Monday, April 9, 2012

How Would You Rule?

How would you rule in this case?

A city police officer sustained an injury to his low back on April 28, 2002, when his gun holster caught on the steering wheel while he was getting out of his patrol car. He settled his claim for temporary and permanent disability indemnity against the city by Compromise and Release (C&R) for $109,582.42, less a $69,514.00 lien and attorney fees in 2008.

The settlement was approved by a Workers' Compensation Administrative Law Judge (WCJ) and the C&R specifically provided that it did not release the city from liability for "reasonable and necessary future medical care."

The officer's doctor later diagnosed him with sleep apnea and prescribed the use of a Continuous Positive Airway Pressure machine for which the officer asked the city to reimburse him for the cost of the machine.

The city refused, and at a hearing the WCJ relied upon a report by the officer's doctor that said "(s)leep apnea has many causes but is commonly associated in the chronic pain setting with both the use of chronic opioids as well as weight gain." The doctor's report stated the officer "has been dependent on chronic opioids for his current level of function," and "has gained some weight since his injury" and it was his opinion that those factors contributed to his sleep apnea.

The WCJ concluded that the unrebutted opinion of the officer's physician, combined with the officer's credible testimony, established that the sleep disorder was a consequence of the industrial injury, for which the city was liable.

On reconsideration the Workers' Compensation Appeals Board (WCAB) adopted the WCJ's recommendations finding that the unrebutted opinion of the officer's longtime treating physician was "based on an adequate understanding of the development and course of (the officer)'s symptomatology," and the doctor's "conclusion that (the officer)'s sleep disorder is a consequence of his industrial injuries is logical and is justified by a cogent rationale."

A petition for writ of review has been filed with the court of appeals, the city arguing that the WCAB's ruling was contrary to a "strong public policy favoring the enforcement of … judicially sanctioned settlement agreements, and that substantial evidence did not support the administrative ruling.

If I'm the appellate court clerk assigned to review this case and make a recommendation to the justices about whether to accept the writ or not, my advise would be "no", i.e. writ denied.

Here's what's wrong with this case:

The city went to a hearing with out any rebutting evidence - I assume thinking that the medical report of the officer's treating physician either wasn't admissible or could not be relied upon as substantial evidence. Or perhaps the worst case scenario: that the claim just wasn't being monitored correctly and the city got caught unprepared for a hearing with no evidence to submit for consideration. Regardless, going to a hearing with out rebutting evidence is nearly always a sure way to lose.

The amount in controversy is $1,237.97 - not a lot of money relatively speaking. So the question becomes what are the underlying motivations for seeking review?

In addition, there does not seem to have been adequate monitoring of the officer's medical treatment in that it is apparent that the officer was left to his own discipline relative to the intake of pain medication. What happened with utilization review in this case?

Sure, the premise of going from a back injury to sleep apnea may seem askew, but in the face of no other evidence, how would you rule as the trial judge?

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