Mitigating SLU Opinions - Don't Blindly "Split the Difference"
When faced with high schedule loss of use ("SLU") opinions, it pays to think carefully before just "splitting the difference" between the treating physician's opinion and the IME opinion. When an IME gives an unfavorable opinion, many believe they are stuck with that opinion. A pair of recent cases, successfully litigated by our partners Russ Hall and Susan Parzymieso, show that there is significant value—over $200,000.00 in Susan's case—in using the Board's Impairment Guidelines to see if either the treating physician or the IME improperly applied the Board's Impairment Guidelines in calculating SLU.
Susan faced high SLU opinions from both sides of the case. The claimant's treating physicians opined an 80% SLU to each arm. The IME examined the right arm and gave a 70.5% SLU but did not give an opinion for the left arm.
While reviewing the file, Susan noticed that this injury involved non-surgical ruptures of the long head biceps muscle. Thus, under the Board's Impairment Guidelines, Special Consideration #6 for the arm should apply. This Special Consideration limits the schedule loss of the arm to 33-1/3%. Susan decided to waive litigation and just file a Memorandum of Law arguing for no higher than a 33-1/3% SLU of each arm. The Law Judge agreed, finding a 33-1/3% SLU of each arm, resulting in a savings of over $200,000.00 to our client!
In Russ's case, the treating physician opined a 58-1/3% SLU of the left elbow and a 37-1/2% SLU of the left wrist versus our client's IME consultant, who opined a 32% SLU of the left elbow and 28% SLU of the left wrist. The average weekly wage in this case was $525.34 so simply splitting the difference between the two schedules would have resulted in a gross SLU award of $77,339.54. The claimant only had 14 weeks of lost time on the file.
Russ noticed that the treating physician only measured the affected extremity one time and that his measurements from a few months earlier showed either full range of motion or very modest loss of range of motion. The IME followed the procedure in the Impairment Guidelines for assessing SLU, measuring range of motion of the affected extremity three times and comparing with measurements on the unaffected contralateral extremity. Russ argued that the treating physician did not follow the procedure in the Impairment Guidelines for assessing SLU and that his prior examinations showed much greater range of motion than the permanency exam which further called into question the credibility of his opinion.
The Law Judge agreed with Russ and awarded the SLU as opined by the IME physician. This resulted in a savings of $36,889.73 to our client.
Findings like these have been more common following the Board's 2018 decision in Parody v. Old Dominion Freight, which we reported on in 2018. Our readers should remember that the Board will want to see compliance with the Impairment Guidelines from examining physicians. A physician's failure to follow the procedure described in the Impairment Guidelines for determining SLU can be used to obtain significant savings on the SLU award in some cases.