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Successful Appeal in Workers’ Compensation Case

March 23, 2009

Chris Whitlock handled a case involving a 61 year old employee who was involved in a work related motor vehicle accident, who subsequently developed progressive dementia. The Plaintiff alleged that his dementia was related to the motor vehicle accident; however, the initial medical records from the ER did not suggest a traumatic brain injury. The employee’s primary care physician and a dementia expert at John Hopkins University opined that the employee’s dementia was related to the accident. Following independent medical evaluations with a neurologist and neuropsychologist, and after obtaining several expert witness depositions, the employee died as a result of complications caused by a fall down several stairs. The employee’s widow sought death benefits, and argued that the employee’s fall and ultimate death were the result of his dementia which had been caused by the work accident. The employer and insurer obtained a general autopsy, and a neuropathology autopsy (autopsy of the brain tissue) to determine the specific cause of the employee’s dementia and the cause of his death. The autopsies revealed that the employee had no evidence of a traumatic brain injury, and his dementia was caused by spongiform encephalopathy (the human version of mad cow disease). At the hearing, the claimant presented expert medical evidence from the neurologist at John Hopkins which suggested that the employee’s spongiform encephalopathy was either caused by the work related motor vehicle accident, or was hastened by the accident. The claimant testified and also presented two witnesses, clergymen from the employee’s church, who testified that the employee’s dementia did not begin until after the motor vehicle accident. The employer and insurer also presented fact witnesses including 4 of the employee’s coworkers who testified that signs of his dementia were apparent prior to the motor vehicle accident. Additionally, the employer and insurer presented a live expert witness, the neuropathologist who had performed the brain autopsy. This expert witness testified that the employee had no evidence of a traumatic brain injury, and that even if he had sustained a brain injury as a result of the work related motor vehicle accident, such an injury would not have caused or hastened the employee’s spongiform encephalopathy. The Judge found for the widow and awarded death benefits, however, we were successful on appeal to the Appellate Division. The Appellate Division found that the employer and insurer’s expert witness was more credible than the claimant’s expert, and determined that the claimant had failed to establish that the employee sustained a traumatic brain injury which aggravated or caused the employee’s spongiform encephalopathy, and failed to present any evidence establishing a causal connection between the employee’s motor vehicle accident and his death which resulted from a fall at home 11 months later. The Award of the Full Board was affirmed on appeal.

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For informational purposes only. Past success does not indicate the likelihood of success in future cases.