Truth be Told. . . IAB Affirmed Where Claimant’s Credibility is the Theme of Its Ruling
Fresh out of Kent County – Superior Court refuses to disrupt Board’s credibility determinations in Petition to Determine Compensation Due, where DART driver’s injuries to low back, period of disability, and disputed medical treatment were reasonable, necessary, and related to the October 2018 work injury. Below, in Dennis Anderson v. State, IAB Hr’g No. 1478450 (Sept. 4, 2020), the Board found Dr. Newell (claimant’s doctor) more credible than Dr. Rushton (employer’s doctor) and also found Claimant’s testimony persuasive and credible that he had no prior back issues or limitations in the time frame immediately prior to the work accident. Of note, the Board’s decision is peppered with adjectives such as “credibly” and “convincingly” in recounting its assessment of the Claimant’s testimony.
On appeal, the Employer argued (1) Board abused its discretion when it found Claimant’s and Dr. Newell’s testimony to be credible because Claimant’s records contained inconsistencies and Claimant denied prior low back pain; (2) Claimant’s subjective complaints were inconsistent with his objective signs of injury; and (3) Board abused its discretion when it accepted Dr. Newell’s opinion regarding causation because Dr. Newell changed his testimony on cross-examination.
In State v. Anderson, K20A-09-002 JJC (Mar. 31, 2021), the Superior Court held:
The Board correctly applied the “but for” causation standard set for in Reese when determining that than more likely than not Claimant’s continuing back complaints and 2019 treatment and disability were related to the 2018 work accident;
The work injury undisputedly caused initial injury to Claimant;
The Board’s acceptance of Claimant’s testimony that he was suffering no pain or limitations before the accident but suffered them consistently after the accident was supported by substantial evidence;
Subjective versus objective issues did not control the appeal because in this case, all issues fell within questions of witness credibility and such credibility determinations rest with the Board and the Board was free to disregard Dr. Rushton’s expert testimony;
Dr. Newell’s testimony, after his redirect, provided a permissible inference that the accident constituted a possible cause of the disputed treatment and wage loss. That inference, in conjunction with the other evidence of record, would have been independently sufficient to sustain the Board’s decision. The Board maintained the discretion to accept Dr. Newell’s testimony on direct based upon (1) other corroborating evidence of record, and (2) Dr. Newell’s rehabilitation on re-direct. As a result, the Board’s reliance on his causation opinion did not constitute an abuse of discretion.
The take-aways here include the following:
Medical testimony that arguably falls short of the “reasonable medical probability” standard can be bolstered by other credible evidence.
Both attorneys in this matter were undisputedly seasoned and skilled comp litigators. The impact of impeachment of a medical witness can be diluted by effective rehabilitation.
Credibility is everything in an IAB Hearing. A fair reading of the IAB decision renders it clear that the Board was impressed with this claimant in terms of both his level of truthfulness and his motivation to return to the work force.
There is a big difference in comp between “no prior medical treatment” and “no recent prior medical treatment.”
I don’t know about you but I am starting to notice a trend of Superior Court affirmations this spring compared to last fall/winter — something that will be discussed in more detail at the DSBA Workers’ Compensation Seminar on May 4, 2021. Don’t forget to register!
Best,
Caroline Kaminski
P.S. I know you all wanted to see a photo of the birthday girl and me from this past weekend.
