Workers Compensation Appeal Jury Verdict…105% Permanent Partial Disability

On 11/4/11, a Baltimore City jury overturned a permanency award of the Workers’ Compensation Commission, increasing it from a total of 35% (causally related) to a staggering 105% causally related permanent partial disability. Associate Rob Burton tried the case and did a fantastic job!

Our client, a corrections officer, suffered a serious back injury secondary to a fall at work in 2006. A year and a half after the injury, she underwent a laminectomy & foraminotomy along with a two level fusion. Unfortunately, the surgery left her with lumbar radiculopathy as well as severe constipation and sexual dysfunction. She is permanently restricted to sedentary work and has been suffering from depression and anxiety ever since.

During the voc rehab phase of her workers’ compensation claim, she decided that she would like to open a daycare center (which she had experience with prior to becoming a corrections officer). In a rather unusual move, after a bit of haggling, IWIF paid her $25,000 to open this business, which, unfortunately, failed shortly after the permanency hearing before the Commission. Burton filed a Motion in Limine to prevent the jury from hearing about the $25,000, based on prejudice and irrelevance. To IWIF’s great frustration, Judge Cox granted his motion after quite a lengthy debate.

IWIF’s argument rested on the testimony of Drs. Ronald Cohen (ortho) and Thomas Oglesby (psych). IWIF did not ask Dr. Cohen to provide an impairment rating for anything other than my client’s back. He failed to address her related complaints of severe constipation and sexual dysfunction, finding that she suffered from mere lumbar radiculopathy, and assigned a rating of 20% (12% related, 8% pre-existing). He also suggested that my expert, Dr. Jeffrey Gaber, used the wrong rating model (the range of motion model) when he should have used the DRE, or “injury” model. Dr. Gaber, on the other hand, had properly considered all of my client’s complaints related to her post-operative condition, and diagnosed her with Cauda Equina Syndrome. He explained this in detail in his deposition and explained to the jury that if he had used the DRE model to arrive at an impairment rating, he would have actually arrived at an even higher figure than his assigned 65% (57% related, 8% pre-existing). He also assigned 20% due to the severe constipation and 10% due to sexual dysfunction.

Dr. Oglesby, IWIF’s psychiatrist, found that our client had no ratable psychological impairment whatsoever. This was somewhat incredible, since he acknowledged that she had suffered a life-altering injury, had been in therapy (at least in part) for depression as a result of the injury, and had been prescribed anti-depressants at one point. IWIF also attacked the 30% psychological rating of our psychologist, Dr. Scott Holzman (who also treated my client), based on the fact that he failed to use the 4th edition of the AMA Guides. Dr. Holzman didn’t think that the edition of the AMA Guides he used was as relevant as the distinction between his opinion and that of Dr. Oglesby as to whether my client has a ratable impairment. Clearly, the jury agreed.

After a full day and a half of trial and a little over an hour of deliberation, the jury increased the Commission’s Award (related to the accidental injury) from 30% back, 3% psychological, 1% constipation, and 1% sexual dysfunction, to 65% back, 10% psychological, 20% constipation, and 10% sexual dysfunction. Our client will realize a net increase of over $300,000 from this verdict and we could not be happier for her.