WORKER’S COMPENSATION BOARD DENIES CLAIM FOR INVOLUNTARY RETIREMENT BASED UPON LACK OF  OBJECTIVE MEDICAL EVIDENCE

After trial, in a recent Reserved Decision, claimant’s allegation that an injury previously determined to be compensable forced her to retire was rejected by the WC Law Judge for lack of objective medical evidence from claimant’s treating chiropractor.

Claimant, a grounds worker at an amusement park, suffered a compensable injury to her lower back in 2013.  Claimant received medical benefits and continued working full time.  In March of 2016, claimant’s treating chiropractor provided medical evidence that claimant had reached Maximum Medical Improvement and classified claimant as having a permanent impairment of Class 4, severity ranking “G” for claimant’s lower back.  The carrier’s Independent Medical Examiner agreed with claimant’s chiropractor.

The medical evidence did not indicate claimant was permanently totally disabled until June of 2016 when claimant’s chiropractor filed a subsequent C-4.3 opining that claimant was permanently totally disabled and recommending that claimant retire from her job due to her causally related lower back injury.  Claimant raised the issue of involuntary retirement before the Board and the issue was litigated before the Law Judge.

At his deposition, Sobel Pevzner, LLC were successful in soliciting testimony from claimant’s treating chiropractor that his opinion of claimant’s permanent total disability was solely based on claimant’s subjective complaints of back pain and the fact that claimant continued to work full time while being in her early eighties.  Furthermore, on cross-examination, claimant’s chiropractor conceded that he did not see any significant changes in claimant’s range of motion and strength testing when compared to the earlier chiropractic findings.

Partner Bella I. Pevzner and Dustin Delp, Associate of Sobel Pevzner, LLC, successfully argued before the WC Law Judge that the medical evidence did not support a finding of forced retirement as a result of a compensable injury.  Specifically, it was argued that the recommendation for retirement was based solely upon subjective complaints and claimant’s age, not objective medical evidence and certainly not related to the compensable work accident.  In fact, the medical evidence in the Board’s file showed exactly the opposite.  Claimant’s chiropractor and the IME physician, an orthopedic surgeon, aligned in regard to their opinions on permanency and moreover that claimant was not permanently totally disabled. Rather, they testified that the claimant had a permanent partial disability; Class 4, Severity Ranking “G”.  Also of significance was the medical evidence contained in the Board’s file which confirmed consistent opinions from claimant’s treating physician that claimant had a 75% temporary partial disability prior to reaching Maximum Medical Improvement (MMI).

The Board agreed with Ms. Pevzner and Mr. Delp and denied claimant’s allegation of involuntary retirement on the basis that claimant’s treating chiropractor failed to show objective medical evidence that claimant’s permanent impairment increased from permanent partial in March of 2016 to permanent total in June of 2016.

This case is a prime example of the increased exposure pitfalls that a carrier may face if the medical evidence in a New York Workers’ Compensation claim is taken at face value.  The credibility of a treating physician is largely based upon whether the physician’s medical opinion is supported by objective medical testing and not solely based on the subjective complaints of the claimant.    As such, at Sobel Pevzner, LLC, with focus, investigation, and detailed analysis of the medical records in Workers’ Compensation cases we mitigate indemnity exposure for our clients.

Bella Pevzner – Partner

Sobel Pevzner, LLC