NICHOLAS THIMM, Applicant
CITY OF MEQUON, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
In February 2003, the applicant filed an application for hearing seeking compensation for permanent total disability as of February 18, 2002, due to a work injury occurring on January 23, 2001. The matter was heard by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on October 20, 2003 and January 12, 2004.
Prior to the hearing, the employer and its insurer (collectively, the respondent), conceded jurisdictional facts, an average weekly wage of $855.03, and that the applicant suffered a compensable injury on or about January 23, 2001. The respondent also conceded permanent partial disability at five percent compared to amputation at the ankle and ten percent to the body as a whole. In dispute was the applicant's claim for permanent disability beyond that conceded -- that is, his claim for permanent total disability -- and his entitlement to an interlocutory order.
On January 28, 2004, the ALJ issued his decision dismissing the claim for permanent total disability, while retaining jurisdiction for future medical expenses. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant was born in October 1946. He began working for the employer in 1970, initially as a highway worker. In 1980, he became an equipment operator. In that job he operated backhoes, asphalt pavers, rollers, street sweepers, and other pieces of equipment. He sometimes did manual work such as shoveling.
The applicant was injured at work on January 23, 2001, when he was struck by a tree limb that a coworker was cutting. He suffered an ankle fracture, a chest wall contusion, a neck injury, and a skull fracture with a subdural hemotoma causing bleeding into the brain.
The most serious were the ankle and head injuries. The applicant underwent an ankle surgery, physical therapy, and epidural injections (apparently for the head injury). He testified he is left with residual symptoms. The symptoms include a headache that is constant, but waxes and wanes in intensity, and gets worse with physical activity. He also gets dizzy if he bends over, gets up or moves his head too fast. He has neck pain in certain postures. His right ear is sensitive to noise, and he has difficulty concentrating. He testified he takes Vicodin on a nearly daily basis for pain.
The applicant also testified he cannot climb ladders, and cannot go to movies, to festivals, or to weddings because of his sensitivity to noise. He admitted he can cut his lawn, but said it is a small one and that his lawn mower is not noisy. His wife, Kathleen Thimm, testified to his lack of concentration, which prevents him from reading a newspaper or driving more than 45 minutes and requires her to accompany him on errands.
The respondent hired private investigators to do surveillance of the applicant. They observed him going into a gambling casino, working outside for about an hour hanging Christmas decorations (sometimes using a three foot stool), and doing a water aerobics class for forty-five minutes.
The applicant never returned to work following his injury. He eventually "retired" -- took a disability retirement offered by the employer -- on October 1, 2001, having not yet reached an end of healing from the work injury.
Mrs. Thimm testified regarding the applicant's retirement. She handles the couple's finances and helped him in his post-injury dealings with the employer due to the applicant's concentration problems. She testified that she and her husband had discussed retirement before his injury, but then she was diagnosed with breast cancer, which made retirement unfeasible because of her medical expenses. As result, before the applicant sustained the work injury, the couple thought they would delay his retirement a couple of years.
Mrs. Thimm testified, too, that she had discussions with both the employer's representative (Claudetta Wright) and the insurer's representative (Margarita Schneider.) According to Mrs. Thimm, while employer's representative Wright thought the applicant should probably retire on disability, insurer's representative Schneider thought he should return to work. However, no job was ever offered. This testimony was corroborated by the applicant who testified that Ms. Wright helped him fill out his retirement disability forms, and never offered him work or even a potential job.
The respondent offered testimony from the employer's director of public works, John Garms. He testified he visited the applicant during his convalescence and told him the employer would return him to work. He testified, too, that he had known the applicant for many years, and the applicant's plan even before his injury was to retire at 55.
Mr. Garms' testimony was that because the applicant retired before he reached an end of healing, the employer did not offer him work within his permanent restrictions. Mr. Garms also testified, however, that the employer had accommodated other injured workers, and would have accommodated the applicant had he not retired. Specifically, Mr. Garms mentioned potential employment in sign production work, telephone work, and greeting customers. Mr. Garms said the employer would have paid the applicant his time-of-injury wage ($855 per week) plus contract increases for doing this work.
Mr. Garms testified that the employer would work with the applicant with the goal of returning to full time work. However, he did not know what the employer would have done if the applicant could not complete a full time day. He did not know if the applicant had talked with human resources personnel about retirement before the applicant retired. He also acknowledged that the applicant was never actually offered work.
