Arbitrator Finds no Accident on Prospective Cervical Fusion case; Denies Claim for 3 Years of TTD
In a recent case successfully defended by I &F, Petitioner had filed Petitions under Sec. 8(a) and 19(b) seeking authorization for a cervical fusion and 3 years of TTD benefits. Accident and notice were disputed. Petitioner alleged an injury to his neck at work on August 26, 2008. Respondent did not have any information regarding a work accident until the filing of the Application in January 2009. Petitioner saw a reputable treating neurosurgeon in May 2009 and provided that doctor with a detailed history of the accident. The neurosurgeon documented the neck complaints as related to the accident and opined that the Petitioner was in need of a cervical fusion. Petitioner’s attorney also obtained an IME from a well known occupational doctor, with no particular expertise in spinal issues, who concluded that the petitioner suffered an injury to his neck when struck by a dock plate on August 26, 2008 and that he needed further medical treatment to his neck as well as work restrictions.
Handling attorney Terry Donohue immediately subpoenaed records from all known medical providers and quickly established that there was no mention of any cervical accident or even treatment in the treating records for many months. From these records we were also able to demonstrate that the Petitioner was, in fact, obtaining regular medical treatment during this long interval and therefore had access to doctors to whom he could have described the accident. The records also revealed prior neck complaints.
We next arranged an IME from an experienced practicing spinal surgeon and provided him with all relevant records. Our IME observed a wide variety of pain complaints, and multiple non-organic pain signs. From this examination, along with the voluminous subpoenaed records provided, our doctor opined there was no causal connection to the alleged work accident, and further questioned whether an accident ever even occurred.
The depositions of both IME doctors were taken. Due to the care taken in selecting a highly qualified doctor and providing that doctor with all relevant medical records as well as a detailed understanding of the issues involved, our doctor presented as far more credible and better informed than Petitioner’s IME.
At trial Petitioner was repeatedly confronted with the medical records showing that it was many months and numerous medical visits after the accident until Petitioner finally articulated neck complaints and a history of the alleged accident. In addition to the medical evidence, attendance timecards were effectively presented during cross examination to establish that the Petitioner had been untruthful, and that he actually had left work early on that date with an unrelated illness. We also rebutted Petitioner’s explanation, that he feared he would be fired if he notified the employer immediately, by presenting documentation of multiple other prior work accident notifications previously turned in by the Petitioner. Two witnesses from Respondent also testified that, contrary to Petitioner’s testimony, that he had not notified them of the alleged accident until many months later.
As the evidence against him mounted, the Arbitrator observed the Petitioner become increasingly agitated and confrontational. In his Decision, the Arbitrator viewed the Petitioner as exhibiting a complete lack of forthrightness and a lack of respect for the Commission. The Arbitrator found no accident, and denied the requested cervical fusion, and the claim for 3 years of TTD benefits.
Unrelated or unnecessary spinal fusions often present very significant and dangerous exposure scenarios for Respondents if not defended vigorously. This case illustrates how a comprehensive defense based on a thorough presentation of medical and factual evidence can effectively defeat such claims.