Kacey C. Wiedt

We successfully had the claimant’s claim and penalty petitions denied by proving the alleged injury occurred much later than claimed. The claimant, a technical operator responsible for shaping and packing cheese, alleged that he suffered a left shoulder tear with internal derangement, requiring surgery, as a result of using a long stick-like tool to dislodge cheese that had gotten stuck in a machine during the production process. The claimant asserted that he provided timely notice of his work-related injury to his supervisor; within a few days after the injury occurred. Through cross examination, the claimant admitted that he provided notice of his injury four or five months after the alleged injury occurred. Through employer witness testimony, we were also able to show that, while the claimant did leave early on the day of the alleged injury, the reason was because he was sick, and there was no written documentation to support notice being provided in a timely manner. Through medical expert testimony, we were also able to establish that the claimant’s injury likely occurred on a later date than the one alleged, based upon the medical evidence showing that the bicep did not show any signs of retraction 10 months after the alleged injury date. The workers’ compensation judge found the defendant’s expert testimony more credible than the claimant’s medical expert. The claimant’s claim petition seeking temporary total disability benefits and his penalty petition were denied, resulting in a successful outcome for the defendant.