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State ex rel American National Red Cross v. Smith10/25/2005
Jones, who had examined claimant on behalf of relator, had himself assessed a five percent whole person impairment for the allowed condition relative to claimant's lumbosacral area. As such, the magistrate finds that Dr. Nemunaitis' report is not automatically flawed because he assessed a five percent impairment for the condition of back condition and it does not automatically demonstrate that he based his opinion, even in part, upon a nonallowed condition. Instead, Dr. Nemunaitis correctly listed the allowed conditions at the beginning of his report and determined, as did Dr. Jones, that claimant had a five percent impairment relative to his allowed lower back condition. As such, the magistrate finds that the commission did not abuse its discretion by relying upon the reports of Drs. Gurley and Nemunaitis.
{ } Relator also contends that the surveillance evidence reveals that claimant's physical capacities are significantly greater than what he reported and demonstrated to Drs. Gurley and Nemunaitis. Relator asserts that only Dr. Jones received the video surveillance and that his opinion should be relied upon. The magistrate has reviewed the videotape surveillance and agrees with the conclusion reached by the SHO who found:
* * * Claimant in the video appeared to walk with an altered gait and at one time he stumbled. The Staff Hearing Officer finds that the surveillance evidence does not rise to the level of supporting the employer's contention that claimant somehow deceived the examining physicians as to the extent and nature of his residual functional capacities.
{ } While the surveillance does show claimant walking, at times without his cane, gesturing with his arms, carrying a small bag, and turning his head, the magistrate concludes that this does not necessarily demonstrate that claimant deceived Drs. Gurley and Nemunaitis and that he could actually perform at a higher level. From the stipulation of evidence, it is clear that claimant takes some strong pain medication and for all one knows, at the time the surveillance videos were taken, claimant may have been experiencing a certain relief from his pain due to the medication. That does not necessarily render the reports of Drs. Gurley and Nemunaitis flawed relative to their conclusions that he cannot perform work activity. Again, the commission reviewed this evidence and concluded that it was not evidence that claimant could actually perform at a greater physical exertional level. Credibility and weight of evidence are for the commission to determine and, based upon a review of the record, this magistrate cannot say that the commission abused its discretion by finding that the surveillance evidence submitted by relator showed that claimant actually had greater abilities than he demonstrated and reported to Drs. Gurley and Nemunaitis. As such, this argument of relator fails as well.
{ } Based on the foregoing, it is the magistrate's decision that relator has not demonstrated that the commission abused its discretion in relying upon the medical reports of Drs. Gurley and Nemunaitis and that the commission did not abuse its discretion in awarding PTD compensation to claimant. As such, relator's request for a writ of mandamus should be denied.
STEPHANIE BISCA BROOKS MAGISTRATE
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