Welsch v. Time Warner Cable
December 29, 2014
Pre-Existing Injury Knee Lower Back Standard of Proof
Summary from the Troubh Heisler Attorneys
A hearing officer’s use of the phrase “it is not clear to me” does not mean he applied the “clear and convincing” standard of proof.
Welsch had injured his knee in 2008, received workers’ compensation benefits and returned to work. He and later claimed a low back condition as a compensable sequela of limping from his knee injury. Welsch had a significant pre-existing condition in his low back, and he aggravated his back shoveling snow at home. He filed a Petition for Award seeking compensation for both the left knee injury and the aggravation of his low back condition. HO Collier awarded him the protection of the Act on the left knee but denied benefits relating to the low back.
Welsch appealed, arguing that H.O. Collier used the wrong standard of proof. The panel affirmed the decision, holding that he had not used the “clear and convincing” standard, and that other evidence in the record supported his decision regarding the low back claim. The panel also found that, in his motion for further findings, Welsh had not requested clarification on the standard of proof, thus allowing a lower level of review.