Petition for compensability of post-concussion syndrome treatment granted. Petition to terminate total disability benefits, alleging ability to return to work w/restrictions and forfeited right to benefits for refusing reasonable medical treatment, denied
Ms. Makowski injured her low back, neck, shoulder, head/brain in a work-related motor vehicle accident on January 22, 2009, and remained on total disability benefits. The Industrial Accident Board later determined that Ms. Makowski also suffered from functional movement disorder related to the work accident. In the nature of functional dystonia, emotional outbursts, and the body shutting down and being unresponsive in stressful situations. The claimant was under the treatment of a neurologist, a “concussion specialist” and mental health specialists.
The employer obtained defense medical examinations with a neurologist and a neuropsychologist. Based on those results, the employer denied treatment for “post-concussion syndrome” as not reasonable, necessary, or causally related and filed a petition to terminate ongoing total disability benefits.
Ms. Makowski filed her own petition to acknowledge she suffered from post-concussion syndrome and for medical treatment expenses related to that condition.
A Hearing Officer of the Industrial Accident Board granted the claimant’s petition and the employer’s was denied. The Hearing Officer explained, three of Ms. Makowski’s treating physicians diagnosed her with post-concussive syndrome and there was no convincing argument that the condition or treatment were not reasonable and related to the work accident. The Board determined that Ms. Makowski remained totally disabled based on the opinions of her treating doctor. Even the employer’s experts did not seem convinced that someone with the claimant’s many, serious restrictions (including losing the ability to speak, move or remain conscious when flustered) could actually work. The Board further emphasized that while a “unicorn” or “perfect” job may exist, asking the claimant to have the fortitude and stamina to engage in a job search was unreasonable at this juncture.
The last argument the employer made was that the claimant forfeited her right to compensation or disability pursuant to Section 2353(a) when she refused engage in cognitive behavioral therapy at the recommendation of the employer’s neuropsychologist. The Hearing Officer rejected that argument and observed the claimant had attempted to find a certified cognitive behavioral therapy provider, and even attended a few visits, but that the experience was negative to the point it triggered her functional movement disorder. It was recommended that the claimant make all reasonable efforts to pursue such treatment in the future as all medical experts were in agreement that this could be of benefit to improve her circumstances.
What’s Hot in Workers’ Comp, Vol. 28, No. 11, November 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.