Emenegilda Vargas vs. Costco

Client: Liberty Mutual and Costco

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

**Results may vary depending on your particular facts and legal circumstances**

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.

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.

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.  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 examination 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.

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.

With respect to the right shoulder derivative injury, Judge Thuring found both experts to be credible. The Judge 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.  Accordingly, 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.