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Wilson v. Ace American Insurance Group6/7/2002
19-22.) When asked what he knew about the condition of her back prior to March of 1999, he answered:
Not a lot of information, other than that remote injury when she was a young gal, the fractured back at 18 which was never set; "never reset," I quoted her. (Id. at 22.)
In cross-examination, he conceded that claimant's fall in 1994 could have caused her herniated disk. (Id. at 20.) In light of the history provided him in cross-examination, he further conceded it was possible that claimant's herniated disk occurred prior to March 1999, that her symptoms waxed and waned over the years, and that the March 1999 incident was merely a temporary aggravation of a pre-existing condition. (Id. at 23.) Why claimant's counsel did not furnish claimant's complete medical history concerning her back problems and ask him to render his opinions in light of that history is a mystery to me. His failure to consider that history seriously undermines his opinions. On the other hand, either counsel could have asked him whether the additional history changed his opinions. I am left wondering what he would have said.
Dr. Vallin's examination of claimant was limited to her neck and shoulder for purposes of an impairment rating. He did note that claimant said she had a history of chronic, intermittent back pain. Ace's adjuster, however, later on asked him for his opinion regarding the relatedness of claimant's radiculopathy (from the herniated disk) to her March 1999 injury. He wrote back on May 3, 2001, in pertinent part, as follows:
. . . Dr. Hayward is diagnosing a new entity with respect to right leg pain which he feels is related to an L3-4 radiculopathy. There are no medical records to reflect injury to the lumbar spine other than a prior medical history of chronic intermittent low back pain which more likely than not is unrelated to the previous employment and in my opinion would not be causally related to her injury of 3/9/99. (Ex. 6.)
Dr. Vallin reaffirmed his opinion in his deposition. (Vallin Dep. at 15.) Dr. Vallin's opinion, however, was premised on the brief, incomplete history the claimant provided him at the time of his examination of her, Dr. Hayward's medical notes of March 10, April 7, and May 10, 1999, and Dr. Hayward's letter of February 1, 2001. (Id. 16.) When cross-examined about the importance of other records he had not reviewed, he gave them short shrift, testifying that other records would not make a difference to his opinions since the records he had indicated claimant's back pain had resolved. (Id. at 18.) As with Dr. Sorini, I am bewildered by the failure of counsel to provide Dr. Vallin with a complete medical history, but in this instance it would appear that the responsible counsel is Ace's attorney who should have done so. Moreover, Dr. Vallin was not asked to comment on the waxing and waning of claimant's symptoms, which was addressed by Dr. Sorini. His testimony also does not lay out his justification for considering a lack of back complaints at a particular time after March 1999 was conclusive.
Irrespective of my ultimate finding concerning the relatedness of claimant's herniated disk to her March 1999 industrial accident, I find that neither party adequately prepared their medical witnesses and that counsel failed to ask questions that would have aided me in resolving this dispute. Surely, counsel in this case could have supplied Drs. Sorini and Vallin with complete medical records regarding claimant's back problems. And, while I appreciate short depositions, both counsel should have more thoroughly explored the bases for their opinions and at least asked them if additional information would have changed their ultimate opinion
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