By Judge Brian Addington, Gray
When I was little, I was often told I was a “tough kid.” This usually occurred after a fall, a hard game of pick-up football, or a fight. I noticed early on that my buddies appreciated someone who could get up, dust himself off, and get back at it. I determined I always wanted to be that way. I couldn’t understand why some kids would cry, demand attention, and refuse to participate anymore. What was wrong with them?
Then I grew up. Things that I used to do that didn’t hurt, now did. When I was younger, I could run all day. But as I grew older, I could run some, and then run a little with a painful next day, to not being able to run at all. As I matured, I also gained a little perspective and empathy. I noticed with my son that things that wouldn’t have bothered me as a kid, bothered him a lot. I realized how wrong I had been about others all those years.
Injuries are a personal thing. What hurts me, might not hurt you. What’s a good treatment for you might not be a good treatment for me. What’s a bad treatment for me might work wonders for you. My body cannot tolerate biofeedback or muscle stimulators. I’m very sensitive to electricity. Yet, I know people who swear by it and tell me it makes them functional.
So what does this have to do with workers’ compensation? I’m a judge. I have to put aside my personal feelings and experiences to look only at the facts of a particular case. It doesn’t matter how I would’ve responded to a certain injury; it only matters how that injured employee did.
I’ve had cases where I was reading through the file and initially thought the injured worker would never return to work. Yet, the more I read, I came to realize the worker was released to work with no restrictions and was working just as much as before the injury. I’ve had cases where, as I read, I understood it to be a minor injury and the employee would not miss much time. Then an infection set in, the employee missed a lot of work, and ended up with a significant permanent impairment.
I’ve also had cases where the employer felt the employee wasn’t really injured. The employee didn’t immediately report an injury, or if the employee did, the employer ignored the report or told the employee “to walk it off.” Whenever I see these facts, my mind goes back to the day I stuffed a dirty rag up my bloody nose and kept on playing flag football. I had a rough night afterward. I had a terrible headache, and it took several days to get the blood out of my nose.
Other times, an employee has a diagnosis that we’ve never had, so we cannot understand the issue an employee is having. Well, let me tell you a herniated cervical disc with radiculopathy does hurt. I never really understood that pain until it happened to me.
With this in mind, how does this play out in court? A longstanding legal principle in workers’ compensation is that the employer “takes the employee “as he finds him.” This originates back to 1948, in Swift Co. v. Howard, where the Tennessee Supreme Court wrote: “A vigorous attack is made on the finding of disability herein because all evidence of injury is purely subjective, i.e., what the petitioner tells himself of his pain. No doctor can find any objective symptom, i.e., what he discovers from a physical examination of the petitioner. This again presents a fact question and a question of credibility of the witness both of which are for the trial court who saw and heard the witness testify.”
In fact, credibility assessments sometimes are the “make or break” determination in a case. The Supreme Court more recently told trial judges what to look for in in Kelly v. Kelly. Courts should consider whether a witness is “calm or agitated, at ease or nervous, self-assured or hesitant, steady or stammering, confident or defensive, forthcoming or deceitful, reasonable or argumentative, honest or biased.” Further, the Appeals Board reminded in Limberakis v. Pro-Tech Sec., Inc. that “[t]he Supreme Court has consistently held that an employee’s assessment as to his or her own physical condition is competent testimony that is not to be disregarded.” In other words, an employee might feel worse or better or be able to perform less or more than a doctor thinks he should depending on the circumstances.
So, don’t discount what someone is going through that you’ve never experienced. I hope others who experienced these problems get through them better than I do. For employers, adjusters, case managers, attorneys, mediators, family members and judges, we need to understand that we can’t judge an injury to another person as we would if it were our own. Rather, we need to stick to the facts and make the right objective decision.