Mills v. Fairfax County Public Schools Fairfax County School Board, 100721 VAWC, VA00000190136

Docket NºJurisdiction Claim VA00000190136
Case DateOctober 07, 2021
Jurisdiction Claim No. VA00000190136
Claim Administrator File No. 0952057865000101520
Virginia In The Workers’ Compensation Commission
October 7, 2021
          Date of Injury: November 25, 2009          REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.           Andrew S. Kasmer, Esquire For the Claimant.           Nirav Patel, Esquire For the Defendant.          OPINION           RAPAPORT, Commissioner          The defendant requests review of the Deputy Commissioner’s May 28, 2021 Amended Opinion awarding permanent total disability benefits.[1] We AFFIRM.          I. Material Proceedings          The parties are well-versed in the procedural and evidentiary history of this case. We recite only those facts necessary to explain our affirmation of the lower opinion.          The claimant, a carpenter, sustained a compensable injury by accident to his back on November 25, 2009. The defendant has paid medical benefits and wage loss benefits. By Opinion dated February 16, 2017, the Commission affirmed the awarding of permanent partial disability benefits for a 20% loss of use of the left leg and a 16% loss of use of the right leg. These ratings were based upon the opinion of Dr. M. M. Malek, an orthopedist who performed an Independent Medical Evaluation (IME), over those of the treating orthopedic surgeon, Dr. Paymaun Lotfi.          On December 6, 2019, the claimant filed a claim seeking permanent total disability benefits. He relied upon a second IME overseen by Dr. Malek on November 19, 2019. The defendant defended that the claimant was not permanently and totally disabled as a result of his occupational injury. Deputy Commissioner Cummins conducted an evidentiary hearing on September 14, 2020. The Deputy Commissioner awarded permanent total disability benefits on October 26, 2020. The defendants appealed. On March 15, 2021, the Commission vacated the lower decision and remanded the matter to allow the defendant to conduct an IME and reasonable discovery regarding a September 10, 2020 report authored by Dr. Malek.          On remand, Deputy Commissioner Cummins considered the record, including the IME generated by Dr. Louis Levitt on April 27, 2021. The Deputy Commissioner found that the claimant proved entitlement to permanent total disability benefits. She noted the numerous inconsistencies in the findings and opinions of Dr. Lotfi, and found the claimant to be “most credible in reporting his physical complaints and limitations” to the doctor and within his testimony about his abilities/disabilities. (Op. 15.) The Deputy Commissioner continued her analysis as follows:
The defendants’ defense to the instant claim for permanent total disability rests in part on these opinions of Dr. Lotfi. The current opinions of Dr. Lotfi are no different than those rendered by him at the time of the previous 2016 hearing and 2017 Review on the issue

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