I love it when people read my mind. I also love it when I have a guest blogger. So today’s post is a happy constellation of circumstance, thanks to Kim Harrison of Marshall, Dennehy. Kim contacted me yesterday on the very case that was slated for my next discussion.
I will let Kim tell you:
“Hi Cassandra – You may recall several months ago I had asked you a question about permanency for the brain as a result of depression, and an allegation that the depression was “biological” rather than psychogenic overlay. The hearing on my case went forward on 7/25, and we received the Board’s 39 page decision on 8/12. The issues for the case were permanent impairment for multiple body parts.
For the cervical spine, claimant was seeking a 14.2% rating, despite having received a rating of 7% for the exact same condition several years prior. The only difference, even by claimant’s own expert, Dr. Fink, was that he used the cervical spine conversion factor instead of the lumbar as is the norm in most instances. The Board denied any increased permanency on the basis of res judicata.
Claimant also sought permanency for the shoulder. There was a long discussion as to whether there was even a shoulder injury, and the Board denied any permanent impairment rating.
Claimant sought permanency to the brain for migraines, and the Board also denied this claim, finding that Dr. Fink did not provide a sufficient medical opinion about the cause of the migraines and the relationship between them and the work accident or subsequent treatment.
Claimant sought a permanency rating of 100% to the left leg due to her compensable RSD condition. The board accepted Dr. Meyers’ rating of 40% as a more reasonable and accurate rating since claimant still had function of the left leg, even if it did cause pain. The Board agreed with Dr. Meyers’ opinion that ratings of 100% are generally reserved for cases of amputation or total paraplegia of the limb.
The last of the issues was the permanency to the brain due to depression. The Board went through a detailed analysis of exactly why they felt that the type of depression experienced by claimant was psychogenic overlay/situational/adjustment disorder, and why they did not believe that this amounted to a biological depression. They also found Dr. Meyers’ description of what a biological depression would be to be very convincing, which may be helpful in distinguishing biological vs. psychogenic overlay depressions.”
The case is Sharon Morningred v. Delta Airlines, IAB# 1321758 (8/8/13) authored by Hearing Officer Kimberly Wilson on behalf of the Board. This is Dr. Meyers at his best and since I am lately into “take-aways” and have to offer my own two cents, here is the noteworthy in the decision, in addition to what Kim offers above:
· When we are dealing with the head (which was not directly injured in this particular case), all kinds of permanency potentially exists including post-traumatic headache, cognitive, vertigo, and now apparently “biological depression” under the right set of facts……that’s a whole lot of Section 2326 [enhanced version available to lexis.com subscribers] dollars.
· Under the heading of “that ship has sailed….”, apparently Dr. Fink is the only one in town who does not know we now use the lumbar spine conversion for cervical impairment ratings (and I have to blame counsel for not educating him).
· Under the category of “I guess he didn’t get the memo,” Dr. Fink’s rating of 100% for the leg was summarily dismissed given that the leg had not been amputated, nor was it paraplegic (this claimant could walk 100 feet with a walker).
· If you are going to relate a shoulder injury to the use of assistive devices for ambulation, you will be more persuasive if you can testify if and under what circumstances the claimant uses such devices (and maybe an orthopedist would be better on this issue?)
· There are many causes of migraine headaches even in the absence of trauma (and don’t I know it!)
· Migraines related to Ketamine infusion therapy? The Board wasn’t feeling it.
· This is “the” case for a discussion (apparently embraced by the Board) as to the difference between a “biological” depression qualifying for perm, vis a vis a “psychogenic” depression, for which there can be no Section 2326 recovery. Bottom line is that they are looking for a direct blow to the head and if it’s a frontal head trauma, all the better.
Again, a big thank you to Kim Harrison for highlighting this little nugget of greatness. Quite the victory on her part and since she doesn’t pat herself on the back when discussing this, I am happy to do so. Kim, you are woman…..and we hear your roar all the way to Rodney Square.
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