This was featured in IICLE which is a case law summary service which is very valuable for lawyers. The moral of the story is that you should get real medical treatment if you are having physical problems, not just pop pills for years. It also shows that the best doctor to discuss your medical condition is your treating physician, not a hired gun.
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In Weaver v. Decatur Overhead Door, No. 98 WC 17022, 2010 WL 896172, 10 I.W.C.C. 0183 (Feb. 23, 2010), the Commission affirmed an arbitrator’s decision finding the petitioner failed to prove a permanent and total disability. The Commission affirmed the award for a 50 percent loss to the person as a whole. The injury occurred on February 21, 2007. The Commission had affirmed a prior arbitration decision following a 19(b) hearing. In this case the arbitrator found the petitioner’s failed-back syndrome was causally related to his accident.
The arbitrator found the petitioner offered a substantial number of physical complaints in his testimony but failed to present convincing evidence that he was disabled to the extent claimed. The arbitrator reviewed the evidence from physicians who had seen the petitioner since the trial in 1999. One of the physicians recommended use of a spinal cord stimulator. The petitioner told another physician he was not interested in this procedure. The arbitrator felt that if the petitioner had the level of pain described at trial it seemed inconsistent that he would not agree to use of a spinal cord stimulator.
Another physician who examined the petitioner on a referral from the petitioner’s treating physician did not feel that the petitioner would respond to any further surgical management. This physician commented that there were significant secondary gain issues and a psychological component to the patient’s pain syndrome.
A physician who examined the petitioner at the request of his attorney was of the opinion the petitioner was permanently and totally disabled.
The respondent’s examining physician testified the petitioner had positive physical exam findings and neurological deficits consistent with the subjective complaints and surgical history. This physician found three out of five positive Waddell signs indicating there was an exaggeration of symptoms and observed that other physicians commented on positive Waddell signs. This physician found the petitioner at maximum medical improvement and felt he was capable of employment at the sedentary, light work level. He supported his opinion on the facts that (1) the petitioner did not need assistive devices to walk, (2) was not bedridden, (3) his pain was managed well, and (4) the petitioner’s activity level and upper body strength. He felt the patient was over-reporting his subjective complaints. The arbitrator found the examination and testimony of this physician credible.
The arbitrator also found the petitioner’s treating physician had done little for the petitioner aside from continuing to prescribe pain medications. In the treating physician’s deposition, taken in 2004, he admitted he had not examined the petitioner’s back since 1999. The arbitrator also observed the doctor’s notes showed the petitioner had called in for refills of narcotic medication while moving his mother-in-law from a hurricane area. The arbitrator found the records demonstrated the petitioner’s pain was well controlled.
Vocational counselors also testified. One reviewed medical records and felt the petitioner was unemployable. This counselor never met with the petitioner and did not test or evaluate him. A second counselor evaluated the petitioner at the request of his attorney in 1999 and gave conflicting opinions. He also evaluated the petitioner at the request of the respondent in 2005 and felt there were employment opportunities with reduced earnings. He testified that his 1999 opinion was based on restrictions from the treating doctor and that his 2005 opinion was based on the opinions of the examining physician.
The respondent retained another rehabilitation counselor who testified to home-based work in which her company specializes. She described the work as telephone customer service survey work. The employer allows a choice of the hours they work and the use of flex time, as well as the provision of training and accommodation for restrictions. She sent various letters to the petitioner and his attorney about this line of work and received no responses. She sent a letter to his attorney advising it was assumed the petitioner was not interested in pursuing employment. She received a letter from the attorney that the petitioner was having the documents reviewed by a vocational counselor. She then sent the attorney an employment application which was never returned. She testified in her deposition that the employment was still available in an entry level position with no physical or job skills requirements. The petitioner admitted he did not contact her about the position and simply informed her he was not interested. The arbitrator found no medical evidence that the petitioner was incapable of performing this type of work.
The arbitrator also found the petitioner offered no evidence of any effort made to find employment or evidence to refute the testimony of the counselor who described the customer service survey work. Accordingly, the arbitrator found the petitioner failed to prove a permanent and total disability and awarded a 50 percent loss to the person as a whole.
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