Giles v. Montu Staffing Solutions and Fairview Health Servs., et al., No. WC16-5904 (W.C.C.A. July 29, 2016)
Employer and employee appealed the workers’ compensation judge’s conclusion that substantial evidence supports a finding of temporary total disability arising out of the right knee, calculation of average weekly wage, denial of requested medical care for right shoulder, and admission of an independent medical examiner report into the record.
Employee was first employed as a driver for First Student, Inc. Employee worked for First Student for two weeks and, due to a lack of work, applied and started to work for employer on June 30, 2014. On July 10, 2014, employee fell from the rear of her delivery vehicle and suffered injury to her right shoulder and right knee.
Employee underwent an MRI on the right knee performed by Dr. Thomas, which showed a sprain of the right anterior cruciate ligament (ACL), mild strain of the right medial collateral ligament (MCL), and areas of contusion to the tibia. Surgical ACL reconstruction was conducted on August 27, 2014. Regarding the right shoulder, Dr. Sherman found the MRI results were consistent with mild age-related degenerative changes.
An IME was performed on June 11, 2015. The IME determined the right shoulder was superimposed on preexisting conditions and employee reached MMI regarding that injury. However, right knee was not at MMI and full time work was to be conditioned limitations.
An additional MRI on the right knee was done on September 2, 2015. This MRI showed significant tearing of the medial meniscus and apparent destruction of the ACL graft. On September 14, 2015, employee underwent revision surgery performed by Dr. Kearns, which showed prior ACL graft completely absent. Dr. Kearns provided narrative reports stating in part that the employee’s knee surgeries were reasonable, necessary, and causally related to the employee’s July 10, 2014 injury.
Employee argued that the average weekly wage, which included only time with employer, should have included both time with employer and the prior employer, First Student, Inc. The WCCA affirmed the compensation judge’s opinion citing to Hafner v. Glenwood Libery Serv. Ctr., 42 W.C.D. 16 (W.C.C.A. 1989), which stated an employee must have “regular” employment at a second job for that income to be included. The WCCA did not find First Student, Inc. to have been regular employment. Furthermore, the WCCA reasoned that employee could not have worked both jobs as to do so would have had scheduling conflicts. Therefore, the AWW was correctly computed.
The employee’s second argument was that the right shoulder did arise out of the July 10, 2014 work incident and the compensation judge’s determination was “clearly erroneous” with reliance on the IME and surveillance video. The WCCA again affirmed the compensation judge’s opinion. The WCCA indicated that a compensation judge may credit the opinion of an independent medical examiner over that of a treating doctor, citing to Brustad v. healtheast/St. Joseph’s Hop., No. WC09-5030 (W.C.C.A. June 7, 2010). Furthermore, regarding the use of surveillance, the WCCA concluded that there was substantial evidence supporting the compensation judge’s decision to use the evidence. Lastly, the WCCA found that the employer met its burden for the admitted injury by presenting expert opinion regarding causation, video surveillance, and demonstrated should surgery was unfounded.
The employer argued discontinuance of TTD benefits, with supporting evidence that employee did not consistently attend PT sessions and the lack of attendance resulted in subsequent surgery. The WCCA again affirmed the compensation judge’s opinion reasoning the revision surgery on September 14, 2015 indicated the absence of the ACL graft. Furthermore, total failure of the graft rendered any inadequacy in PT attendance irrelevant to the revision surgery.