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Case Name: Richard Popowczak v. Rite Way Tile & Carpet
Venue: Chicago – Arbitrator Hagan
Case No.: 07 WC 01995
Date of Accident: 12/11/06
Petitioner’s Settlement and Trial Demands: Permanent Total: $1,074,305.69
Benefits Awarded: $3,108.76 – Net award after TTD credit of $78,058.38 applied towards permanency award (10% man as a whole).

 

KEY ISSUES:

1. Causal connection disputed as to degenerative herniated disc being aggravated or not by our accident.

2. TTD being cut off by the date of our IME of December 28, 2009, versus the date of trial of May 4, 2011.

CASE SUMMARY BACKGROUND:

This case was tried before Arbitrator Hagan in Chicago on May 4, 2011.  The Arbitrator found that the Petitioner did suffer a work-related accident on or about December 11, 2006.  At trial, Petitioner testified that he was being treated by an internist Dr. Dam and a pain specialist Dr. Prunski.  Petitioner underwent an MRI which showed a degenerative L5-S1 disc with a stable foraminal stenosis and Anterolisthesis.  Dr. Prunski’s diagnosis was disc degeneration and disc herniation.

At Respondent’s request, the Petitioner was examined by Dr. Steven Mather, a board-certified back surgeon.  Dr. Mather concluded that the Petitioner had chronic degenerative changes at L5-S1, Grade I anterolisthesis and old spondylosis of the L5.  While Dr. Mather found that the Petitioner did suffer a back sprain, the Petitioner’s ongoing complaints were from a pre-existing disc disease which is approximately 17-20 years old (based on x-rays).  More importantly, Dr. Mather offered that the temporary aggravation did not materially alter Petitioner’s underlying degenerative condition.  Dr. Mather specifically pointed out that the discograph results confirmed that the discs were not a pain generator.  Dr. Mather concluded that the petitioner had reached MMI and required no further treatment (December 28, 2009).

The Petitioner was next examined by a Dr. Hall at Petitioner’s request.  Dr. Hall found the Petitioner to be permanently disabled and would require a two-level fusion.

The Petitioner was seeking TTD up until the trial date of May 5, 2011.  Respondent countered that Petitioner was only entitled to TTD until December 28, 2009 – Dr. Mather’s IME.  With respect to permanency, the Petitioner sought a permanent total award of $455.06 per week for life, or $1,074,305.69 (Petitioner was 32 years old).

 

ARBITRATOR’S FINDINGS:

First, as to the issue of causation or aggravation of the pre-existing condition, the Arbitrator found that based upon Dr. Mather’s credible testimony, while there was an aggravation of a pre-existing condition, the underlying condition was not materially changed by this aggravation as demonstrated by objective testing (MRI, x-rays, and discography).  Therefore, the Arbitrator awarded 10% man as a whole based upon a back strain and a temporary aggravation, but not on a herniated disc.  More importantly, she further denied the causation and the necessity of a fusion surgery.  We still feel that 10% man as a whole is high for a temporary aggravation/back strain.

Second, as to the issue of TTD, the petitioner was seeking TTD until the date of her trial of May 5, 2011, while we contend that TTD should have been cut off as of the December 28, 2009 Dr. Mather exam.  Fortunately, the Arbitrator agreed with us and found Dr. Mather to be more credible than the treating physicians and cut off TTD as of December 28, 2009.  This resulted in a credit for us of $19,666.24, which pretty much wiped out the Petitioner’s permanency award of $22,776.00.  The resulting net award is now only $3,108.76.  The Arbitrator did not agree with Petitioner’s allegations and demands that he was a permanent total candidate.

 

LEGAL SIGNIFICANCE/CLAIM LESSONS LEARNED:

We brought this case to your attention because we hear on a daily basis from our opponents and the IWCC that employers are to assume full responsibility for an aggravation of a pre-existing condition.  We constantly are reminded that we find the Petitioners “as-is or as we find them”.  Not necessarily true.  Through expert testimony and by impeaching the treating doctor, we contend that it is possible to establish an aggravation does not mean that there was a change to the “underlying structure”.  However, we realize that it is vital to establish that the underlying degenerative condition existed before a work-related accident and it remained the same after the accident.  The key challenge is obtaining prior medical records and films.  Once this is accomplished, we can have our reviewing doctor compare before and after tests/films.  It is also important to have the IME doctor perform new tests such as an EMG or x-rays, which can confirm or deny the existence of a condition or, in the alternative, provide an origin date of a condition.  For example, in this matter, Dr. Mather was able to establish that the degenerative condition was 17-20 years old by reviewing new x-rays.

Therefore, in conclusion, when faced with an aggravation of a pre-existing condition, do not automatically “run up the white flag”.  When confronted with such a situation, we propose the following:

1. Obtain the Petitioner’s prior work comp history at the Illinois Workers’ Compensation Commission, if any.  If there are prior work comp filings, subpoena the records of those prior insurance companies and attorneys listed.

2. Obtain any and all prior medical treatment histories.  This can be obtained through the means of a subpoena and medical releases.

3. Obtain the recorded statement of the Petitioner and inquire about his prior histories and treatment with respect to any prior conditions.

4. Have your IME doctor interpret all pre- and post-accident films, treatment and objective tests.  Also, have an IME doctor perform current objective tests in order to establish an origin date of a condition.  It is also effective for your IME doctor to perform an EMG or MRI to establish whether or not there is even an ongoing condition that could be causing symptoms.

5. In order to prevail at trial, the IME doctor has to be more qualified and informed than the treating doctor.  We all know that if our IME expert is not, we lose to the treater.  Plus, a deposition and impeachment of the treater is a must if we are to prevail at the IWCC and the reviewing courts.  In this case at bar, we were able to effectively impeach Dr. Hall’s qualifications and his lack of knowledge of the Petitioner’s medical history and treatment.

 

If you should have any questions or insight as to the aforementioned, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell