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Davidson v. Horton Industries2/27/2002
s of pain. The Department denied an award of workers' compensation benefits because it found that Davidson was "not a credible witness." The Department stated that Davidson "has not established that she is obviously unemployable due to continuous, severe and debilitating pain. In fact, there is no basis in the record to explain Claimant's significant pain complaints." In the Department's findings of fact, the examiner focused primarily on the deposition testimony of Horton's expert Dr. Tountas, who claimed he was unable to reach a diagnosis as to Davidson's condition because of lack of objective findings.
[ .] The findings of fact contain little about the hearing testimony of Dr. Small, and nothing about the sworn affidavits from Dr. MacDougall, Dr. Johnson, and Dr. Blow. Again, the Department stated that the "weight of the medical testimony" indicated "there is no basis in the record to explain Claimant's significant pain complaints." We disagree. Our review of the record reveals there is evidence supporting Davidson's claims of pain. In their sworn affidavits, Dr. MacDougall, Dr. Johnson and Dr. Blow stated they believed Davidson suffered from myofascial pain disorder to the upper right extremity caused by repetitive overuse. Merely because these physicians were unable to readily ascertain the cause of Davidson's pain does not justify ignoring their sworn statements.
[ .] This Court has stated that "a claimant purporting to suffer from continuous and debilitating pain must be credible, and any medical diagnosis based on an inaccurate and incomplete medical history cannot insulate a claimant from the Department's findings." Schneider v. South Dakota Dep't of Transp., 2001 SD 70, , 628 NW2d 725, 730. In Schneider, a plurality Court upheld a decision by the Department of Labor which rejected the claimant's and medical expert's testimony as incredible because the claimant gave an incomplete representation of his injuries. 2001 SD 70 at , 628 NW2d at 730. Schneider is clearly distinguishable from the case at hand. Davidson has not presented a medical diagnosis "based on an inaccurate and incomplete medical history." She has not made inconsistent statements concerning her medical history. Rather, her case is based on the medical testimony of several doctors all of whom basically agree that she suffers from myofascial pain syndrome. Furthermore, the insurer's doctor stated that he did not question the opinions of Davidson's treating doctors and did not believe that she was malingering or faking or that she suffers no pain.
[ .] The Department also claims Davidson's testimony regarding her pain is not credible because of surveillance videotapes showing her engaging in certain activities such as weed pulling in her garden and carrying items with her right arm. With respect to these videotapes, the Department stated that "Claimant is shown moving with ease and at no time does she appear to be in any physical discomfort." Another videotape of Davidson shows her performing the duties of her job in the repair kit area on January 30, 1997. The Department again states that "it is impossible to accept Claimant's testimony that she was experiencing such extreme pain after viewing the video." Davidson, however, was unable to continue this work after less than one hour.
[ .] The Department's reliance on these tapes is questionable. See Foltz, 516 NW2d at 346 (questioning the Department of Labor's reliance on surveillance tapes and determining that they were of little consequence in assessing claimant's credibility). At the hearing, Davidson readily admitted to engaging in weed pulling and grocery shopping, but stated that she had to continue with some normal daily activities despite the
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