Our office recently won a trial in which the claimant, a delivery driver, alleged she was putting up a metal rack and boxes in her truck, when the rack and boxes allegedly fell on her, causing injuries to her back, chest, right shoulder and right ankle. By winning the trial, the claim was disallowed! The disallowance was affirmed by the Board Panel.
In this claim, the claimant alleged numerous injuries, including her back, chest, right shoulder and right ankle. However, the initial hospital records only showed that the claimant presented complaints to her left breast until the time of her release, a week after the alleged accident. The claimant began treating with a chiropractor a week later; however, no mention of a work-related injury was made. Further, the claimant provided numerous physical therapy report which provided diagnoses of injuries to the other sites. Further, we learned from the employer that the claimant had treated with her primary care physician on the date of alleged accident, at which time she had a fever.
The disallowance was secured by using the Pre-Hearing Conference strategically. At the initial hearing, we requested the name of the PCP and requested that the claimant provide them before a PFME finding was made. Based on the claimant’s disclosure, we were able to obtain records that showed the claimant had a fever and infection to her left breast prior to the date of the accident. Further, the claimant made no mention of the work accident to the PCP. At the second Pre-Hearing Conference, we were able to limit the PFME finding to only the left breast, after vigorously arguing that there was not sufficient PFME for the other sites.
In so doing, the issue became limited to the left breast. Given the subpoena response, we knew the claimant’s fever and infection was present before her treatment with the PCP. During cross-examination, we elicited testimony from the doctor in which he stated he was not aware that the fever was present on the date of accident and had not reviewed the PCP’s report. He was therefore found not to be credible. Based on the doctor’s testimony alone, the Law Judge found that there was no indication of an occupational injury in the initial report on the date of accident. The Judge therefore found that there was no occupational injury and specifically noted that the claim is deemed to an afterthought. The claim was disallowed. This finding was confirmed by the Board Panel.
In this case, we were successful in limiting the issue at trial by carefully reviewing the medical records, aggressively arguing for the exclusion of the additional sites and eliciting favorable testimony from both of the claimant’s doctors. As a result, the claim was disallowed.
Lois Attorney: Jeremy Janis, Esq.