Our partner Karen Darling recently argued a case where both attending and consulting doctors found unreasonably large permanency evaluations for the left shoulder,left elbow, and left wrist. The treating doctor found a 45% loss of the arm for the shoulder, 43.3% of the arm for the elbow and 24.4% of the hand for the wrist. Our client’s consulting physician found no permanency for the elbow and wrist, but also found a 43.6% loss for the shoulder.
Karen argued that the opinions of the treating doctor were incredibly high, given especially that the claimant had returned to work full duty as an electrician, never had EMG or nerve conduction studies, and had no treatment whatsoever for the elbow or wrist. Karen also argued that the treating doctor’s deposition testimony did not support causal relationship between the reduced range of motion the claimant demonstrated at the wrist and elbow and the injury. When challenged, the doctor admitted he could not say whether the range of motion loss at these two sites was related to the injury of this case. Karen pointed out that in the attending doctor’s very first report, he noted that the claimant had full range of motion at the elbow and negative Tinel’s signs at the cubital and carpal tunnel. Karen pointed out that the attending doctor’s reports made no mention of the elbow or wrist at all until the time of the permanency evaluation.
With respect to the shoulder, Karen argued that the consulting physician’s opinion was more credible than that of the attending doctor’s. She argued that the attending physician incorrectly declined to examine the contralateral side for comparison. Karen also argued that the range of motion measurements found by the attending doctor at the time of the permanency evaluation were notably worse than at any other appointments over the five month period of time leading up to the evaluation. She also emphasized comments in the consulting doctors report that the claimant exhibited poor effort on range of motion testing.
After considering Karen’s arguments, the judge ultimately found a 42% schedule loss of use of the shoulder, below the evaluation of both doctors, and also declined to find any permanency at the elbow and wrist. This finding resulted in a savings of many thousands of dollars for our client. This was clearly a gamble that paid off because Karen was prepared with skillful arguments against the excessive evaluations and the claimant’s attempt to hit the jackpot.
