Friday, September 15, 2006

Disfigurement Is To Be Viewed Without Prosthesis -- WCJ Abused Discretion in Making No Award

In P. Agnello v. WCAB (Owens-Illinois), the claimant lost three lower teeth as a result of a work injury. The WCJ observed her on two occasions and stated he could not see a difference in her appearance with her prosthesis out. He denied the Claimant’s petition for disfigurement benefits and the Board affirmed.

The Court noted the Board affirmed on the basis that the Claimant has a prosthesis, which is irrelevant to the disfigurement analysis. The disfigurement is to be viewed without the prosthesis. "Although Gardiner did not specifically hold that dentures should not be considered when determining whether there was a disfigurement, we now do so because they do not resolve the disfigurement, only mask it."

The Court held the absence of the teeth had to make some difference, and the WCJ abused his discretion in denying an award. The Court reversed the Board and remanded the case to the WCJ to make an award.

Tuesday, September 12, 2006

The Hartford List of Top Drugs Prescribed in Workers' Compensation Claims

The Hartford Issued its list of the top 25 drugs prescribed in workers' compensation claims. The report also indicates drug costs went down due to generics for oxycontin and neurontin and the withdrawal of vioxx and bextra. Press Release

Sunday, September 10, 2006

Supreme Court Requires Deposition by Interrogatories Before Discovery of IME Doctor's 1099s

The Supreme Court has addressed the cases in which IME physician Dr. Eagle desires to not respond to the Order of the Common Pleas Court that he produce three years of 1099s from insurance companies and defense attorneys. The Judge found the discovery request was appropriate upon which to found a demonstration of bias. The Superior Court affirmed.

In Cooper v. Schoffstall; Appeal of: Eagle, M.D. the Supreme Court held a deposition by interrogatories is required before a Judge can order that 1099s be produced. The Court felt the IME doctor's answers to the interrogatories will be sufficient upon which to demonstrate bias in most cases where it exists.

Madame Justice Newman authored an excellent concurring opinion reminding the bar that requiring an expert witness to produce personal financial information is generally an abuse of the discovery process.

No one can deny, however, that IME physicians can underestimate the IMEs they perform for defendants, overestimate the IMEs they perform for Claimants, or both. The doctor's testimony can't be challenged without hard evidence, such as 1099s. One has to question the doctor's veracity when the doctor says he or she does one IME a week and all the Judges in our part of the state see the doctor's evaluations twenty times a year or more.

The Supreme Court decision still allows discovery that digs deeper than questioning the doctor without his financial records. The first step, however, will be to direct interrogatories to the doctor.

In workers' compensation, there is no provision in the Rules of Practice and Procedure before WCJs to conduct a deposition by interrogatories. Claimant's counsel will have to direct these questions to the IME physician at deposition. If the answers seem incredible to counsel, they will probably seem incredible to the Judge. In a rare case, counsel may seek additional documentation.

Tuesday, September 05, 2006

New Back Treatments

The Axiom DRX 9000 is a machine designed to provide advanced traction to lumbar discs. Article A Pittsburgh company intends to develop a new NSAID. Press Release