Cunningham v T I Group Auto Systems, LLC, and Zurich-American Insurance Company, 2008 ACO #186
The Plaintiff testified that in January of 2005, he was working as a mill operator and pushing a coil of steel that weighed well over 900 pounds onto the mill’s reel stand when he felt a sharp pain in his right shoulder. The Plaintiff was treated at an industrial clinic and was released to work at a light duty job. The Plaintiff returned to his regular work as a mill operator after about a month, despite having a continued dull pain in his right shoulder. The Plaintiff experienced no wage loss due to that injury.

The Plaintiff testified that on April 20, 2006, he was again pushing a coil of steel onto a reel stand when he reinjured his right shoulder. The Plaintiff stated that he was once again sent to the medical clinic where he was examined and returned to work with restrictions on lifting and pulling. When he returned to work and gave the restriction slip to a human resources person, he was sent home. The Plaintiff had not returned to work at the time of trial. The Plaintiff testified that he continued to experience pain in his right shoulder and that despite conservative treatment, there was no way that he was able to return to his regular job at the Defendant.

The Defendant sent the Plaintiff to be examined by Dr. Fink on November 15, 2006. Dr. Fink opined that the Plaintiff’s medical records supported a finding that the Plaintiff suffered a strain to his right shoulder at work on April 20, 2006. He declared that such an injury would be expected to resolve within two to four weeks. Dr. Fink also noted that the Plaintiff had told him that he had been unable to use his right arm in any manner whatsoever during the seven months following his injury on April 20, 2006. Dr. Fink noted that the Plaintiff provided confusing and contradictory histories of medical treatment and past work experience. The doctor reviewed medical records and performed his own clinical examination and found no objective evidence to support the Plaintiff’s subjective complaints of shoulder pain or Plaintiff’s claim that he had to keep his right arm at his side for the past seven months. In addition, Dr. Fink felt that the Plaintiff’s subjective responses and complaints were either anatomically inappropriate, inexplicable, or inconsistent with objective findings.

In the Magistrate’s opinion, Magistrate Zettel reports that the Court observed and noted that during virtually the entire course of trial, the Plaintiff sat in either the witness stand or at the table with his attorney with his right arm almost immobile and his right hand seemingly useless in his lap. Apparently there was a DVD recording taken by Superior Investigative Services, which was shown at the time of trial. The surveillance was conducted on September 6, 2006, three weeks after Dr. Fink’s examination and confirmed that the Plaintiff’s right arm was not immobile and not useless.

The Magistrate found that the Plaintiff had established by a preponderance of evidence that he suffered a strain/impingement to his right shoulder based upon the report and testimony of Dr. Fink. The Magistrate also thought that the Plaintiff had met his burden of proof that the personal injury arose out of and in the course of his employment with the Defendant on April 20, 2006. The Magistrate found that the Plaintiff’s work related right shoulder injury resolved after four weeks from the Plaintiff’s date of injury. This is the maximum period that Dr. Fink said it would take for a shoulder strain to resolve.

The Workers’ Compensation Appellate Commission agreed that the award should be closed and held that the Magistrate’s comparing and contrasting of Plaintiff’s behavior while testifying with the surveillance footage demonstrates a valid basis for finding against Plaintiff’s credibility and denying an open award.

The Magistrate’s decision was affirmed with modification. The Workers’ Compensation Appellate Commission ordered that the closed period began April 20, 2006, and closed on November 15, 2006, the day of Dr. Fink’s examination.