This post is a salute to Andy Carmine, who recently made partner at Elzufon, Austin, Tarlov & Mondell, which represents a collection of talented lawyers and some of my favorite people. I told Andy that I wanted his next IAB decision for the blog, win or lose. Of course, Andy being Andy, this one is a winner.
I offer you Virginia Vassallo v. Eden Rock Assisted Living, IAB# 1363820 (5/23/13). Petition for Review granted in favor of the employer, with no award of partial disability, taking into account a showing of job availability based on the mid-point of the employer's labor market survey. Dr. Jeff Meyers testified as the defense medical expert and Dr. Bikash Bose testified on behalf of the injured worker, who was two years post-operative as to a C3-4 fusion and cervical decompression and revision.
While this case is not one I would hold up for any significant precedent, I can offer a few take-aways:
· While a Functional Capacity Evaluation would have been of benefit to test the upper limits of claimant's work ability, the lack of an FCE was no impediment to a termination of total disability.· Dr. Bose's clinical examination of the claimant was cursory at best, as acknowledged on cross-exam.· At the time of the April 2013 hearing, Dr. Bose had not examined the claimant since December 2012 and this appears to have further undermined his credibility.· Medications including Roxicodone, Gabapentin and Percocet did not provide a contraindication as to a return to work.· The Board emphasized that under the Health Care Practice Guidelines, returning to gainful employment would have a rehabilitative effect.
Congrats again, Andy! I bet your dad (claimant attorney and esteemed practitioner Ken Carmine) must be proud.
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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