© 2014 by Michael A. McKuin

Attorney at Law

Post Office Box 10577

Palm Desert, CA 92255

(California State Bar No. 103328)

 

The information provided at this website is intended for educational and promotional purposes only. It is strictly general in nature and under no circumstance should it be considered legal advice.  Every case is unique and a competent, qualified lawyer must be consulted for legal advice regarding any specific case. 

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Disability following slip and fall accident

April 24, 2017

Sherry N.  (Confidentiality provision prohibits disclosure of identities)

 

 

 

 

For 22 years Sherry N. was employed as an accounting manager at a large bank.  According to her job description, she was responsible for managing a professional staff within a section or department engaged in accounting activities. Duties may include: managing completion of complex accounting tasks.  The position requires sitting “Constantly: 6 - 8 (plus) hours”, as well as constant twisting of the neck and waist throughout the work day.  The job also required working overtime (in addition to her 2-hour daily commute).

 

Five years before the onset of her disability, Sherry suffered a slip and fall injury, resulting in severe back pain, which grew progressively worse to a point where she could no longer endure the demands of even her sedentary occupation.  Her complaints of severe, debilitating back pain were prolonged and unrelenting.  She saw a number of doctors and underwent diagnostic tests. She tried physical therapy twice, epidural steroid injections, and an inversion table at home.  None of these measures helped.

 

An EMG was done by her treating neurologist.  He noted:  “Impression:  Abnormal Study.  There is electrodiagnostic evidence of a mild to moderate lumbosacral radiculopathy at the right and left L5 level.”  Sherry’s general practice physician, Dr. Chen, noted: “EMG shows acute denervation and chronic reinnervation changes in bilateral L5 nerves”.  The EMG report was also reviewed by a spine surgeon, who opined that she “may have had L5 nerve damage .  .  .   or prior disc herniation that resorbed. In any case there is no surgical intervention that would be helpful.”  

 

Dr. Chen completed a Physical Residual Functional Capacity Questionnaire.  In response to the various questions asked, she opined that during a typical workday Sherry would experience pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks, “Constantly”.  Dr. Chen stated that she would be “incapable of even ‘low stress’ jobs”, because of the “severity of uncontrolled pain.”  She further opined that in an 8-hour work day, Sherry could sit, stand / walk a total of “2 hours” and stated: “I don’t think she can tolerate an 8 hour day”.  Dr. Chen further stated that her impairment was likely to produce good days and bad days. She estimated that Sherry would likely be absent from work as a result of her impairments or treatment, “more than four days per month”.

 

Dr. Chen also completed a form captioned “Physical Effects of Pain”.  In response to the questions asked, Dr. Chen stated that Sherry suffered from pain, for which there was a reasonable basis.    Following the query, “Please describe”:  She  wrote,  “No significant anatomic abnormality on imaging but had abnormal NCS/ EMG done .  .   .  by private neurologist, with left L5 neuropathy; left SI joint injection resulted in concordant pain with worsening of symptoms post injections.” In response to the question, “(Is) pain disabling to the extent that it would prevent the patient from working full time at even a sedentary position?”   Dr. Chen, answered, “YES”.     

 

On 2/10/12, Dr. Chen also completed a form captioned “Mental Effects of Pain”.  In response to the question, “To what extent do pain and/or side effects of medication affect attention and: concentration?”  Dr. Chen, checked the space for:  “Severe” (Precludes the attention and concentration required for even simple, unskilled work tasks).”

 

Sherry underwent surgery by a pain management specialist for permanent placement of a spinal cord stimulator.  It was noted that she had severe pain (10/10) in the recovery area following the surgery and an addendum to the operative report states: “The anesthesiologist noted the patient had required more medications than any patient she could recollect.”  Sherry  had also undergone diagnostic injection (L3,4,5) on 6/18/13, and a rhizotomy (L3, 4, 5) on her left side on 8/27/13.  None of these procedures reduced the pain sufficiently to allow her to return to work.  Her pain level was controlled only by administration of several narcotic pain medications, which further impaired her ability to work.

Sherry was covered by an LTD plan through her employer.  The plan provides benefits equal to 65% of her “Basic Monthly Earnings”, which includes her salary, plus her annual bonus, subject to certain offsets.

 

She submitted a timely claim for LTD benefits.  The LTD insurer denied her claim, based on a paper review by a physician who had never laid eyes on Sherry.  I submitted an administrative appeal of the denial.  The insurer upheld its initial denial of the claim.  The final denial letter, which was based in part on two undisclosed reports, concluded: “Based on our review, the totality of information on file does not support (Sherry's) inability to perform the material and substantial duties of her occupation. Therefore, without proof of continued disability, we are unable to alter our previous claim determination, and no LTD benefits are payable.”   The letter stated: “At this time, (Sherry's) administrative right to review has been exhausted and no further review will be conducted by Liberty and her claim will remain  closed.” The letter stated Sherry could bring a civil action under ERISA if she disagreed with insurer’s decision.

 

Result:  A lawsuit was filed.  The case was resolved satisfactorily by private mediation.

 

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