By: Kevin L. Connors
Some lessons in life can never be learned hard enough.
Like, you can make lemonade out of lemons, but try making lemons out of lemonade.
Recently successful in defending a workers’ compensation claim brought by a corpulent Convenience Store Assistant General Manager, who injured herself while she was stocking a walk-in cooler, as she dropped but still managed to catch, a 10 lb. box of coffee milk creamers, the same being absolutely necessary in the universe of convenience stores, in order to keep the in-and-out clientele casually caffeinated, with the Claimant alleging that the coffee creamers, in their very brief flight from shelf to her hands, allegedly caused her to experience immediate mid-back back pain, eventually diagnosed as a thoracic sprain/strain.
Reporting what some might not seem to have been an injury, the Claimant told her convenience store management that she immediately developed severe pain in her mid-back, later referred to in her medical records as being an injury to her thoracic spine, although the creamers were apparently never damaged, however short-lived their convenience experience might have been.
No, the Claimant did not report an injury to her low back.
No, she did not report injuries to any other part of her body.
Yes, she was immediately directed by her very claims-intuitive employer to seek treatment with the employer’s designated panel physicians, as required under the Pennsylvania Workers’ Compensation Act.
Two days later, the treatment phase began, with the working diagnosis being a thoracic sprain/strain, a seemingly minor injury in the grand scheme of the trillions of dollars expended in workers’ compensation circles administering to the travails of spine-related injuries.
True enough, whenever we think of spine-related injuries, we think of either the neck or the low back, with mid-back injuries being, well, conveniently rare.
So, what happens next?
Briefly, the Claimant was off of work, and she was paid workers’ compensation benefits pursuant to the statute. She was then released to return to work by the employer-designated physicians, and she actually returns to work, with her compensation benefits being suspended, as she is working in a full-time capacity, although working with restrictions, designed to limit her standing, sitting, carrying, lifting, and you guessed it, her reaching.
Now how does reaching come into play as a convenience store assistant general manager.
Well, the 300 lb. plus size convenience store assistant general manager then testified in front of the quixotic workers’ compensation judge, that her light-duty job required her to work the convenience store cash register in the front of the store, which position was akin to a torture chamber of pain, as she was bombarded by store customers asking to buy Powerball tickets, cigarettes, and other items behind the counter, that did not require the customers to walk around the store to pick up, but required the counterperson to reach for behind-the-counter merchandise, as politely requested by store customers.
That reaching caused the Claimant to have so much mid-back pain that after enduring this working torture for about 4 months, she went to the emergency room, although they really could not find anything wrong with her, and she then went to see her grizzled orthopedic surgeon, who some 15 years before had performed a several level fusion on the Claimant’s low back, fusing her spine as the Claimant had severe spondylolisthesis (say that 3 times, if you can).
On the advice of her Methuselahian orthopedic surgeon, who eventually testified in support of her claim for benefits that he never physically examined her, as orthopedic examinations are overrated, the Claimant stopped working in order to undergo diagnostic testing, revealing that the 15 year old fusion was now unstable.
Okay, sounds pretty straightforward so far, so why is this case of any importance to anyone?
Well, this case is about the lemonade that the Claimant tried to squeeze back into the lemons.
So, to prove her case, Ms. Jabba Da Hutt, when testifying before the workers’ compensation judge, told the judge that the two activities that caused her the most pain were standing and reaching, you know, for cigarettes, lottery tickets, and lighter fluid, as the Claimant sat in the courtroom for over an hour, with low back pain, forgetting her thoracic spine injury, as the pain had lowered itself into the end zone of her spine, her low back, and she described her pain as being 24/7, and being 8 out of 10 on a “point to where it hurts” pain scale, with 0 being the absence of any discomfort and 10 being death-like pain, although in millions of years of recorded human history, no one has returned to actually describe that claim-ending experience.
So, during the first act of her hysterically histrionic play, is she academy award material, or perhaps relegated to being, well, the entire backdrop for “One Life To Live”?
Secure in her own pain-generating universe, she made the always claim-fatal mistake of not just downplaying her pre-injury medical history, but she inflated it to a height of physical perfection and fitness, that seems strangely odd coming from someone who 15 years before had several levels in her lumbar spine fused together because of congenital abnormalities.
Repeatedly asked as to whether she had had problems with her back in between the fusion surgery when she was 15 and the sprain/strain that she developed from dropping the coffee creamers 15 years later, she unblinkingly admitted nothing other than pristine spinal health, with the few claims that seemed to have been sprinkled in between the fusion and the present, all involving body parts unrelated to her spinal column.
