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The board properly performs its role by dismissing a petition to determine compensation due where it finds the claimant's testimony not credible as to the occurrence of the alleged work injury.

October 1, 2010
Jesus Cabrera v. JDH Construction, (Superior Ct. C.A. # 09A-06-013-JOH) Decided 6/30/10

This case involved a Petition to Determine Compensation Due, alleging the claimant was injured on October 2, 2008, when he tripped over a pallet inside his employer's truck causing him to fall four feet to the ground. The alleged injuries sustained were to his neck, back, left leg and arm. The incident was not witnessed, but the employer did not dispute that it was promptly reported to two supervisors. The evidence included emergency room records indicating the claimant was involved in a work injury; but other portions of those records indicated the claimant had an auto accident on October 6. The claimant denied this motor vehicle accident in his testimony. The Board found three different discrepancies between the claimant's testimony and the other evidence. They concluded that the claimant overall lacked credibility and did not meet his burden of proving a work injury. On appeal, the claimant argued that the Board erred in raising the burden of proof since the injury was not witnessed and they ignored medical records showing treatment for the injuries. The Superior Court disagreed that the Board had raised the burden of proof and dismissed the appeal. The court noted that in a case like this, the credibility of the claimant could very well be the deciding factor as to the outcome. It reasoned that the Board clearly acted within its authority in disregarding the testimony of the claimant since it found several problems with his credibility. The court stated that it will not disturb the Board's factual findings, which is, in essence, what the claimant was seeking on appeal.

Case Law Alert - 4th Qtr 2010

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Paul V. Tatlow
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(302) 552-4035
pvtatlow@mdwcg.com

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