Claimant was hired by Employer as a welding trainee.  Claimant began experiencing cramping and swelling in his hand, and was diagnosed with compartment syndrome.  Claimant filed a Disputed Claim for Compensation demanding wage benefits and medical treatment.  Employer filed a Motion for Summary Judgment, alleging that Claimant could not rebut a statutory presumption against coverage and complained of weakness, numbness and tingling in both hands for a number of years prior to the alleged development of his occupational disease.  In opposition, Claimant produced a report from his physician on which the physician checked “yes” next to a statement that indicated that Claimant’s compartment syndrome, more probably than not, developed during the course and scope of Claimant’s employment with Employer.  Summary judgment was granted in favor of Employer on the grounds that Claimant did not meet his burden of proof, and Claimant appealed.

Claimant argued on appeal that the workers’ compensation judge erred in concluding that his medical report lacked sufficient detail to create a genuine issue of material fact.  Claimant reasoned that although the medical report may be insufficient to carry his burden of proof at trial, it created a genuine issue of material fact that precludes summary judgment.  Employer countered by pointing out that the medical report constituted hearsay.

The Act provides that any occupational disease contracted by an employee while working for a particular employer for which he has been engaged for less than twelve months is presumed not to have been contracted in the course and scope of employment.  Any occupational disease contracted within that twelve month period will be compensable if, by a preponderance of the evidence, it is proved to have been contracted during the employment period.

Here, Claimant’s occupational disease arose within six weeks of employment.  The burden was therefore on Claimant to rebut the presumption with evidence sufficient to controvert the inference that the disease was not contracted in the course of his employment with Employer.  The appellate court reviewed the medical report produced by Claimant.  Claimant’s counsel admitted that the document was crafted by him, the physician and the physician’s attorney.  It was specifically noted that the report was not kept in the course of regularly conducted business activity.  The court therefore found that the report was not competent evidence and had no evidentiary value, as it was not certified, not a deposition and was not part of oral examination in open court.  Therefore, it should not have been considered in challenging Employer’s Motion for Summary Judgment.  Finding no error in the workers’ compensation judge’s ruling, the appellate court affirmed the decision.

Loucious v. Crest Industries