I&F Prevails where Petitioner Fails to Paint Picture of Work Related Repetitive Trauma

Tina Freund was recently successful in obtaining a zero award with the denial of all benefits for alleged repetitive trauma claims to aclaimant’s knees, resulting in bilateral knee replacements. The respondent’s exposure under the 19(b) hearing included over $110,000.00 in medical bills and almost a year of TTD benefits ($38,000.00) plus potential exposure for a significant wage loss claim.

The claimant in this case was a 52 year old union painter who testified that he frequently climbed ladders, kneeled to paint baseboards, lifted heavy buckets of paint and performed other job duties that aggravated his osteoarthritis in both knees, requiring bilateral arthroplasties. However, the evidence showed that the claimant had sought treatment for severe “bone on bone” osteoarthritis in both knees prior to being hired by the respondent, that he was not forthcoming during his pre-employment physical about his medical history, that he had no specific trauma to his knees while working for the respondent and that he failed to report his symptoms to the respondent in a timely manner.

The Arbitrator found that parts of the claimant’s testimony were not credible, including his description of his job duties (which was inconsistent with that of his supervisor) and his explanation as to why he was not truthful during his pre-employment physical.  The Arbitrator also found the claimant not credible when he alleged ignorance about repetitive trauma conditions when his resume clearly showed he had experience as a field supervisor and had filed five prior worker’s compensation claims.  In finding for the Respondent, the Arbitrator also gave greater weight to the testimony of Dr. James Cohen, the respondent’s IME physician, who opined that the petitioner’s bilateral knee condition was purely degenerative due to advanced arthritis which pre-existed when the petitioner was hired, that the claimant would have needed knee replacements even if he had not worked for the respondent and that the claimant’s job duties neither caused nor accelerated his knee osteoarthritis. The cases are pending on review.

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