NANCY R JACOBSON, Applicant

WEBSTER INDUSTRIES INC, Employer

LUMBERMENS UNDERWRITING ALLIANCE US, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 26, 2005
jacobna . wsd : 185 : 8   ND § 8.28

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

As noted in the briefs submitted to the commission, there is no shortage of medical opinions in this case, and reasonable arguments are made from both sides for drawing an inference for or against the applicant's claim. The commission weighed all the evidence and ultimately agreed with the administrative law judge that Dr. Chakoian's opinion was credible.

Respondents argue that Dr. Chakoian's opinion is flawed because he described a history of the applicant's condition continuing "since the initial event," while Dr. McCarthy diagnosed resolved brachioplexopathy on May 24, 2000. Both the administrative law judge and the commission found the applicant's testimony that her symptoms did not fully resolve as of that date to be credible. The applicant credibly testified that her pain was intermittent but ongoing, and gradually worsened until she returned to Dr. McCarthy on August 14, 2001. The commission recognizes that Dr. McCarthy's clinic note of August 14, 2001, records a history of a left arm "problem again" for "the past one month." Also, his clinic note of August 29, 2001, records that the applicant had "no pain until 1-2 months ago." On September 12, 2001, Dr. McCarthy referred the applicant to Dr. Bihn, who restated Dr. McCarthy's history of the applicant's condition. This included a reference indicating that "she did very well up until approximately one month ago." As previously noted, Dr. Chakoian's history reflected an ongoing problem after the administration of the interscalene nerve block.

In a large number of the cases it reviews, the commission is faced with inconsistencies between medical records and testimony given by applicants. In each case, the commission must weigh those inconsistencies against the other evidence of record. Experience has shown that busy physicians often fail to fully or accurately record the history of ongoing medical conditions; while at the same time, historical discrepancies recorded by a physician may expose unreliable testimony by an applicant. In the case at hand, the commission inferred from all the evidence that Dr. McCarthy inaccurately recorded the applicant's history, either because of inattention or because the applicant failed to clearly articulate it to him. It is inferred that Dr. Bihn merely repeated Dr. McCarthy's error, although his description of the applicant "doing very well" until about one month previously could be interpreted as consistent with an ongoing problem. Chief among the reasons for the commission's inference is the objective evidence of swelling at the base of the applicant's neck. Respondents assert that Dr. Hayden, who treated the applicant on a number of occasions between May 2000 and August 2001, did not record complaints of neck/shoulder pain or mention swelling in the applicant's neck. However, it is clear from Dr. Hayden's clinic notes and opinion that his treatment was directed towards the applicant's finger injuries, not towards her neck/shoulder condition.

Dr. McCarthy was unable to diagnose the applicant's condition, but nevertheless opined that he could not relate it back to the work injury. In fact, no physician other than Dr. Chakoian offered a credible diagnosis of the applicant's condition. Dr. Xenos opined that the etiology "may" include somatization or myofascial pain syndrome, but this opinion was couched in speculative language. Dr. Xenos also opined that the applicant had "a complete resolution" of her symptoms by May of 2000, but this is inaccurate. As previously noted, the applicant gave credible testimony regarding her pain, and there were objective observations of continued swelling at the base of her neck where she underwent the interscalene nerve block. Even at the time of the hearing held on November 24, 2003, the administrative law judge observed this swelling.

Dr. Chakoian acknowledged that the etiology of the applicant's condition was "a bit unclear." However, he went on to explain that the chronology of the condition clearly placed it as a sequela of the work injury. He diagnosed inflammation at the nerve roots or a milder form of reflex sympathetic dystrophy, and indicated that in either case, the cause would relate back as a sequela of the work injury. The commission inferred that the former diagnosis, nerve root inflammation, is the most credible diagnosis based on the circumstances of the applicant's case. Dr. Chakoian further explained that the pain the applicant experiences prevents her from using her left upper extremity in any meaningful way.

Finally, respondents argue that the permanency ratings given by Dr. Chakoian were too high, but the difficulty with that argument is that Dr. Chakoian was the only one to express an opinion concerning permanency. Dr. Xenos simply opined that the condition was not work-related. He did not indicate what permanency he would assess or not assess for the applicant's condition, which he considered to be nonindustrial.

cc:
Attorney Stephan A. Rogge
Attorney James A. Meier

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