Anderson v. Westmor Industries, No. WC22-6500 (W.C.C.A. June 26, 2023)
The Employee worked as a welder for the Employer. He was able to complete all aspects of his job duties, which included regularly lifting up to 60 pounds, bending, and twisting in awkward physical positions. On March 29, 2021, the Employee felt intense pain in his low back while exiting a propane tank. An MRI showed S1 nerve rot impingement and the Employee was diagnosed with a herniated disc at L5-S1. Over a month later, in June 2021, the Employee participated in an FCE that recommended he avoid prolonged standing and lifting above 20 to 35 pounds but permitted rare lifts of 40 pounds.
Fast-forward to October 2021, an eight-hour surveillance video was taken that showed the Employee hanging strips of vinyl siding, moving a wheeled scaffold, bending at the waist, carrying and climbing a ladder and even jogging a short distance.
The Parties obtained narrative reports. The Employer and Insurer obtained a record review from Dr. Paskoff while the Employee obtained a narrative report from his originally treating chiropractor, Dr. Monroe, in addition to Dr. Hanson who also physically examined the Employee.
Interestingly, the Employee’s deposition was taken only 10 days after the surveillance footage was obtained. The Employee agreed that the activity seen on video surveillance was inconsistent with his deposition testimony, but also testified that re-siding his home was an ongoing project that was not outside his restrictions. Ultimately, the compensation judge found the Employee’s expert opinions more persuasive.
On appeal, the Employer and Insurer argued that the judge’s findings were unsupported by substantial evidence. The W.C.C.A. was not persuaded. They first emphasized that the surveillance video showed the Employee moving and bending, but not active outside his restrictions. In fact, the vinyl siding appeared to be lightweight and the Employee testified at hearing that he could not work on this project daily.
Furthermore, the court emphasized that Dr. Paskoff did not physically examine the Employee. Dr. Paskoff’s opinion that a pre-existing condition caused the disc herniation, was inconsistent with the medical evidence as the Employee had no restrictions and could perform his job as a welder up until his date of injury.
Takeaway: The Court found the Employee’s two narrative reports more persuasive when compared to an 8-hour surveillance video demonstrating the Employee’s ability to hang vinyl siding at his home.