BCM wins for Respondent after petitioner found not credible

William Brewster tried this case before Arbitrator White in Urbana. Holt v. Jeld-Wen/Caradco, No. 04 WC 25989. The petitioner, a 48 year old plant utility worker, alleged that on May 13, 2004, he felt a "popping" sharp pain in both shoulders while lifting boxes weighing 50 to 75 pounds. He also complained of a left knee injury. The petitioner alleged notifying his supervisor, Steve Hunter, of the incident several days later, by voice mail. When asked by Mr. Hunter to describe the incident and assist in filling out a First Report of Injury, the petitioner refused to answer his questions. Although he was thereafter given light duty restrictions by Dr. Zhong at Carle Clinic, and the respondent company was able to accommodate same, the petitioner refused to return to work, despite the respondent company's two written offers. When asked at trial what outside activities he was engaged in the petitioner testified that he could hardly get to the mailbox without having to sit down and rest and stated, "I pretty much turned into a couch potato." However, when pressed regarding his activities with his daughter's softball team, whose season ran between April and July of 2004 the petitioner admitted that he not only head coached the team he missed very few games, ran all the practices and traveled with the team the entire summer.

The petitioner's testimony was contradicted by fellow employee Daniel Burley who testified that he had known the petitioner for almost two years prior to the alleged incident and worked with him the entire day of the alleged injury. Burley testified that the two of them lifted several boxes weighing 30-50 pounds and not 50-75 pounds as alleged by petitioner and that he did not observe Mr. Holt showing any signs or symptoms of hurting his knee, right or left shoulder, and further petitioner had no difficulty that day, worked at a steady pace and did not report a work incident to his supervisor, Ty Papiernik, prior to leaving work. The petitioner had testified on direct that he never knew Daniel Burley and did not work with him on the day in question.

Respondent's trial exposure was 30% loss of use of each arm, 5% loss of use of a leg, 26 and 6/7ths weeks of TTD benefits, and $8,952.33 in outstanding medical bills.

In finding that the petitioner did not sustain an accidental injury arising out of and in the course of his employment, the Arbitrator found specifically that the petitioner had not been forthright in his testimony and, thus, was not credible. The Arbitrator specifically found the petitioner's lack of forthrightness apparent in his testimony regarding co worker Daniel Burley who testified that he had worked and known the petitioner for two years and was by his side the entire day of the alleged incident. Holt testified that he never even knew Daniel Burley. Holt also lied about his reasons for leaving work one hour early on May 13, 2004. He testified that he told Steve Hunter he had to leave early to take his daughter to a doctor's appointment but it was later revealed through testimony that he actually left to coach his daughter's softball team that day. His lack of credibility was further demonstrated by his answers to questions surrounding his current physical activities. Rather than believing the petitioner's testimony that he had "pretty much turned into a couch potato" and had to sit down and rest when he went back and forth to the mailbox and could hardly lift a pound of coffee, the Arbitrator found credible Respondent's evidence that he spent the greater part of the summer of 2004 head coaching his daughter's softball team which included extensive practices and traveling. The petitioner also misled the Arbitrator regarding his lifting activities, leading the Arbitrator to believe that he lifted 50-75 pound boxes. Respondent's witnesses clearly demonstrated the boxes weighed 30-50 pounds, and that the heavier ones were lifted by Burley and Holt together, and not individually.

The Arbitrator also relied on the independent medical examination opinions of Dr. Stephen Weiss who noted the petitioner's history of accident was inconsistent with his medical records. Following the zero award, which saved the Respondent approximately $60,000.00, the petitioner's attorney withdrew and the case was thereafter not timely appealed by petitioner.