Cailey Farinaro of TTH’s Allentown office was victorious in defending against two high exposure Claim Petitions. Potential exposure for both claims included costly surgeries.
The first case involved a Claimant who alleged a work-related shoulder injury, for which he underwent surgery. Claimant presented his surgeon, who opined that the post-incident MRI showed an acute labral tear, while Employer presented a physiatrist who disagreed. The first line of defense here was notice, with the Judge believing the Employer witnesses’ word over Claimant’s. The Claimant presented credibly on paper by continuing to work under restrictions until his separation from employment. However, cross examination of Claimant carried the day by highlighting the numerous inconsistencies between the timeline and mechanism of injury portrayed under oath compared to what the Claimant told his doctors. Despite Claimant’s expert having the advantage in terms of credentials, the Judge ultimately found him non-credible for completely disregarding the aforementioned inconsistencies.
The settlement demand in this case was $125,000.00. Settlement negotiations fell through after Claimant advised of his intention to pursue a second surgery. Had the Claimant prevailed, the carrier would have owed upfront wage loss benefits of about $45,000.00, plus ongoing annual benefits in the amount of $38,826.84. However, the true exposure here was two shoulder surgeries plus the corresponding rehabilitation.
The second case involved a neck injury, accepted as a strain for medical-only purposes. Claimant’s expert, a spinal surgeon, diagnosed two work-related herniations, for which he recommended a fusion, in contrast to the interpreting radiologist who found protrusions. In defending his interpretation of a herniation, he testified that radiologists use the words herniation, protrusion, and bulge interchangeably.
Thus, when confronted with an MRI report from 2018 identifying bulges at the same levels, he was forced to completely premise the work-related diagnosis upon his belief that the Claimant was forthright to him about her prior neck complaints. However, further cross examination established that he was mistaken on this front, as the Claimant neglected to tell him that she had undergone epidural injections to her cervical spine for the same exact subjective radicular complaints allegedly linked to the instant work injury back in 2017. As the Judge put it, “the credibility of the Claimant’s treating physician can rise no higher than that of the Claimant.”
Following the injury, the Claimant took a new job. While she testified she took the position because it did not require lifting, ultimately resigning after this condition changed, cross examination revealed that this new position was in reality a higher ranking and higher paying job. Cross examination further impeached Claimant by pointing out that her resignation letter made no mention whatsoever to the increased physical demands of the job.
The settlement demand in this case was $332,797.40 for wage loss alone. The Judge did not find Claimant entitled to wage loss given the above. Had Claimant prevailed, the carrier would have owed $115,455.10 up front, and then $66,559.48 on an ongoing annual basis, until it could terminate benefits. This does not even include the medical or potential specific loss exposure, had Claimant pursued the neck surgery.
Questions about this case can be directed to Cailey Farinaro at 610-332-7008 or cfarinaro@tthlaw.com.