Summarized by Frank Kachmar; Legal Intern
While traveling between two meetings for Lupin Pharmaceuticals, Inc., on January 5, 2010, the claimant was injured when snow fell off the roof of a fast food restauraunt, and fell down onto her head, back and neck with a strong force.
The trial commissioner dismissed these claims after finding several inconsistencies with the claimant’s narrative, namely that the claimant had sustained serious prior injury to her cervical spine region.
During the claimant’s testimony of the 2004 car accident, the claimant testified that she sustained injuries to her right hip, back, neck, and one of her shoulders, which prompted a cervical fusion in 2007 and a subsequent need for physical therapy. After the claimant’s work injury, the claimant underwent a corrective surgery in August of 2011, but the surgery performed by Dr. Aferzon only made things worse.
When the commissioner reviewed the video which showed the referenced incident at the McDonald’s drive-thru lane, she stated that, “This video showed a minimal amount of snow falling from the roof onto the claimant’s vehicle.” Upon review of the video, the commissioner dismissed the medical testimony by Dr. Karnasiewicz, in which she noted that his opinion was, “reliant on the accuracy of the narrative of the mechanism of injury.”
After review of these facts, and the evidence presented, the trial commissioner concluded that, “the claimant sustained significant injuries from her 2004 motor vehicle accident and while she testified she had recovered from those injuries by 2008 she continued to treat for those injuries until the January 2010 incident.” Therefore, the trial commissionerconcluded that, ‘the claimant’s testimony as to recovering from a prior injury was not credible.” As a result, the commissioner also dismissed the claim that the claimant’s hip injury was a result of withdrawal from pain medications. The trial commissioner found the medical testimony by Dr. Becker credible, which stated that it was unlikely that the claimant’s injuries were a result of pain medication withdrawals, prescribed to treat symptoms caused by snow falling on her. The commissioner did not find any other medical testimony to be credible as it was based on an erroneous narrative.
The claimant continued to argue that she was not granted due process, and that she suffered a compensable injury on January 5, 2010. However, upon review of the proceedings the CRB concluded that, “the claimant never sought any ruling from the trial commissioner on the issue of preclusion, and indeed, was put on notice at the formal hearing that the respondents were contesting compensability.” The initial Form 43 was received by the Commission on April 5, 2010, and at that time the claimant had yet to fill a Form 30C initiating the claim. Thus, this was a, “pre-emptive disclaimer” similar to the disclaimers that the CRB deemed effective in Negron v. CVS Caremark Corporation, 5870 CRB-4-13-8 (July 17, 2014), appeal pending, AC 37062. The claimant wrongly believed that the disclaimer, “amounted to an admission of compensability”, but the CRB believes it was, “incumbent upon her to raise this issue with the trial commissioner at the point when it became evident the respondents were contesting compensability.” The claimant sought preclusion, yet she filed no Motion to Preclude. In response to this argument, the CRB cited Haines v. Turbine Technologies, Inc., 5932 CRB-6-14-4 (March 9, 2015) which stated, “It is black letter law that a party may not raise an issue on appeal to the CRB that was not adjudicated by the trial commissioner.” Upon review of the transcript of the initial trial commission, the claimant failed to object to her attorney at the formal hearing to the statement’s presented by her counsel. Therefore citing precedence in Paige v. Hartford Insurance Co., 4954 CRB-2-02-12 (January 9, 2004), suggests that, “there has been no error, as it is the claimant’s prerogative to raise an objection to her counsel.”