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It Is Okay to Lose ‘Round One’ If You Conclude with a Complete Knockout
The parties entered into an Agreement acknowledging a lumbar soft tissue strain injury. Employer filed a Petition seeking to void the Agreement for fraud, arguing that Claimant had materially misrepresented her prior medical history at the time the Agreement was made. The Board denied the Petition finding there was insufficient evidence for the Agreement to be rescinded due to fraud.
Employer filed a new Petition seeking to terminate ongoing benefits, under the theory that any work-related injury had resolved. Claimant argued that the Board’s earlier ruling “implicitly acknowledged” the compensability of radicular symptoms associated with the work injury, and therefore precluded a finding of resolution of injury.
The Board rejected Claimant’s legal argument, noting that the burden of proof relating to fraud, that was controlling at the first Hearing, is a different and higher standard than the burden of proof on whether benefits should be terminated. Claimant could have misrepresented her medical history, but not to a degree of a legally fraudulent misrepresentation. The Board commented that it should have been clear from the first Decision that it was not deciding issues of nature and extent of injury, only whether the Agreement should be rescinded for fraud.
The Board also agreed with Employer that Claimant had a pre-existing degenerative condition with a radicular component that became symptomatic leading up to the work accident and not impacted by the work accident. The Board accepted the opinions of defense medical expert Dr. Gelman, over that of Dr. Rudin, primarily because the Board did not find Claimant credible. Claimant provided very specific testimony that her radicular symptoms migrated from left to right sided secondary to the work accident. It was “suspect” that claimant would be that specific in testimony, yet three separate emergency room clinicians specifically recorded either no trauma or non-work-related histories. It was also suspect that in many locations in the records, Claimant had explicitly denied any history of prior low back pain or pain involving the same body part. The Board also noted Dr. Gelman’s opinions that claimant’s pre-existing MRI findings were competent to cause both right and left sided problems. Therefore, the Board found that Claimant’s soft tissue strain injury had resolved and granted Employer’s Petition.
Should you have any questions regarding this Decision, please contactJohn Ellis, or any other attorney in ourWorkers’ Compensation Department.
Dawn Lawson v. Amazon.com, Inc., IAB Hrg. No. 1473748 (Jan 7, 2021).