Mr. Garms testimony about the employer's general policy of returning injured employees to work within their restrictions is borne out by exhibit J, a letter from Ms. Wright to the applicant's primary care doctor, Daniel Halloran, M.D., dated September 24, 2001. In the letter, Ms. Wright informed the doctor it "has been a practice of the City of Mequon to follow any and all work restrictions placed upon an employee by a physician." Ms. Wright went on to note that the employer's operating superintendent advised that assignments available to the applicant included applying lettering to signs, updating addresses in plat books, and answering the telephone.
There is no dispute that the applicant sustained permanent disability from the work injury. The applicant's treating primary care doctor is Daniel Halloran, M.D. In the summer of 2001, Dr. Halloran's notes began to mention the possibility of a return to work. Specifically, his August 27, 2001, note referred to a plan of weaning the applicant from narcotics followed by the consideration of a return to light duty work in a visit in September 2001. Exhibit G. However, Dr. Halloran did not return the applicant to work subject to restrictions in September 2001. Indeed, in a practitioner's report done in April 2002, he opined the applicant could not work with temporary restrictions, and that he could not yet determine whether the applicant would ever work with permanent restrictions. Exhibit C.
In a follow-up report on December 2, 2002, Dr. Halloran opined the applicant would not be able to work subject to permanent limitations. Exhibit B. He noted elements contributing to the applicant's disability as "pain -- chronic headache." Dr. Halloran attached a "physical functional capacity questionnaire" dated October 23, 2002, which outlines the applicant's ability to perform the tasks described in a competitive work environment. This lists a diagnosis of "posttraumatic headache/concussive syndrome" and listed symptoms as "daily headache, easy fatigability, dizziness with head motion, and some degree of loss of concentration." The doctor indicated that "narcotic strength pain meds required contribute to fatigue and drowsiness." The doctor went on to state that the applicant's symptoms would frequently be severe enough to interfere with his attention and concentration, and that he would be unable to perform even a low stress job.
Dr. Halloran stated, too, that the applicant could stand for about fifteen minutes at a time, walk about one city block at a time. The applicant would have to be allowed to get up and walk for five minutes about every half hour. In a total eight hour work day, Dr. Halloran thought the applicant could sit about two hours and stand/walk less than two hours -- these of course do not add up to an eight hour work day. The doctor opined the applicant would have to be allowed to walk for five minutes every half hour, and would need to take unscheduled breaks. The doctor also opined that the applicant would only occasionally be able to lift less than ten pounds, and rarely be able to lift exactly ten pounds, in a competitive work situation. The doctor opined the applicant could rarely look down (with sustained flexion of the neck), turn his head to the left or right, look up, twist, stoop, crouch, squat or climb stairs. He could occasionally hold his head in a static position. The doctor thought he should never work on a ladder, and would be absent from work for treatment once a month.
Dr. Halloran believed he did not have the specialty qualification in neurology required to actually rate permanent partial disability. Accordingly, he deferred to the opinion of the treating neurologist on that point. Practitioner's reports at exhibits B and C, question 19.
The applicant's neurologist is Scott Van Steen, M.D. In a report dated March 14 and 15, 2002 (exhibit 3), Dr. Van Steen, in turn, agreed with the respondent's examining doctor, Sridhar Vasudevan, M.D. Specifically Dr. Van Steen adopted Dr. Vasudevan's opinion that the applicant had reached an end of healing by February 2002, and that a permanent partial disability rating a ten percent to the body as a whole was appropriate for the applicant. Dr. Van Steen also agreed with the work restrictions set by Dr. Vasudevan.
Specifically, Dr Vasudevan examined the applicant on the respondent's behalf on February 18, 2002. He opined that the applicant suffered, as a direct result from the work injury:
Dr. Vasudevan opined that the applicant's scalp laceration from the injury, his nondisplaced fracture of the temporal bone, and his right frontoparietal subdural hematoma resolved without significant neurological damage. However, he also opined the postconcussive disorder left the applicant with a central nervous dysfunction due to the injury of the brain and small vessels. He noted that while in some cases a patient's symptoms will resolve over time, in other cases the symptoms never resolve. The doctor noted, too, that the applicant's complaints were consistent with his injury.
