Earnest v. Jackson County

No. 08-117368 (Mo. Lab. & Indust. Rel. Comm’n Aug. 15, 2017)

Factual Background:

Employee had a work injury in March 2014 when he was cutting down a tree with a chainsaw, and it fell onto him.  The tree fell across his torso and legs and he was unable to move.  X-rays revealed a compression fracture along with other injuries to his back. He eventually underwent a spinal fusion and  a decompression, along with other surgeries for his injury including removal of a rib. A year after his injury, Claimant still had some back complaints and left sided rib complaints.  Employer argued that Claimant was employable on the open labor market. They offered two surveillance tapes, showing Claimant mowing his own yard, pushing a broom and using a hose. An FCE showed that the Claimant had medium level restrictions.

ALJ Decision:

The ALJ said that this evidence did not translate to Claimant’s ability to perform sustained employment, as they were mere “snapshots in time”.  She agreed with a doctor who said that the video did not show anything unusual or inconsistent in regard to his functional capacity. Claimant may not be capable of constant physical demanding activity eight hours per shift or a full time job, but might be able to do it for limited times such as in this surveillance. The ALJ found the claimant to be credible in his complaints of pain and about his disability, and this was a large factor in her decision.

Analysis/Holding:

The commission acknowledged that there was evidence on the record that would support a contrary finding to the one reached by the judge, however they did not want to overturn the decision, as they especially did not want to overturn a judge’s credibility determination, as this is one of the primary jobs of the judge at a hearing.  They affirmed the judge’s decision.

The Takeaway:

A Judge may not rely on surveillance for a credibility determination.