Case Study

Permanent Total Disability Award Reversed on Review

Petitioner was involved in a work injury when he was pinned by a forklift, sustaining an injury to the low back. The work injury caused an aggravation of a pre-existing condition, as it occurred several months after Petitioner returned to work following a fusion for an unrelated motor vehicle accident. The evidence at trial established Petitioner suffered from a number of unrelated health conditions that led him to develop avascular necrosis in several joints of the body. Based on the recommendation of its IME physician, Respondent offered Petitioner an accommodated duty position. Petitioner declined the position. Instead, Petitioner obtained a statement from the treating physician he was unable to work in any capacity. Several years later, Petitioner participated in a one-hour phone interview with a vocational counselor, who reviewed very limited medical or vocational materials, and opined there was not a stable labor market for Petitioner. Petitioner eventually moved out of state. The Arbitrator found Petitioner’s condition was related to the work injury, and he found Petitioner was permanently and totally disabled.

On review, the Commission reversed the Arbitrator’s decision on both issues. The Commission noted the pre-existing medical conditions, which predisposed Petitioner to the development of avascular necrosis, as well as the development of the condition in joints to which no trauma was sustained during the work injury. The Commission further found Petitioner failed to prove he was permanently and totally disabled, noting the job offer extended by Petitioner, finding Respondent’s IME physician’s determination of work status more credible than the treating physician’s opinion and by rejecting the testimony of Petitioner’s vocational counselor as not credible. Commission reduced the award of permanency from a life-time benefit to 30% person-as-a-whole.