Aaron Hemmings Receives a Take Nothing

A 56-year-old, very long-term machine operator alleged three claims of injury AOE/COE in a post-termination fashion, all of which were denied, including a January 2010 low back injury, a May 2012 left knee injury, and a cumulative trauma injury including the back, neck, psyche/nervous system, sleep disorder, sexual dysfunction and internal/digestive system. Moreover, Serious & Willful and LC132a petitions were alleged. It is important to note the claimant did sustain a December 20, 2011 right knee injury, which was not litigated, and for which he was treated and discharged as cured, which was not before the court.

As it relates to the specific injuries, it was our position that they were asserted post-termination and that there was no evidence of reporting or medical evidence prior to his termination for cause. As for the cumulative trauma injury, we argued that the applicant was aware of the claim’s process, that there was knowledge and disability prior to his termination regarding the cumulative trauma, and that the post-termination defense would therefore apply. Based upon the orthopedic Panel QME opinions of Dr. Silver, the orthopedic component would rate at 40% Permanent Disability before Benson, but after Benson, the cumulative trauma would rate at 32% and the May 2012 specific knee injury would rate at 9% Permanent Disability. The internal Panel QME found some sleep, sexual dysfunction and GI impairment, but substantial apportionment. The psychiatric Panel QME opined that the primary cause of the applicant’s psychological injury was good faith personnel actions.

Ultimately, this matter proceeded to Trial. It took four Trial settings to complete to submission. During the course of that proceeding, very credible testimony was given on behalf of the employer’s HRD representative who testified to the claims handling process should an employee report an injury as well as the basis for his termination. During the course of these multiple Trial appearances, SRTK’s Aaron Hemmings mounted a vigorous cross-examination of the claimant designed to have his testimony conflict with the documentary evidence. This case was ultimately submitted for a final decision on October 5, 2017.

On October 30, 2017, the Court issued a joint Findings and Orders. The Court opined that the applicant failed to meet his burden of proof establishing injury as to the January 2010 specific injury, the May 1, 2012 specific injury, as well as the cumulative trauma injury. The EDD lien was dismissed. No attorney’s fees were awarded. Judge Christiano of the Van Nuys WCAB opined that the applicant’s testimony was not credible as to the 3 claims of injury. He pointed out that the claimant was “vague and elusive” and never offered any documentary evidence in support of his testimony that his lower back and left knee received treatment prior to his involuntary severance. Additionally, Aaron established that the opinions of the physicians were not reliable. On the other hand, the testimony offered on behalf of the employer was deemed “much more credible.” In fact, Judge Christiano noted that the employer acted “appropriately” regarding the right knee injury, which was not litigated, and he believed it would be unlikely that the employer would act inappropriately as to the two alleged specific injuries. Since neither the applicant’s testimony or the alleged support treatment reports were credible, the applicant did not meet his burden of proof and the applicant was ordered to take nothing.

Great work, Aaron!