I offer a big holiday shout out to Jeffrey Friedman of Silverman, McDonald and Friedman. While I have always considered Jeff's biggest accomplishment to be snagging Tiffany Quell for his bride, followed by snagging Mike Silverman for his partner, today's case is a reason to give thanks to Jeff and answers a question for which heretofore there was no express commentary. I give you David Hill v. Bridgestone Retail Tire Operations, IAB#1346293 (10/22/12)(ORDER).
This is basically an estoppel case. The claimant had a 2009 work accident involving his right hand after which the carrier paid bills for treatment for RSD. The issue was, among others, whether they bought the package on the RSD and if not, at what juncture could the RSD diagnosis be effectively challenged. Not until the fifth defense medical evaluation ("DME") did the carrier engage the inimitable Dr. Wilhelmina Korevaar, whose specialty is pain management and RSD. Dr. Korevaar disavowed RSD as the appropriate diagnosis in this case; a spinal cord stimulator that the carrier already had paid for was deemed unreasonable, unnecessary and unrelated by Dr. Korevaar. The injury occurred in 2009, the DME in question in July 2012 and a payment without prejudice ("PWOP") letter issued in September 2012. This matter came to a legal hearing on Jeff's motion to strike that PWOP letter.
The issue in a nutshell--Can you issue a retroactive PWOP?
The reply -- No. Per this ruling, the PWOP must be asserted at the time of payment. And any communications attempting to payments made over the last 2-3 years were without prejudice is ineffective....albeit creative.
Another quirky aspect of this ruling continues to tickle me. Claimants are so often accused of "doctor shopping". In this case the carrier took the position that it was permitted to challenge causation because it engaged a new and improved DME doc (on the fifth try).....really? C'mon folks, what's good for the goose is good for the gander....or in this case, the turkey. And I'll have mine with sweet potato casserole and a Kahlua Pecan Pie for dessert.......:>)
This ruling contains a lot of tasty meat regarding payment under a feeling of compulsion and estoppel. It was authored by the Hearing Officer to whom I will convey the award, "Best Attitude of Gratitude", Deborah Massaro.
I wish you all a Thanksgiving Holiday brimming with family, friends and exquisite cuisine...... If you don't have holiday plans lined up or local family, there is room at my table.....and pumpkin cheesecake to spare.
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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