JANUARY – MARCH 2020 WORKERS COMPENSATION CASE LAW UPDATE
By: Attorney Hayley Clark
- Paez v. Mayville Engineering, Co., Claim No. 2017-019553 (LIRC Jan. 22, 2020)
Rule: In order to be found credible, the treating physician must have a near-accurate understanding of the applicant’s past medical history.
Facts: Thomas Paez worked for Mayville Engineering Company for three months before he allegedly injured his low back. He worked as a robotic welder and stand welder on the “weekend shift,” working 10 hours per day from Friday through Sunday. He did not hold any other jobs during the week. On the alleged date of injury, August 12, 2017, Paez claims that he felt a “pop” in his back when lifting a metal sheet weighing 40 pounds. He underwent treatment that same day.
Paez denied any prior lower back pain or symptoms when speaking with his physicians, and he also denied any prior lower back pain or prior worker=s compensation claims when providing his recorded statement to the adjuster. Respondents uncovered a number of treatment notes outlining lower back complaints and injuries, along with a few worker=s compensation claims. At hearing, Paez stuck to his prior statements and denied any prior lower back treatment or injuries. When confronted with specific medical records and dates of complaints, he indicated again that he could not recall those injuries or treatments.
Decision: A majority of the commissioners affirmed in part and reversed in part the ALJ’s decision. The commission held that Paez was entitled to a small period of temporary disability benefits, but he was not entitled to anything else, including permanent partial disability benefits. The commission hung its hat on the fact that not only did Paez lie to his physicians about having no prior lower back pain or complications, but he doubled-down at hearing and indicated that he could not recall the same even after being provided with proof of those treatments. Following the Pressed Steel precedent, they opined that Paez’s physician’s opinions were not credible because they were based upon an inaccurate medical history.
Dissent: Commissioner Mike Gillick dissented from the majority opinion. The dissent was brief but illustrative of an employee-friendly credibility analysis, the best example of which stems from the following quote
“Mr. Paez testified that he did not recall either [work or back] injury. I do not find that at all surprising. Mr. Paez was a manual laborer, and it is within the commission’s experience that manual laborers tax their bodies for a living, suffering what Mr. Paez referred to as “normal fatigue.” Neither do I think that Dr. Siebert’s opinions are in any way lessened by the fact that he did not know of these events. What he did know was that Thomas Paez was a manual laborer who was working without restrictions when he picked up a heavy piece of metal and injured his back, and that he had constant and consistent problems ever since that injury.”
2. Hemphill v. Mathy Construction Co., Claim No. 2018-010372 (LIRC Jan. 22, 2020).
Rule: (1) An exact statement of job duties is not necessary in an occupational exposure claim, as long as the applicant gives a general understanding of the strenuous nature of the job. (2) An applicant need not experience an onset of pain while on the job in order for an injury to be related to occupational exposure.
Facts: Jason Hemphill worked for many years as a heavy equipment operator for a number of employers before starting with Mathy Construction in September of 2015. He treated with a chiropractor for lower back pain during the course of his employment. While watering his flower garden at home on July 15, 2017, he felt an immediate onset of lower back pain with radicular symptoms. He treated the following day and reported that he injured his back while watering his garden. Hemphill continued to treat with a different chiropractor, and it was this chiropractor who suggested that his work as a heavy equipment operator contributed to his lower back condition. From that moment on, he claimed the condition as work related.
The respondents obtained a medical records review report from Dr. Monacci‑‑he never examined Hemphill. Dr. Monacci opined that Hemphill’s duties “as a front end loader” would not have been sufficient to result in Hemphill’s lower back condition; he instead stated that lower back pain can sometimes occur without specific trauma. Dr. Monacci did not provide any further explanation as to why or how he reached those opinions, apart from the fact that he stated that Mr. Hemphill’s symptoms were “precipitated” by gardening only, and he did not discuss Hemphill’s career of heavy‑duty work.
Decision: A majority of the commissioners modified and affirmed the ALJ’s decision that the occupational injury was compensable. The commission opined that Hemphill’s change in the mechanism of his injury (watering flowers versus employment) was because Hemphill did not understand the relationship between his condition and his employment until after it was pointed out to him. The commission noted that Hemphill’s long history as a laborer and driver of a front-end loader, including his work with Mathy Construction, played a much bigger role in his condition than watering his flowers. Finally, the commission took issue with Dr. Monacci’s lack of in‑depth explanation (and seemingly the lack of independent examination to speak with Hemphill).
Dissent: Commissioner David Falstad dissented from the majority opinion. In sum, he did not believe Hemphill was credible. He took issue with the fact that Hemphill changed his mechanism of injury after speaking with a chiropractor, and he especially took issue with the fact that Hemphill eventually left out the incident of watering his flowers entirely when recounting his onset of symptoms. Finally, he also felt that Hemphill’s duties with Mathy Construction were different from his duties with his other employers, such that it was not a material contributory causative factor in the onset or progression of his condition.
3. Robinson v. De Arteaga, Inc., Claim No. 2017-010361 (LIRC Feb. 20, 2020).
Rule: An applicant will not be considered credible if (s)he does not provide his/her physician with a complete understanding of his/her prior medical history, and if his/her testimony does not align with the medical records.
Facts: Richard Robinson, a pro se applicant, has a long-standing history of low-back pain. He was reportedly involved in numerous prior work injuries, one of which resulted in a lumbar fusion, and he was taking vicodin daily. He claims that he slipped and fell on ice at work on April 7, 2017. He reportedly injured a few parts of his body, but his main claim was an exacerbation of his lower back claim. When he treated with a nurse practitioner two weeks later, he indicated that the fall occurred sometime in March of 2017. He later told his treating physician that his back pain had completely resolved around 2015, prior to the alleged work injury.
Robinson underwent conservative treatment for his lower back before he was released to return to work. Despite his release with restrictions his employer could accommodate, he never returned to work after April 7, 2017. He claims that there was a mix-up with his physician and that his employer never made clear that they were offering a return to work, despite his employer leaving a few voicemails and text messages. He also claimed that he never spoke with his physician about work restrictions, but his medical records showed that he called the office multiple times to make adjustments to them.
Dr. Monacci reviewed the claim for the respondents, completed an independent medical examination, and opined that Robinson’s condition was consistent with a manifestation of his pre-existing condition. He was able to review all of the pre-existing medical records to reach his conclusion. Robinson argued that Dr. Monacci was not credible because he only examined him for 20 minutes. He also argued that his claim of a work injury was more credible than Dr. Monacci’s opinions because his prior back injuries should have been evidence to be “high in consideration” of a new injury.
Decision: In a unanimous decision, the commission upheld the ALJ’s decision and dismissed Robinson’s application with prejudice. The commission felt that Dr. Monacci had the best understanding of Robinson’s past medical history, along with the best understanding of the time line of events following the alleged date of injury. Robinson was not considered to be credible, mainly because his testimony and “brief” to the commission contradicted nearly all of his medical records. Finally, the commission noted that the objective evidence (physical examination and diagnostic imaging) did not show evidence of a traumatic injury.