Orsted v. City of Green Bay 2018-003180
LIRC, decided March 12, 2020
The Claimant-Employee (Claimant) worked for the City of Green Bay (Employer), beginning in 1987. She worked in multiple departments, including in the sanitation department, public works, and the sewage department. She alleged a left thumb injury due to occupational exposure beginning on October 25, 2017.
Her last position in the sewage department was as a truck driver, which required her to press a toggle stick controlling a hose reel, for between three and five hours per day. Claimant alleged her left thumb symptoms began toward the end of her work in the sewer department. In 2015, Applicant transferred back to the sanitation department. Her new duties included driving a recycling truck, which required her to operate a toggle switch between 20% and 80% of the time. She said this work aggravated her left thumb symptoms.
Claimant began treating with Dr. Metz on June 20, 2017, before her alleged date of injury. In his note, Dr. Metz said claimant “denied any significant injury” and the records showed she did not tell Dr. Metz this was a work-related injury. She was diagnosed with CMC joint arthritis.
When Claimant reported the alleged injury on October 24, 2017, she did not mention the toggle switch referenced above. Her claim was subsequently denied by the Employer.
Claimant then began treating with Dr. Brian Klika, on November 9, 2017. He also diagnosed CMC arthritis. At the November 21, 2017 appointment, she told Dr. Klika she was “not sure if she hurt the thumb at work, but that her symptoms became more bothersome the more she used the thumb”. She underwent surgery on November 24, 2017.
After the surgery, Claimant returned to work on December 6, 2017, and worked light duty with full pay. She continued to work until her retirement on March 16, 2018. Post retirement, Claimant continued to experience left thumb symptoms including weakness and problems with pinch/grasp tasks.
Dr. Klika completed a WKC-16-B on February 26, 2018. The mechanism of injury referenced was Claimant’s duties as a garbage truck driver and the repeat use of a toggle switch. He said her work exposure precipitated, aggravated, or accelerated her preexisting left thumb condition beyond its natural course. He also said Claimant was still healing.
He completed a second WKC-16-B on November 15, 2018. He reiterated his causation opinion, and said Claimant reached an end of healing on February 15, 2018. He rated 7% PPD to the left wrist based on deficits in range of motion and grip strength. He also said Claimant’s prognosis was good and she did not need future treatment.
Respondents obtained an IME with Dr. Bax. He said Applicant’s left thumb condition was idiopathic and cited Applicant’s age and gender as causative factors. Regardless of cause, Dr. Bax rated 5% PPD to the left thumb.
Applicant’s claimed was dismissed by the ALJ based on inconsistencies in her testimony and inconsistencies in the medical records. LIRC reversed the ALJ decision stating Applicant was not as careful as she should have been when documenting the details of her work-related injury. The Commission elaborated, stating Applicant is “not a physician or a lawyer and could not have known with certainty that she was dealing with a worker’s compensation claim”.
The ALJ determined at hearing that Claimant’s testimony was not credible. LIRC, however, decided her testimony was credible despite admitting “Applicant was not a good historian”. Instead, they deemed she had been honest in this matter. Thus, Dr. Klika’s opinion was found credible.
Is LIRC’s decision in this matter at odds with the Smith v. Zielles Tree Serv., Inc., decision from October 2019?
As a reminder, in the Smith v. Zielles Tree Serv., Inc., decision, LIRC found that Claimant’s doctor’s opinion not to be credible because the doctor relied on an inaccurate or incomplete information/medical histories.
The opinion in the Orsted decision may be at odds with the Smith decision. Specifically, it appears the Orsted decision says opinions based on inaccurate or incomplete medical information may be deemed credible if the Claimant’s inaccuracies are because they were “not a careful or conscientious historian, but at some point honestly sought treatment for a [left thumb] condition” Orsted v. City of Green Bay and subsequently realized they “had a worker’s compensation claim related to that condition”. Id.
Additionally, LIRC said the failure to include the toggle switch operation on the First Report did not diminish the Claimant’s credibility because she “credibly testified” Id., that she did not think about it at the time she filed the claim.
This opinion muddies the waters regarding the credibility of not only doctor’s opinions based on inaccurate or incomplete information , but also claimant credibility. Moreover, it appears that inaccurate or incomplete information, when provided by claimants early in the treatment course, will not be viewed with as much scrutiny, if they were not aware or did not plan to file a worker’s compensation claim at that point.
Additionally, the opinion suggests that failure to include relevant information when reporting the injury can be overcome by the claimant at hearing, as long as the claimant gives “credible testimony” justifying the omission of the relevant information.
Lastly, the Orsted decision shows LIRC can and will reverse a ALJ’s credibility assessment despite not hearing actual testimony. This also appears to conflict with the recent decision in Oja v. M.A.D. Enterprises, which states an opinion on the credibility of testimony cannot be made by a party who did not hear the testimony firsthand and a new hearing must be conducted in order to determine whether a claimant credibly testified.