The Employee sustained a right shoulder injury on September 28, 2017 when he reached up and out from his body and felt a pop and pain in the shoulder. The injury was admitted, but the nature and extent was disputed.
The Employee did not seek immediate medical attention or suffer lost time. As a physician, the Employee managed pain with his own exercises, job modification, and medication. Several months later he had an orthopedic consultation. This consult noted a prior 2016 shoulder surgery.
The Employee testified he recovered approximately 99% from the 2016 surgery and had no pain until the date of injury. He testified the 2017 pain was different from prior pain.
The Employer and Insurer had an IME done with Dr. Szalapski. Dr. Szalapski opined the Employee’s injury was not a substantial contributing factor to the Employee’s current symptoms and that the act of reaching to move the lamp was a trivial activity that would not cause significant shoulder problems. Based on this report, benefits were denied and the position was taken that the Employee’s temporary aggravation resolved one day after the date of injury.
The Employee filed a claim petition seeking surgery and attached to that included an opinion of Dr. Gregerson opining the September 28, 2017 injury was a significant aggravating factor and brought the need for surgery.
At hearing, the Employee moved to exclude Dr. Szalapski’s report and argued his opinion was based on his own experience with surgical lights and he was not entitled to use his personal experience as expert knowledge. The compensation judge disagreed and adopted the opinion. She denied the requested surgery. The compensation judge did not address reasonableness and necessity of the surgery.
On appeal the Employee argued Dr. Szalapski’s report lacked foundation and could not be the basis for the compensation judge’s decision and the judge erred in adopting the opinion because the Dr. misstated that the Employee’s 2017 injury affected the front of his shoulder rather than the back, and did not explain how the 2016 condition caused the symptoms in 2017, and that he relied on his own personal experience outside the scope of expert testimony.
The WCCA found the compensation judge relied on an opinion that misstated the area of injury and lacked explanation for that opinion. In reviewing the opinion of his personal experience, the WCCA found Dr. Szalapski relied on evidence not relevant to the case, did not adequately explain his opinion, and misstated a fact which discredits the report. The compensation judge’s reliance on this opinion is contrary to the weight of the evidence and the compensation judge erred in adopting this opinion. While the compensation judge did discuss other factors relied upon, those factors did not provide substantial evidence to support the findings regarding causation.
The WCCA reversed the opinion for the denial of surgery and was remanded for a determination as to whether the surgery was reasonable and necessary.
Takeaway: While compensation judges have broad discretion in adopting opinions, it is very important to ensure the IME report relied upon does not mistake facts and has adequate explanations to support the opinions within the report.