May 2015
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WORKERS’ COMPENSATION REPORTS When Credibility Attacks: The Claimant Who Cried Right Knee … and Right Shoulder, and Right Leg, and Back, and Neck, and Left Shoulder … Maybe?! Despite the silly title to this article, getting injured while at work is no laughing matter. Still, it can be a bit “humerus” when a claimant forsakes truth for exaggeration, and does a bang-up job while at it. For example, consider the claimant in Lewis v. Delaware State Housing Authority. Ms. Lewis claimed filed a Petition to Determine Compensation Due seeking (1) 9% permanent impairment to the cervical spine; (2) 9% permanent impairment to the lumbar spine; and (3) 5% permanent impairment to the right side upper and both lower extremities after a work-related motor vehicle accident in January 2013 where she claims she was rear-ended. Ms. Lewis was en route to perform her duties as a Section 8 Housing Inspector when the accident occurred. After the accident, she sought treatment at the local emergency room for chest and back pain. A month later she began seeing Dr. Eric Schwartz and complained for the first time of right knee and right shoulder pain. The claimant spent several months seeing several doctors for her injuries, all the while maintaining she was never injured before and had no pre-existing conditions. She had several MRIs to her back, neck, and upper and lower extremities all of which were unremarkable. About one week after the accident she returned to full-time light-duty work and returned to full-duty work in March 2013. The claimant was then injured again in a December 2013 motor vehicle accident. This time she was taken by ambulance to the emergency room but left before being treated because they were too slow. About a month before the I.A.B Hearing she amended her complaint to reflect that her left shoulder was also injured. All of this is very exciting, but the real action happened during the Hearing where several testifying witnesses had recalled the facts a bit differently. First, Dr. Stephen J. Rodgers, who rated the claimant’s permanent impairments, testified that he was unaware that the claimant had both lupus and rheumatoid arthritis. And yes, knowing about this may have changed his opinion just slightly. Dr. Rodgers testified that he primarily relied on claimant’s subjective complaints of pain when rating her permanent injuries. Next, Dr. Schwartz testified and indicates that the claimant had not reported her 2010 diagnosis of medial meniscal tear to her right knee. The claimant also failed to report her December 2013 car accident to Dr. Schwartz. The claimant reported no prior injuries or pre-existing conditions to Dr. Schwartz. He also had not been aware she was treating with a rheumatologist for several years prior to the work accident, and testified that had he been able to review these records his opinion as to whether her injuries were sustained in the accident may change. Perhaps the most damaging witness was an 80 year old woman named Nancy Murray, the driver who allegedly rear-ended the claimant. Nancy described that, while waiting to turn at a traffic light the light turned green and the claimant, who was ahead of Nancy at the light, put her car into reverse and backed into Nancy’s car. The employer also presented evidence to show the claimant had lied on her job application about prior criminal convictions for forgery and theft. When the claimant finally testified, she had a real opportunity to shed some light on the discrepancies in the record. Instead, she altered the lyrics to a favored REM tune and tried to convince the Board that not only does Everybody Hurt, but “Everybody Lies…sometimes,” including the claimant. This tactic was less than successful, especially considering that the claimant also used her time on the stand to explain, for the first time, that her right knee was injured during the work accident when it hit the dashboard and that she was not claiming her left shoulder was injured, even though she had amended her complaint a month before the Hearing to say it was injured. Although the claimant was finally being honest about being dishonest to her doctors and employer, it was too little too late for the Board. Her credibility, like that of the boy who cried wolf, had been destroyed. The Board concluded that if the claimant could not be relied on then the doctors who relied on her subjective complaints could likewise not have formed reliable opinions. Also working against the claimant were the series of normal diagnostic tests and a failure to present evidence of loss of use to support her permanent impairment claims. No permanent impairment benefits were awarded and, even though “everybody lies”, lying to obtain workers’ compensation benefits will not work.
