The Commission reversed a denial of benefits and found that a psychiatrist's opinion supported an award of PTD benefits against the Second Injury Fund for a combination of prior psychiatric conditions and new orthopedic injuries even though the expert performed no physical exam. of the 41 year old claimant for his orthopedic injuries. Phillips v M&S Painting Ins., DOLIR 1-14-2014.
The ALJ found claimant's expert was not credible. "Dr. Liss summarily concluded Claimant was PTD due to the bipolar condition and the work injury without explaining how he reached the conclusion. This is especially important in light of Dr. Liss’ opinion that Claimant’s bipolar condition alone resulted in "significant disability."" Claimant's own treating physician concluded claimant could return to work without restrictions from the orthopedic injury. An expert who examined the orthopedic injuries did not indicate unequivocally that claimant was unemployable. The ALJ found claimant's expert lacked the qualifications to render a vocational opinion.
The Commission acknowledged the expert is not "entitled to great weight" but is not rebutted or impeached anywhere in the record and claimant can rely upon expert medical opinion to establish PTD without additional vocational opinions. The takeaway from the case is the need to present contrary expert opinion, an element often lacking in many second injury fund defenses.
ALJ Carlisle
