Frederick S. Freibott was recently successful in retaining his client’s total disability benefits in a case where the Claimant was injured on June 3, 2005. On May 14, 2010, the Claimant’s neurosurgeon, Dr. Rastogi, performed an anterior cervical discectomy and total disk arthroplasty at the C5-C6 cervical level. Her treating surgeon provided an opinion that the Claimant remained totally disabled from work due to the injuries she sustained at work and the subsequent surgery. At the hearing, Dr. Rastogi continued with his opinion that the Claimant remained totally disabled. The insurance company, on the other hand, provided the testimony of a local neurologist who had seen the Claimant on numerous occasions in the past for Defense Medical Exam purposes. The Industrial Accident Board was not impressed with the insurance company’s doctor and held that his testimony was “not credible” and “the tenor of his testimony further detracted from his credibility.” The insurance company’s doctor testified that the Claimant had healed when it was clear to the Board that she continued to have symptoms requiring conservative care. Simply put, the Industrial Accident Board, through its hearing officer, held that the insurance compnay’s doctor did not appear to be fully appreciating pertinent facts before rendering his opinion and therefore could not accept his opinion over that of the treating neurosurgeon, Dr. Rastogi. The insurance company’s petition to terminate benefits was denied. Accordingly, the Claimant received ongoing total disability benefits, awarded outstanding medical benefits relating to the neck and arm, and awarded medical witness expert fee and attorney’s fee, all to be paid by the insurance company. (Marley v. Pathmark Stores, Inc., IAB Hearing No. 1272950)
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