In Russell v. Wal-Mart Stores, Inc., plaintiff was an assistant store manager who had worked at the site for more than a decade. In the fall of 2009, she was lifting something at work when she suffered injury to her pelvis and back. Because of her pregnancy, there was no diagnostic testing done and her treatment was very conservative. After she gave birth, she underwent an MRI scan and was treated with medication, exercises and injection. Her doctor at the time did not feel surgery was necessary.
She continued to work at the store, with a restriction indicated she could not do heavy lifting (more than 30 pounds). Around this time, she was diagnosed with back strain and degenerative disc disease. By 2011, she was ruled to have reached maximum medical improvement and was granted 7 percent permanent partial disability. The reward also gave her compensation for ongoing anti-inflammatory medications as necessary for treatment of her work-related injuries.
Later that year, plaintiff filed a Form 50, indicating her condition had worsened and she needed more treatment, including surgery. She was having pain that radiated down into her legs, and her hour-long drive home from work had become painful. She requested a transfer to a store closer to where she lived. Instead, the store fired her.
Finding plaintiff credible, a single commissioner granted her temporary total disability benefits. However, the full commission reversed, giving limited weight to plaintiff’s testimony, which it deemed “self-serving.” The commission did not find plaintiff had established:
- New complaints;
- When her condition got worse;
- That the need for surgery occurred before or after the original damage award.
The commission did state that while it gave more weight to the diagnostic tests and medical records, there was no objective difference between the MRI scan before the original award and the MRI scan after.
Plaintiff appealed. She alleged the commission was wrong to require her to prove her change of condition be proven by objective evidence. The appeals court agreed.
Per previous case law, a change in condition for workers’ compensation purposes happens when the claimant experiences a change in physical condition as a result of the original injury, occurring after the first award.
The court further noted that appellate courts have affirmed such awards based solely on objective evidence, but also solely on subjective evidence.
Here, while the court stated that it relied more heavily on diagnostic results and expert medical testimony, it seemingly ignored the fact that both doctors concluded – to a reasonable degree of medical certainty – that plaintiff had suffered a change in condition. One of the doctors stated his opinion was based in part on plaintiff’s subjective complaints, even though there was not an obvious, subjective change.
While the appellate court’s role is to review – not to conduct additional fact-finding – it did conclude there was an error of law that was unsupported by substantial evidence. Here, the commission required the claimant to prove objectively that her condition had changed. However, she wasn’t required by law to do so.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Russell v. Wal-Mart Stores, Inc., Jan. 20, 2016, Greenville Workers’ Compensation Lawyer Blog
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