In this case, the claimant sustained work-related injuries to the neck and left shoulder while loading a 60-pound bag of cement onto a work train and filed for permanent partial disability and a 22.5% schedule loss of use (SLU) to the left arm. The claimant did not have an independent medical examiner (IME) and therefore the attending physician’s opinion was the only one on permanency in the matter. In a decision filed on March 21, 2023, the workers’ compensation law judge (WCLJ) found that despite inconsistencies within the attending physician’s report, it was to be relied upon as the only medical report and therefore the claimant was classified with a permanent partial disability and found to have a 5% loss of wage-earning capacity. The WCLJ also found the clamant has a 22.5% SLU of the left shoulder.
Vaikness and her team filed an appeal with the WCLJ and the New York State Workers’ Compensation Board and upon cross examination, the attending physician shared that the claimant never required surgery and was cleared to work full duty with no restrictions where she was required to lift 50-70 lbs. Vaikness argued the 22.5% loss of use was not credible because the claimant was able to return to heavy labor without lost time upon being cleared to return to her pre-injury job. The WCLJ agreed and rescinded the previous findings that the claimant had a permanent partial disability and a 22.5% SLU of the left shoulder.
The decision made by the WCLJ to rescind the previous findings is significant as without an IME, there was no contrary medical opinion on which to rely. Throughout the case, Vaikness and her team demonstrated a level of tenacity in questioning both the attending physician and understanding the claimant’s current work situation. That tenacity, paired with a keen understanding of what determines permanent impairment helped the Jones Jones team showcase a clear lack of medical credibility. As a result, the board agreed that the attending physician’s opinion lacked credibility and ruled in favor of the client.
Congratulations to Stacee Vaikness and the Jones Jones team. If you have a case similar to this one and need assistance, please connect with our appellate team today at email@example.com!