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Recent Take Nothing Award

August 26, 2015

This matter involved a denied Specific Injury claim by the Applicant. The Defendant’s denial was based on the initial aggressor defense under LC 3600.

The Applicant claimed that he was involved in an altercation with his supervisor. It was stated by the Applicant that his supervisor was the initial aggressor, while the supervisor claimed that the Applicant was the initial aggressor. The Applicant sustained a laceration to his left eyebrow as a result of the altercation. When the Applicant retained counsel, he reported that he had pleaded a skin and contents claim.

Immediately after the incident, the Applicant went to the emergency room and got stitches. The only complaint he mentioned on the date of the injury was in regards to his eyebrow. One week later, he went back to get the stitches removed &, still, the only complaint that he had was in regards to his eyebrow.

Two days of trial on the matter, with out-of-state witnesses and the employer’s testimony regarding the fight, the Judge found that the Applicant was not the initial aggressor but threw out all of the body parts pleaded with exception to the left eyebrow. The matter then went forward, a year later, to the third day of trial with regards to permanent disability, temporary disability, and need for future medical care. The Judge issued a “findings of fact” and determined that the Applicant would “take nothing,” as the laceration to the left eyebrow is not ratable and thus, there is no temporary disability or need for future medical care.

Recent Take Nothing Award

The Applicant filed a specific injury claim against his employer, an automotive parts manufacturer. The Applicant claimed that he injured multiple body parts and stated that he immediately felt pain on the day of the incident. He promptly reported the claim. The Applicant was later terminated for cause.

This Applicant also had a concurrent workers compensation claim against the State Compensation Insurance Fund (SCIF) with a different employer. We were able to subpoena the records from his medical treatment specialists at the facility he was being treated at for his subsequent workers’ compensation claim and we found that four days after the said incident with the automotive parts manufacture had occurred, the Applicant had an orthopedic follow up and did not mention the specific injury from the other employer, just his claim against SCIF.

We deposed the Applicant & he testified that he told several co-workers as well as his supervisor of his work related injury right when it had occurred.

The matter went forward to trial & we were able to secure witnesses from the employer. At trial, the Applicant testified that he only told the employer and he did not tell any other person. We used the deposition to impeach the Applicant. We had the employer and the other co-workers testify. They testified that the Applicant never reported the injury and that he was working his normal job duties at the time of the claimed injury. We were also able to rebut the Applicant’s testimony with the statements he made to his primary treating physician with regards to the mechanism of injury.

The Judge issued a Take Nothing Award in favor of the Defendant. In his decision, the Judge stated that he did not find Applicant to be credible. The Judge also used the defense witness’ testimony, as well as the medical report from his concurrent workers compensation claim.

Recent Take Nothing

July 28, 2015

The Applicant, a 48-year-old man, was temporarily working for a door manufacturer at the time of his claimed injury. The Applicant claimed to have sustained a specific injury to his back, head, arms, upper extremities, chest, neck, and spine on October 30, 2013, while lifting a pressboard. This claim was timely denied based on discrepancies between the applicant’s statements regarding the date of injury and the date of first treatment (first treatment reported to be before the date of injury), as well as the employer witness statements that the applicant failed to report any injury prior to his termination/ending of his assignment on Nov 4, 2013.

Subpoenaed records confirmed that the Applicant sought medical treatment on November 2; however, his complaints on that date were solely related to a cold. No orthopedic injuries or complaints were listed in the medical record. The first treatment record listing any orthopedic complaints was from Nov 8, after the assignment had ended.

The Applicant did obtain a medical-legal report based on the denied claim, but gave the QME a false/inaccurate history stating that he had never had prior injuries or complaints to his back. He has more than 10 prior injury claims, many of which he has litigated at the WCAB.

Trial was held on June 22, 2015, at which we submitted prior decisions and opinions of the WCAB in which injury was found for some claims and not found in others; the medical report from November 2 showing non-orthopedic complaints; and an employer witness who testified consistent with his earlier statement that no injury was reported prior to the applicant’s assignment ending. The Applicant submitted treatment records obtained after his termination and the QME report containing the inaccurate history given by him. The finding of prior injuries to the various body parts further highlighted the inaccuracy of the QME report & the trial testimony for the injuries that were not found underscored the Applicant’s prior complaints.

Judge Sadosky found the employer witness to be more credible than the applicant; she specifically found the QME report to be based on a false/inaccurate history and indicated that the record did not reflect any treatment for orthopedic injury complaints prior to termination, and as such, the affirmative “post termination” defense under Legal Code 3600(a)(10) was successful. It was found that the Applicant did not sustain injury arising out of and in the course of employment. It was ordered by the ALJ that the Applicant take nothing.

Dismissed Petition for New & Further Disability

July 6, 2015

The Applicant, a 23-year-old male who was working as a farm laborer, suffered an industrial injury to his back and psyche on August 17, 2009. After the parties conducted discovery, the matter was settled via Stipulations with Request for Award (stips) on March 18, 2013 at 39% permanent disability & a further need for medical care.

On August 14, 2014, the Applicant filed a skeletal Petition for New and Further Disability. The Applicant did not specifically identify any new medical evidence supporting his claim for further disability. On April 23, 2015, a Mandatory Settlement Conference (MSC) was held. By the time of the MSC, the applicant had not appeared for a medical/legal evaluation to assess new and further disability. The Defendants were able to close discovery and set the matter for trial.

Trial was held on June 17, 2015 at which time the Applicant could only offer a treating doctor report as evidence of his new and further disability. Both the Applicant & his wife testified that he was generally worse off than he was at the time of the stips. These statements were not adequate evidence, as disability requires expert medical opinion, and the information was ultimately dismissed.

After the trial was held, Judge Gregory Cleveland issued a Findings and Order on July 8, 2015, ruling that applicant had not presented any medical evidence of new and further disability and, as such, dismissed applicant’s Petition.

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