The claimant was involved in an incident in which a 400 pound loading dock garage door fell on him resulting in multiple fractures in his low back, ribs, and lower extremity. After four years of treatment, the claimant was eventually placed at MMI and given an 18% whole person impairment rating by a Division IME.
The treating physician imposed restrictions that restricted the claimant to light duty or sedentary work. Both the Division IME and Respondents’ retained IME adopted these restrictions. The claimant applied for permanent total disability benefits.
Respondents’ vocational expert testified that the claimant was employable within the restrictions imposed by all three physicians. Respondents’ IME reviewed and approved several positions identified by the vocational evaluator as part of her labor market research. The claimant’s vocational expert testified that the claimant was not employable based upon several additional restrictions she believed were appropriate including a limitation on the length of time the claimant was able to sit.
After the hearing, the claimant returned to the treating physician for the first time in 18 months to “address restrictions.” After this appointment, the treating physician imposed additional restrictions, including a limitation on sitting, based upon the claimant’s presentation at this appointment and his representation that he had unsuccessfully attempted to return to work. The treating physician testified consistent with this report at a subsequent post-hearing deposition. The claimant similarly testified that he was unable to sit for extended periods of time.
The ALJ found this testimony was undercut by the claimant’s demonstrated ability to take a 10-hour flight to and from Europe and the fact that he passed a DOT physical prior to being placed at MMI. The ALJ credited the testimony of Respondents’ experts and found that claimant was capable of returning to work. The ALJ found in favor of Respondents and denied the claim for permanent total disability benefits.
Antolik v. XPO Logistics Freight, Inc., W.C. No. 5-010-438 (May 4, 2023).
Want to know more? Contact Michelle Prince at mprince@pollartmiller.com or 877-259-5693.
