Marilyn Brown is a 61-year-old workers’ compensation claimant who was employed by the Escambia County Board of County Commissioners as a corrections officer. She was hired on March 26, 1990, and was subsequently involved in at least fifteen reported accidents in the course of her employment. Many of these accidents were relatively minor and resulted in transient injuries that resolved with conservative treatment. However, on June 20, 1993, Ms. Brown sustained an initial injury to her lower back while attempting to subdue an inmate. Following that accident, she underwent treatment with Dr. Robert Flurry. Dr. Flurry noted complaints of lower back pain with radiation into both legs. He diagnosed an acute lumbar strain and prescribed conservative treatment, including medications and a home exercise program.
On September 25, 1995, Ms. Brown aggravated her lower back injury when she fell while attempting to prevent an inmate from falling. Following that accident, she underwent treatment with Dr. Ruben Timmons, a pain management specialist. Dr. Timmons diagnosed a lumbosacral sprain, probable facet arthropathy, and lower back pain with referred pain into the lower extremities. The doctor recommended conservative management, including medications, physical therapy, and consideration of epidural steroid injections. On April 6, 2000, following the completion of the prescribed course of treatment, Dr. Timmons opined that Ms. Brown had reached MMI, with a 7% permanent impairment rating.
On May 18, 2000, Ms. Brown again aggravated her lower back injury when she was struck by an elevator door. On October 23, 2001, Ms. Brown slipped and fell in the restroom, sustaining additional injuries to her back, neck, lower extremities, and upper extremities. On September 20, 2002, she underwent an IME with Dr. William Smith, who diagnosed cervical and lumbar spondylosis with evidence of a disc herniation at L3-4. Dr. Smith recommended epidural steroid injections in lieu of continued use of Methadone.
During the latter half of 2003, Dr. David Fairleigh, pain management specialist, assumed primary responsibility for Ms. Brown’s medical care. Dr. Fairleigh continued to provide conservative treatment. On October 21, 2003, Dr. Barry Lurate, an orthopedic surgeon, conducted an evaluation on behalf of the workers' compensation judge. Significantly, Dr. Lurate opined that although future treatment for the claimant’s lower back was attributable primarily to her multiple work-related injuries, future treatment for her neck could not be attributed to her employment. Consequently, subsequent authorized treatment was restricted to the lower back injury.
In 2004 and 2005, Ms. Brown was involved in three additional accidents in the course of her employment that further exacerbated her lower back and lower extremity injuries. Dr. Fairleigh continued to prescribe pain medications and also administered a series of lumbar epidural injections. In January of 2006, the doctor opined that Ms. Brown was no longer able to work as a corrections officer or detention deputy due to her physical restrictions and the risk of further injury. Subsequently, Ms. Brown retired from her employment with Escambia County and was approved by the Florida Retirement System for receipt of disability benefits effective April 1, 2006. Thereafter, the doctor continued to provide conservative pain management.
In 2010, Ms. Brown relocated to Texas. She subsequently commenced treatment with Dr. Wright Singleton, a family practitioner and occupational medicine specialist. Dr. Singleton diagnosed chronic lower back pain and recommended continued pain management. Treatment included several trigger point injections, pain medications, and diagnostic studies in order to assess the progression of the claimant’s lumbar disc pathology.
On June 29, 2015, Ms. Brown was evaluated by Dr. Rajesh Arakal, an orthopedic surgeon. Dr. Arakal obtained an updated MRI scan, which showed lumbar spondylosis with multi-level degenerative disc disease and facet hypertrophy, but no evidence of central canal stenosis. In lieu of surgery, Dr. Arakal recommended additional epidural steroid injections, physical therapy, and continued medication management. Subsequently, Ms. Brown continued to pursue treatment with Dr. Arakal. On March 2, 2016, in light of her ongoing symptoms, Dr. Arakal recommended that Ms. Brown consider proceeding with lumbar fusion surgery, which Ms. Brown has declined. Instead, Dr. Arakal recommended that she proceed with additional epidural injections.
Currently, medical expenditures average just over $3,000.00 per year. Over the course of Ms. Brown’s 20-year life expectancy, this equates to more than $60,000.00 in potential medical exposure. In addition, as outlined above, Dr. Arakal recently recommended a course of epidural steroid injections. The costs associated with injections could amount to an additional $5,000.00 or more per series of three. Moreover, while the claimant has not yet elected surgery, if she does so in the future, future medical costs would exponentially increase. The costs associated with a fusion procedure could amount to as much as $50,000.00 or more.
Pursuant to federal law, when considering the settlement of any workers’ compensation claim involving a Medicare beneficiary, the parties are required to account for the interests of the Centers for Medicare & Medicaid Services (CMS). In order to comply with this requirement, we recently obtained CMS approval of a Medicare Set-Aside allocation in the amount of $29,821.00. Essentially, CMS determined that this amount from the proposed settlement proceeds is sufficient to adequately account for the claimant’s anticipated future Medicare-covered treatment.
In addition to the above-outlined medical benefits, the claimant also remains potentially eligible for indemnity benefits. At present, she retains 88 weeks of temporary indemnity eligibility, which equates to approximately $45,000.00 in potential exposure. She also remains eligible to file a Permanent Total Disability claim, which would result in substantial additional exposure.
The parties recently negotiated and have entered into a provisional settlement agreement releasing the Escambia County Board of County Commissioners and its workers’ compensation insurance carriers from liability for future workers' compensation benefits in exchange for a lump sum payment to Ms. Brown. As indicated above, the total funds payable under the proposed settlement agreement amount to $75,000.00. This amount includes the funds discussed above that will be allocated for the CMS-approved Medicare Set-Aside allocation.
The proposed settlement does not exceed the self-insured retention of $250,000.000. Consequently, all settlement funds would be paid by the County. Nevertheless, in light of the substantial potential exposure associated with this claim, Brian T. Hanley, attorney with Public Entity Legal Solutions, recommends that the Board approve the proposed settlement agreement. This office concurs in the recommendation as does Robert Dye, Risk Manager.
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