Board's dismissal of Petition to Determine Compensation Due overturned. Board erred in not finding that claimant's medical expert's testimony established the work activities were a substantial cause of claimant's low back injury.

This case involved a claimant's Petition to Determine Compensation Due in which he alleged that he injured his low back on October 29, 2009, while working as a delivery driver. The employer denied that the injury arose out of the claimant's employment. The evidence showed that on the day in question, the claimant had made about ten to fifteen deliveries of packages weighing from one-half pound to eleven pounds. Thereafter, the claimant was driving on his way to Middletown when he experienced lower back pain that was described as being "out of nowhere." Both parties presented medical evidence in support of their positions. The Board found that the claimant had failed to prove that his work activities were a substantial cause in the onset of his low back pain and dismissed the petition.

In order to be compensable, an injury must both occur in the course of the claimant’s employment and arise out of the employment. In order for an injury to arise out of one's employment, there must be a connection established between the employment and the injury by which the employment was a substantial contributing, but not necessarily the sole, cause of the injury. The court reviewed the medical evidence in great detail and concluded that the Board rejected the testimony of claimant's medical expert because he did not use the precise words "substantial factor" in giving his opinion on causation. The court commented that this was a gross distortion of the expert's testimony. Any reasonable reading of that testimony would, according to the opinion, suggest that not only was the claimant's employment a substantial factor in causing his injury, but it was also in the medical expert's opinion the only factor to cause the injury. Therefore, the court concluded that the testimony of claimant's expert clearly met the substantial factor requirement, despite his failure to use the precise words. The court further commented that it was not making this decision lightly. It recognized the long line of cases establishing that appellate courts should give great deference to the credibility findings made by the Board, but found that here the record did not support the Board's analysis of the medical evidence.

Case Law Alerts, 3rd Quarter 2013