Dr. Vasudevan rated permanent partial disability at 5 percent compared to amputation at the left ankle for the ankle injury, 10 percent for his nonscheduled injuries to his brain and skull fracture. Regarding the applicant's capacity to work, Dr. Vasudevan stated:
Given the residual problems with the left ankle, prolonged standing, squatting and going up and down slippery areas or uneven surfaces may be difficult for him from the left ankle perspective.
More importantly, given the post concussive disorder, he would have to work, if at all, in a very selective placement.
If work is made available for him, that would allow him to avoid excessive noise, pace himself because of the onset of headaches that can occur, activity that does not require significant concentration, he may be able to return to work. [Italics supplied.]
Exhibit 3, Vasudevan report dated February 18, 2002, page 8. He added that while there were few objective signs or findings to support the applicant's complaints, he did not believe the applicant was exaggerating or magnifying his symptoms. Id., page 10.
Finally, the respondent submits a report dated February 26, 2002, from Paul R. Miller, M.D., who treated the applicant's ankle injury (exhibit 2). He opined that the applicant sustained a trimalleolar ankle fracture when a tree trunk fell and landed on him. Dr. Miller opined that after surgery, an open reduction and internal fixation of his ankle, the applicant was totally disabled from his usual job until August 27, 2001. He opined the applicant had reached a healing plateau and had no restrictions with respect to his ankle, but did have some residual pain and stiffness for which he rated permanent partial disability at five percent.
The parties have submitted reports from experts regarding the vocational effects of the work injuries.
The applicant's expert is Timothy J. Riley. His report (exhibit A) notes the restrictions of Drs. Halloran and Vasudevan, including the restrictions set by the doctors that relate to the ankle injury as well the post-concussive disorder. Mr. Riley noted, too, that the applicant lacks transferable skills, is 56, has never had a management or technical job, and struggled in his high school education. He therefore concluded the applicant was not a candidate for retraining. He also concluded the applicant was permanently and totally disabled under the restrictions of either Dr. Vasudevan or Dr. Halloran.
The respondent's vocational expert is Michael Campbell. In his report (exhibit 1) he opined that under Dr. Halloran's restrictions, the applicant would be permanently totally disabled, as the doctor opined on his practitioner's report the applicant was not able to work and his attached functional capacity evaluation allowed less than four hours of work -- which would permit only odd lot work anyway.
Under the restrictions of Dr. Vasudevan, Mr. Campbell opined the applicant could do a variety of unskilled jobs, including janitor, production machine operator, laborer, kitchen worker and food preparer, assembler, cashier, packager, groundskeeper, handworker, shipping or stock clerk, personal and protective services, machine feeder and offbearer, industrial truck operator, household cleaner, guard, and measurer or weigher. Based on these restrictions, Mr. Campbell rated a 45 to 55 percent loss of earning capacity. However, Mr. Campbell specifically factored out Dr. Vasudevan's restrictions related to the applicant's left ankle injury in setting out these employments.
The commission is persuaded that the applicant is permanently and totally disabled. As a result of the work injury, he sustained serious injuries including a skull fracture, a hemotoma with bleeding into the brain, and an ankle fracture. His treating primary care doctor, Dr. Halloran has indicated he will not be capable of returning to competitive employment. Dr. Halloran also indicated that the applicant cannot sit or stand even four hours consecutively, and cannot handle any work stress.
Beyond that, the opinion of the respondent-retained Dr. Vasudevan also casts considerable doubt on the applicant's ability to work, even if very select employment were provided to him. Specifically, Dr. Vasudevan opined the applicant would be able to return if at all only in very select employment, and if such employment were provided the applicant might be able to return to work. In other words, Dr. Vasudevan's opinion almost reluctantly expresses the opinion the applicant might be able to work competitively, expressing a possibility. In light of Dr. Halloran's flat opinion that the applicant cannot return to competitive employment, Dr. Vasudevan's opinion does not counter the conclusion that it is more probable the applicant is not able to maintain competitive employment.
Moreover, Mr. Riley opined that under the restrictions of either Dr. Halloran or Dr. Vasudevan, the applicant is permanently and totally disabled on a vocational or odd lot basis. The commission credits Mr. Riley's opinion on this point, and concludes the applicant has made a prima facie case of permanent total disability under the odd lot rule. See Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 131.
