Overcoming the DIME and Permanent Total Disability

Michelle Prince successfully defended a permanent total disability (PTD) claim of a 66 year old Spanish-speaker with alleged CRPS.

Claimant was a janitorial worker who was injured when operating a floor scrubber. She received extensive treatment and a Division Independent Medical Examination (DIME) eventually assigned claimant a 24% whole person rating for CRPS.

Respondents sought to overcome the DIME, and in conjunction with the defense of the claim, Michelle obtained extensive prior records. Respondents’ experts reviewed the prior records and concluded that claimant had a pre-existing somatoform disorder and that her immediate injury had not resulted in any impairment or need for work restrictions. The authorized treating physician and the Division IME maintained that CRPS was present and light duty restrictions were applicable to the 2014 claim.

Both parties presented testimony from vocational experts at hearing. Claimant’s expert testified that based on the light duty restrictions, claimant was unemployable within the small town where she resided and could not drive to larger surrounding metro areas. Respondents’ vocation expert testified that it was more appropriate to use the full duty work release supported by respondents’ experts. She further testified that regardless of which restrictions were used, claimant was employable because claimant had demonstrated the ability to find transportation to jobs in the nearby metro area despite never having been able to drive.

The Administrative Law Judge (ALJ) credited the opinions of respondents’ experts and found that Michelle had successfully overcome the DIME opinion. The AlJ found that claimant had not sustained any impairment as a result of the work injury despite nearly three years of treatment. She further found that claimant had failed to prove by a preponderance of the evidence that she was incapable of earning wages in the same or similar employment and denied her request for permanent total disability benefits.

Nohemi Rodriguez v. Kellermeyer Bergenson, W.C. 4-981-951 (August 21, 2018)

Claim Handling Tip: Records from prior claims should be obtained even when it relates to a different body part. The records may still contain relevant information such as information concerning restrictions or “longstanding psychological issues” that could explain non-physiologic presentations.

Would you like to know more? Contact Michelle Prince at mprince@pollartmiller.com or 877-259-5693.


From the March 2019 Newsletter