Case tried by: John H. Geaney, Esq.
**Results may vary depending on your particular facts and legal circumstances**
The petitioner filed three claim petitions in connection with this matter. In the first the petitioner alleged her occupational duties as a sales manager caused hand problems and left and right elbow problems, specifically ulnar nerve compression. The compensability of the elbow claim was accepted. In the second claim the petitioner alleged occupational exposure from turning, twisting, bending and lifting resulted in cervical herniated discs as well as injuries to both arms. This claim was denied. In the third claim the petitioner alleged that on December 28, 2005 she was pulling a bin filled with winter coats when she injured her cervical spine. This claim was also denied. Since the parties stipulated to the compensability of the first claim the primary issues at trial were compensability and permanency relative to the petitioner’s second and third claims alleging cervical injuries.
The trial in this matter commenced on August 7, 2013 and included nine days of testimony from seven witnesses before concluding on October 22, 2014. Petitioner was the first to testify and she described pain in both her left arm and right arm. The pain extended from her elbows to her fingers. She also experienced muscle spasms in her neck along with difficulty moving her neck as well as tightness in both shoulders. She described difficulty at home preparing meals, cleaning, dressing and sleeping. She also indicated she no longer participates in physical activities such as bowling, swimming and volleyball.
Petitioner’s orthopedic medical expert testified to examining the petitioner on three separate occasions. He testified that his estimate of permanency changed after each evaluation. While he initially found the petitioner to be permanently and totally disabled he later limited his findings for the cervical spine to only one third of partial total.
Petitioner’s neurologic and psychiatric expert also testified to examining the petitioner on three separate occasions. She estimated permanency at thirty percent of partial total due to a combination of the petitioner’s occupational exposure and the December 28, 2005 incident.
The testimony of respondent’s two lay witnesses ultimately proved pivotal to the Court’s decision. First, the human resource manager at the store where the petitioner formerly worked offered her testimony. She informed the Court that all new employees including managers attend a new hire orientation seminar where injury reporting procedures are reviewed. The procedures require all employees to report any injuries directly to her. She testified that while the petitioner reported injuries to her arms, she never reported that she injured her neck.
A senior technical examiner for the respondent testified on respondent’s behalf. She indicated that if any injury was reported to her she would inform the human resources manager. She described a conversation with the petitioner where the bilateral elbow claim was reported, but testified that the petitioner never informed her of a cervical claim.
Respondent’s orthopedic medical expert also testified during the course of trial concerning the existence of any orthopedic permanency. He questioned causal relationship between the alleged cervical claims and the petitioner’s work. After reviewing the petitioner’s job description, medical records and performing a physical examination he diagnosed the petitioner with degenerative disc disease unrelated to her work.
The final witness was a neurologic expert for the respondent who addressed the existence of any neurologic or psychiatric permanency. He found that the petitioner had no causally related disability to her neck. He also found that due to petitioner’s significant pre-existing history of anxiety and depressive disorders, there was no evidence of work related permanent psychiatric disability.
Our trial brief highlighted the testimony of respondent’s human resource manager and senior technical examiner to show the petitioner never reported the alleged cervical injury and concentrated on the treating medical records to show that the petitioner did not mention a cervical injury less than a week after the alleged incident. We also highlighted that the petitioner never offered the testimony of her co-worker who had allegedly witnessed the December 28, 2005 incident.
The Court ultimately determined that the petitioner did not suffer an injury to her neck as a result of either the alleged occupational exposure or the alleged December 28, 2005 incident. The Court found the petitioner’s testimony in this regard to lack credibility while also finding the testimony of respondent’s human resource manager, senior technical examiner and medical experts to be credible. In contrast, the Court found petitioner’s experts to be unconvincing. Accordingly, the Court entered a dismissal with prejudice for both of the cervical claims that were at issue.