The Freibott Law Firm was recently successful in prosecuting a case on behalf of one of its clients, Mr. Simmons. In this case, our client sustained severe injuries to his neck in a work-related car accident. On April 19, 2021, our client’s medical expert, Dr. Stephen Malone, performed a fusion at the C5-6 level. Dr. Malone subsequently recommended another surgery – a fusion at the C3-4 level and an arthroplasty at C4-5 level. The employer denied the compensability of the surgery and hired a defense expert, Dr. Nathan Schwartz. After hearing the testimony of the parties, the Industrial Accident Board found that Mr. and Mrs. Simmons were credible in their testimony. The Industrial Accident Board further found that Dr. Malone possessed the far more credible opinion about surgery than did the hired defense expert, Dr. Schwartz. The Industrial Accident Board noted that Dr. Schwartz had anticipated, at the time of the first surgery, that another cervical surgery would be needed in the future. Dr. Schwartz, during his deposition, denied that was his position and when confronted with the facts of his report, provided interesting testimony to the Industrial Accident Board that he did anticipate another level of cervical surgery would be needed; however, he did not believe that Mr. Malone was addressing the level between the prior surgery and the anticipated surgery. The testimony of Dr. Malone filled in this gap when he testified that the double level surgery was needed to address the C3-4 level and the C4-5 level in order to make the prior C5-6 level fusion surgery stable. As the Industrial Accident Board stated, the medical experts are at odds in terms of how to proceed with the Claimant’s medical needs. The Industrial Accident Board defers to the Claimant’s treating surgeon, Dr. Malone, as to the best approach to treatment. Accordingly, the Industrial Accident Board found that the proposed surgery by Dr. Malone is reasonable, necessary, and related to the original work accident; awarded ongoing total disability benefits; awarded our firm an attorney’s fee for successful work on this case; and ordered the worker’s compensation insurance company to reimburse our firm for the medical expert testimony of Dr. Malone. (Simmons v. Tru Green Limited Partnership, Hearing No.: 1517910 Date of Decision: January 5, 2024)
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