A Kentucky workers compensation claim requires a doctor's opinion to establish both causation and extent of a work injury. Causation meaning that the incident in the workplace was the cause, for instance, of a knee injury. Extent meaning the degree of impairment. I've discussed the permanent impairment rating that is part of a Kentucky workers compensation claim before: What is a permanent impairment rating under Kentucky workers compensation?
Sometimes - not all of the time -- the workers compensation insurance company hires a doctor for the purposes of giving an opinion that opposes the claim. I've discussed this practice before also: "That's the game, baby" Explains Workers' Compensation Insurance Company Expert Witness. But it's not the case all of the time; I've had cases where the insurance company's doctor agreed with my client's doctor.
The Kentucky Supreme Court's recent decision in Eddie's Service Center v. Thomas regards the circumstances in which the insurance company's doctor's opinion just doesn't cut it and cannot be credited.
The case is tragic; it arose from the death of a man named Eddie Ray Thomas Jr. and occurred "while he was attempting to tow a truck from a roadside culvert." It was a difficult job, and the Court described the facts as follows:
The truck was in a culvert, and the top of the truck was approximately four feet below the road. Eddie told Bailey that it would probably be difficult to get the truck out of the culvert without doing significant damage. However, Eddie made several attempts to do so, climbing up and down the embankment of the culvert and under the truck four times in order to re-position the tow chain. Bailey went up and down the bank with Eddie three times to help him and described the work as strenuous, noting that they had to dig their feet into the side of the embankment to get any footing. After the last trip up and down the embankment, both Eddie and Bailey were breathing hard and it took approximately five minutes for their breathing to return to normal.
Not long after all this Mr. Thomas suffered what proved to be a fatal heart attack.
The insurance company hired a Dr. Hal Roseman who opined that Mr. Thomas' work activity had not caused his heart attack.
The Court ruled that Dr. Roseman's opinion testimony must be rejected and explained as follows:
When a physician's opinion is based on a history that is "substantially inaccurate or largely incomplete," that opinion "cannot constitute substantial evidence." Cepero v. Fabricated Metals Corp, 132 SW3d 839, 842 (Ky 2004). Dr. Roseman's opinion that Eddie's death was not work-related is based, in large part, on his conclusion that Eddie's activity before his death required only minimal non-strenuous exertion. Dr. Roseman reached this conclusion based on his belief that Eddie walked up and down a hill several times and was able to converse in a normal tone after doing so. However, as noted above, Eddie did not "walk" up and down a hill, he climbed up and down a steep embankment and climbed under the truck several times to position and re-position the tow chain. Bailey, the only person to testify regarding the amount of exertion required, stated that the activity was strenuous - testimony that Dr. Roseman largely ignored.
So there you have it: Dr. Roseman's opinion could not be credited at all, because he based it on a non-existent factual scenario.
The Court's majority opinion was authored by Justice Michelle Keller; the opinion demonstrates a keen attention to detail and understanding of the medical testimony and terms. Justice Keller understands quite well what is going on. Chief Justice John Minton dissented, stating that the Court's institutional role should keep it out of this type of review of the factual record in a workers compensation case.
Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076.