Case Study
This is a patient who injured his back in the course and
scope of his employment. The patient’s evaluator physician assigned a 12%
permanent impairment rating to the body as a whole as a result of injury.
A physician selected through workers comp commission assigned a 3%
permanent impairment rating to the body as a whole.
The trial court found that the employee rebutted the
statutory presumption of accuracy afforded the commission Doctor’s rating
by clear and convincing evidence and awarded 12% Permanent Impairment
rating to the body. The employer has appealed. After reviewing the
record as they required doing, they affirm the trial court’s judge.
Back
ground: the patient‘s job
required him to lift coils that weighted thirty to eighty pounds. On
April 2008, he was lifting a core and twisting to place it on a table
when he heard a “pop” in his lower back and felt pain in his back and
tingling in his buttocks. He reported the injury to employer and received
treatment at Urgent care.
Past
medical records: the patient’s treating
doctor testified that in 2008, his MRI showed retrolisthesis with a
posterior bulge at L5-S1 and an annual tear in the posterolateral aspect
of the L5-S1 disc. The MRI indicated also the left S-1 nerve root was
pinched between the left disc extrusion and left hypertrophy facet joint.
The retrolisthesis was most likely a preexisting asymptomatic
condition that was aggravated by the work accident. The treating doctor
prescribed conservative treatment and physical therapy for patient. In 2010,
the patient was sent to an evaluator for impairment rating. At the time
of the exam, patient had ongoing pain in his lower back as well as
bilateral leg pain. The doctor opined that the left S1 nerve root is
probably pinched. The x-rays also revealed the patient had mild
spondylolisthesis. According to the examiner, the patient had ongoing
radicular pain and radiculopathy. The examiner assigned a 12% impairment
rating to the body as a whole based on the 6th edition of AMA
Guides. he based this rating specifically on the portion of Table 17-4
located on page 571 of the AMA Guides. He explained that when a medical
condition maybe rated under more than one section of the AMA Guides, the AMA
Guides call for applying the section that provides the higher rating.
The parties also obtained an evaluation through the
commission workers comp Doctor. He examined the patient in august 2010.
He agreed with MRI of Lumbar spine and also determined ongoing pain,
decreased sensation, limited leg extension with no muscle atrophy or
spondylolisthesis as the previews doctor stated. After diagnosing low
back pain, the commission Doctor classified the injury as a sprain/strain
of Lumbar spine and assigned a 3% impairment rating to the body as whole
under the AMA Guides, based specifically on the soft Tissue and
nonspecific conditions portion of Table 17-4 located on page 570. The
commission Doctor’s report was introduced into evidence but he did not
testify in person or by deposition.
At this time, the evaluator Doctor argued with commission
doctor that pain, decreased sensation, limited leg extension, atrophy,
and leg pain were consistent with radiculopathy. As a result, the
evaluator doctor opined that the commission doctor erred in treating the
injury as sprain/strain and in assigning an impairment rating under the
soft tissue and nonspecific conditions portion of the AMA Guides.
At the time of the trial, after considering the live
testimony and deposition, the trial court determined that the patient
injured his lower back in the course and scope of his employment and
suffered a 12% permanent partial disability to the body. The employer
appealed and on appeal, the employer argues that the trail court erred in
failing to apply the 3% impairment rating assigned by the commission
doctor and that the award was otherwise excessive.
When expert medical testimony differs, it is within the
trial judge’s discretion to accept the opinion of one expert over
another.
Under the law, written opinion as to the permanent
impairment rating given by the independent medical examiner selected
through commission workers comp process shall be presumed to be the
accurate impairment rating unless “rebutted by clear and convincing
evidence to the contrary.
Conclusion: in awarding 12% permanent partial Impairment
rating the trial court relied on treating doctor evaluator rating and
found the commission’s 3% impairment rating was “inconsistent with the
lay and medical testimony in this case.
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