Word has it that so called "independent medical evaluations" are taking place again in Alaska. One of the doctors being flown up to evaluate injured workers is Dr. David Bauer. Odds are if the insurance company has scheduled an appointment for you to see Dr. Bauer, he is going to deny your claim.
Dr. Bauer's History of "Independent Medical Evaluations"
Doctor Bauer has been evaluating injured Alaskans for several years and a number of cases involving him have gone to hearing before the Workers Compensation Board. Take a look and see if any of these cases sound like yours. In each case, Dr. Bauer denied the employee was entitled to benefits. And in each of these cases, the Employee won.
Lifting injury, herniated disc.
In Serafin v Denali AK Fed Credit Union and Liberty Mutual AWCB 17-0032 (3/21/17), the Employee injured her back lifting and moving a small refrigerator at work. She was diagnosed with a herniated disc and annular tear. Dr. Flanum performed a microdisctomy.
The Second Independent Medical Evaluator (SIME), Dr. Coulter, found the injury was work-related and treatment reasonable and necessary.
She continued to have pain and had a second surgery.
The insurance company sent her to see Dr. Bauer who concluded the February 24, 2010 work injury was not the substantial cause of any then-current disability or need for medical treatment, including surgery. Dr. Flanum disagreed with Bauer’s opinion. The SIME doctor, too, disagreed with Dr. Bauer. After the SIME doctor’s deposition, Bauer wrote a rebuttal letter stating: I do not believe the work injury from February 24, 2010, is the substantial cause of the need for medical treatment from January 19, 2012, through January 31, 2014. In my medical opinion, Ms. Serafin's occasional back symptoms between 2012 and 2013 were due to the progression of degenerative disease consistent with age. The symptoms from mid-2013, when she had the disk herniation, through 2014 are due to a sudden and unrelated event. Therefore, the 2010 work injury is not the substantial cause of her disability or need for medical treatment.
At his deposition, Dr. Bauer testified the 2010 MRI study as revealing a disc “bulge” rather than herniation. He believed the February 24, 2010 work injury was not the substantial cause of Employee's need for treatment, but only an aggravation of a pre-existing degenerative condition which resolved. Because disk bulges can be caused by aging, Dr. Bauer believes the disc bulge was present prior to and not caused by the 2010 work injury. Employee had an “age appropriate” spine on the imaging ….Referencing academic literature, 70-80 percent of studied individuals with one-level disc herniation had no identifiable, known cause. The majority of these injuries are caused by a “wrong move” or even turning over in bed.
The case went to hearing. The Board found Employee credible and her physicians credible. Further, it found that the lack of treatment prior to injury, employee’s credible testimony, the medical records, her doctors’ credible testimony outweighed Holly and Bauer. It held that the disability and need for treatment was work-related. Ordered Liberty Mutual to reimburse for past medicals.
The Employee won!
Dr. Bauer had "no explanation"
In Henson v Apicda Joint Ventures, Liberty Mutual AWCB 18-0044 (5/11/18), the Employee tripped in a freezer container in the course of his employment and injured his leg and back.
The Employee was examined by Dr. Kirkham, who recommended Employee find sedentary work, based on the April 20, 2016 FCE. Dr. Kirkham states “... chef is a light duty position and not a sedentary duty position, so he would not be able to return to work as a chef.”
The Employee attended an EME with R. David Bauer, M.D. Dr. Bauer found no objective or physiological basis for Employee's pain complaints, no objective or physiological reason Employee could not return to his job at the time of the injury, or other heavy-duty work.
The Employee won a remand to the RBA for modification of her previous denial. While the Board did not address the credibility of Dr. Bauer’s report specifically, it found instead that the Employee and her treating physician were credible.
The Employee won!
Dr. Bauer a "no show" at the hearing!
In Cavitt v D&D Services and Ohio Casualty Company AWCB 18-0060 (6/25/18), the employee fell from scaffolding at work and fractured his elbow. He had partial elbow replacement surgery. He had a second surgery because hardware came loose due to osteomyletis (infection.) His treating physician recommended continuing follow-ups every year or two because of infection and stated that in future there would be additional surgeries and that he could not go back to the job he was doing at time of injury or subsequently.
