Roberts

 You gotta love those Men of Mondell and their ever-capable confrere Elissa Greenberg.  The work comp defense bar can always count on them to carry the banner of our cause with considerable aplomb and a skill set that most would envy in terms of legal acumen and persuasiveness.  And in the instant case, a behemoth of an adversary……none other than Walt Schmittinger, whose Daddy was, in my estimation, the Dean of the Claimant Comp Bar……. So the stage was set for perhaps the battle of the century, the long-awaited Remand Hearing in Magdalena Guardado v Roos Foods, IAB 1405006 (51817).

Bottom Line: The employer prevailed, with a labor market survey in tandem with testimony from Dr. Desmond Toohey, Associate Professor of Economics at the University of Delaware. The vocational rehab specialist was Ellen Lock of Coventry.  The Employer’s Petition for Review as granted as of date of decision and the labor market survey was able to match the pre-injury wage basis, so there was no concomitant award of temp partial.

Of note, there was a preliminary ruling that the claimant was a prima facie displaced worker. The injured worker, testifying with the assistance of an interpreter,  arrived in the United States in 2004 but had only been employed for the last 5 years– by Roos Foods, where her duties were essentially unskilled labor.  She had a fused left wrist as a result of the work accident, and wore a brace on her non-dominant hand.  Had the claimant not achieved prima facie displaced worker status, the Board would not have deemed her to be actually displaced, given a lackluster job search consisting of 11 employment applications “unduly restricted to a single industry (restaurant/food services).”

However, the Board also embraced the “reliable market evidence” mandated by the Supreme Court’s earlier decision,  consisting of the data and testimony of Dr. Toohey, juxtaposed with the labor market survey.  Some of the benchmarks of job availability included the following:

  • Of the approximately 28,000 undocumented workers in the State of Delaware,  roughly 80% of those are gainfully employed.
  • Of the various occupations and industries identified in the labor market survey, Dr. Toohey testified that “there are several thousand unauthorized immigrants in each.”
  • The total labor force in Delaware is 500,000-600,000, and the undocumented worker population is approximately 20,000-25,000 workers.
  • Vocational testimony included the observation that the  need for Spanish-speaking employees is on the rise.

So back to my Men of Mondell, who were asked to weigh in.  From Andy Carmine:

My first comments are that Gary and Elissa deserve the props as their work on the briefs and preparation for the hearing on remand made the difference. In my opinion, the Supreme Court’s decision and the Board’s application of that decision provide a fair and equitable remedy for addressing the issue of undocumented workers’ entitlement to ongoing total disability benefits, as the door is not closed on either party moving forward. There will be undocumented claimants who are able to meet their burden to establish themselves as displaced workers and employers that are able to successfully rebut that contention . That is the way the displaced worker doctrine should be applied, rather than an across-the-board disqualifying factor.  

And from his partner Gary Baker:

As Andy noted, I think the biggest thing to come out of this is the rejection by the Supreme Court of the per  se displacement of all undocumented claimants.  However, as to yesterday’s order, the expectations of the Court in terms of what the employer had to prove in order to satisfy job “availability” from a statistical/sociological perspective were far from clear and still subject to further evaluation.  Andy did a superb job of identifying an expert, and meeting the burden of proof on an untested legal proposition and coming out on the winning side.  However, I suspect there are still more chapters to this story.

I agree with Gary that we have not seen the last of the challenge on this issue.  To the extent that Walt appeals, I will keep you posted.

CaseLaw Update Round-up

 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

Sticking your neck out……IAB precludes previously unrated cervical permanency

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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!

Irreverently yours,

Cassandra Roberts

 

Hanky Panky Doctor Spanky……. Dr. Balu called out for high-dosage opioids and haphazard recordkeeping

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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?

Irreverently yours,

Cassandra Roberts