In a victory for Respondents at large, the Commission reduced an Arbitrator’s award from 30% loss of use to the man as a whole to 22.5% loss of use to the man as a whole.

In this case, the petitioner, a certified nursing assistant, was injured in a motor vehicle accident. An FCE ultimately limited her to occasionally lifting 14.8 pounds at the chair to floor height, and occasionally lifting 20 pounds from desk to chair height. Additionally, the FCE limited the petitioner to standing for 40 minutes duration for up to a total of 4 hours. The petitioner was unable to return to work as a certified nursing assistant and obtained a different job within her restrictions through vocational rehabilitation. Based upon the foregoing, the Arbitrator awarded “loss of occupation” benefits pursuant to Section 8(d)(2) of the Act in the amount of 30% loss of use to the man as a whole.

The respondent appealed the Arbitrator’s award to the Commission. The Commission concluded that the petitioner exaggerated the true nature of her physical condition at trial to such a degree that the Arbitrator’s award of 30% loss of use to the man as a whole was excessive.

Specifically, the Commission noted that at trial on May 13, 2013, the petitioner testified that her then present symptoms were severe, including a feeling that her veins were bursting, that her legs would swell up, that she would lose her balance, and that she would have to sit for an hour or two before work due to pain.  Notwithstanding this testimony that would appear to warrant medical attention, the petitioner had not treated since 2011. In addition, the Commission noted that the petitioner’s then testified to condition had dramatically worsened as compared to her condition upon discharge from physical therapy on December 8, 2011. The Commission found it incredible that the petitioner chose to live with her claimed symptoms rather than seek medical treatment for her claimed worsening of symptoms.

The evidence the Commission found most telling was misrepresentations the petitioner made to her treating physicians while actively treating. The evidence adduced at trial established that the petitioner repeatedly told one treating physician that she was scheduled to follow up with a surgeon for a surgical consultation but she never did so. Furthermore, the petitioner told another treating physician that she was going to seek chiropractic care but she never did so. Finally, the petitioner failed to inform one of her physicians that this physician’s colleague had previously discharged her from his care after testing negative for opiates (despite having been prescribed them for a year) and after the petitioner failed to provide a urine sample for a toxicology test and then tried to obtain a urine sample from a third person.

This case demonstrates how important it is for defense counsel to adduce evidence at trial that impugn a petitioner’s credibility. Here, the misrepresentations made by the petitioner and her exaggeration of her symptoms at trial that did not comport with the medical evidence allowed for sufficient evidence to warrant a reduction in the award by the Commission.

Thanks to Scott McCain for the summary.