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Judge agrees with WLSC: Medical, Vocational Evidence Rules Out PTD Claim

Aug 11, 2013 - News by

Claimed L2 back injury didn’t prevent work, work and more work

Allison Chittem Hartnett and Lourdes C. de Armas-Suarez obtained a favorable ruling on behalf of WLSC’s Employer/Carrier client, defeating a workers’ compensation permanent and total disability claim. The Claimant in this case was working as a mezzanine installer when he suffered a compensable fall from a mezzanine and injured his back.

Medical treatment was authorized and the Claimant was diagnosed with a L2 compression fracture. Back surgery was performed and the Claimant was placed at maximum medical improvement approximately one year thereafter. Subsequently, the Claimant treated with a psychiatrist, Dr. Diaz, and a physiatrist, Dr. Tannenbaum. After previously filing and dismissing Petitions for Benefits twice before, the Claimant filed a third claim for Permanent and Total Disability benefits asserting that based on his physical and vocational limitations, he was unable to work in a sedentary capacity within fifty miles of his home. The defense theory was that the Claimant had shown the ability to work throughout the years and that surveillance called into question his credibility.

During the three day workers’ compensation trial, medical and vocational evidence was presented to the Court from both the Claimant and the Defendants. With regard to the Claimant’s psychological state, the treating psychiatrist, Dr. Diaz, testified that the Claimant was capable of working on a full duty work status with limitations on pace and concentration. As for the Claimant’s physical condition, the treating physiatrist, Dr. Tannenbaum, opined that the Claimant’s work restrictions included a 20 to 30 pound lifting restriction, and allowance of stretching every hour or two. During Dr. Tannenbaum’s deposition, the doctor was presented with a surveillance video of the Claimant. Dr. Tannenbaum did not believe that the contents of the surveillance video was consistent with the manner in which the Claimant presented himself within the doctor’s office.

Dr. Tannenbaum also opined that the Claimant had not been fully candid with him as to the Claimant’s abilities. Vocational experts’ opinions were also presented to the Court on behalf of both the Claimant and the Employer/Carrier.

In addition, Mrs. Hartnett and Mrs. de Armas-Suarez submitted evidence which ultimately established that the Plaintiffs’ had performed various jobs in a supervisory capacity after his work accident, including a job that required him to fly to the Turks and Caicos Islands, a job that required him to travel to other counties in Florida, and a job performing work in an automobile repair shop.

Evidence on behalf of the Employer/Carrier was also presented that the Claimant had his own business and had physiologically moved around sufficiently to work for his own business. After the conclusion of the trial, the Court issued a comprehensive Final Compensation Order stating that the medical and vocational evidence warranted a denial of the Claimant’s permanent total disability claim. The Judge found that the medical evidence demonstrated that the Claimant could at least work in a sedentary capacity within fifty miles from his home. The Judge also ruled that the evidence demonstrated that the Claimant was able to perform several jobs, could communicate in English, and worked as a supervisor post-accident and surgery.

The workers’ compensation Judge also found the Employer/Carrier’s vocational expert to be credible and accepted all of his opinions over the Claimant’s vocational expert. The Employer/Carrier vocational expert’s opinions substantiated that the Claimant could work from a vocational standpoint and that there was potential work available for the Claimant in the Miami-Dade County labor market, despite the Claimant’s vocational and physical limitations. Over the Claimant’s numerous objections to the surveillance tapes, the court admitted the surveillance into evidence.

Based on the surveillance and the Claimant’s demeanor at the trial, the Judge found the Claimant exaggerated the overall impact of his compensable accident and surgery, found inconsistencies in his deposition testimony and live testimony, and ultimately found him not to be a credible witness. In conclusion, the Court found that after considering all of the evidence, the Claimant did not prove that he was entitled to permanent total disability benefits.

— Lourdes de Armas-Suarez

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