finding that no reasonable controversy existed as to cause of injured employee’s disability, and thus, employer was subject to 50-percent penalty and attorney fees for delay in payment of compensation benefits
How later courts described this case
- finding that no reasonable controversy existed as to cause of injured employee’s disability, and thus, employer was subject to 50-percent penalty and attorney fees for delay in payment of compensation benefits
- unless the injury’s nature and effect are plainly apparent, an expert opinion is required to establish the causal relationship between the incident and the injury as well as any claimed disability consequent to such injury
- reversing review panel’s reversal of single-judge award of waiting-time penalty and attorney fees
- workers’ compensation insurer allowed to intervene before trial
Written by the judges who cited it.
The opinion
Boslaugh, J.,
dissenting in part.
I dissent only from that part of the opinion which sustains the cross-appeal and holds that the evidence does not support the finding of the compensation court that a reasonable controversy existed as to the cause of the plaintiff’s disability.
Following the hearing before a single judge, the compensation court found that the accident of August 1,1985, contributed to the disabling condition and that there was no reasonable controversy as to the plaintiff’s right to recover compensation by reason of the accident of August 1,1985.
On rehearing, the panel of three judges found that the *788 deposition of Dr. Bowman, taken on February 25, 1986, approximately 4 months after the first hearing, “clearly shows that the original injury of November 17 [sic], 1983, is the cause of all of the disability.”
It was the plaintiff’s burden to establish not only his disability, but also the cause of the disability. The testimony of Dr. Bowman as the treating physician would have been available at the time of the first hearing, but since his deposition was not taken until long after that hearing, there is at least an inference that his testimony was not offered at the time of the first hearing.
There were at least four possibilities as to the cause of the plaintiff’s disability: the accident of November 7, 1983; the accident of August 1, 1985; the furniture-moving episode in September 1985; and the Mexico City trip in February 1986.
It is of some significance that Dr. Bowman released the plaintiff to return to work on September 16, 1985, with no restrictions. And although Dr. Bowman was of the opinion that the injury on November 7, 1983, was the cause of all of the plaintiff’s disability, his opinion was weakened by the fact that he had no note on his chart of any accident or injury in August of 1985 and testified that “I don’t know any details about what happened in August.”
As the majority opinion points out, there is but a fine line separating aggravation from recurrences. On cross-examination Dr. Bowman testified that “there are many things which can cause an aggravation due to this pre-existing condition, including, you know, his long drives, a fall, a lift, a lot of things ... is it conceivable that he did have aggravations to this pre-existing, basic condition, I would say it’s quite likely that he did.” (Emphasis supplied.) He further testified that “it was my opinion that the prime pathology occurred as of 7 November 1983 and everything subsequent to that could be only characterized, to one degree or another, as an aggravation of a pre-existing condition.” (Emphasis supplied.)
The interpretation of Dr. Bowman’s testimony was a matter for the trier of fact. Until the matter had been submitted to the compensation court, a strong argument could be made that the plaintiff’s increase in disability was not due to the 1983 *789 accident. It seems to me that under those circumstances, the compensation court could find that a reasonable controversy existed.
Hastings and Caporale, J J., join in this dissent.