Sticking your neck out . . . IAB precludes previously unrated cervical permanency

I log on this morning and what greets me but a gift from James Donovan of Doroshow, Pasquale, Krawitz & Bhaya.  A little tidbit of wisdom he offers for my CaseLaw Update with the comment that this likely isn’t interesting enough for the Detour & Frolic.  Says who?  I think this case has just enough drama to merit a post and, thankfully,  I get to be the judge.

William Wroten v. Lowes Home Centers, IAB No. 1358700 (Apr. 17, 2017)  This is a claim for 23% permanent impairment to the left upper extremity and 37% impairment to the cervical spine. Take note as to that  37% on the C-spine as it will come back to haunt you, if you are the defense lawyer.  So the matter is referred to Dr. Jonathan Kates for a defense medical evaluation. Curiously, although the employer had accepted the cervical spine as compensable, Dr. Kates did not agree and did not rate the cervical spine—apparently, there was testimony as to a C-spine rating at his deposition, to which claimant’s counsel objected. .  His rating for the left shoulder was 14%.

In the Board’s decision, it considered the claimant’s evidentiary objection to the ad hoc Kates permanency rating.  And struck it from the record.  Ouch!   Bottom line is that claimant was awarded his 23% left upper extremity and 37% cervical spine impairments based on the testimony of Dr. Rodgers.

And this raises an all too common plight of the defense—what to do when the defense medical expert wants to dispute a “causal relation-ship”  which has already sailed.  Let it be fairly said that when this happens at the hearing level, the Board is usually having none of it and it without question erodes the defense expert’s credibility.  In this case, there is a suggestion that the dilemma might have been remedied with an addendum report adding a cervical permanency rating to the record pre-deposition.

Well done, young Donovan, well done!

Irreverently yours,

Cassandra Roberts