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Workers' Compensation

David & Goliath: Army of Doctors Cannot Save Delaware Termination Petition in TBI Case

You have to hand it to my partner Tim Lengkeek.  He gets sexy cases from a litigation standpoint-many of his clients have serious if not catastrophic injury (and some of them are even dead).  And today's case involves a traumatic brain injury as the result of a work-related motor vehicle accident (and if memory serves correct, Tim won at a prior Hearing in this matter given that the carrier initially challenged course and scope).  That Tim.....a winning kind of guy.  And in this one, the odds were arguably stacked against him.  Stacked about as high as my Whisker City Play Tower that we recently purchased for Nutella Grace and Cruiser T.

The case is Clare Makowski v. Lisa Broadbent Insurance Co., IAB# 1349307 (1/4/13).  Clare's case recently went to a Hearing on the carrier's Petition for Review seeking to conclude her total disability status.  Now any time a case proceeds on a termination where there is a closed head injury, the outcome is likely to be interesting.  And this particular decision, authored by Hearing Officer Julie Pezzner on behalf of the Board, is about as multi-faceted as a Swarovski pendant.... A veritable jewel of legal quirkiness.

What makes this one so interesting and what's with the title of this post?

David and Goliath.  That's what came to mind when I took note that the defense called the following to testify that this gal can return to work-

   Dr. Timothy Michals, board certified in psychiatry, forensic psychiatry, and quality assurance and utilization review, the Chief of Forensic Psychiatry at Jefferson University Hospital

   Dr. Jeffrey Meyers, board certified in physical medicine and rehabilitation and well-known to our IAB

   Dr. William Sommers, board certified in neurology

Now that's a whole lot of expertise opining that Clare can return to work.  Add to that a labor market survey with Robert Stackhouse, a vocational expert.  That is the team that took on Tim and Dr. Alan Fink, a local neurologist, carrying the banner for continued total disability.  No psychiatrist, no vocational expert....just Tim and Al along with a claimant....who was deemed quite credible.

Check this one out for yourself.  Allow me to flag a few of the highlights:

   Claimant was not currently treating, having been discharged by her doctors.

   The only positive finding (per Dr. Michals)was an altered speech pattern.

   The mini-mental status exam was normal.

   Clare had a Bachelor's Degree, giving her a much higher level of education that the normal claimant presenting on a Term Petition.

   There was an FCE that would allow a return to work.

   The labor market survey was ultimately ruled to be "ludicrous".

Bottom line is that the defense case had an abundance of ammunition.  They used a bazooka; Tim used a slingshot...... and nailed it.

Irreverently yours,
Cassandra Roberts

   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts6

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