Flashing forward to her physician’s testimony, he who needs no exam testified that he believed all of her problems were directly related to the box of milk creamers because, well because she had left his office and operating room 15 years before as good as she could be, and she told him that she had no problems until the Greg Louganis-like coffee milk creamers attempted their inward-twisting reverse somersault dive off the walk-in cooler shelf, into her Steve Largent-like hands, and so it must have been the demonic creamers, and yes, she needed surgery, because the fusion that he had stitched together 15 years before was now no longer stable.
By now, everyone who has not left to get their popcorn out of the microwave is wondering, we care why?
We know, there might be a point.
And the point is that she ended up losing her case for several reasons, not the least of which is that she probably had no case to begin with, aside from clearly overreaching, believing herself due for a compensation vacation!
Not really, and, true enough, this stuff squeezes better than it tastes.
But, yes, she lost her case, because she really liked to make a lot of stuff up, and because she forgot a lot of stuff that was too important to forget, because, yes, that kind of stuff had been splattered over about 2,000 pages of medical and claims records subpoenaed from prior cases, both comp and otherwise, where she had bizarrely, and with seemingly complete historical abandon, sought, petitioned for, complained, of, treated for, been diagnosed with, and otherwise made a really big deal about, having, you got it, lots of issues with her low back, effectively undermining her testimony, “no, Your Honor, I really never had these kinds of problems before, and I do not know why they will not pay my workers’ compensation claim”.
Neither the prior medical records nor prior transcripts lied, and her own courtroom testimony in her prior cases, came back in haunting assassination of her benefit-seeking intentions in this case, as her testimony in prior cases became the crosshairs through which the workers’ compensation judge fired his denial of her claim.
Thirsty for a Guinness?
Brilliant, just brilliant!
Now she had already had some prior problems juxtaposing her testimony in her earlier claims, against her denial of that testimony in this case, but she then painted a surveillance bull’s-eye on her face, when she testified, days before the judge closed the record, that she never helped her mother work at a weekend flea market, with, you guessed it, her driving straight from her record-closing deposition to the flea market, where she was filmed working the flea market, making transactions for her mother, spending all day at the flea market stand, and then, “Alas, poor Yorick”, we witnessed the “I need back surgery”, even though I smoke and weigh over 300 lbs., Rubenesque-Claimant bending in flagrante delicto at the waist, without apparent hesitation or limitation, effectively impaling the nail in the coffin of her claim.
Well, what did she do wrong, beyond almost everything, which is one way of looking at this claim, the converse being what actions were taken to limit/defend the claim?
First, a word of advice.
If you have a back injury, it is not recommended that you testify while sitting motionless for an hour, with 8 out of 10 pain.
It just does not feel right.
Next, make sure that you have a pretty good idea as to what you have claimed in prior claims, as well as what you have testified to before in Court, as where there is a record, there will be cross-examination.
If it was reported before, expect that it will be discovered and made evident.
So what credit is due the employer/administrator in defending the claim, and securing its denial?
First, this claim was meticulously documented, from claim inception, as a claim involving a thoracic spine, with it being limited to a sprain/strain injury, and not involving any spinal abnormalities.
Next, the employer and administrator carefully monitored the Claimant’s medical treatment, to insure the earliest possible return-to-work, securing, a benefits-suspending agreement, on the Claimant’s return.
The relevance of that benefits-suspending agreement, is that the Claimant then had to prove that her alleged disability was, in fact, causally related to the original injury, with the Claimant, of course, claiming that she was suffering from a low back injury, and not the thoracic spine injury, that had been accepted by the employer/administrator.
Next, the employer/administrator secured a very favorable independent medical examination, shortly after the Claimant stopped working, on the questionable advice of the Methuselahian orthopedic surgeon, who never physically examined the Claimant, and simply took the Claimant’s word at face value, that she had not had any problems in between the fusion surgery 15 years earlier, and the suicidal creamers who threw themselves at her in the convenience store walk-in cooler.
And, well, there was also the not so little issue of the Claimant being placed on surveillance, in proximity, in fact, on the same day, as she testified that she could not do certain things, with her Scorsesian video documenting her Oscar-winning performance, as she flounced about the flea market, all too obviously without manifestation of any injury or limitation.
The ballerina-like waist bending, reminiscent of the dancing Hippopotamuses in Disney’s Fantasia, was, no less, a thing of exquisite and wondrous injury-defying beauty.
So, the point being, yes, lemons do make lemonade, but you cannot put the Genie back in the bottle, especially when the bottleneck is so narrow.
ConnorsLaw LLP
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