What we have here is a failure to communicate prior symptoms . . .

Jacqui Condon successfully defended a request for a three-level back fusion requested by the authorized treating physician.

The claimant sustained an admitted low back injury from a fall.   The authorized treating surgeon, recommended a L4-S1 decompression and posterior lumbar interbody fusion surgery.  Another physician in the authorized chain opined that claimant had pre-existing degenerative disk disease, but that the fall exacerbated his symptoms, thereby supporting the authorized surgeon’s request for surgery.  The Claimant had reported to his providers that he was essentially asymptomatic for his low back  except for some “arthritis” prior to the injury.

Jacqui conducted substantial discovery, finding extensive pre-existing records and deposing the authorized surgeon, who conceded that he did not address causality as part of his opinion.  A review of radiological studies conducted before and after the injury was conducted establishing that the pathology was not consistent with an acute exacerbation.  Most importantly, the authorized physician conceded that the records were not consistent with the claimant’s report to him that he was “essentially asymptomatic” prior to his injury.  Similarly, the conclusions of the concurring physician were undermined by establishing that the concurring physician’s opinions were based on Claimant’s subjective complaints, which were not credible nor consistent with the record.  Rather, the records accumulated during discovery actually showed that Claimant had been highly symptomatic prior to the work incident.  Jacqui also retained an IME whose comprehensive review established that claimant’s allegation of being asymptomatic before the injury was contrary to the record, and that the MRI findings were completely inconsistent with a worsening of condition due to the fall.

The ALJ ultimately found that claimant’s lack of credibility made it more likely that the claimant’s back reflected the natural progression of his pre-existing condition as opposed to being causally connected to a work related worsening.

The successful defense illustrates that even in cases where the treating physician(s) opine a surgery is reasonable and necessary, the outcome can ultimately turn on the veracity of the claimant’s subjective complaints.  Taking the time to obtain all of the pertinent records, including actual prior radiologic films, and fully exploring the claimant’s credibility can be a viable avenue to defend a challenging claim which otherwise would have resulted in significant liability.

WC 5-028-658: February 20, 2018 SFFCLO (ALJ Michelle E. Jones)

Would you like to know more? Contact Jacqui Condon at jcondon@pollartmiller.com or 720.488.9586.


From the March 2018 Pollart Miller Newsletter