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“Let the worker have his surgery” said the Judge

March 2020

I brought the case of J.W. to Judge Spalding, an Administrative Law Judge at the State Board of Workers' Compensation, in late 2019. My client's medical care was being denied by the insurance company, specifically, low back surgery and pain management treatment before or after surgery.

It seems this is a tactic the worker encounters more often these days. The insurance company does not like the way the medical treatment is progressing so they throw up road blocks like forcing my client into an arbitrary and heavily biased insurance company “independent medical examination”. These short, abbreviated exams are not “independent” in any sense of the word. They are designed to create a controversy to delay and force the worker into a desperate settlement out of fear the worker will lose their case because now there is a “bad” medical report that has been created and that a judge might utilize it to deny my client's need for future care. I have seen with my own eyes client cases where the former lawyer representing the worker attempts to “push” the worker into a settlement because of one of these “independent” medical opinions provided by one of the many trained lap dog orthopedic surgeons who “stand tall” for the insurance companies. It always seems to be orthopedic surgeons or their favorite pain management doctors who are the main culprits at this dubious practice. A weak lawyer puts fear into the worker to settle the case.

But enough of my soap box here. The Judge said “no” to the insurance doctor's opinion that no further medical treatment was needed when the treating physician was suggesting a second low back surgery for my client.

The Judge stated that the insurance doctor “offered no satisfactory treating opinion”. This is what I asked my client to testify to…in other words, I had my client testify as to the contrasting medical treatment proposals of the two doctors and the Judge believed my client's opinion. In fact, the Judge stated, “If he (my client) wished to undergo surgery with all its attendant risks for the hope of improving his condition, I will defer to him.”

This is powerful stuff. I gave my client a chance to be in control of his own testimony. Most lawyers fear what their clients will say in open court. Not so here. The Judge also said of my client: “I find him to be a very credible witness.” This is very important.

Putting a client on the witness stand does subject the client to the skilled cross examination of the insurance company attorney. However, upon proper preparation of my client along with a thorough knowledge of the medical treatment my client so desperately wants and desires, the client can be very persuasive. I do not have to be “Perry Mason” and the insurance lawyer does not have to be “Matlock” in order for the Judge to listen for the truth, to hear the genuine plea of my client to be allowed to get further medical care so that my client may have an opportunity to feel less pain and maybe, just maybe, improve his or her medical condition and then return to a productive life again. This is why I do what I do and enjoy it so much. Most lawyers I know and am familiar with would prefer the easy life of settling their cases without the “rough and tumble” of the courtroom. But without the courtroom as the ultimate weapon for the truth to surface, there may be no victory won. Come see me and let's talk about whether you have a case that should be presented to the court. Not every case is suited for court. Will the Judge say you are a credible witness?

Practice area(s): Workers Compensation

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Thomas Brown

Attorney Thomas F. Brown, II has more than four decades of experience representing injured workers and helping them obtain the income benefits and medical treatment they need and deserve. Tom primarily practices in the workers' compensation area, representing injured workers exclusively. He also...

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