Lewis v. Delaware State Housing Authority. (IAB Hearing No. 12393268) John J. Ellis, Attorney for the Employer |
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LITIGATION CASE LAW UPDATE COURT GRANTS DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AS PLAINTIFF COULD NOT PROVE CELL PHONE USE CAUSED PEDESTRIAN TRAFFIC DEATH The case arises out of a fatal pedestrian accident during the evening November 8, 2013 on Kirkwood Highway, west of Elsmere, Delaware. Defendant was entering a lane of traffic when the decedent ran into the path of her vehicle. A Delaware State Police investigation indicated that the victim did not yield to the right-of-way of Defendant’s vehicle, and that “there was no indication that [Defendant] was distracted while she was driving.” Plaintiff, the Administratrix of the decedent’s estate, filed suit against Defendant citing a violation of 21 Del C. §4176C(a) that “no person shall drive a motor vehicle on any highway while using an electronic communication device while such motor vehicle is in motion.” Plaintiff had a witness who worked at a Jiffy Lube near the accident scene who told the State Police Investigator that he observed a cell phone in the center console area of Defendant’s vehicle immediately after the accident. The Court found that Plaintiff’s witness’ Affidavit and statements to the State Police investigator “[failed] to raise any genuine issue of material fact,” as uncontested phone records show that Defendant had text messaged her daughter’s father at 5:56 p.m., surveillance footage from the Jiffy Lube showed the collision occurring at 5:57:33 p.m. Plaintiff’s witness had testified that Defendant had two cell phones at the scene of the accident, which was found to be false, as was other details of the testimony of the witness to the State Police investigator. Ultimately the Court found that “in order to prove negligence per se, it must first be established that [Defendant] was using her cell phone to text at or about the time of the accident.” And that “there is simply no evidence or reasonable inference that the driver was using her cell phone at the time of or immediately prior to impact.” If you have any questions regarding the above case or questions about video and cell phone record discovery, please contact one of our Liability Department Attorneys.
Johnson v. Nelson (April 29, 2015)
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EMPLOYMENT LAW UPDATE SUPERIOR COURT REMANDS UNEMPLOYMENT APPEAL BOARD’S DECISION OVER IMPROPER SHIFTING OF BURDEN OF PROOF The Superior Court remanded the Unemployment Insurance Appeal’s Board decision finding just cause for termination due to an improper shift of the burden of proof from the Employer to the Appellant. On March 10, 2014, Appellant had an accident with her work vehicle, which prompted her employer to run a driver’s history report. The showed a previous license suspension within the previous five years. Employer’s policy dictates that employee drivers must not have any license suspensions or revocations within five years of their date of hire. Appellant testified at Board hearings that she had two suspensions within a five year period; however, the representative for the Employer could not confirm or deny that fact because “he was not aware of whether Appellant’s prior suspensions were disclosed at the time of her hiring.” The Board Referee found that Appellant did not disclose the suspension to her employer and that the employer only found out about it after running the post-accident report. Employer also testified that it is their company policy to run a driver’s history check at the date of hire of every new employee driver. The initial driver’s report that may have been run prior to the March 2014 accident was not included on the record. Appellant testified to the Superior Court that Employer was aware of the suspension at the time of her hiring. She further testified that the Employer had not produced Appellant’s application of employment during any proceedings of the Board and that Employer violated its own policy. The Superior Court found that “there was not substantial evidence to support the Board’s finding that Appellant was terminated for just cause, and that the Board erred as a matter of law when it shifted the burden of proof from the Employer to the Appellant.” The Court decided that since Appellant’s application of employment and the initial driver’s history report at the date of hire are not in the record, the “Board’s decision is remanded with instruction to complete the record.” If you have any questions regarding best practices for employee record keeping in light of the above case, please contact one of our Employment Law Group attorneys.
Bowers v. Professional Transportation Inc., and Unemployment Insurance Appeals Board. (May 11, 2015)
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ANNOUNCEMENTS Martindale-Hubbell® Client Review Rating Update Workers’ Compensation Department attorney William D. Rimmer has been rated AV “Preeminent” by Martindale-Hubbell® for 2015. Martindale’s rating criteria includes “Communication Ability, Responsiveness, Quality of Service, and Value for Money.”
Conference Opportunity National Workers’ Compensation Defense Network Spring Conference in Nashville, Tennessee
This event is open to NWCDN member firms and their invited guests only. There is no charge for the event. Please contact one of our Workers’ Compensation Department attorneys for more information, or go to www.nwcdn.com to register. CLE Success Workers’ Compensation Department attorneys Maria Paris Newill and John W. Morgan served as panelists during Workers’ Compensation: Celebrating 25 Years of Excellence, held on May 6, 2015, at the Chase Center on the Riverfront in Wilmington, Delaware. Heckler & Frabizzio congratulates Maria and John for their commitment to providing Continuing Legal Education.
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