On January 25, 2018, Employee was seen by Dr. Bauer for a second EME. In addition to examining Employee, Dr. Bauer reviewed medical records dated after his April 26, 2017 EME. Dr. Bauer's diagnosis was unchanged since his April 2017 EME report, and he continued to find the work injury was the substantial cause of Employee's disability and need for medical treatment, and treatment to date had been reasonable and necessary. However, Dr. Bauer found Employee had reached medical stability as of the date of his examination and the only further treatment needed was a home exercise program and continued use of his elbow brace, although a functional capacity evaluation would aid in determining appropriate restrictions for future employment. Dr. Bauer rated Employee with an eight percent permanent partial impairment.
When the Employee filed a claim and took the case to hearing, the insurance company, Ohio Casualty (a Liberty Mutual company) withdrew its controverson and refused to produce Dr. Bauer for testimony.
The Employee won!
Dr. Bauer said back injury was not work-related, only degeneration.
In LaBlanc v Alaska Inga’s Gallery Dec. No 20-0098 (10/23/20), Dr. Bauer opined that the back injury was not work-related and instead the result of degeneration. The Board found Dr. Bauer’s testimony deserved less weight in this analysis:
Dr. Bauer opined Employee's pain complaints were not consistent with the L3-4 herniation because it required pain radiating into her thigh and she did not report it to him during his examination. His opinion is given less weight than Drs. Bursell's and Pohlman's because the medical record is clear that Employee has experienced anterior thigh pain. AS 23.30.122; Smith; Moore. The preponderance of the lay and medical evidence is the work injury was the substantial cause of Employee's past and current need for low back medical treatment. Saxton.
And again, in regards to his opinion on acupuncture:
Dr. Bauer's opinion is given less weight than Dr. Hess's because he testified he did not discuss the effect of acupuncture with Employee. AS 23.30.122; Smith; Moore.
The Employee won!
Dr. Bauer diagnosed a pre-existing condition.
In Wise v Wolverine Dec. 20-0095 (10/13/20), Dr. Bauer opined the cervical condition was pre-existing. As in Cavitt, the Employer failed to produce him for testimony. His opinion was excluded. The Employee won!
Dr. Bauer said there was no need for treatment.
In Elardo v Walmart Dec. 19-0057 (5/8/19), Dr. Bauer opined the condition was not-worked related degeneration, there was no need for medical treatment and the Employee was medically stable. The Board held his opinion would be given less weight:
Dr. Bauer testified “all the findings on this MRI were due to aging”; they were related to the progression of the degenerative condition that would have occurred regardless of the work injury. He explained that a person constantly degenerates so his steady state is not a straight line across the bottom, but rather, a line of steadily increasing impairments and disabilities as he gets older. A 2015 study showed someone in his fourth decade of life would be 40 to 50 percent likely, even if asymptomatic, to have all the findings of Employee's MRI. Thus, just because Employee had an injury, it does not mean that everything that followed was caused by that injury. However, Dr. Bauer's opinions are given little weight and credibility as he neither addressed why degeneration would only show at one disc, and not in others, nor provided the basis for his conclusion degeneration pre-existed the work injury. AS 23.30.122; Smith. He did not consider other potential causes of degeneration; he did not explain why Employee would belong to the 40 to 50 percent group, rather than the 50 to 60 percent group, absent the work injury. Id. Emphasis added.
The Employee won!
For More Information on Dr. Bauer
A more detailed list of cases in which Dr. Bauer has issued reports can be found here: Gang of Seven: Insurance “Independent” Experts
Call an Experience Workers Compensation Attorney!
If the insurance company set up an appointment for you to see Dr. Bauer or someone like him, chances are they are preparing to cut off your benefits. Call an experienced Workers Compensation attorney.
Check out my past verdicts & settlements page here: http://www.keenanpowell.com/past-verdicts-settlements
And for updated verdicts and settlements, check out these posts: Never Give Up, Never Surrender – 2019 Victories, Never Give Up, Never Surrender 2020!
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.