In a recent Workers’ Compensation Decision, Sobel Pevzner was successful in obtaining a favorable LWEC determination for their client mitigating the carrier’s long term exposure.


Claimant, a delivery driver injured on the job, filed a Workers’ Compensation claim that was accepted by the carrier for both scheduled and non-scheduled injury sites.  Claimant’s treating physician provided a medical opinion that would justify a permanency LWEC classification in the range of 75% to 80%, while the IME physician’s opinion supported an LWEC classification in the range of 35% to 40%.  A hearing was then held to resolve the conflicting medical opinions.


At the hearing, Dustin Delp cross-examined claimant on his ability to find suitable employment.  It was revealed that claimant held certifications in the fields of healthcare and loss prevention administration in which claimant had prior experience working various positions.  Also, it was revealed through claimant’s testimony that, while unable to complete heavy lifting, claimant was capable of working sedentary duties.  In his written Summations, Mr. Delp argued that claimant’s injuries were primarily orthopaedic in nature, and that claimant’s treating physician lacked any specialty in orthopaedic medicine.  Significantly, the carrier’s IME physician specialized in orthopaedic surgery and routinely performs surgery on the sites of injury claimed by claimant.


In his Decision, the Judge found the IME physician’s permanency opinion more credible than that of claimant’s treating physician and cited the fact that the IME physician specialized in an area of medicine pertinent to claimant’s case.  Also, the Judge took into consideration the fact that the fact claimant holds certifications in other career fields speak to claimant’s ability to return to the workforce with gainful employment.


It is important to note that when litigating the issue of a claimant’s LWEC determination, carriers and self-insured employers fail to consider factors outside of the medical opinion of the treating physician and IME physician.  Other considerations must be taken into account when arguing over an LWEC determination such as claimant’s level of education, vocational skills, and whether a physician specializes in a pertinent field of medicine. While a medical opinion can certainly sway a Judge in one direction over another, other factors outside of the medical records can prove to be a decisive mitigation tool for carriers and self-insured employers.