Thomas Culhane v. North Shore School District 112

Decision rendered on May 23, 2014

A 65-year-old school maintenance worker alleged an injury to his right knee on April 17, 2006 after falling down a stairwell. Although the petitioner sustained a compensable injury, the respondent denied that the condition of ill-being, lost time, and need for additional medical treatment were causally connected to the accident. The petitioner’s doctors placed him on varying degrees of work restrictions and rendered multiple treatment recommendations including Synvisc injections, arthroscopy and even a total knee replacement.

In advance of trial, the petitioner's attorney claimed he was seeking temporary total disability benefits from the petitioner’s date of retirement, June 30, 2006, to the present, totaling 403 4/7 weeks or $321,424.46. The petitioner's attorney believed his client would testify that he was “forced to retire” as a result of the accident and consequently sought an award for permanent total disability benefits. The permanent total exposure was approximately $567,000.00. This resulted in an adverse exposure in excess of $800,000.00 including open medical rights on the petitioner’s knee.

In an outstanding investigation, the claims representative uncovered a letter the petitioner drafted and signed in November of 2005 addressed to the school board that expressed his intent to retire on June 30, 2006. Our position was that the petitioner intended to voluntarily remove himself from the workforce as early as November of 2005 (approximately 5 months before the petitioner even sustained the April 2006 accident). We obtained additional evidence that the petitioner accepted a monetary incentive taking advantage of an early retirement program.

Unaware that we had uncovered this letter, the petitioner testified at trial that his decision to retire was solely based upon the injuries he sustained as a result of the April 17, 2006 accident. On cross examination we confronted him with the letter he prepared 5 months before the accident indicating that he wanted to retire early. He admitted preparing the letter and also conceded that he took advantage of a $5,000.00 early retirement payment. Without even recognizing that this was glaringly inconsistent, the petitioner adamantly continued to testify that his decision to retire was due to his ongoing knee pain stemming from the accident. Two witnesses from the school testified as to the process of the early retirement incentive program, and confirmed that the petitioner applied for and received this benefit.

The arbitrator denied all lost time claimed and awarded only 7.5% of the leg, or approximately $9,500.00. The petitioner chose not to appeal.