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Martinez v. Millard Processing Services and Sentry Claims Service2/18/2003
isabled from gainful employment." Rogers criticized Stratman's reports, which concluded that the plaintiff was able to return to work, in that they relied exclusively on Kuhnlein's findings rather than those of Zawaideh and Bencomo.
ORDERS OF TRIAL COURT AND REVIEW PANEL
In its decision, the trial court reviewed what it regarded as the law and concluded that to obtain an increase in benefits, the plaintiff had to prove a material and substantial change in her condition that justified a modification, distinct and different from the condition for which the adjudication had previously been made. The court noted that the main thrust of the plaintiff's claim is that she suffered an increase in incapacity, based upon her complaints of increased pain and Zawaideh's opinion that she had become worse.
The trial court stated that the evidence would support a finding of increased pain and therefore "'increased incapacity,'" but that a consideration of all of the evidence showed that the plaintiff had failed to prove by a preponderance of the evidence increased incapacity due solely to the injury or that any increase in incapacity was a material and substantial change for the worse in her condition. The court then reviewed the plaintiff's complaints of pain and the medical evidence, both supporting the existence of such pain and the allegation that it had increased since the previous hearing.
Later in the opinion, the court stated the following findings of fact, which are significant: (1) that the plaintiff "failed to prove by a preponderance of the evidence that she sustained an increase in incapacity due solely to the accident of April 25, 1997, or that if there was an increase of incapacity it was not a material and substantial change in incapacity"; (2) that " o a large extent, the only difference at the present hearing as to the prior hearing is that there are increased subjective complaints of pain"; (3) that such increased complaints of pain are not material and substantial; and (4) that such increases would not result in an increased loss of earning capacity.
In its opinion, the trial court also separately considered the evidence from the vocational rehabilitation witnesses. It noted that both attorneys agreed to use the services of vocational rehabilitation expert Stratman and that therefore her report is entitled to a rebuttable presumption of correctness. Stratman found that the plaintiff could work for Millard Processing in the position of scaler and that therefore the plaintiff would not be a candidate for vocational rehabilitation services. However, Rogers, another vocational rehabilitation expert, opined that the plaintiff was unemployable. The trial court specifically found that Stratman's opinion was entitled to the presumption. The court did not state what fact or facts it found as a result of recognizing that presumption.
On appeal to the review panel, the plaintiff asserted that the trial court erred in applying the statutory rebuttable presumption of correctness to Stratman's report, in determining that the plaintiff could return to work as a scaler or arranger, in failing to find that the "uncontradicted" medical evidence relating to her back injury and emotional state had materially and substantially deteriorated, in failing to find that psychiatric injuries are compensable, and in finding that Kuhnlein was an orthopedic surgeon and relying upon his evidence. The majority of the review panel found that even if the trial court had incorrectly applied the rebuttable presumption of correctness to Stratman's report, the record contained ample evidence to support the trial court's finding that the plaintiff failed to prove by a preponde
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