The claimant alleged a work related injury occurred on May 16, 2023 wherein he was unloading and loading a truck and experienced pain, injuring his lower back, right leg, and right great toe. While the claimant is still attached to the employer, he has not returned to work since the date of injury. This claim was controverted.
The claimant’s treating physician diagnosed the claimant with radiculopathy and opined that the claimant’s injury was causally related to his work. During the deposition of the treating physician, LOIS attorney Natalia Verde obtained several concessions, as well as highlighted several weaknesses in the medical report. We scheduled the claimant for an IME to comment on causal relationship of the back. The claimant was diagnosed with a lumbar spine strain/aggravation of degenerative disc disease and causal relationship was found by the IME doctor. The IME doctor further opined that the claimant has a 75% temporary partial disability. Despite the unfavorable opinion in the IME report, we found several weaknesses in the IME report that we would highlight in the IME doctor’s deposition and in our summation brief.
At the next hearing, we took the claimant’s testimony and confirmed that he had several prior back injuries after the claimant testified on direct examination that he had no prior back injuries. We confirmed that he had prior back surgery around 1994, a prior workers’ compensation claim in 1994 when he worked as a night crew and an additional claim in 1996 when he worked as a cook. After we discredited the claimant, we presented two employer witnesses. The first employer witness was the claimant’s general manager who we used to establish the timeline of events. This employer witness testified that he learned of the incident on May 16, 2023 through email and that he learned that the claimant arrived at work on May 16, 2023 with back complaints and that the claimant had not taken his medication that day. After we had the employer witness testify regarding the alleged date of accident, we discussed the employer witness’s subsequent communications with the claimant. We had the employer witness testify to a conversation he had with the claimant after the incident where the claimant stated that the back pain was not work related. We then presented another employer witness who was present with the claimant when the alleged injury occurred. This employer witness testified that one the date of the alleged injury, the claimant was seated when he stated that he had back pain and that it was likely a flare up of a prior injury. After we had this employer witness testify as to what she personally saw and heard regarding the incident, we focused on the fact that this employer witness personally filled out the incident report with the claimant on the phone. We had the employer witness testify that as she was filling out the report, the claimant did not state that any no specific work activity caused his back pain. Lastly, we asked the employer witness about her knowledge of any prior back injuries that the claimant had and had the employer witness testify that she was aware of a prior herniated disc injury/pinched nerve that the claimant had.
We submitted our Summation Brief arguing that the entire claim should be disallowed because the accident did not arise out of or in the course of employment but was rather idiopathic and pre-existing. Our summation brief focused on the timeline as presented by our employer witnesses. We argued that the claimant’s back pain was pre-existing because, as one employer witness testified, on the date of the alleged injury, the claimant mentioned that he had not taken his medication and this occurred before 10:22 AM. While we bolstered our employer witness’s credibility, we discredited the claimant’s credibility. We argued in our summation brief that the claimant provided different mechanisms of injuries and timelines to his treating physicians and the IME doctors. We then relied on medical testimony to support our argument that the claimant’s back pain was idiopathic and pre-existing by highlighting the fact that on cross-examination, the IME doctor testified that the claimant prior back surgery could cause the disc below to degenerate as seen by the claimant’s complaints. Additionally, we argued that the claimant failed to meet the burden of proof as with idiopathic injuries, the claimant bears the burden of showing that the injury was caused by a risk incident to the employment, which was not shown.
Lastly, we argued that if the injury was found compensable, the claimant failed to meet the burden of proof for causal relationship as there was no competent medical evidence. In this argument, we focused on the fact that the IME doctor and treating physician were unaware of the claimant’s extensive prior history of back pain and that their reports relied on the claimant’s self reported history rather than objective medical findings.
The Law Judge issued their Reserved Decision finding that the claim was disallowed and finding all C-8.1Bs in favor of the Carrier. The Law Judge focused the decision on the credibility of the employer witnesses compared to the claimant. The Law Judge found that the testimonies of the employer witnesses were more credible than the testimony of the claimant as the claimant initially denied any prior back injuries but later admitted during cross examination that he had prior back injuries. The Law Judge also found that the claimant’s back pain as of May 16, 2023 was due to his prior back injuries. Lastly, the Law Judge found that the testimonies of the IME and treating doctor found causal relationship without the benefit of review of all prior medical records and that their medical opinions were based on the claimant’s self-reporting symptoms which the Law Judge found unreliable.
While we did not anticipate a high LWEC finding, we did discuss settlement authority up to $25,000 for a full and final settlement.