Mr. Campbell, of course, opined the applicant was not permanently and totally disabled on an odd-lot basis under Dr. Vasudevan's restrictions. Presumably Mr. Campbell's opinion may be considered by the commission to be "in contradiction of the basic facts of the employee's prima facie case" in order to prevent the presumption of odd-lot unemployability from arising. Beecher, at 273 Wis. 2d 170, ¶ 54. However, in light of the seriousness of the applicant's injuries, and the reservation with which Dr. Vasudevan expressed his opinion that the applicant could work competitively, the commission cannot credit Mr. Campbell's opinion.
Beyond that, while Dr. Miller did not set specific restrictions regarding the applicant's ankle, the opinions of Dr. Vasudevan and Dr. Halloran do.
Mr. Campbell's opinion "netted out" the restrictions set for the applicant's "scheduled" ankle restrictions in expressing his vocational opinion. However, the supreme court has held that consideration of the restrictions for both scheduled and unscheduled injuries is appropriate in determining whether a worker is permanently and totally disabled,
Mireles v. LIRC, 2000 WI 96,
¶ 71, 237 Wis. 2d 69, 97-98 (reversing a LIRC decision decided under the opposite view), at least where "an ascertainable portion of [a worker's] total disability [is] attributable to other than a scheduled injury."
Id., at 237 Wis. 2d 96-71, ¶ 68.
Because the applicant has made his prima facie odd-lot case, the employer bears the burden of persuasion of showing the applicant "is actually employable and that there are actual jobs available to him." Beecher v. LIRC, 273 Wis. 2d 166, ¶ 44. In other words, an employer must show "there is an actual job that the claimant can do" or that "a job exists that the applicant can do." Beecher, at 273 Wis. 2d 171, ¶¶ 54, 55. An employer may show "that there exists suitable employment" "by bringing forward evidence of actual job availability." Ibid. In this case, Mr. Campbell's report is insufficient to carry the employer's burden.
First, the commission is not persuaded, in light of the opinions of the medical doctors regarding the applicant's ability to maintain competitive employment due to his head injury and Mr. Riley's countering vocational report, that the applicant can actually do the jobs identified by Mr. Campbell. Second, Mr. Campbell identifies the types of jobs that he believes are within the restrictions set by Dr. Vasudevan, not actual jobs that are open and available to the applicant. Third, as set out above, the jobs Mr. Campbell identified do not account for the restrictions set by Dr. Vasudevan as they pertain to his scheduled ankle injury.
The respondent asserts the employer would have offered work to the applicant when he reached a healing plateau had he not retired. Specifically, Mr. Garms testified the employer would have accommodated the restrictions set by Drs. Vasudevan and Van Stine. Consequently, it contends the applicant's claim for permanent disability based on loss of earning capacity -- whether total or on a percentage basis -- should be barred by Wis. Stat. § 102.44(6) (a) and (g).(1)
However, the commission is not persuaded that the employer would have offered employment which would fit treating doctor Halloran's restrictions. Dr. Halloran has indicated the applicant cannot return to competitive employment, and that the applicant in any event can only sit and stand a total of less than four hours per day -- a restriction which Mr. Garms declined to state the employer would accommodate. Again, while Dr. Vasudevan set restrictions which the respondent contends the employer could accommodate, that doctor stated the applicant's ability to return to competitive employment only in terms of a possibility. The commission would have to speculate to conclude that the employer would have been able to accommodate Dr. Halloran's restrictions which it credits.
Further, nothing prevented the employer from directly asking the applicant not to retire because it intended to provide work, or from offering him work after he retired when he reached a healing plateau. However, the applicant and his wife testified that neither an actual or even potential job was offered in the applicant's discussions with Ms. Wright -- the personnel representative he dealt with and whom the respondent did not bring to the hearing. Indeed, Ms. Wright helped him -- and according to his wife's unrebutted testimony encouraged him -- to take disability retirement.
The commission realizes that the testimony of Mr. Garms and superintendent Lippe, as well as the letter at exhibit J, establish that the employer's general policy is to return workers to work within their restrictions and even permit the inference that the applicant knew of that policy. The commission also understands that a refusal of an offer of employment without reasonable cause is tantamount to a return to work under Wis. Stat. § 102.44(6)(a) and (g). However, Wis. Stat. § 102.44(6)(g) requires a good faith offer, and no offer was ever actually made in this case. Nor can the applicant's retirement under the facts of this case be viewed as realistically "blocking" an offer. Since no offer of a specific job was made, the commission cannot determine whether the applicant would have had reasonable cause to refuse it in light of the hesitance of even Dr. Vasudevan to opine the applicant would be able to return to employment.
