Thursday, September 8, 2011

Battle Beyond the Experts

Houle v. Ethan Allen, Inc., 2011 VT 62 (mem.).

Workers’ Compensation is to tort law as fat-free vanilla frozen yogurt is to triple chocolate mocha caramel fudge ripple ice cream. 

Workers’ Compensation is the great societal compromise.  Employers insure workers for injuries and do not ask too many questions about why or how it happened, and workers forgo their right to sue employers for dangerous, negligent, or mildly unsafe conditions.  But a good dispute is not hard to find.  Workers’ Compensation cases still go to litigation, but they tend to revolve around their own universe of issues, such as whether a given injury was work related or just part of the body’s natural breaking down before our eventual and mutual deaths. 

Practically speaking, this often means a battle of the experts.  Today’s case is no exception.  Plaintiff suffered neck and left shoulder injuries in 1999 and received partial disability benefits.  She went back to work for Employer in a clerk position and worked without incident for 8 years.  In 2008, Plaintiff was reassigned to the trim and wax process and then the sand and seal process in the factory.  Soon thereafter, she began suffering pain in left shoulder and neck.  The pain drove her away from her new assignments.  Employer decided it could no longer accommodate her modified work duty restrictions, and Plaintiff left her job.  Plaintiff filed a workers’ compensation claim for her (re)new(ed) injuries, and employer objected. 

At hearing and on appeal to the SCOV, the central issue of this case boils down to four physicians.  Two were retained by Plaintiff and two were retained by Employer.  The workers’ compensation hearing officer found all four experts to be flawed but found Plaintiff’s physician, Dr. Chen, to be the most credible of the lot.  The officer accepted upon Dr. Chen’s opinion as to the cause of Plaintiff’s injuries and based the award of benefits and disability to Plaintiff on those findings.

On appeal, Employer challenges the hearing officer’s use of a five point test to determine the most persuasive medical testimony.  The test “considers: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness, and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience.”  The SCOV rejects Employers challenge under the doctrine of Too Little, Too Late.  Employer never challenged the test to the hearing officer, and in fact briefed the officer on why Employer’s experts better met the test.  It is only after a loss and appeal that Employer suddenly gets religion and expresses any formal dissatisfaction with the test.  If you are going to challenge a test like this, writes the SCOV, do it below so the hearing officer has a chance to review the issues and correct them in a timely manner.  Do not raise them for the first time on appeal as a Hail Mary pass and expect the SCOV to change the broader law to suit a particular outcome. 

The rest of the opinion consists of the SCOV knocking down Employer’s remaining issues, which primarily centers on attacking the findings that the hearing officer adopted from Dr. Chen’s testimony.  There was not much hope that the Employer could overturn such factual findings as the SCOV reviews them on a deferential basis.  The SCOV, for its part, does not use up much paper in rejecting these lines of appeal. 

The decision is affirmed.  Plaintiff’s injuries are work-related, and she is entitled to compensation.  Employer loses, but at least it can go back to the shop and choose from several different styles of comfortable chairs to sit down and contemplate the SCOV’s decision in greater detail.

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