The Perpetual Additur: A Short Survey of Del. IAB Decisions Seeking Additional Body Parts
I almost titled this post “Two out of Three Ain’t Bad” after one of my all-time favorite songs by Meat Loaf. What is it about work comp and what I would call the “perpetual additur”? That vexing habit of the injured worker and the claimant bar (and the treating docs) to always be adding onto the initial claim. For example, an accepted shoulder claim often sees a later-filed DACD for the neck and vice versa. And then, you have your whole gamut of cases where we try to add the right leg to a left leg claim or a left arm to a right arm claim on the theory of overcompensation. And don’t even get me going about those misbegotten souls who want to add psych to what would otherwise be a credible and legitimate physical injury. For the love of God, where will it end?
Today’s post is about three very recent decisions of the IAB where the claimant couldn’t leave well enough alone. Two of the three outcomes were defense friendly and the remaining decision went in favor of the claimant (represented by the ever-genial and always-insightful Fred Freibott).
Maria Reyes v. City of Wilmington, IAB Hr’g No. 1350709 (Sept. 4, 2014) Claimant has a 2013 left foot fracture that she attributes to a 2010 accepted low back injury. Dr. Jeff Meyers testifies for the claimant and Dr. John Townsend testifies for the employer. The basis of the causal relationship to the back injury was radiculopathy in the left lower extremity and a history that when the claimant stood up to relieve symptoms of cramping and numbness in the leg while reclining, her leg gave out and she fell, fracturing her left foot in the process. Benefits awarded.
Michael Tedesco v. Bayhealth Medical Center, IAB Hr’g No. 1332545 (Aug. 25, 2014) In this little ditty, claimant has a compensable knee injury in 2009 and seeks in 2014 to add a surgery and period on going total disability to what started out as a fairly benign claim. Dr. Richard DuShuttle testified on behalf of claimant and Dr. Elliott Leitman testified for the employer. Dr. Leitman had the benefit of having evaluated the claimant back in the day, and then again in connection with the current claim. Compelling the Board’s deliberations in favor of the employer was the fact that there was an almost 4 year hiatus in treatment. Benefits denied with defense lawyer Keri Morris-Johnston offering a bravura performance.
Georgia Redmon v. Wilgus Assocs., IAB Hr’g No. 1400998 (Sept. 2, 2014) This case in particular captured my fancy because it was about migraines. In June 1013, Claimant was in a work-related motor vehicles accident. Claimant filed a DACD seeking to have headache added to the claim along with an award of total disability. Dr. Manonmani Antony testified for the claimant and Dr. William Sommers testified for the employer. John Ellis put on an excellent case for the employer and here is what it came down to:
Dr. Sommers is a neurologist who regularly treats headache patients while Dr. Antony is a pain management doc, the focus of whose treatment was claimant’s low back and cervical spine.
Dr. Sommers reviewed claimant’s pre-work injury medical records where Dr. Antony did not.
Claimant missed work monthly due to migraines prior to the work accident, a compelling circumstance of which Dr. Antony was not aware.
Claimant misrepresented her prior history of which there was fertile documentation of various modalities of headache treatment. (Very fertile…… think Michelle Duggar in her thirties)
Okay, so this is what keeps us all in business. This and medical treatment litigation . . .More about that next week.
Irreverently yours,
Cassandra Roberts
