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After serving the Nebraska Workers’ Compensation Court for 27 years, Judge Fitzgerald retired on May 31, 2023. In a fond farewell to a nearly three-decade long history of serving the bench, it’s fitting that Judge Fitzgerald’s last decision involved one of the most disputed and complex injuries in the workers’ compensation setting: complex regional pain syndrome (“CRPS”).
On May 26, 2023, Judge Fitzgerald authored an Award in Howell v. Transit Authority of the City of Omaha. The central dispute in the case was whether the employee had CRPS. At trial, the employer offered the live testimony of Dr. Massey. During direct examination, Dr. Massey pointed to the AMA Guides to the Evaluation of Permanent Impairment which he noted comprised the diagnostic criteria for CRPS. Dr. Massey testified that the employee did not have the necessary criteria to be diagnosed with CRPS. In contrast, the employee offered the deposition testimony and report of Dr. Carlo Ponti. Dr. Ponti alternatively found that the employee did have CRPS as a result of her work-related accident and injuries.
Before discussing Judge Fitzgerald’s ultimate decision, it’s important to note that CRPS, also known as reflex sympathetic dystrophy syndrome, is one of the most litigated injuries in workers’ compensation cases across the country, not just Nebraska. The difficulty usually lies in attempting to separate a true CRPS diagnosis from malingering. In the last five years alone, over 21 different cases have been decided by the Nebraska Workers’ Compensation Court involving CRPS. It is evident in these cases that the judges demand persuasive reports from medical providers that detail and explain the expert’s underlying rationale for believing that an employee’s condition is or is not CRPS. Unlike a fracture or disc bulge, CRPS isn’t typically confirmed or contradicted by objective imaging. It is therefore imperative in a disputed CRPS case to develop strong, persuasive evidence to present to the judge.
In case you’re still wondering about Judge Fitzgerald’s decision, he ultimately disregarded Dr. Massey’s opinion writing that “all patients do not read by the book.” Having found the employee suffered from CRPS, Judge Fitzgerald likewise held that she was entitled to ketamine as it had previously helped improve her function.
With Judge Fitzgerald’s retirement and the passage of LB 799, the number of Nebraska Workers’ Compensation Court judges has been reduced from seven to six. CPW Law wishes Judge Fitzgerald the best in his retirement and thanks him for his years of service.
If you have questions about a case involving CRPS, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.