In this matter the claimant asserted that he sustained significant injuries to his low back which necessitated a need for low back surgery. The surgery that was proposed was an L5-S1 discectomy and fusion.
Jim Miller represented the respondent and retained a qualified orthopedic spine surgeon who disputed the need for the surgery. The central issue in the case was whether or not the surgery was related to the subject accident. The arbitrator found that the surgery was not related for several reasons. The arbitrator wrote the biggest reason that he found that the surgery was not related was Jim’s cross examination of the claimant. It was pointed out by the arbitrator that Jim elicited testimony from the claimant that he was “emphatic” that his low back pain which was pre-existing, increased for a period of time after the subject accident and then returned to baseline. Jim got the claimant to admit this on several occasions. Secondly, Jim got the claimant to admit that his mid back pain was what was really causing him problems at that time and it was pointed out in closing that no one was suggesting that a mid back surgery was required. Furthermore, the arbitrator relied on the claimant’s deposition testimony where Jim got the claimant to state that it was questionable whether the subject accident actually increased the claimant’s preexisting low back pain.
As a result, the claimant was awarded approximately $43,000 for an aggravation of a pre-existing condition. Before the arbitration commenced the claimant demanded the $100,000, the limits of the policy.
Since the claimant had received $5,000 in medical payments there was a $5,000 reduction of the award for a net of $38,000. Jim had offered the claimant $35,000 before proceeding with the arbitration.