Further, while age is a factor to be considered in assessing loss of earning capacity under Wis. Admin. Code § DWD 80.34(1)(a), there is no legal authority for reducing or denying his award for permanent total disability based solely on the expectation the applicant would retire soon or that he had independent sources of income. In
Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 402-04 (1969), the court rejected the notion that the right to seek benefits for loss of earning capacity is necessarily cut off by a voluntary retirement. The court noted that "it was not the circumstances of the termination of employment that are controlling [but] the actual or medical or pathological condition of the worker at the time of the termination that is controlling."
Id., at 42 Wis. 2d 403-04. While Wis. Stat. § 102.43(5) allows for a reduction of benefits due to application of the social security reverse offset in certain cases
-- and that reduction is taken into account in this case -- the law does not provide for similar reduction simply because of the availability of "retirement" or pension benefits to an older, disabled worker. See: 5 Larson,
Worker's Compensation Law, § 93.02[2][f] (LEXIS NEXIS 2003).
Obviously, a situation where a worker chooses to retire after sustaining only
minor disability from a work injury could justifiably lead to a different
conclusion. See for example, William Stuart v. Delphi Automotive, WC
claim no. 1999-033288 (LIRC, September 10, 2002) and the cases cited therein.(2) In this case, however, the retirement occurred only after the applicant sustained a seriously disabling injury. Given the credible testimony of the applicant and his wife, as well as the medical record in this case, the commission is persuaded that his disability from the work injury was the reason the applicant chose to retire when he did.
In sum, the commission credits the medical report of Dr. Halloran and the vocational report of Mr. Riley and finds the applicant has made his prima facie case of odd lot unemployability, and that the employer has failed to rebut it by showing a job does exist for the applicant or by bringing forward evidence of actual job availability. The commission believes the same result, frankly, is mandated even by the opinion of Dr. Vasudevan. Further, while the employer laudably follows the general policy of accommodating the permanent work restrictions of injured workers, that policy alone cannot support a denial of compensation under Wis. Stat. § 102.44(6) in the absence of an actual good faith offer of employment under the facts of this case.
The commission therefore finds that the applicant was permanently and totally disabled as of February 18, 2002, the date of the healing plateau set by Dr. Vasudevan. The respondent paid the applicant salary through January 30, 2002. The applicant therefore is entitled to compensation for temporary total disability from that date to February 18, 2002, and compensation for permanent total disability thereafter, for life.
The applicant is therefore entitled to temporary total disability from January 31, 2002 to February 18, 2002, a period of 2 weeks and three days. At the weekly rate of $570.02 (two-thirds the average weekly wage of $855.03), he is entitled to $1,425.05 in temporary total disability benefits. The applicant agreed to attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the amounts awarded. The attorney fee on the temporary total disability compensation, then, is $285.01, leaving the amount remaining to be paid the applicant in temporary disability of $1,140.04.
The applicant's award for permanent total disability is subject to a social security reverse offset, and a reduction for amounts previously paid as permanent partial disability attributable to the same weeks as the permanent total disability. Specifically, the respondent has previously paid permanent partial disability at 113.75 weeks totaling $20,930, of which $16,744 was paid to the applicant and $4,186 was paid to his attorney.(3)
For the period from February 18, 2002 to January 1, 2004, a period of 97 weeks and 2 days, the applicant is entitled to $341.50 per week after calculation of the social security reverse offset, or $33,239.33. For the period from January 1, 2004 to February 18, 2005, a period of 59 weeks and one day, the applicant is entitled to $364.56 per week after calculation of the social security reverse offset, or $21,569.80. In total, the amount of permanent total disability accrued to the applicant as of February 18, 2005 is $54,809.13. Subtracting the amount previously paid him in permanent partial disability for these same weeks ($16,744), leaves the amount currently due the applicant in permanent total disability of $38,065.13.
The applicant's attorney is entitled to fees for the first five hundred weeks of the applicant's permanent total disability compensation. Due to the operation of the social security reverse offset under Wis. Stat. § 102.43(5), the fees are paid from the "reverse offset savings."(4) Consequently, the fees are awarded in addition to, and not subtracted from, the amounts paid the applicant during the weeks the applicant's award is subject to the offset.
