Tuesday, March 7, 2017

Unreliable history of accident defeats claim

Clark v Almost Family, Inc.
2017 MOWCLR LEXIS 22 (Kohner)
February 23, 2017

A home care worker alleges she hurt her  neck  and sought a temporary award for a myelogram and other treatment.  The Commission affirmed a denial of benefits  that claimant's expert relied upon materially incorrect facts. 

Claimant filed a claim alleging she hurt her neck moving a 400 pound patient.  Claimant provides different medical histories some of which describe a work injury and the first emergency room record for treatment described the cause  as "unknown." Claimant treated on her own with injections for aggravation of cervical arthritis.  She sought a temporary award for treatment and claims that her hand draws up and she has unrelenting pain. An expert proposed a myelogram.

 Dr. Taylor felt her condition flowed from a somatization disorder without an organic explanation related to a cervical condition.

"The essential question in this case is whether the claimant suffered a work-related injury  from an accident at work. She testified at the hearing that she suffered a severe neck and left arm injury while lifting a 400-pound patient on November 29, 2014, or December 6, 2014. On the other hand, the claimant suffered from pre-existing cervical arthritis and degenerative disc disease relating to her neck."

The ALJ concluded that the emergency room history was inconsistent with the claim as a basis to deny compensation. The ALJ noted that Dr. Volarich provided a rationale for the myelogram to better evaluate osteophyte formation despite a normal MRI. The ALJ considered his explanation  a "more reasonable analysis" rather than the "focus on the relationship of the alleged occurrence to the claimant's medical condition"

The Commission noted the employer had stipulated claimant provided services on the date of the alleged accident and that inconsistencies in the accident date was not always fatal.  She was unable to reconcile her testimony that she was in "intractable pain" and payroll records showing she continued to work until she sought treatment 10 days later.  Dr. Volarich's "timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony."

The Commission suggests alternate testimony could have cured the inconsistencies:

"If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.

As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. "

Only 2 of the 3 commissioners wrote the award. 

Attorney Plufka represented the employee.