Michael R. Duffy

We received a favorable decision that saved our client millions of dollars. The claimant filed a claim petition alleging he sustained a left shoulder dislocation, stroke, traumatic brain injury, gait dysfunction, central pain syndrome and post-traumatic seizures as a result of a fall at work. After the claimant fell at work and sustained a left shoulder dislocation, he went to the hospital for the dislocation, was treated and discharged. Four days later he sustained a stroke at home. He had multiple surgeries and was hospitalized for four months. He is severely disabled as a result of the stroke and requires full-time care. The claimant initially alleged he sustained a head injury from the fall at work which caused the stroke. He claimed he was bleeding from his nose and mouth and had a laceration to his forehead. We were able to show that did not occur by presenting fact witnesses who established the claimant fell off one step, never hit his head, was not bleeding from his head or face, only dislocated his shoulder, and was discharged home without issue. Claimant’s counsel then alleged the claimant’s stroke was related to a spike in his high blood pressure that placed him in a hypertensive crisis resulting in the stroke. We showed that the claimant had unregulated high blood pressure before the work injury and that he was released from the hospital with high blood pressure, but not enough to be in hypertensive crisis. The judge agreed with our arguments, finding that the claimant only sustained the agreed-upon shoulder dislocation. Therefore, the claimant was awarded one day of wage loss benefits for the shoulder dislocation. The stroke, traumatic brain injury, gait dysfunction, central pain syndrome, and post traumatic seizures were denied and dismissed. As the claimant is only 48 years old and his compensation rate resulted in $30,000 a year wage loss benefit, wage loss for the rest of his life would likely have been around $1 million. The claimant’s medical costs were going to be much higher as he requires round-the-clock care, which over his lifetime would have cost millions. His hospital bills alone were over $1 million, and claimant’s counsel would have argued for home modifications and vehicle modifications. Instead, the claimant will receive a one-day payment of about $88.

We received an opinion from the Workers’ Compensation Appeal Board affirming the decision granting our termination petition. The employer had accepted an “upper back area” injury through a Notice of Compensation Payable. Prior to issuing the NCP, the employer secured an IME, where the doctor ultimately opined that the claimant was fully recovered from a lumbar sprain. The workers’ compensation judge found that the claimant was fully recovered from the work injury based upon the credible opinions of the employer’s medical expert. The claimant appealed, arguing the termination was improper as the IME occurred before the NCP was issued; therefore, the change in condition needed to occur after the NCP. Additionally, the claimant argued the termination was improper as the IME doctor found a different injury than the injury noted on the NCP. The Appeal Board opined that the employer sustained its burden of proof as its expert’s testimony constituted substantial evidence, sufficient in nature to meet its burden of proof. The Appeal Board further found that since the employer was not disputing an injury occurred, it was not attempting to re-litigate whether the claimant sustained a work injury. Rather, it was disputing whether the claimant was still disabled. The Appeal Board further opined that the claimant’s expert evaluated the whole back and that the credible evidence revealed the claimant was fully recovered.

We successfully defended against two review petitions in a case in which the client had accepted the claim as a right shoulder injury. As the claimant was lowering a trailer to a hitch, the trailer fell a few inches, causing the hand crank to spin and jerk the claimant’s shoulder. The claimant filed a review petition seeking to expand the description of injury to include orthopedic injuries (described as a cervical herniation at C6-7, a protrusion at T2-3, and multilevel disc bulges between C2-C6, cervical radiculopathy, lumbar strain/sprain, right frozen shoulder, right brachial plexopathy) and psychiatric injuries (described as somatic symptom disorder with predominant pain and adjustment disorder with mixed anxiety and depression). The claimant’s second review petition sought to increase his average weekly wage to include an expectant rate based on his communications with his dispatcher about potentially working more hours in the future. We argued the claimant did not seek treatment for the additional injuries until months after the work injury. With regard to the psychiatric injuries, we argued the claimant’s expert did not have a full understanding of the claimant’s past and did not discuss his prior substance abuse issues, familial/marital issues, or how he had dealt with prior workers’ compensation injuries. Furthermore, through cross examination, the claimant conceded he did not really understand what psychiatric treatment he was receiving. The workers’ compensation judge found the employer’s orthopedic and psychiatric experts more credible and persuasive than the claimant’s; therefore, the judge did not expand the injury to include the cervical, lumbar and psychiatric diagnoses. Additionally, the judge found there was no evidence to support a higher average weekly wage and compensation rate as the claimant’s wages reflected what he actually earned.   

The petition was filed by the claimant before an administrative judge. The claimant alleged he was entitled to reinstatement of indemnity benefits after he voluntarily stopped working due to hand pain. We argued the light-duty position available and offered to the claimant was a one-handed position, and presented employer fact witness testimony and video of the light-duty job in rebuttal.