Posted by: Steven J. Picardi, Esq.
Date: December 3, 2012
Steve Picardi recently obtained a major victory for his self-insured client, obtaining an Order which denied the claimant’s request for permanent total disability benefits despite the opinion of the authorized treating physician that Claimant was limited to sedentary duty in a remote mountain town with a very limited labor market. The case serves as an illustration of how to defeat a claim for Permanent Total Disability benefits when the restrictions of the authorized treating physician probably would have made the claimant unable to earn any wages.
Claimant fell while at work, causing a non-union of her twice-fused sacroiliac joint. The claimant eventually had a third SI joint fusion. After a protracted recovery, the authorized treating physician placed the claimant at Maximum Medical Improvement and recommended that the claimant not engage in lifting greater than 10 pounds and that she was limited to the sedentary work category. The claimant lived in a remote mountain town with a very limited labor market, making it difficult to find work within the restrictions provided by the authorized treating physician.
The employer obtained surveillance footage which documented that the claimant was not honest regarding her functional abilities and two functional capacities evaluations which documented the claimant’s ability to lift significantly more than the sedentary work level. Notwithstanding this evidence the authorized treating physician refused to change the restrictions, stating that he imposed the restrictions based on his opinion that more physically demanding work would place the claimant at risk of re-injury to her thrice-fused sacroiliac joint, and that the claimant’s subjective complaints, however dishonest, did not affect his assessment of work restrictions.
Picardi attacked the opinion of the authorized treating physician by undermining the medical basis for the opinion that more physically demanding work placed the claimant at risk for re-injury. The employer called an expert witness to testify that there was no medical basis for the opinion that a re-fused SI joint would not be as strong as the original joint. Picardi supported the testimony of the expert by introducing evidence of the 14-year history of medium- and heavy-duty work performed by the claimant in the 14 years between her second and third SI joint fusions, which was inconsistent with the authorized treating physician’s opinion that the fused SI joint would be incapable of sustaining heavier work than ten pounds lifting. The Administrative Law Judge was persuaded that the restrictions by the authorized treating physician were not credible and denied the claimant’s request for Permanent Total Disability benefits.
The authorized treating physician’s opinion that the claimant’s subjective complaints of pain played no role in the restrictions he imposed significantly decreased the value of the surveillance footage, requiring the attorney to develop a secondary strategy to attack the credibility of the authorized treating physician’s restrictions. The case illustrates that the authorized treating physician’s restrictions are not dispositive of the claimant’s ability to return to the work force, even when the authorized treating physician’s opinion is based on the risk of re-injury rather than subjective complaints of pain. Thus, it is important to explore the authorized treating physician’s basis for providing restrictions and determine whether the weaknesses of the opinion can be exposed to an Administrative Law Judge.