May 19, 2013
James Rossum (name changed for this summary) sustained a work-related injury when he slipped and caught a heavy object with his right upper arm. As a result of the injury, James was not able to return to work and is still unable to work. We filed a Claim Petition, Review Medical Petition and Penalty Petition against his employer, Bongiovanni MA, Inc. and its insurance carrier, Employers Insurance Company of Wausau.
After James reported the injury to his employer, Bongiovanni filed a Notice of Temporary Compensation Payable, which described the work injury as a lower back sprain. The purpose of the Notice is to pay temporary benefits for 90 days to the employee while allowing the employer a chance to investigate the injury and determine whether workers’ compensation benefits should be paid on a continuing basis. Bongiovanni then denied workers’ compensation benefits, again describing James’ injury as a lower back sprain in one place, but later described it as a right-hand injury. At no time was James diagnosed with a lower back sprain or right-hand injury.
After compensation was denied, we filed a Claim Petition, Review Medical Petition and Penalty Petition. In short, these petitions sought to establish the correct injury description and to seek penalties for Bongiovanni’s decision to contest James’ benefits without evidence.
His treating physician, Dr. Lance O. Yarus, diagnosed James with an entrapped, pinched nerve in his right arm, right carpal tunnel syndrome and a cervical injury. Dr. Yarus concluded that James’ injuries were related to his work fall. Dr. Yarus then referred James to Dr. Hani J. Tuffaha, a board-certified neurosurgeon, for carpal tunnel surgery.
James was the only non-expert witness and Bongiovanni did not present any witnesses or even attend the hearings. The workers’ compensation judge accepted James’ testimony and the medical opinion of Dr. Yarus, that the fall at work caused the injuries to James’ right arm. The judge determined that the official injury description should include a right arm entrapped pinched nerve, right carpal tunnel syndrome, and cervical injury, just like we asked for in our Petitions. The judge ordered Bongiovanni to pay ongoing workers’ compensation benefits, including back benefits, from the date of the injury.
The judge also determined that Bongiovannia’s contest was not reasonable. Essentially, the judge said that Bongiovanni did not have enough evidence in order to challenge James’ benefits, particularly because they did not participate in the litigation after denying benefits. Thus, Bongiovanni was ordered to pay James’ attorney fees.
Finally, the judge also found that Bongiovanni violated the workers’ compensation law by ignoring statutory requirements and failing to pay James’ medical expenses related to the injury. The judge awarded James a penalty of 50% of the wage loss and medical benefits owed to James.
