Case Study

Petitioner Fails to Prove Entitlement to PTD Benefits

On October 9, 2018, the Commission upheld the decision of Arbitrator Falcioni, denying Petitioner’s claim for permanent total disability (PTD) benefits and instead finding entitlement to an award of 15% disability to the person as a whole. This case, defended by Jim Byrnes of our Chicago office, essentially turned on the medical evidence presented before the arbitrator.

 

Facts

The Petitioner, Holly Nietfeldt, was employed as a service desk cashier for Menard’s. On July 24, 2012, Ms. Nietfeldt was struck by a vehicle while walking to her car in the Menard’s parking lot. Witnesses testified that Petitioner was knocked to the ground and struck her head on the pavement. A CT scan of the head was performed at the emergency room on that date and showed soft tissue swelling over the left posteroparietal high convexity with no underlying fracture and no intracranial pathology. A CT scan of the cervical spine was normal.

 

Following the accident, the Petitioner sought treatment with her family physician, with whom she had treated for many years, including for symptoms involving headaches and back pain. She also underwent treatment with a neurologist and pain management specialist, for headaches, neck and low back pain. Dr. Morr, the Petitioner’s family physician, testified that she was permanently and totally disabled from a medical perspective.

 

The Petitioner was examined at the request of the Respondent by Dr. Hilliard Slavick, a board certified neurologist. Dr. Slavick testified that the accident caused mild muscular spasms but did not cause significant neurologic dysfunction. He also testified that her subjective complaints were not supported by the objective findings, and that she was capable of returning to her regular occupation. In his opinion, she reached MMI by March 15, 2013.

 

The Petitioner was also examined by Dr. Steven Mather, a board certified orthopaedic surgeon. Dr. Mather diagnosed cervical, thoracic and lumbar strains as a result of the work accident, and also found the Petitioner’s subjective complaints were unsupported by the objective findings. He also found she was capable of returning to her regular job. Finally, he performed an AMA impairment examination, finding her overall whole person impairment to be 0%.

 

Outcome

– The arbitrator denied the Petitioner’s claim for permanent and total disability benefits. The arbitrator found the opinions of Dr. Slavick and Dr. Mather to be more credible than that of Dr. Morr. Specifically, the arbitrator noted that Dr. Morr is not an expert in the treatment of head, neck or back injuries. He also admitted that his opinion concerning his patient’s ability to return to work was based largely on the Petitioner’s own opinion concerning her abilities, rather than a functional capacity evaluation or other objective findings. The arbitrator noted that both Dr. Slavick and Dr. Mather reviewed the Petitioner’s job description (which Dr. Morr did not), as well as all medical records and diagnostic films, and each performed a physical examination and came to the same conclusion, that Petitioner was able to return to work.

– The Commission affirmed and adopted the arbitrator’s decision.

 

Take-Aways

– Retention of two IME physicians (neurologist and orthopaedist) proved to be pivotal in defeating Petitioner’s claim for PTD benefits. Each expert addressed different parts of the body and came to the same conclusion: the subjective symptoms were unsupported by objective findings and Petitioner was capable of returning to her regular job.

 

– The only doctor to testify on behalf of Petitioner was her family physician, who admitted he was not an expert in the treatment of the head, neck or back. Dr. Morr’s treatment records also revealed a history of headaches prior to the date of the accident.

 

– By taking an aggressive approach in terms of retaining the necessary experts, obtaining complete medical records for treatment before and after the accident, and taking the necessary medical depositions, we were able to greatly reduce the eventual medical, TTD and permanency exposure in this case.

Holly Nietfeldt v. Menard’s, 12 WC 31358, 18 IWCC 0605 (10/9/18)