For the period from February 18, 2002 to January 1, 2004, a period of 97 weeks and 2 days, the applicant's attorney is entitled to $68.30 per week in fee, totaling $6,647.87. For the period from January 1, 2004 to February 18, 2005, a period of 59 weeks and one day, the applicant's attorney is entitled to $72.912 per week in fee, totaling $4,313.96. In total, the amount of fee for permanent total disability accrued to February 18, 2005 is $10,961.83. Subtracting the amount previously paid the attorney fee on the permanent partial disability for these same weeks ($4,186) leaves the amount currently due the applicant's attorney in fees for permanent total disability of $6,775.83.
Beginning on March 18, 2005, and continuing until the next "redetermination date" for the purposes of calculation of social security reverse offset (January 1, 2007), the applicant is entitled to $1,579.75 per month and the applicant's attorney is entitled to $315.94 per month.
The applicant's attorney is also entitled to costs of $1,006.69. These, too, are
paid from the "reverse offset savings", and not deducted from, the applicant's
award under Wis. Stat. § 102.44(5).(5)
Both Dr. Halloran and Dr. Vasudevan believed further treatment is warranted. Jurisdiction is reserved to permit further orders and awards as are warranted.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are reversed.
Within 30 days the employer and its insurer shall pay all of the following:
Beginning on March 18, 2005, and continuing until the next "redetermination date" for the purposes of calculation of social security reverse offset (January 1, 2007), the applicant is entitled to $1,579.75 per month and the applicant's attorney is entitled to $315.94 per month.
Payment to the applicant thereafter shall continue for life, subject to an attorney fee for the first 500 weeks of such compensation. The amounts paid shall be adjusted as needed to give effect to the social security reverse offset under Wis. Stat. § 102.44(5).
Jurisdiction is reserved for further orders and awards as are warranted.
Dated and mailed February 18, 2005
thimmni . wrr : 101 : 1 ND § 5.29 § 5.31
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In his decision, the presiding ALJ accepted Mr. Garms' testimony that the employer would have found work for the applicant had he not retired before reaching an end of healing. He therefore denied any compensation for permanent disability -- partial or total -- on a vocational basis, presumably under Wis. Stat. § 102.44(6). He based this conclusion on the employer's history of accommodating injured workers in the past, and on his apparent belief, due to the videos, that the applicant was malingering or at least exaggerating his disability. The ALJ also noted the applicant's multiple sources of post-injury income, including social security disability and non-industrial disability.
The commission conferred with the ALJ concerning witness credibility and demeanor. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). He stated that his observation of the applicant at hearing -- and there were two days of hearing -- did not disclose any problems, either physically or mentally, which interfered with applicant's ability to concentrate. He suggested that certain postures maintained by the applicant, such as bending his head to read, were inconsistent with the applicant's complaint of dizziness with head motion, as well as Dr. Halloran's restrictions against sustained flexion of the neck and looking up. The ALJ also observed no problems with balance or noise, and stated the applicant simply did not seem disabled to him. The ALJ believed the applicant had intended to retire when he did, regardless of the work injury. He reiterated his belief from his personal observation and from the videotape exhibits, that the applicant greatly exaggerating his symptoms to Drs. Halloran and Vasudevan.
The commission does not lightly disregard the credibility impression of presiding ALJs, especially when they are articulated as clearly as the ALJ did here. However, neither can the commission disregard the opinions of Drs. Halloran, Vasudevan, and Van Stine that the applicant was significantly disabled. While the applicant may have been able to look down to read at the hearing even for relatively lengthy periods, the commission hesitates in the absence of medical opinion to conclude on that basis that the applicant misrepresented his symptoms to the doctors or that Dr. Halloran's work restrictions were not appropriate. Nor is the commission persuaded otherwise by the videotapes. Neither Dr. Vasudevan nor Halloran had commented on them.
Finally, Dr. Vasudevan, a neurologist retained by the respondent to examine the applicant as part of its defense against his claim, did not believe the applicant was exaggerating or magnifying his symptoms. Further, at the risk of belaboring the point, Dr. Vasudevan declined to state that the applicant would probably be able to return to competitive employment. On this record, the commission declines to conclude that either the videotapes or the applicant's activity at hearing as described by the ALJ renders incredible the applicant's complaints to the examining doctors or the restrictions set by the examining doctors with respect to ongoing, daily employment.
cc:
Attorney Michael L. Bertling
Attorney Peter L. Topczewski
Appealed to Circuit Court.
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