Lay Testimony Insufficient to Establish Causation for MS Claimant

Where a police officer had sustained three prior work-related injuries and sought to receive compensation for an alleged injury to his neck, the burden was on the employee to show a causal relationship between his fourth injury and the neck condition about which he complained. Were he presented no medical expert’s testimony and attempted to rely upon his own testimony as to pain levels and the circumstances of the injury itself, the Commission acted within its discretion in finding he had failed to establish medical causation [Bowdry v. City of Tupelo, 2022 Miss. App. LEXIS 130 (Apr. 26, 2022)]. Because of the complexity of his medical condition, expert testimony was required to show causation in this case, held the court.

Background

Bowdry, a patrolman for the City of Tupelo, Mississippi, sustained injuries on April 21, 2017, while in pursuit of a burglary suspect in the city. Bowdry was treated by multiple doctors and underwent two surgeries for injuries to his left hand. Those treatments were covered by City and its workers’ compensation carrier. During this same time, Bowdry also sought treatment from Dr. Glenn Crosby (Dr. Crosby) for pain related to his neck. Bowdry sought to have the City pay for his medical bills for Dr. Crosby, but the City refused, indicating that Dr. Crosby was not an authorized physician.

An administrative judge held a hearing and found that Bowdry was not entitled to any additional benefits for his neck claim. The Mississippi Workers’ Compensation Commission affirmed the AJ’s decision. Bowdry appealed.

Appellate Court’s Decision

The appellate court noted that prior to the April 21, 2017 injury at issue, Bowdry had three other work-related injuries that the City covered. The court noted that in the Commission’s order, it found that Bowdry “simply failed to prove by competent evidence that his alleged neck injury was a result of his admitted work injury on April 21, 2017.” The Commission stated Bowdry did not present any “expert testimony or objective medical evidence that his current complaints are related to his most recent injury.” Additionally, the Commission found that Bowdry had been given a continuance and chose not to depose Dr. Crosby or gather medical evidence to support his claim.

The court also noted that the Commission reviewed the medical records that Bowdry presented at his original hearing, which had all been marked for identification purposes only. The Commission stated:

Out of an abundance of caution, the Commission has reviewed the medical records from Dr. Crosby marked for identification purposes only. After review, we find that these records do not establish that the Claimant's current neck complaints are related to his admitted work injury on April 21, 2017.

Lay Testimony Was Insufficient

The court acknowledged that Bowdry testified at the hearing in front of the AJ, but stressed that such testimony was not enough to prove his neck injury was related to his work-related injury on April 21, 2017. Quoting Burton v. Nissan N. Am., 305 So. 3d 1163, 1170 (¶22) (Miss. Ct. App. 2020), the court observed that “in all but the simple and routine cases it is necessary to establish medical causation by expert testimony.” In this case, where Bowdry had sustained three earlier work-related injuries, his testimony was insufficient to establish causation. The Commission’s decision was affirmed.

Comment

As pointed out in Larson’s Workers’ Compensation Law, § 128.02, et seq., in many instances it may be possible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. Reliance on lay testimony and administrative expertise of the Commission or Board is not justified when the medical question is no longer an uncomplicated one and carries the fact-finder into realms that are properly within the province of medical experts.

That’s the “fix” within which Boudry found himself. He did not secure the testimony of the doctor treating his neck pain. He was allowed time to depose the physician, but apparently chose not to do so. He sought to enter the doctor’s medical reports at the hearing, but was not successful in having them received as evidence. Given Boudry’s complex medical history, his lay testimony was far from adequate in establishing causation.