Summary: 52 year old female with back and neck pain arising from a bulging disc, and limited medical treatment
Client profile: my client was 52 years of age at onset and 55 as of the date of the hearing
Education: left school after 9th grade, but did obtain a GED. She also obtained a CNA (certified nursing assistant) certificate which she used during her working career.
Past work: nursing assistant (home care) for hospice service; vet tech; ranch hand
Claim background: my client filed for benefits in October, 2010; a hearing was held by video in May, 2013.
Medical background: my client’s medical history does not reflect quality treatment or good follow-up. In early 2009, she was driving to a work assignment when her car was T-boned in an intersection. She experienced a side whiplash as well as a severe twist to her torso.
Because this was a work injury, workers’ compensation was the primary source of insurance. The posted panel doctor in her case was the medical supervisor for the hospice where she worked and this doctor insisted that her injuries were mild and he returned her to full duty work.
My client tried to work but could not perform the physical demands of her job because she could not turn her head to the right and because of back spasm. Eventually the posted panel doctor sent her for an MRI of her lower back which showed a bulging disc. The workers compensation insurance company refused to pay for a neck MRI.
In the summer of 2009, while my client was receiving what amounts to ineffective treatment (water therapy, physical therapy, pain meds), she was diagnosed with breast cancer and subsequently underwent a mastectomy and a reconstructive surgery.
By mid-2010, my client had hired a workers’ compensation lawyer (my wife, Jodi Ginsberg) who convinced the insurance adjuster to agree to a pain management physician. The new treating doctor (as well as the initial one) did not feel that this was a surgical case so no surgery was done. The workers’ comp. case settled for a lump sum in late 2010 but by then my client had separated from her husband and she used her settlement money for housing, food and other basic necessities.
The pain management doctor also suggested that my client might have an overlay of fibromyalgia which is consistent with the fatigue and overall body pain my client reports.
Since 2010, my client has had only one medical visit of consequence – she saw a neurologist in the summer of 2012 for numbness in her legs. She was diagnosed with over 65% sensory loss in both legs.
In sum, my client received substandard medical treatment for her motor vehicle accident and very little on-going follow-up due to economic realities.
Factors in our favor:
- my client was over the age of 50 as of her alleged onset date
- there was a documented injury, as well as an MRI report that showed some pathology
- my client has a long, consistent work history
- my client presents as a credible witness
- the judge assigned to our case is more likely than average to approve claims
Factors not in our favor:
- the objective evidence in the medical record describes only mild to moderate spine damage
- my client did not receive consistent medical treatment after 2010 when her workers’ comp case settled
we did not have a completed functional capacity evaluation in the file
My strategy: I felt that it was important to give the judge a big picture overview of why my client’s medical record looks like it does. I especially wanted to send the message that the workers’ compensation provided medical care did not address her underlying issues and that her current physical issues likely arise from the absence of timely treatment with a medical provider that had her interests at heart.
I noted to the judge that the grid rules likely applied.
I also felt that my client would be a good witness – she comes across as frustrated and kind of beaten down and also very credible.
Hearing Report: as noted this hearing was held in a remote location by video. The judge was in Atlanta and my client, the vocational witness and I were in the remote location.
After swearing in the claimant and vocational witness the judge asked some preliminary questions about past work and for identification, then he turned the questioning over to me.
I started my direct examination by asking my client to describe her vehicle accident and her subsequent treatment (or lack thereof) from her supervisor/posted panel doctor. She testified that her supervisor returned her to full duty work and that she tried to perform her job duties but simply could not.
She went on to testify that her employer provided a “make work” job for her at the office, which she was able to attend inconsistently.
My client also testified that her medical care consisted of painful physical therapy and ineffective acquatic therapy and that about a year after her accident she began experiencing numbness in her legs.
She also noted that the workers’ comp. insurance company would not authorize treatment for her neck pain and that at this point she cannot turn her head to the right without pain.
She testified that she takes 2 to 3 hydrocodone pills per day and often must also take Benadryl to combat itching (an allergic reaction to the hydrocodone).
I asked a few questions about my client’s other medical complaints – fibromyalgia, arthritis in her right hand, a congenital heart issue and poor depth of field visual issues, but I focused primarily on the back pain.
After my direct exam, the judge said he had no questions so he turned to the vocational witness. The VE classified my client’s past work as:
- vet tech – medium, skilled
- nursing assistant – medium, semi-skilled, with transferrable skills to the job title “companion” which is a light, semi-skilled job at DOT 309.677-010.
The judge then posed the following hypothetical question:
Assume I find that the claimant can perform light work, but because of her medical issues the only work she could perform would be unskilled work. Could she return to past work?
A: no, because all of the past work was skilled or semi-skilled.
The judge had no more questions, nor did I.
Conclusions: assuming the judge finds my client limited to sedentary work based on testimony and the evidence, she will meet the grid rule at 201.14 (high school graduate + semi-skilled or skilled past work that does not provide for entry into skilled work). Had the judge felt that my client could perform light work he would have asked other questions about unskilled light work. This case should be approved.