Defendant was able to overcome the presumption of compensability and obtain a Take Nothing Award against the Applicant
The case involved a janitor who had reported an industrial injury that reportedly occurred on September or October of 2018. However, pled as a Cumulative Trauma from 05/05/2016 – 11/30/2018) due to repetitive motion as pled in the Application. There had never been any evidence presented for any injury to the arms, feet, and knee other than these body parts have been pled in the Application. A claim was not reported until sometime on or about 04/2019. At that time the Applicant was sent by the employer to the industrial clinic. The physician at the industrial clinic found injury to the right shoulder based on the applicant’s reported mechanism of injury. There was also objective findings in examining the shoulder. The Applicant was referred to have an MRI and the MRI confirmed supraspinatus tear in the shoulder. Unbeknownst to anyone, Ms. David was involved in a non-industrial Motor Vehicle Accident on or about 10/05/2018 which totaled her vehicle and resulted in a subsequent non-industrial cervical fusion surgery later in September 2019. The Applicant had failed to disclose this non-industrial injury to the employer or any of her workers compensation doctors.
Subsequently, the Applicant’s care was transferred to an Orthopedic specialist where she had also failed to disclose the serious non-industrial motor vehicle accident. The Applicant moved to Northern California, and started to treat with an orthopedic physician where she did not report any non-industrial accidents or injuries her physician. Her physician recommended shoulder surgery. Through discovery, Defendant became aware of the non-industrial injury and it was determined that the Applicant had also failed to disclose her alleged Worker’s Compensation injury to her personal injury physicians. Sometime subsequent to that non-industrial accident, Ms. David hired an attorney and actively pursued a civil lawsuit against that negligent party in the motor vehicle accident. Without deposing the Applicant, the matter proceeded to Trial in September 2019.
The Applicant testified under penalty of perjury that she had told the doctors about all of her injuries, However, the medical reports presented at trial showed to the contrary that she had not reported any other injuries to any of her physicians in either the worker’s compensation case or the personal injury case. The Applicant further testified at Arbitration that she developed pain in her shoulder, knees, feet, and arm in various periods in 2017 and 2018 during the course and scope of her employment. She also testified that she mentioned all of her symptoms as to all body parts to all doctors and had always been truthful to the doctors. At cross examination, the Applicant testified that she was involved in a non-industrial motor vehicle accident but that the accident was not serious and she only injured her neck and had surgery in connection to that injury. She further testified that she told all of her doctors the truth at every evaluation.
The Arbitrator retired judge found no injury AOE/COE in the form of cumulative trauma as there was no medical evidence supporting such injury. The Arbitrator also found the Applicant’s credibility to be at issue since she had not disclosed her motor vehicle accident and injuries resulting from that accident to the doctors. The Arbitrator also pointed out to the records from the personal injury physicians including a letter from the plaintiff’s (Applicant) attorney which had highlighted significant injuries to the Applicant’s various body parts including a tear in the shoulder. The As such Defendant was able to overcome the presumption of compensability as the Applicant’s withholding of information was not discovered during the first 90 days and there was no way for Defendant to obtain the relevant information regarding the non-industrial injury within the first 90 days of filing a claim. Coupled with the credibility issues of the Applicant, Defendant was able to obtain a “take nothing” after the case had been initially admitted.