By Jane Salem, staff attorney, Nashville
On Monday, the Appeals Board affirmed a trial court opinion finding an employee credible and awarding benefits, despite inconsistencies in his accounts of how he became injured.
The Board similarly rejected the contention that the employee gave an unreliable version of the work incident to a treating physician, so that doctor’s causation opinion shouldn’t be credited either.
As to both arguments, it was important to the Board that the employer didn’t introduce its own lay evidence to challenge the employee’s account or a contrary expert opinion.
In Gaston Jones v. AT&T Services, Inc., the employee alleged he was the victim of an attempted robbery and suffers from resulting post-traumatic stress disorder.
Before the expedited hearing, AT&T Services deposed him and the authorized physician, Dr. Melvin Goldin. Dr. Goldin testified that he diagnosed the PTSD and that, in his opinion and considering all causes, Jones’s PTSD was “caused primarily” by the incident.
On cross-examination, AT&T Services identified Jones’s discrepancies in his versions of the incident and asked whether Dr. Goldin’s opinion was affected by these inconsistencies. Dr. Goldin testified that his opinion didn’t change.
At the expedited hearing, AT&T Services again highlighted the discrepancies, in Jones’s employment history, in discovery responses, in his description of the number of individuals involved in the November 18 event, and whether he had picked up traffic cones by his truck before the incident.
AT&T Services argued Jones wasn’t credible and that, since Dr. Goldin relied on his inconsistent information, his opinion wasn’t reliable either.
The trial court found those discrepancies mostly irrelevant and that Jones was credible. The court awarded benefits, and AT&T Services appealed.
The three-judge Appeals Board first considered Jones’s credibility.
The judges found it significant that, although AT&T Services pointed up numerous alleged discrepancies, it never explicitly denied the occurrence of the event. In fact, Jones testified that he called his supervisor during the event, who met him at the police station immediately afterward. But AT&T Services didn’t introduce evidence from the supervisor or anyone else.
“Employer asserts that Employee’s description of the event is illogical and unreliable, but it has offered no proof, either documentary or from in-court testimony, to rebut Employee’s testimony,” the Board wrote.
“While there may be inconsistencies in the various accounts of the events given by Employee, the trial court appropriately considered the strengths and weaknesses of the relevant evidence in determining whether Employee had come forward with sufficient evidence to indicate a likelihood of prevailing at trial.”
The arguments questioning Dr. Goldin’s reliability were also unpersuasive.
“Employer vigorously cross-examined Dr. Goldin, including questioning him about the alleged discrepancies in Employee’s testimony, additional testing that Dr. Goldin did not perform, the appropriateness of his diagnosis, and whether he considered alternative diagnoses or the possibility of malingering. Dr. Goldin’s causation opinion remained clear and unequivocal, and he did not veer from his opinion that, considering all causes, Employee’s PTSD was ‘caused primarily by that event[.]’”
As its final issue, AT&T Services asserted that the trial court erred in determining that Jones sustained a compensable work-related injury.
However, the trial court didn’t actually make a compensability finding, the Board wrote. Instead, because it was an expedited hearing, the trial court properly framed the issue as whether Jones proved he is “likely to prevail at a hearing on the merits” regarding his entitlement to benefits.
The Board found no merit in that argument, “Given that Employer did not offer clear and convincing evidence that the trial court’s credibility determination was incorrect and offered no expert medical opinion addressing causation.”
For his part, Jones asked the Board to find the appeal frivolous. The Board declined, observing that Jones’s testimony did in fact contain “several anomalies.” Overall, the appeal wasn’t “so devoid of merit as to have no reasonable chance of succeeding,” so the Board didn’t find it frivolous.