Monday, February 25, 2013

Injury - Does not make medical sense - Denied

In injury claims investigation, there are instances where the statement or omission of facts, causes one to question the mechanism of injury... "how did it happen?"
In Pennsylvania the Employer must accept or deny a claim within 21 days. This time deadline compresses the time frame for thoughtful analysis and reflection.
One option is to issue a Notice of Temporary Compensation Payable [LIBC 501] and continue the investigation. Often a claim will be denied where questions remain regarding the mechanism of injury.

Johnson v. WCAB (Home Depot), No. 738 C.D. 2012 is an unpublished panel decision of the Commonwealth Court of Pennsylvania authored by Judge McCullough on February 21, 2013.

Factual & Procedural Background

Employee filed a claim petition alleging a left rotator cuff tear in the course of his duties as a Lot Tech and Loader. On December 24, 2009, He testified he was in the Employer's parking lot, helping a co-worker load cabinets into a truck. While walking back to the store, he reached out and pulled two lumber carts. He said he heard a "snap" and felt pain in his left shoulder, but he finished the work day and did not report this injury to his Employer.
Four (4) days later December 28, on his next scheduled work shift, he noticed increased shoulder pain and called off work. He did not tell Employer that his condition may be work related.
Employee treated with his family doctor (not an employer designated medical provider?).
Employee delivered a work excuse to Employer on December 30, 2009, this was the first time he notified employer that his injury was work related.

Employee evidence included the testimony of his co-worker that he heard a snap, he turned around and saw Employee holding his left shoulder. Employee appeared in pain and said the snap noise was his shoulder.

Employee presented the medical testimony of orthopedist Joseph Guagliardo M.D. He began treatment in February 2010 and diagnosed a torn left rotator cuff with internal derangement of the shoulder.
Another surgeon performed a rotator cuff repair and acromioplasty.
Guagliardo opined this condition was totally disabling and related to the work incident described by Employee on December 24. He described a rotator cuff tear is initially painful and becomes increasingly painful with motion or pressure, such as sleeping on it.

Employer Medical Expert, David L. Rubenstein M.D. specializes in rotator cuff surgery. He examined Employee and the medical records including the pre-op MRI. That scan showed a large subacromial bone spur and AC arthritis, which would predispose Employee to rotator cuff problems.
Importantly, Rubenstien reviewed the medical records which indicated Employee did not experience pain or symptoms until December 28. Rubenstein opined Employee did not tear his rotator cuff on the 24th as he should have experienced immediate intense pain in the first 24 hours and he would
have immediatedly stopped working or would at least reported it.
He disagreed with Employee medical expert that a pop or snap, tears the rotator cuff such that pain and symptoms are experienced over time. This was "against conventional orthopedic wisdom and did not make sense".

WCJ rejected the credibility of Employee and his co-worker.
He assigned greater credibility to Employer medical expert.
He did not rely upon Employee medical expert, as that witness relied upon employee's "tainted information". This medical expert relied upon Employee's version of events, which were deemed not credible.
On Appeal Employee argued:
the findings were not supported by substantial evidence;
the decision was not reasoned;
the WCJ capriciously disregarded competent evidence.

Commonwealth Court stated the well established rules of law:

The WCJ is free to accept any witness, in whole or in part.

The WCJ may reject uncontradicted testimony.

The "reasoned decision" requirement was met as the witnesses appeared before the WCJ and it is appropriate to base the credibility determination upon the witness demeanor or "some special circumstance".

The WCJ did not capriciously disregard evidence as the WCJ summarized the testimony of each witness and explained his reasons for the credibility determinations.

Practice Pointers:

1. The credibility determinations of the WCJ are paramount to obtaining a successful litigation result.

    This case reflects as well-reasoned defense strategy. There were no rebuttal witnesses to 
    Employee's version. Attack the underlying premise of his version of events.

2. Medical Expert selection is another crucial element in a defense. IMO the selection of a "shoulder
    expert" may have carried some weight in the credibility analysis.

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