Friday, February 24, 2017

Divided commisson awards Fund total on belated story of wet surface on floor

Thompson-Jamison v Medi-Plex Healthcare
2017 MO WCLR Lexis 20
Feb. 15, 2017

The Commission awards total benefits against the second injury fund from a slip and fall in which the ALJ denied benefits for failure to prove accident.

Claimant is a 68 year old who spent most of her career as a floor nurse.  Claimant had two prior back surgeries and was on disability for more than 10 years leading up to going back into the labor force when this accident occurred.

Claimant fell in the break room. The ALJ found denied benefits and found other evidence more compelling that claimant did not have an accident from an identifiable work risk but did not expressly find that claimant lacked credibility. 

The 2-1 commission felt the employer over-relied upon the absence of corroborating testimony from other witnesses or claimant's own statements when she may have been "confused".   Claimant testified her clothing "felt wet" which the commission found more persuasive than the lack of finding of anything wet on the surface.  The commission noted that the police officer declined to testify that he could not say there wasn't anything on the surface and that the employer's investigative team obtained reliable statements: " We find it extremely unlikely that an employee would readily admit to having spilling the liquid that was responsible for causing a serious fall that left a coworker paralyzed."

Claimant subsequently underwent three more back surgeries including four level thoracic laminectomies.  The second injury fund obtained testimony from Dr. Bernardi who found the accident the cause of myelopathy resulting in a 35% new disability.  The employer settled but the amount is not identified.  The commission relied upon an opinion from Dr. Berkin that claimant was a total due to combined condition of primary and prior conditions. 

Commissioner Larsen dissented in deference to the ALJ's findings about credibility. "As a matter of general policy, I am reluctant to overturn an administrative law judge's express credibility determinations with regard to the witnesses that testify before them."

ALJ Boresi noted: 

"I am not persuaded by Claimant's testimony that she slipped in a shiny, wet substance. While she testified at hearing she was "certain" she slipped in a liquid, in the immediate aftermath of the accident she had no less than six opportunities to mention there was a liquid on the floor, and she failed to do so. But she did explain the fall in those early hours by stating her legs and feet "did something," she tripped, or she was "just walking and fell." Even factoring in the trauma with which Claimant was dealing at the time, it is beyond reason that Claimant would have so many opportunities to mention the cause of her fall and fail to do so.

It is only after Claimant's attorney filed a claim that she gives a deposition and mentions the shiny spot that allegedly caused the fall. Furthermore, Claimant provides a specific detail for the first time that she felt a wet spot low on her pants. However, Claimant testified, and medical records document, she had paralysis and loss of feeling of her lower extremities. In light of the overall trauma and pain she was experiencing, including a loss of function of the lower extremities, it seems implausible Claimant is more accurately recalling details months after the event. Claimant's present recollection of past events is simply not reliable or persuasive."

Robert Merlin represented the employee. 

The decision was affirmed by the court of appeals.  ED 105352 (Feb. 20, 2018).