MS Claimant Establishes Claim in Spite of Cautious Medical Testimony
A Mississippi appellate court affirmed an ALJ’s decision, affirmed by the state’s Workers’ Compensation Commission, that an employee’s stress fracture in her right foot was work-related, entitling the employee to workers’ compensation benefits for the loss of use of that foot [Cooper Tire & Rubber Co. v. Loveless, 2021 Miss. App. LEXIS 75 (Feb. 23, 2021)]. Acknowledging that the medical testimony offered by the employee’s expert had been cautious—the physician indicated the employee’s repetitive activity at work was a “possible” cause of her injury—the court held such medical evidence, when coupled with other evidence that a stress fracture was not caused by a traumatic or specific event and that the employee had not engaged in any other repetitive-type activities that could have caused the fracture, was sufficient to support the Commission’s decision.
Background
The employee worked as a tire builder at the employer’s plant in Tupelo, Mississippi. She sustained a work-related neck injury in 2004 that required fusion surgery. She was subsequently transferred to less strenuous work in the employer’s dye-mixing laboratory. That work, however, required that she work 12-hour shifts, during which she stood for approximately 90 percent of the time.
In 2014, the employee began to experience severe pain in her right foot. X-rays did not reveal any problem. She came under the care of Dr. Thorderson, who ordered an MRI of the foot. The MRI revealed swelling in her foot, which Thorderson believed indicated either a stress fracture or arthritis. The MRI did not reveal any evidence of bruising, which would indicate an acute trauma. Based on the swelling in the employee’s foot, Thorderson suspected that the pain was due to a stress fracture rather than arthritis.
Thorderson began a treatment plan that consisted of keeping the employee’s foot in the boot at all times, including while she was sleeping. The employer would not allow her to return to work, however, as it mandated that she wear steel-toed boots at the factory. During the subsequent period, the employee continued to have difficulties with foot pain. She underwent surgery, wore a foot cast for some periods, reverted to the boot on other occasions, but continued to have significant difficulties.
ALJ and Commission’s Decision
The ALJ found that the employee’s injury was a stress fracture and was not caused by a traumatic event. The AJ further found that there was no medical or other reliable evidence indicating that the stress fracture had been caused by something other than standing on concrete for twelve-hour shifts for many years. The AJ concluded that the employee’s foot injury was compensable. The Commission affirmed. The employer appealed, contending that the employee failed to establish a compensable injury because there was no medical evidence of a work-related injury.
Appellate Court’s Decision: Cautious Medical Evidence May Support Claim
The appellate court rejected the employer’s argument that the Commission’s finding of a causal connection was “mere conjecture.” It said the evidence as a whole was sufficient to support the Commission’s findings. The employee’s expert testified that the employee had sustained a stress fracture, that a stress fracture was a repetitive-use injury, not an injury caused by a traumatic or specific event, and that the employee’s work, which consisted of 12-hour shifts on her feet, atop concrete floors, could have caused the stress fracture to the employee’s foot. The court acknowledged that the expert only testified that it was “possible” that the employee’s work caused her injury. Citing earlier case precedent, however, the court stressed that even “somewhat ambiguous” medical testimony was sufficient to support a finding of compensability as long as the relevant medical findings supported a causal connection.
The court reviewed earlier decisions [ Dixie Contractors Inc. v. Ashmore, 349 So. 2d 532, 533 (Miss. 1977); Sperry-Vickers Inc. v. Honea, 394 So. 2d 1380, 1385 (Miss. 1981); and Segar v. Garan Inc., 388 So. 2d 164 (Miss. 1980)], noting similarities with the instant case. Here the cautious medical evidence was supplemented by evidence that the employee had not engaged in other activity that could have caused the stress fracture. The court noted emphasized that the employer here had not presented any credible evidence—medical or lay—that pointed to an alternative cause of the employee’s injury. The appellate court could not and would not reweigh the evidence. Under the court’s deferential standard of review, the Commission's finding of a compensable injury was supported by substantial evidence and must be affirmed.
Author’s Note
At first blush, this decision may appear to be contrary to the standard rule that the burden of proof is on the claimant to show that she or he experienced a work-related injury. Here, one might argue that the evidentiary “scales” were never tilted in favor of the claimant, that they remained in equilibrium, based on the medical evidence that her work was a “possible” cause of her injury. As noted,, however, in Larson’s Workers’ Compensation Law, § 130.06[2], the workers’ compensation contest isn’t one in which the goal is to get the expert to say some “magic words.” Where the cautious medical testimony is buttressed, as here, with other evidence, compensation can be awarded.
Courts must be careful. The Mississippi appellate court’s statement that the employer here had failed to show evidence of an alternative cause for the stress fracture comes quite close to an impermissible shifting of the burden of proof. The employer’s duty isn’t to show what caused the injury; that burden is upon the claimant who seeks benefits. Still, I think here the court was merely explaining that there was cautious medical testimony here favoring compensability. That evidence was supported by lay testimony that appeared to rule out any other cause. The employer, in turn, came forward with nothing to rebut the claimant’s arguments. Given the overall goals of workers’ compensation, these close cases tend to fall for the claimant.