BCM Law, P.C. Partner Farrah Hagan Successfully Defends Shoulder Injury Claim

March 2024

Farrah L. Hagan

BCM Law, P.C. Partner Farrah Hagan recently secured a favorable Arbitration Decision finding no accident and the denial of workers’ compensation benefits. At arbitration, Ms. Hagan demonstrated inconsistencies in petitioner’s case and submitted evidence that brought petitioner’s credibility into question (including an invalid Functional Abilities Assessment). Petitioner was a 53-year-old plumber apprentice. He alleged injuries to his right shoulder/sternoclavicular joint when he was putting a concrete block into a dumpster. He initially filed an Application for Adjustment of Claim alleging an accident of September 15, 2020. Petitioner’s claim was initially accepted, and TTD/medical benefits were paid. However, there were questions with the claim. A Section 12 Examination was scheduled to address petitioner’s condition. Additionally, surveillance was initiated.

The treating physician provided a causal connection opinion in favor of petitioner and gave petitioner permanent work restrictions based upon a Functional Abilities Assessment (“FAA”). A Section 12 Examiner for respondent testified that there were signs of symptom magnification and malingering. In addition, he noted that there was no causal relationship between the accident and petitioner’s condition because it would have been inconsistent for petitioner not to seek treatment for six months for such a severe, acute, or traumatic injury. Benefits were terminated based upon the opinions of the Section 12 Examiner.

Respondent also obtained review of the FAA by an expert. The expert testified that the FAA was not valid.

Petitioner conducted a job search. He looked for a job for several months. He claimed that he had been unable to find a job. He attributed this to the accident and his permanent work restrictions.

Respondent obtained a review of petitioner’s job searches with a vocational expert. The vocational expert testified that petitioner did not conduct a valid job search.

Petitioner’s attorney sought an award for payment of medical benefits, temporary total disability benefits, maintenance, and permanent partial disability benefits.

Multiple witnesses for the respondent appeared at the hearing. Testimony from respondent’s witnesses indicated that petitioner did not report the accident until February/March 2021. Additionally, petitioner did not seek any medical treatment for approximately six months after the alleged accident. Petitioner claimed that he continued to work with his ongoing symptoms because his co-worker performed the more difficult tasks. This was contrary to the testimony of the co-worker who testified that he had no knowledge of petitioner having sustained an accident and that petitioner performed all of his normal job duties.

Surveillance showed petitioner loading/unloading a plumber van, lifting pipe, lifting toolboxes and tools, and going in/out of residences. The Arbitrator noted that this was totally contrary to the petitioner’s testimony prior to reviewing the videos. When cross-examined on rebuttal, petitioner admitted that he had not been truthful. The Arbitrator noted that petitioner was not credible and denied the case on the basis of accident.

The Arbitrator noted that while the petitioner advised the medical providers that treated or examined him a consistent history of how the accident occurred, this did not overcome the other issues noted regarding petitioner’s credibility. Additionally, multiple witnesses for the respondent testified that the amended date of accident (which had been filed three days before the trial) was a Sunday, and the respondent’s records indicated that petitioner did not work that specific day.

The Arbitrator found that petitioner did not sustain an accidental injury arising out of the and in the course of his employment with respondent. No Petition for Review was filed by petitioner. This favorable Arbitration Decision represented significant monetary savings to the Employer as the petitioner’s attorney was seeking $47,794.06 in TTD/maintenance benefits; disputed medical bills; and an award for permanency likely based on a “loss of occupation” and estimated to be as high as $132,000.00. Congratulations to Ms. Hagan on this successful outcome.