August 16, 2012
Mike Yoffee (name changed for this summary) sustained a work-related injury when lifting a pallet at work at Giant Foods and hurt his lower back. This was medical only acceptance. In other words, the insurance company believed there was an injury but no lost time or compensation due. We filed a Claim Petition for Workers’ Compensation benefits and Penalty petitions against the employer and Chartis Claims.
Mike treated at Work First on referral from his employer and was sent for an MRI of his low back in November of 2010. Mike was seen also by Chiro-Dynamics Orthopedic and Spine Specialists and Dr. Gilhool at Orthopedic and Spine Specialists. Dr. Gilhool provided epidural injections.
Mike later treated with Dr. Christopher Jackson, D.C. who then referred Mike to Dr. Knaub at Hershey Medical Center. Dr. Knaub then referred Mike to a physiatrist, Dr. Lupinacci who sent him back to back to Dr. Knaub for further care and treatment.
Mike had additional treatment and underwent physical therapy during work hours. This had been an accepted practice with his employer with Mike checking in, checking out and checking back in after therapy was over. The absences were always approved by his Human Resource Director and that Mike had been paid in full for all visits during the course of his work injury.
The company often “suggested and urged” Mike to seek medical care during the course of the workday. This is contrary to the usual practice of making Mike seek medical treatment after work, if available. This practice continued for three and a half (3½) months until Mike was terminated on February 21, 2011. Mike was informed that he was being suspended for “job abandonment.”
Mike stated “How are you going to investigate me for job abandonment? I checked out and brought back all the paperwork. For three and a half months, I’ve been doing the same thing and you guys never had a problem.” Mike stated that he never became aware of the reason he was actually fired until an Unemployment hearing.
At that point, he was fired according to his employer for “looking for another job.” This never occurred.
Mike was his only lay (non-expert) witness and the Defendant presented no witnesses on the issue of termination from employment. There was an issue as to Mike’s average weekly wage. There was an average weekly wage presented by the Defendant but that was challenged by Mike when Mike testified that he made $13.75 an hour for forty (40) hours a week plus six (6) hours of overtime. The Judge believed Mike’s testimony and awarded wages in agreement with Mike’s testimony.
The Judge found the testimony of Mike credible and found an average weekly of $550.00, plus $123.75 overtime.
At the time he was fired, Mike was working half days, light-duty with a twenty (20) pound restriction and half-day full duty. This evidently was not sufficient for the employer. In spite of the fact that Mike successfully completed his duties, he was terminated from his position.
His treating doctor, Dr. Jackson, testified that he thought Mike had objective findings and spasm at the examination. He also commented extensively on a Functional Capacity examination which he thought was “extremely thorough and valid.” It corroborated Dr. Jackson’s clinical findings upon examination. Dr. Jackson further stated that Mike had a positive Valsalva’s Maneuver and also further established Mike’s credibility by having a break in protocol and treatment in order to confirm whether or not Mike did better without treatment. He did not. Mike was diagnosed with lumbar region disc disorder and lumber neuritis and his prognosis were noted to be uncertain. He was not found to be fully recovered.
The Defendant presented the testimony of Dr. Michael Mitrick, a Board-certified orthopedic doctor who did an “Independent” Medical Examination at the request of the comp carrier, and he noted that Mike sustained a work injury in the nature of a lumbar strain. Dr. Mitrick found Mike fully recovered from his lumbar strain on or about October 26, 2010. Dr. Mitrick was also constrained to state that Mike did put forth a valid effort and cooperated with his exam. This was in spite of the fact that there was, according to Dr. Mitrick, some inconsistencies in Mike’s exam.
Judge Weyl found that Mike sustained an injury to his low back in the nature of lumbar disc disorder and lumbar neuritis with muscle spasm as of October 26, 2010, during the course and scope of his employment. He further found that Mike’s disability was ongoing from February 21, 2010, and continuing. He found that Dr. Jackson was more credible and that he was Mike’s treating doctor and that Dr. Jackson had seen Mike over an extended period of time, and had introduced a break in treatment and care to determine the effectiveness of his injury treatment and, finally, made appropriate referrals to other disciplines to confirm his diagnosis. The judge ordered total disability payments from 2-21-11 to the present and continuing, interest, and litigation costs.
