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Appeals Panel No. 141547 (Decided 10/24/2014)

Posted: Dec 1, 2014
Comments: 0

Extent of Injury

  Facts

 

The claimant injured his neck and back in a motor vehicle accident that occurred in the course and scope of his employment.

 

Issues

 

Does the claimant’s compensable injury (lumbar sprain strain and cervical sprain strain) extend to and include lumbar radiculopathy, C3-4, C4-5, and c5-6 hypertrophic changes, and C3-4, C4-5, and C5-6 disc herniations?

Has the claimant reached MMI and, if so, what is the impairment rating?

Did the claimant sustain disability, and if so, for what period?

Evidence

 

The hearing officer makes clear in the Discussion portion of the decision that she relied on letters of causation from (Dr. C) in making her determination.  There are two letters of causation from Dr. C in evidence. In the first letter, which is dated September 17, 2013, Dr. C discussed hypertrophic changes at C3-4, C4-5, and C5-6, as well as lumbar radiculopathy. Although Dr. C explained how the claimant's mechanism of injury causes pressure on the discs in the claimant's neck and lower back, Dr. C did not specifically discuss C3-4, C4-5, or C5-6 disc herniations in this letter. In the second letter, which is dated March 24, 2014, Dr. C discussed a herniated disc at C3-4 but did not mention any other cervical disc herniation. In both letters Dr. C referred to a cervical MRI taken on August 26, 2013, and how this MRI is indicative of a whiplash type injury. However, this August 26, 2013, MRI is not in evidence.  There is no other record in evidence to establish causation between the mechanism of injury and C4-5 and C5-6 disc herniations, nor is there any record in evidence that diagnoses a C4-5 or C5-6 herniation.  Dr. G examined the claimant on March 1, 2013, and noted diagnoses of cervical and lumbar sprains/strains. Dr. G also noted that the claimant exhibited left thigh atrophy, which was “worrisome for radiculopathy.” Dr. G noted that the claimant had continued neck and back pain, and referred the claimant for “PM&R evaluation and pain management.” The claimant testified and the medical evidence supports that the claimant has been recommended for further treatment for the compensable cervical and lumbar injury and that further material recovery can reasonably be anticipated.

 

CCH D&O

 

The Hearing Officer (HO) found that the claimant’s compensable injury (lumbar sprain strain and cervical sprain strain) extends to and includes lumbar radiculopathy, C3-4, C4-5, and c5-6 hypertrophic changes, and C3-4, C4-5, and C5-6 disc herniations.  In addition, the HO found that the claimant has not reached maximum medical improvement (MMI) and therefore no impairment rating (IR) has been assigned.  Moreover, the HO found that the claimant had disability during the period at issue only beginning on March 23, 2013, and continuing through October 10, 2013, but the claimant did not have disability from October 11, 2013, and continuing through April 19, 2014.

 

AP Decision

The AP affirmed the hearing officer's determination that the claimant had disability during the period at issue only beginning on March 23, 2013, and continuing through October 10, 2013.  The AP affirmed the hearing officer's determination that the compensable injury extends to lumbar radiculopathy, C3-4, C4-5, and C5-6 hypertrophic changes, and C3-4 disc herniation.  However, the AP reversed the hearing officer's determination that the compensable injury extends to C4-5 and C5-6 disc herniations, and the AP rendered a new decision that the compensable injury does not extend to C4-5 and C5-6 disc herniations because the evidence that the HO relied on.  The HO relied on Dr. C’s September 17, 2014 letter and Dr. C’s March 24, 2014 letter.  In his September 17, 2013 letter, Dr. C did not specifically discuss C3-4, C4-5, or C5-6 disc herniations.  In Dr. C’s March 24, 2014 letter, Dr. C discussed a herniated disc at C3-4 but did not mention any other cervical disc herniation. In both letters Dr. C referred to a cervical MRI taken on August 26, 2013, and how this MRI is indicative of a whiplash type injury. However, this August 26, 2013, MRI is not in evidence.  The AP affirmed the hearing officer's determination that the claimant has not reached MMI and therefore no IR has been assigned.

 

Lesson

 

Make sure your expert mentions the specific area of the spine in question in his causation letter.  If you expert relies on an MRI, make sure the MRI is in evidence.

 

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