Employer and insurer appeal a finding that the employee sustained a permanent injury to his right knee. On August 31, 2015, while working for Valley Paving, Inc., the employee was removing old concrete when he stepped backwards into a hole, injuring his right knee. The employer and insurer accepted liability for this injury. Prior to this work injury, the employee had a history of knee problems. He first injured his right knee playing football in high school. In college, he injured his left knee playing football and underwent left knee surgery. Ever since, he noted ongoing right knee pain attributed to compensating for his left knee. In May 2014, the employee was diagnosed with a right knee medial meniscus tear and right knee ACL laxity, and was recommended to undergo a meniscectomy.
Following his August 31, 2015 right knee injury, an MRI was taken, showing a tear of the medial meniscus. Following, the employee underwent an arthroscopic surgery. An FCE was also conducted, showing the employee was unable to return to his pre-injury position with Valley Paving. Valley Paving then offered the employee a position as a Project Manager’s Assistant, which the employee accepted. However, arguably due to a negative attitude, he was terminated. At the time of the hearing, he was working as a substitute teacher at a substantial wage loss.
In May 2016, Dr. Nemanich prepared a narrative report on behalf of the employee, attributing the employee’s right knee problems to the August 31, 2015 injury. Dr. Nemanich also opined the limitations in the FCE were related to the August 31, 2015 injury. The employer and insurer then had Dr. Nelson conduct an IME, where he found the work injury to be a temporary aggravation of a pre-existing conduction, and that no work restrictions were a result of the work injury. In response, Dr. Nemanich opined in a subsequent report that the employee’s symptoms may be an exacerbation, but “his underlying problem had never been exacerbated to the point that he is currently at and where he is unable to return to his occupation.” Dr. Nelson’s deposition was also taken, supporting his prior opinion.
The case was then heard, where the compensation judge found for the employee that the injury was a permanent work injury to employee’s right knee. The employer and insurer appealed, arguing employee lacked credibility as the employee (1) failed to disclose prior knee injuries to his doctors; (2) failed to exhibit a cooperative attitude when he returned to work; and (3) surveillance showed the employee was capable of performing light duty work. It was further argued Dr. Nelson’s report should have been adopted over the report of Dr. Nemanich. The WCCA affirmed, noting Dr. Nemanich treated the employee on his prior injuries, and was therefore qualified to provide an opinion on the question. The WCCA also found “little relevance between an employee’s attitude at work and his overall credibility.” As for surveillance, it has been previously held that a compensation judge does not need to comment on or discuss every piece of evidence. Lastly, it is a central function of a compensation judge to weigh competing medical opinions. Therefore, the judge was acting appropriately with adopting Dr. Nemanich’s opinion over that of Dr. Nelson.