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December 6, 2004
HWB Welcomes Michael Williamson
Holmes
Weddle & Barcott is very pleased to welcome
Michael H. Williamson to the firm in its Seattle
office. Mr. Williamson was born on October 12,
1943, and attended the University of Idaho School
of Law. He was admitted to the Washington Bar in
1968, and the Idaho Bar in 2002.
Since
1970, Mr. Williamson has focused his practice
primarily upon marine insurance defense and marine
insurance subrogation matters. He was a principal
in the firm of Madden Poliak MacDougall &
Williamson prior to joining Holmes Weddle &
Barcott when that firm ceased operations. Mr.
Williamson is an active member of the Maritime Law
Association of the United States where he has
served on numerous committees. He has also served
as a speaker at various maritime conferences.
Holmes Weddle & Barcott is extremely proud that
Mr. Williamson elected to join the firm where his
wealth of knowledge and experience in maritime
matters can be joined with the knowledge and
experience of Holmes Weddle & Barcott’s attorneys
for the mutual benefit of all.
October
9, 2004
Legal Update: Causation and Fibromyalgia
On
October 8th the Alaska Supreme Court handed
down its decision in Brown v. Patriot Maintenance
Inc. & Continental Insurance Co. regarding
the compensability of a permanent total disability
claim by a workers’ compensation claimant
who some doctors felt was disabled by fibromyalgia.
The employee was represented by James Hackett
of Fairbanks and the employer was represented
by Constance Livsey and Jeffrey Holloway of
this firm. The court affirmed the board's decision,
holding that the employee’s condition
was not work related. The case is of interest
primarily because it provides direction to workers’
compensation adjusters and defense lawyers in
dealing with cases where there is conflicting
medical opinion regarding causation.
The
employee was injured when she fell, landing
on a collapsed ladder. X-rays revealed
no fractures and there was no evidence of any
acute injury apart from abrasions and bruises. Over
the ensuing months, the employee’s symptoms
grew progressively worse and became debilitating,
preventing her from resuming her employment
at Patriot Maintenance. Her symptoms included
headaches, lethargy, disturbed sleep and depression. Eventually
her treating doctor diagnosed her condition
as fibromyalgia.
At
the request of the employer, the employee underwent
a panel evaluation by Dr. G. DeAndrea, a neurologist;
Dr. John E. Z. Caner, a rheumatologist; and
Dr. Russell Vanderbelt, a psychiatrist. The
panel unanimously agreed that the employee’s
condition was strictly psychiatric in nature,
that there were no physical injuries other than
resolved contusion and abrasion of the employee’s
buttock and that there was no permanent impairment. They
concluded that she could return to her original
occupation. The psychiatrist concluded
that the employee’s problems arose from
stressors related to her marriage, finances,
and difficulties at home with her children. On
the basis of this report, Patriot Maintenance
controverted the claim.
The
board then ordered a panel SIME consisting of
Dr. Walter Ling, a neurologist and psychiatrist,
and Dr. Stewart Silverman, a rheumatologist. In
the SIME report, Dr. Ling adopted the views
of EIME panel. Dr. Silverman disagreed
with Dr. Ling, concluding that the employee
suffered from fibromyalgia which was work related.
The
board denied the employee’s claim for
benefits, relying on the opinions of the EIME
panel and Dr. Ling. The Superior Court
affirmed the ruling and the claim was appealed
to the Alaska Supreme Court.
Among
other things, the employee asserted that because
the medical opinions conflicted, doubt regarding
causation should have been resolved in favor
of the employee under the holding of Beauchamp
v. Employer’s Liability Assurance Corp. The
court rejected that argument, following its
previous holding in Miller v. ITT Arctic Services
that the “doubt-rule” of Beauchamp
requires doubt to be resolved in favor of the
employee only in situations involving uncertainties
arising from a single expert’s equivocal
testimony or when multiple experts provide equivocal
testimony. The opinion of the EIME panel
in Brown was not equivocal, nor was the opinion
of Dr. Ling. Thus, the Beauchamp rule was
held to be not applicable.
The
employee’s second major contention was
that the board decision should be reversed because
it failed to focus on the testimony of family
and friends, which she offered to support the
contention that her symptoms were related to
the accident. Those witnesses testified
that the employee was active and in good health
prior to the accident and was disabled after
the accident. The court noted that the
board had not ignored this testimony and in
fact, had summarized it in the body of its decision
and order. In addition, the court held
that the information supplied by these witnesses
was known to the examining doctors and therefore,
while it established an apparent temporal link
between the work related injury and the symptoms,
those facts were not considered material to
the medical experts, who concluded that the
symptoms were not caused by the accident.
The
decision is important because it reaffirms the
court’s position that the board will be
upheld when it selects among competing expert
testimony regarding causation, even if the decision
favors the employer. The decision also
makes clear that the Beauchamp “doubt-rule”
does not apply where there are firm and definite
medical opinions that conflict. Also, the
case is significant because it confirms the
concept that a temporal relationship between
symptoms and a work related injury does not
end the inquiry regarding causation and that
scientific evidence that rejects the claim of
causation may be accepted by the board in spite
of lay testimony supporting the claim.
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