Dueling Doctors: Authorized Treating Physician Less Credible Than Non-Examining Expert

In Emory University v. Duval, A14A2270 (Ct of Appeals, February 10, 2015) the Court of Appeals chastised the Superior Court for reversing the Board's finding that evidence relied upon by the ALJ was less credible than a non-treating expert's report. The Employee sustained a compensable right shoulder injury and returned to work after treatment. The treating physician, an orthopedic surgeon, found that a subsequent non-compensable left shoulder injury caused an aggravation of the compensable injury to the right shoulder, which was too painful to be used exclusively once the left shoulder was also impaired. Based upon this evidence, the ALJ awarded benefits for aggravation to the right shoulder. But the Board reversed "based upon the report of a upon other medical records that demonstrated a history of shoulder pain predating the December 2010 injury and the conclusions reached by an expert for Emory after his review of the orthopaedic surgeon's records, that the December 2010 right-shoulder injury and the current right-shoulder injury were unrelated." The Superior Court ordered the Board "to either accept [the ALJ's] finding of fact . . . or provide rational[e] of why the treating physician's undisputed opinion was rejected." The Court of Appeals reminded the Superior Court that "the Board is authorized to vacate the ALJ's findings of fact and conclusions of law as unsupported by a preponderance of the competent and credible evidence, and to substitute its own alternative findings." This includes authorization to "assess witness credibility, weigh conflicting evidence, and draw different factual conclusions from those reached by the [ALJ] who initially heard the dispute." The Board may also "disregard factual inferences drawn by the ALJ and . . . substitute its own in place of those inferences." But does this really answer the Superior Court's question, which is why the Board found that the opinion of the treating physician, an orthopedic surgeon, was less reliable or credible than the opinion of an expert who had not even examined the employee? The Board can substitute its own findings, but only if the ALJ's "findings of fact and conclusions of law are unsupported by a preponderance of the competent and credible evidence". Surely it should be incumbent on the Board to specify the insufficiencies in the evidence relied upon by the ALJ when it substitutes its own judgment for that of the ALJ.

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