Patrick McKinney v. The Hertz Corporation– Where McKinney had well-documented preexisting multi-level lumbar disc herniations and suffered an acute onset of pain after getting out of a work vehicle and walking two to three steps, the ALJ did not err in concluding the employee met his burden of proof of establishing a compensable injury under 39-A M.R.S.A. sec. 201(4). In McKinney v. The Hertz Corp., Me. W.C.B. Dec. No. 23-16 (App. Div. 2023), McKinney had existing MRI findings of multi-level lumbar disc herniation. While working for Hertz on 5/16/21 he moved 10 to 15 cars, and when walking two to three steps after exiting the last vehicle, felt sharp pain in his right thigh. He underwent multi-level lumbar spine surgery.

McKinney filed petitions. Dr. Pavlak opined that McKinney did something getting out of the car that put unusual strain on the lumbar spine resulting in nerve root inflammation. Dr. Omsberg stated that because there were no symptoms until McKinney had taken several steps from the vehicle, there was nothing unusual about that activity to make it work related. It was not a typical or usual mechanism of injury. Because there was a preexisting condition, the ALJ applied sec. 201(4), first finding that a work related injury occurred. Adopting the opinions of Dr. Pavlak and recognizing the job duties required getting in and out of a vehicle 25 to 50 time per work day, the ALJ found McKinney met his burden of proof.

On appeal Hertz argued that the ALJ erred in finding medical and legal causation. It was error for the ALJ to rely on Dr. Pavlak’s speculative opinion as to the mechanism of injury as it was inconsistent with McKinney’s testimony. The Appellate Division found it within the role of the ALJ to resolve ambiguities in the evidence and to determine what persuasive weight to assign to medical expert opinions. It noted the ALJ found the mechanism of injury was getting out of the car, not walking the two to three steps thereafter. This was sufficient to establish medical causation. This mechanism of injury and the fact it was typical to do this 25-50 times per day met the requirement of establishing the presence of an increased employment risk, and thus, legal causation.

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Daniel F. Gilligan