Case Study

Commission Denies Claim Due to “Incredible” Testimony

Facts

Petitioner alleged an injury to his right hip as a result of repeatedly striking his right hip on a stack of pallets while wrapping pallets of merchandise in plastic. The Petitioner initially filed an Application for Adjustment of Claim alleging an accident date of “February, 2007.” He subsequently filed a second Application for Adjustment of Claim alleging an accident date of “January, 2007.” Two days before the hearing in the case, he filed a third Application for Adjustment of Claim, alleging an accident date of “January 16, 2007.”  The Petitioner testified (as did his father and ex-wife) that as a result of the work activities on that date, he developed a large bruise on his right hip. He was initially seen by his family physician on January 23, 2007, complaining of “shooting pain [right] hip/knee. Started 3 weeks ago [and] getting worse daily. No known injury.” The treatment note from that date made no mention of any bruising on the right hip. The Petitioner continued to seek treatment with his family physician and various other medical providers; it was not until August of 2007 that he reported a work-related cause for the hip condition. The treating orthopaedic surgeon testified that Petitioner aggravated a pre-existing condition of avascular necrosis in the hip, although he admitted the most common cause of the condition is idiopathic, as well as heavy alcohol and steroid use. The orthopaedic expert retained by Respondent testified that in his opinion, the avascular necrosis was most likely related to his heavy alcohol and steroid use, as documented in the medical records. He also offered the opinion that one day of bumping to the right hip could not cause or aggravate the condition, due to the lack of any evidence of fracture or microfracture. The Respondent offered the testimony of three members of management, all of whom denied any knowledge of an alleged work accident until July of 2007. The Respondent also submitted a video of the Petitioner’s job, setting forth the method and activity involved in wrapping a stack of pallets.

Issues

Notice, Accident, TTD, Medical Treatment and Permanency

Outcome

The Commission found the testimony of the Petitioner, as well as his father and ex-wife, to be “incredible” and not believable. Specifically, their testimony of the large bruise on the Petitioner’s hip in mid-January 2007 was not corroborated by the medical treatment records of the same time period. Furthermore, the Commission found the Petitioner’s testimony that he advised his supervisor of the accident but declined to tell his medical providers of the accident because of a fear of losing his job to be unbelievable. The Commission also made note of the Petitioner’s long history of alcohol abuse and use of oral steroids, as set forth in the various medical treatment records, and found the opinions of the Respondent’s orthopaedic expert to be more credible than those of the treating orthopedic physician. The Arbitrator’s decision (affirmed by the Commission) made note of the Petitioner’s inability to pin down an actual accident date until the filing of the third Application for Adjustment of Claim two days before the hearing, five years after the alleged accident. Finally, the Arbitrator (affirmed by the Commission) found the Petitioner failed to provide timely notice of the alleged accident to the Respondent, who only became aware of the alleged accident in July 2007 upon receipt of the first Application for Adjustment of Claim, six months after the alleged date of accident. Based on these factors, the Arbitrator and Commission found that Petitioner failed to prove he sustained an accident arising out of and in the course of his employment and denied his claim for benefits.

Tim Hanley v. Costco, 07 WC 32840