DELAWARE: Should Have Hired Landscapers: Activities During Gap In Treatment Doom Causation Arguments
National Workers Compensation Defense Network (NWCDN)
WORKERS' COMPENSATION LAW: Should Have Hired Landscapers: Activities During Gap In Treatment ?Doom Causation ArgumentsClaimant was injured in a compensable work accident in 2013 involving the low back and multiple other bodily injuries. In 2019, Claimant filed a Petition seeking payment of low back medical treatment with Dr. Zaslavsky.The Board found Claimant’s evidence inconsistent and insufficient to support a finding on causation. The Board noted a 5-year gap in lumbar treatment, during which time the claimant had treated for knee and upper extremity symptoms, with two different physicians, with neither physician noting back problems. Claimant alleged that both providers must have recorded her history incorrectly as she consistently reported 9-10/10 low back pain during that 5-year time period. The Board found this “highly unlikely.” The Board further felt Claimant’s ability to do yard work and physical activities as discovered by surveillance investigations and, admitted to by the claimant on cross examination, were inconsistent with her allegations of intense low back pain and significantly detracted from her credibility. Even Dr. Zaslavsky had to concede that if claimant’s history was not accurate, that could change his opinion on causation.Should you have any questions concerning this decision, please contact Heckler & Frabizzio 302-573-4800.Patricia Smallwood v. State of Delaware, IAB Hrg. No. 1406424 (Feb. 26, 2020).
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