Be Careful What You Ask For

Partner Terry Donohue from our office recently prevailed at trial in a claim in which the question of whether the petitioner had an accident was heavily disputed. The petitioner testified to a work injury in July  of 2011 that occurred when she was unloading a semi-truck when a box above her became loose and fell, striking her right shoulder area. She finished her shift without reporting anything, and then called off the second day without saying anything about a work injury. Petitioner then went to the emergency room on the third day and said she hurt her shoulder/clavicle three days ago, but gave no mechanism of injury.  At trial, petitioner stated that prior right shoulder and neck treatment was different than her current problem. She testified that the accident absolutely occurred and that the respondent should have surveillance video proving the same.  She also alleged that the respondent was likely withholding statements corroborating the accident from co-workers.  Petitioner testified that she did not immediately claim a work injury because she was afraid she would get fired.

Respondent presented testimony of petitioner’s supervisor and a loss prevention manager. They each testified that the petitioner, after failing to show up on the third day with no explanation, was finally reached on the fourth day.  At that time she stated that she fell in the shower at home and injured herself. They further testified that petitioner voiced frustration at that time because her group medical insurance was not going to start for another 2 weeks.  The petitioner’s supervisor and the loss prevention manager also testified that, about two weeks later, the petitioner changed her story and said this was actually a work injury.  The loss prevention manager testified to his subsequent investigation and statements from co-workers confirming that no accident had been witnessed by these employees or discussed with petitioner.

The loss manager also confirmed that there was video footage of the alleged date of accident.  The video was offered into evidence after the parties and the arbitrator viewed the video which, contrary to the petitioner’s testimony, did not show any accident or suggestion of pain or injury on the part of the petitioner.

In addition to the factual evidence and testimony, we subpoenaed medical records showing significant prior treatment to the petitioner’s allegedly injured shoulder and neck. We also obtained the opinion and testimony of an IME shoulder specialist, who stated that there was no evidence of an acute accident, either in the medical histories or from his own examination and review of the diagnostic studies,

Congratulations to Terry for the excellent result!

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