LOIS Partner Connor Wetherington and Paralegal Chrystalla Karamanis obtained a rare disallowance pursuant to the intentional harm defense under WCL Section 10, securing a win for their employer-client (a warehouse style supermarket chain) in a New York Workers’ Compensation claim. The Claimant alleged injury while carrying bags of rice and tripped over boxes, which caused him to fall into a five (5) foot plus tall display of stacked canned goods. The Claimant alleged injuries to the neck, back, left shoulder, and left knee. However, during the investigation and discovery process, the Employer provided internal CCTV footage that painted an entirely different picture. It is also worth noting the Claimant was written up in the days leading up to the alleged injury for leaving the store in an unsatisfactory condition.
In the video, the Claimant was observed at the back of the aisle with a shopping cart containing bags of rice. Rather than pushing the cart down the aisle, the Claimant began to place a bag of rice on their left shoulder. The Claimant then proceeded to take over ten steps from the shopping cart down the aisle and walked directly into the display that was made entirely of red cans.
During multiple trials, Wetherington locked the Claimant into a version of events that would be contradicted upon production of the video. Specifically, the Claimant testified to being unable to push the shopping cart down the aisle. He claimed being unable to see out of their left eye due to the bags of rice on the left shoulder. He claimed the aisle was too narrow and that it was not possible to walk on the right side to avoid the display. The Claimant confirmed to have been walking in a straight line. The Claimant further affirmatively testified that it was impossible to have avoided the display, which is taller than him, because he did not see it. The Law Judge disallowed the claim entirely on the basis of willful harm and injury.
