The first blog post I ever wrote over six years ago was entitled, “The Most Important Work Comp Advice: Always Tell the Truth.” You can read that blog post here. There are very few perfect work comp cases, and I am very comfortable addressing the weaknesses in my cases. However, if a work comp judge decides that a claimant is not honest, then the case is in big trouble.
The Work Comp Commissioner issued an appeal decision in the case of Hall v. Apple Creek Kennel and Travelers Property Casualty Company of America on June 29, 2018. The claimant was found to be dishonest, but fortunately for her just managed to avoid having her workers’ compensation benefits taken away. All of the risk and danger could have been avoided if the claimant had been straightforward in her testimony.
The story started back on April 21, 2013. The claimant was 32 years old and was working as a veterinary assistant. This was a type of job she had generally worked since she graduated from high school.
The claimant injured her left shoulder when a 100-pound Newfoundland she was walking jerked her arm.
The claimant developed quite a bit of pain and her left arm swelled up.
The claimant eventually underwent left shoulder surgery. However, the surgery did not help with her pain, and her arm remained swollen.
The workers’ compensation insurance company refused to pay for some of the medical care it had authorized, and also refused to authorize referrals to other doctors.
The claimant’s IME physician recommends that she lift no more than 10 pounds on an occasional basis only, not lift over 5 pounds above shoulder height, and avoid any frequent lifting above the shoulder with the left arm.
The trial judge’s decision found that her testimony concerning her pain was credible. The judge also noted that her left arm was still swollen. The claimant had lost her job at the kennel, and the judge found that she had made a good faith effort to find substitute work but had been unsuccessful. Therefore, the judge awarded her permanent total disability.
The defendants appealed the trial decision. The Work Comp Commissioner filed an Appeal Decision on May 12, 2016 and approved the award of permanent total disability. The Commissioner also affirmed the award ordering the defendants to pay the past medical expenses, and provide future medical care.
The defendants then filed a review-reopening action. In a review-reopening action the party that filed the petition has the burden of proof to show that the worker’s physical condition or economic condition has changed. Review-reopening actions are usually brought by injured workers whose condition has gotten worse. However, as in this case, the defendants are also entitled to bring a review-reopening action if they believe the worker’s condition has improved.
Some of the evidence at the review reopening action was in favor of the worker. The defendants had hired a vocational rehabilitation consultant to try to help the claimant get a job. Despite making over a 100 job applications there was no success in finding a job. Further additional medical care since the original trial indicated that claimant’s left arm condition could be explained by myofascial pain with hypersensitivity, or complex regional pain syndrome. There was also video surveillance by the insurance company showing that the claimant rarely used her left arm, and generally held it close to her side.
However, the workers’ compensation courier put on persuasive evidence suggesting that the claimant was doing some part-time dog sitting and working for an auto supply business on a part-time basis. The claimant denied that she had performed any such work. The trial judge at the review reopening trial found:
“The record indicates the claimant is not a credible witness. The record suggests she performed some kind of work or errands (for the auto supply store). It is unclear if she is paid for these services. The record also indicates the claimant continues to perform some type of pet services, for pay, from prior clients.
If the burden of proof was, is claimant not a credible witness, defendants would prevail in this matter. However, the legal standard in this case is, have the defendants carried their burden of proof that claimant has a physical or economic change of condition, since the original award, that indicates claimant is no longer permanent or totally disabled.”
The trial judge at the review reopening case noted that the Iowa law on permanent disability does not mean a state of absolute helplessness, and a finding that a claimant can perform some work does not foreclose a finding of permanent total disability.
Therefore, the trial judge denied the defense request to have the permanent total disability award reduced.
The defendants appealed their loss in the review-reopening decision. The Commissioner filed his appeal decision on June 29, 2018 ruling in favor of the claimant.
While the case turned out for the claimant, her lack of truthfulness could have easily led to the opposite result. Always remember that in a workers’ compensation case it is critical to tell the truth whether you are talking to your employer, a medical provider, or anyone else.
Please be sure to contact our office if you have any questions about Iowa work comp law.