Our partner Russell Hall‘s careful analysis of the permanency opinions in a foot claim recently led to a Law Judge decision saving our client $44,000.00. Our client’s independent medical examiner gave only a 15.9% schedule loss of use of the left foot. In contrast, the claimant’s own doctor gave 37.5%. The technical diagnosis from both doctors was a calcaneus fracture. Under the board’s guidelines, a special consideration for this fracture would give a claimant an award on average from 33 1/3% to 40% depending upon residual mobility defects. Claimant’s attorney pushed for that award, believing there was no argument against the larger schedule.
With the claimant losing less than two months of time from work and not undergoing surgery, Russ dug deeper into the case. He found that despite all the medical reports calling this a technical calcaneus fracture, it was really just a fracture through the middle of a bone spur coming off of the calcaneus. Russ fashioned an argument that therefore this was not truly a calcaneus fracture and therefore the special consideration and the larger permanency award provided by the guidelines should not apply. In addition, Russ argued that our client’s independent medical examiner was more credible as his opinion was more consistent with the guidelines and the range of motion findings.
The Workers’ Compensation Law Judge found entirely in Russ’s favor, finding the special consideration for the calcaneus fracture not to apply and awarding the claimant only 15.9% of the left foot. Although there may be an appeal, Russ’s careful work put our firm in the best possible position for affirmance of the decision on appeal, starting and hopefully ending the case on the right (left)foot.
