PTPRelied upon
Noted histrionic behavior and lack of physical findings inconsistent with history, raising credibility concerns.
The report was used to assess credibility, not causation, and the histrionic behavior noted was a significant factor in finding the applicant not credible.
From the decision · page 6were inconsistent with the history only pertained to the finding of left sided
hypoesthesia, and not to the injury to the neck back and knee. The Court
disagrees with Petitioner's assessment in that regard. Dr. Figueroa examined
Petitioner relative to all of her physical complaints. The mention of histrionic
behavior and lack of physical findings inconsistent with her history was listed
under the exam heading as a separate entry, similar to a bullet point, than the
mention of the Hypoesthesia, which appears to have been listed separately on a
different line. Any doubt in that regard should have been resolved by deposing
Dr. Figueroa, but no such deposition occurred in this case. In any event, the
Court's focus in citing this report was not causation itself, but credibility.
QMEPartially credited
Found the injury industrially related based on history of falling while ascending a two step stool and landing flat on back.
The history given to Dr. Rosenberg was inconsistent with applicant's trial testimony, which was a factor in assessing credibility.
From the decision · page 6Petitioner also argues that the Court erred in considering that Dr.
Rosenberg obtained a history from Applicant that she "landed flat on her back"
and that she fell as she was "ascending the two step stool" as factors in
determining Petitioner's credibility. Petitioner's argument is that it is not clear
as to the circumstances surrounding the interpreters used in the case. But there
was no argument or testimony provided at trial tending to demonstrate any
problem in that regard. To the contrary, Applicant relies on the reporting of Dr.
Rosenberg to prove injury. Thus, if Petitioner's argument is to be accepted, it
creates yet another ground on which to support a finding of no injury, since Dr.
Rosenberg's opinion clearly could not be relied upon if the interpreter was not
qualified. However, if there is was an issue with the communication between
Applicant and Dr. Rosenberg, those facts should have been brought out in
deposition testimony, or at the very least through Petitioner's testimony. But
again, just as with the reporting of Dr. Figueroa, no deposition was taken to
clarify any alleged problems with the interpreting. But assuming no
communication/interpretation issue, the history regarding the mechanism of
injury to Dr. Rosenberg is significantly at odds with Petitioner's trial testimony.