At times Respondents are presented with scenarios where the medical evidence and histories appear very consistent and contemporaneous with the accident and the defense largely consists of a supervisor or co-worker testifying that the Petitioner said he injured himself outside of work. The importance of developing and nurturing that witness testimony into even more evidence was illustrated in a recent favorable decision for I&F.
In that case petitioner had filed Petitions under Sec. 8(A) and 19(b) and a Penalties Petition, demanding authorization for knee surgery and prior and ongoing TTD benefits. Petitioner alleged that on August 8, 2011 he injured his knee while pushing a cart of laundry up an incline at work. Petitioner went to the ER that day with knee pain and gave a history of injuring his knee pushing a cart at work, although the date referenced was one week prior. He followed up 3 days later providing the same mechanism of injury, but this time stated that it occurred 3 days ago. He then had an MRI 5 days later which showed a torn medial and lateral meniscus with effusion. Two different board certified orthopedic surgeons both then obtained consistent histories of the accident, and related the condition and the need for surgery to the accident. There was no medical evidence of prior knee treatment. Our defense as trial started consisted of: the initial medical note with a one week prior date reference; the expected testimony of a supervisor that Petitioner told him a couple of weeks prior to the alleged accident date that his knee was hurting; and an IME that despite the MRI tears, that Petitioner suffered only a strain from the accident and that pushing a cart could not have caused the tears.
I&F Attorney Terry Donohue met at great length with the supervisor in an effort to uncover all potentially helpful information for our defense. On the morning of trial, the supervisor observed another employee of Respondent present, apparently as an occurrence witness for Petitioner. The supervisor and Attorney Donohue then had work attendance records immediately faxed over showing that this employee could not have worked the day of the alleged accident. Then during direct examination, Petitioner and his witness both testified that the witness was there and witnessed the event and physically helped the Petitioner after it occurred. They both committed to this version of events during cross examination. Our supervisor then testified that Petitioner advised him his knee was hurt before the alleged accident date, and further presented the critical documentation that the supposed witness did not even work that day.
This was subsequently met with a series of objections, and vigorous cross examination of our supervisor regarding the possibility of error in these records. The supervisor patiently explained the accuracy of the attendance system, which was based on individual hand print scans, and the impossibility that the witness worked that day. Petitioner was even given a continuance to bring in rebuttal witnesses. This only resulted in our securing more complete documentation and even another witness to testify that petitioner’s alleged witness was definitely not at work that day, and that Petitioner also told her that his knee was hurting previously. Petitioner’s rebuttal witnesses were not helpful and his case grew progressively worse and less believable.
The arbitrator found Petitioner and his witness were not credible and held that Petitioner had failed to prove a compensable accident. Petitioner’s request for nearly a year in TTD as well as the prospective knee surgery were all denied.