A Peek Into Petitioner’s Past Prevents A Permanent Total

January 2021

By: Francis M. Brady, Karen E. Zimmermann, and Ndubuisi V. Obah

Petitioner was scheduled for a cervical fusion surgery which she and her treating neurosurgeon both linked to a trauma at work. A large umbrella blew over and its pole struck petitioner in the back of the head. Not only was there a physical injury, petitioner also asserted she sustained post-traumatic stress disorder as a result of the incident. She was supported in that claim by her treating psychologist. Both doctors limited her ability to work and no light duty could be afforded. Thus she was and had been for some months on full benefits.

The question that was initially posed was how quickly the case could be closed. BCM posited a different inquiry—we asked how quickly the case could be won. Social media and medical survey leads were closely pursued, as were ISO data. Subpoenas issued followed by additional subpoenas when further leads were produced. In all, 58 subpoenas were issued. Imaging studies from before the accident were unearthed. An expert neurosurgeon was engaged who compared the early studies to films from after the trauma revealing no changes.

It turns out Petitioner had been in a car accident several years before the umbrella episode and her complaints at that point were largely identical to her complaints after the alleged work accident. A true relevancy standard was adapted: records that were relevant themselves or tending to lead to relevant evidence. Thus dental documents disclosed histories of psychological affliction and care predating the work incident. Indeed she had been diagnosed with PTSD twice before.

So instead of allowing the surgeries and ending up with an accepted job loss case, TTD was terminated and authority for care withdrawn. Liability was denied.

But it was not enough to marshal all this evidence. BCM had to be ready to present it. As soon as it appeared we’d be recommending benefits be cut off, trial was likely sooner rather than later. We got out ahead by hiring our experts immediately: a neurosurgeon and a psychologist, both highly credentialed. We pushed back when the Motions were received and the push back was founded on substance: an entire history of preexisting conditions and care along with solid opinions severing causation.

We were ready to proceed to trial before Petitioner and when the Commission had an opening. There aren’t that many with the Special Circumstances Calendar.

As the trial testimony came in, it became clear that nothing about the circumstances of the episode exposed claimant to a risk of injury greater than the general public. Seizing on Petitioner’s failure in this regard, BCM argued the problems did not arise out of the job. Of course Petitioner was still in the course of her job but she could not prove both prongs of compensability.

Had she won, Petitioner was looking to recover $60,000.00 in medical; $46,000.00 in TTD; and, $400,000.00 as the present cash value of a permanent total disability payout.

She took nothing under the Arbitrator’s finding of no liability