Client: Liberty Mutual and Costco

Trial attorney:  Ana-Eliza T. Bauersachs, Esq.
Brief attorney: Katherine H. Geist, Esq.

The petitioner filed a Motion for Medical and Temporary Disability Benefits in which she initially only sought treatment for the right shoulder.  Respondent initially opposed the motion as petitioner’s attorney failed to attach any medical documentation in support of the motion.  The petitioner then saw Dr. Becan who recommended treatment for not only the right shoulder but for the back as well.  Therefore, respondent scheduled a need for treatment examination with Dr. Yalamanchili to address the back (a report from Dr. Spagnuola addressing the right shoulder was previously secured.)

Trial on the motion started with the testimony of the petitioner. However, she subsequently filed two additional claim petitions alleging occupational exposure and a specific injury.  Therefore, the petitioner returned to Court for additional testimony.  Dr. Becan testified on behalf of the petitioner.  Dr. Spagnuola on respondent’s behalf with respect to the right shoulder and Dr. Yalamanchili testified with respect to the back.

Thereafter, both sides prepared briefs.  Therein, respondent highlighted the following legal arguments:

  1. The petitioner failed to meet her burden of proof that her right shoulder condition is causally related to her employment with the respondent. In making this argument, we focused on Dr. Spagnuola’s superior qualifications and evaluation. We argued that Dr. Becan completely neglected to examine the petitioner’s left shoulder during his only evaluation of her.  Further, we noted that petitioner herself testified she did not overuse her right shoulder while she was recovering from surgery and only worked for respondent for two and a half months before her right shoulder started to bother her.
  2. The back aspect of this claim must be dismissed as the petitioner failed to show that her current need for treatment to the back is related to the original work-related injury, and respondent provided expert testimony showing that any related back injury fully resolved. In making this argument, we again focused on Dr. Yalamanchili’s superior qualifications and evaluation. We further highlighted petitioner’s extensive history of pre-existing back complaints; lack of complaints with respect to the back following the work-related injury; and petitioner’s perceived lack of credibility.
  3. The petitioner is not entitled to temporary benefits as she failed to meet her burden to prove that she has sustained lost wages as a result of the compensable accident. In making this argument, we noted that the respondent consistently accommodated petitioner’s light duty restrictions.  Further, we argued petitioner had not provided a single report indicating she is unable to work as a result of the work-related accident.

 

In his Oral Decision, Judge Thuring found that the petitioner failed to provide any evidence that she was placed out of work for a work-related condition. Therefore, absent evidence that petitioner was placed out of work for the work-related injuries, the request for additional temporary disability benefits was denied. The Judge noted that, according to the testimony adduced at trial and the medical records reviewed, it appeared that the petitioner received temporary disability benefits for the appropriate period.

With respect to the back, the Judge opined that the petitioner failed to show that she needed causally-related back treatment.  In making this decision, Judge Thuring first discussed the quality of the experts presented in Court.  He noted that Dr. Becan, petitioner’s expert, was well-known to the Court and admitted as an Expert Medical Examiner. However, he juxtaposed those qualifications with those of Dr. Yalamanchili, noting Dr. “Y” was a Board-Certified, Fellowship Trained Orthopedist, who is an active treater and routinely performs surgeries.  He thus felt that Dr. Yalamanchili’s credentials were superior to those of Dr. Becan.  Judge Thuring found both experts credible, but gave greater weight to respondent’s expert’s opinion.

Next, the Judge discussed the doctors’ respective examinations and review of the medical records.  He noted that Dr. Yalamanchili had reviewed petitioner’s family doctor records and was well-aware of the petitioner’s prior history of back pain.  In contrast, Dr. Becan admitted that he did not review petitioner’s family doctor records and was entirely unaware of the prior back issues.  When questioned as to what impact the family doctor records would have on his opinion regarding causal relationship, Dr. Becan testified that he could not offer an opinion in this regard without having seen the records.  Therefore, the Judge opined that Dr. Becan could not properly address causal relationship as he had not seen the family doctor records.

Lastly, the Judge indicated he did not find the petitioner very credible.  He noted that, while under oath, the petitioner repeatedly represented that she had no history of prior back complaints.  Judge Thuring then noted that during cross examiantion the petitioner testified that she was seen by her primary care physician for back pain on a regular basis for more than seven years before the initial work incident.   He indicated that he usually forgives petitioners when they do not remember one or two visits from 10 years ago, but he was troubled by the fact that petitioner continuously denied prior back complaints despite being seen for lumbago on multiple occasions for nearly a decade.

Therefore, Judge Thuring concluded that the petitioner sustained a lumbar sprain which had completely resolved.  He found she was not entitled to any authorized treatment.

The toughest part of this claim was the petitioner’s alleged derivative right shoulder injury.  The petitioner asserted that, due to her left shoulder injury, she overcompensated with the right shoulder and now needed treatment.  With respect to the right shoulder, Judge Thuring first described the quality of the experts presented in Court.  Again, Judge Thuring found both experts to be credible. But that is where the similarities ended.  He noted, again, that Dr. Becan is well-known to the court and was admitted as an Expert Medical Examiner, while Dr. Spagnuola is a Board-Certified, fellowship trained, orthopedic surgeon.  The Judge further differentiated the experts by noting that Dr. Spagnuola continues to actively treat and perform surgeries, while Dr. Becan’s practice consists of exclusively IMEs and he has not treated in eight years.

Judge Thuring then discussed the quality of the doctors’ respective evaluations and review of the petitioner’s medical file.  He agreed with our argument that in order to determine whether this petitioner had to overuse her right shoulder, Dr. Becan should have examined the left shoulder to determine its level of function.  The Judge noted that Dr. Becan did not examine the left shoulder and, therefore, opined that the doctor’s examination was incomplete. In contrast to Dr. Becan’s examination, Dr. Spagnuola did evaluate both the right and left shoulders and gave the Court his findings with respect to each.   Judge Thuring further noted that Dr. Becan examined the petitioner on only one occasion, while Dr. Spagnuola evaluated the petitioner on two occasions and reviewed the MRI of the right shoulder (which we authorized without prejudice at the Court’s urging.)  In light of the above, the Judge agreed with Dr. Spagnuola’s conclusion that that the right shoulder pathology is degenerative in nature and not related to the workers’ compensation claim.

Category: Recent Wins