By Judge Thomas Wyatt, Chattanooga
Remember Jack, the beanstalk guy who sold his cow for a pile of magic beans? It got him in trouble. As lawyers, we sometimes want to believe in magic -– especially “magic words.” However, the Appeals Board recently issued a case that dispels that tall tale.
As a backdrop, remember that prior to the 2013 reforms, credible lay testimony regarding causation stood nearly as equally important as expert medical opinion in the determination of compensability. Many appellate decisions under the “old law” sustained awards of benefits by trial courts based on credible lay testimony of the work-relatedness of the injury, supported by equivocal medical testimony of causation, such as by an opinion by a doctor that a work injury “could be” the cause of the condition upon which the employee based his claim. A prime example is Orman v. Williams Sonoma, Inc.
The 2013 reform act changed this paradigm by enacting sections 50-6-102(14)(C) and (D), which provided that an employee must establish the work-relatedness of his or her claim by “a reasonable degree of medical certainty.”
Attorneys in the workers’ compensation field have widely thought that the Reform Act assigned greater importance to medical expert opinion in the determination of the work-relatedness of an injury and consequently less importance on the injured employee’s testimony than that assigned under the “old law.” The Reform Act’s emphasis on proving a claim by a reasonable degree of medical certainty resulted in lawyers attempting to establish their clients’ positions by obtaining medical opinions couched in the exact statutory language.
In a recent opinion, the Appeals Board rejected the premise that a party can only prove causation through a medical opinion couched in the statutory language. In Panzarella v. Amazon.com, Inc., a majority of the Appeals Board agreed with the trial judge that the medical testimony presented at trial did not establish that Mr. Panzarella’s injury arose primarily out of and in the course and scope of employment. All three Appeals Board judges agreed that:
We do not conclude that a physician must use particular words or phrases included in the statutory definition of “injury” to establish the requisite medical proof to succeed at trial. Thus, a physician may render an opinion that meets the legal standard espoused in section 50-6-102(14) without couching the opinion in a rigid recitation of the statutory definition. What is necessary, however, is sufficient proof from which the trial court can conclude that the statutory requirements of an injury as defined in section 50-6-102(14) are satisfied.
The Appeals Board judges unanimously concluded that Mr. Panzarella’s testimony established that Mr. Panzarella’s injury occurred in the course and scope of his employment. So then, why did Mr. Panzarella lose?
Mr. Panzarella did not lose because the doctor failed to couch his opinion in the statutory language. Instead, the majority held the claim failed because the doctor’s testimony did not establish the work injury contributed more than fifty percent to the causation of the knee condition for which Mr. Panzarella claimed benefits.
The Appeals Board mentioned three factors it apparently felt mitigated against a finding that Mr. Panzarella’s bending incident at work caused more than fifty percent of his knee condition. The majority first pointed out that Mr. Panzarella gave another provider a history of having fallen to the floor when his legs buckled. The opinion also mentioned that Mr. Panzarella stated he fell because chronic pain in his opposite ankle caused him to overuse the leg he injured while picking up a piece of paper. Finally, the opinion stated the treating doctor indicated Mr. Panzarella was overweight, which contributed to the fall that allegedly caused his injury.
So, unlike Jack, there is no magic in those words, but as usual in workers’ compensation, the facts do matter.