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Claimant was involved in a compensable work accident and was placed on total disability. He filed a Petition to add the left shoulder as a compensable body part, while the Employer filed a Termination Petition to end total disability and to address resolution of injuries. Right before the Hearing, the Claimant conceded to end total disability, and thus the Employer communicated to the Workers’ Compensation Fund a request for it to waive reimbursement of total disability, while noting the Hearing was still going forward on other issues. The Fund agreed.
The morning of the Hearing, the Claimant requested a continuance of the resolution issue. The Board granted the continuance, and the Hearing went forward solely on the left shoulder issue. A few days later, the Board issued the Order on the continuance, which prompted the Fund to renege on its waiver of reimbursement; the Fund argued the continuance allowed it to bring in evidence to justify reimbursement and began scheduling a deposition. The Employer filed a Motion to Enforce the settlement/waiver, which was presented at a Legal Hearing, with the Board taking the matter under advisement while it considered whether to grant or deny the motion.
The Board subsequently issued a Decision on Claimant’s Petition, finding the left shoulder was never injured in the work accident. It accepted the testimony of Dr. Matz, who discussed the lack of shoulder complaints in the early records, the lack of acute MRI findings, and other data points arguing against a specific shoulder injury. As such, claimant’s Petition was denied.
A week later, the Board issued its ruling on the Motion to Enforce. The Order confirmed there was no indication of “deception or sharp practice on the part of Employer’s counsel,” and that the Employer was fully up front with the Fund about what it was seeking and what it intended to do; the continuance was strongly opposed by the Employer, and thus there was no foul play. The simple fact was the Fund had agreed to waive reimbursement, and the continuance was solely on the issue of resolution, and not on the issue of termination of total disability. Therefore, the Board ordered the Fund to abide by its waiver, resulting in no reimbursement from the Employer.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Gary Steadman v. Evergreen Waste Services, IAB No. 1519915, Decision on Petition to Determine Additional Compensation Due, dated Nov. 21, 2022, Order on Motion to Enforce, dated Nov. 28, 2022