A Table 53 rating cannot be assessed if there are no objective findings.

Ilene Feldmeier recently successfully defended a claim to overcome a Division IME regarding MMI and determine permanent impairment. The claimant in this case was in a motor vehicle accident while driving a shuttle bus. The claimant allegedly injuries to her neck and shoulder but objective testing never revealed any acute injuries. The claimant was ultimately placed at MMI with no impairment. The claim requested a Division IME (“DIME”) and the DIME concurred that the claimant was at MMI with no impairment. After the DIME was completed, the claimant underwent a shoulder MRI that showed degenerative changes and a potential tear. The claim sought to overcome the DIME arguing that the MRI findings showed she was not at MMI and needed further treatment, including surgery. The claimant obtained an IME to support her claims. The claimant also testified that she injured her neck severely at the time of the injury and still had limited range of motion that justified permanent impairment. Respondents obtained an IME to support the DIME’s placement at MMI and testify that the MRI findings were common in most of the population the same age as the claimant. The IME also concurred with the DIME that the claimant did not have any cervical impairment based on the lack of objective findings. Respondents also obtained video taken in the shuttle at the time of the accident and police reports. This evidence established that the accident was minor, the mechanism of injury could not cause a shoulder tear, and that the claimant appeared only slightly shook up after the motor vehicle accident – not acutely injured and unable to rotate her neck as she claimed. Respondents effectively argued that the claimant was at MMI for the work injury and further treatment for the shoulder MRI findings were related to degenerative changes and aging. The ALJ concurred and found the claimant failed to overcome the DIME regarding MMI. Respondents also effectively argued that a table 53 rating for the cervical spine only applied if there were objective findings to support an injury. Subjective complaints of pain and tenderness were not objective findings of an injury. This is supported by the AMA Guides and the Impairment Rating Tips. The ALJ concurred and found the claimant also failed to overcome the DIME regarding permanent impairment. The DIME’s opinions were affirmed.

Maria Del Real vs. ABM Indus. and Indemnity Ins. Co. of North America, W.C. No. 5-096-820-002

June 2021 Newsletter