Commission Reverses Arbitrator on Basis of Pre-existing Injury

The Commission recently overturned an award of benefits where the principal issue concerned a question pre-existing injury.  In this matter, veteran attorney, Stephen McClary, persuaded the panel that petitioner’s injuries and resulting surgery were the result of a prior non-work related accident.  The facts of this case were as follows:

In July 2010, the petitioner was involved in a demolition derby accident from which he sustained a dislocation of his shoulder.  Following several months of unsuccessful conservative treatment, petitioner’s treating physician recommended a shoulder reconstructive procedure.  Petitioner was unable to take time from his employment during the holiday season and elected to return to work with restrictions until after the holidays had passed.  In November 2010, petitioner was bumped by a co-employee and experienced an increase in his pain to the point where emergency room treatment was sought.  The petitioner then returned to his treating physician advising that he had again dislocated his shoulder.  Without reviewing the emergency room records, petitioner’s treating physician noted that the petitioner had again dislocated the shoulder and undergone a reduction procedure in the emergency room.  The treating surgeon recommended the same surgery as prior to the work injury and petitioner underwent that procedure 3 weeks later.  At his deposition, the treating physician testified that petitioner had worsened his condition by virtue of the additional dislocation.  His reasoning was that with each additional dislocation the chances of successful conservative recovery diminished.  He did admit; however, that the pre and post accident diagnostics revealed the same results. Respondent’s independent medical examiner was of that same opinion.

The arbitrator found the surgery, TTD and medical bills to be related to the accident following the reasoning of the treating physician that the additional dislocation had worsened the petitioner’s condition.  The Commission substantially reversed and reduced the award, finding that the accident was tantamount to a temporary aggravation that resolved itself after the emergency room care at which time petitioner’s condition returned to his pre-accident state.  Furthermore, the Commission pointed out that the emergency room records did not reveal any diagnosis or findings consistent with an additional dislocation.  (Shame on the treating doctor for simply taking his patient at his word without actually reviewing the emergency room records, and for the Arbitrator in failing to follow the evidence).  The Commission awarded the medical bills from the emergency room bill but denied all other bills and TTD.  No further appeals were taken and the Decision yielded an $80,000 savings to the respondent.

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