Phinisee v General Motors Corp., 2009 ACO #53
The Appellate Commission affirmed the magistrate’s decision denying benefits after remanding for clarification regarding whether the plaintiff suffered a work-related pathological change in her pre-existing back condition through her last day worked. This matter was remanded to the magistrate because he initially failed to identify which doctor’s testimony he would rely on. The magistrate’s assertion that there was no medical testimony that supported that the plaintiff’s work “caused, aggravated, or contributed to an increase in the plaintiff’s low back pathology” is insufficient to satisfy Rakestraw and Fahr. The magistrate responded after remand and specifically rejected the treating doctor’s testimony as too vague and relied on the defense examiner’s testimony.

Key point: obtaining supporting testimony despite the apparent lack of evidence supporting the plaintiff’s position is a virtual requirement.