ALJ Berlin
Excerpts:
Nature of the Claim
Claimant alleges that he is permanently partially disabled from four specific traumatic injuries
and also cumulative trauma to his lower back, legs, left elbow, right shoulder, hands, and neck.
Employer/Carrier disputes liability, arguing that the injuries did not arise out of and in the course
of employment and that Claimant is able to return to his usual employment without wage loss.
ALJ Berlin found the low back and legs cumulative trauma claim to be compensable:
As Employer has failed to rebut the section 20(a) presumption of compensability, I find that
Claimant’s cumulative trauma injury to his lower back and legs arose in the course and scope of
his employment for Employer. The injury is compensable, and Employer/Carrier is liable for it.
The Right Shoulder injury was round to be time-barred and without evidence of cumulative trauma:
This specific injury is time-barred, and there is no evidence of a cumulative trauma injury to Claimant’s right shoulder. This is not a viable claim
The Right Elbow Claim was found to be a continuing trauma, and ALJ Berlin found the Section 20(a) presumption to have been invoked:
This is sufficient to make out a prima facie case and raise the Section 20(a) presumption.
Claimant’s work activities could have contributed to the lateral epicondylitis, although not as
“the major contributing cause.” As he testified at a deposition, “Anything that involves
repetitive use of the wrist, especially resistive extension, would certainly aggravate tennis elbow
or common extensor tendinitis.” J.Ex. 15 at 496. Again, this supports the claim and does not
refute it because the standard is whether the trauma contributed to the condition, not whether it
was “the major contributing cause.”
Accordingly, I find that Employer has failed to rebut the § 20(a) presumption as to the lateral
epicondylitis of Claimant’s left elbow, and I therefore that Employer/Carrier is liable for this
injury.
Similarly, ALJ Berlin found a prima facie case for carpal tunnel and that the Section 20(a) presumption had been invoked. He also deemed it to be a workplace injury.
This establishes a prima facie case sufficient to raise the section 20(a) presumption.
Dr. Farris conceded in his report that Claimant’s work may have contributed to his carpal tunnel.
In a later deposition Dr. Farris modified his opinion, but not sufficiently to rebut the section
20(a) presumption. He opined that a connection to work was unlikely unless Claimant spent
more than two or three hours per day typing. Claimant admitted that he spent “over half” of his
time in the yard, but the remainder would exceed two or three hours and consisted only of office
work. Given that there is significant evidence that Claimant’s duties involved more than two
hours of typing daily, Dr. Farris’ modification of his opinion to require that much typing has no
effect on the analysis. The rest of Employer/Carrier’s witnesses only offered testimony that
Claimant probably spent more, not less, time in the office, making the prolonged, frequent typing
all the more likely – again not rebutting the presumption.
I therefore find that the carpal tunnel was a covered workplace injury for which Employer/
Carrier is liable.
Continuing injuries to the neck were similarly found to be work related.
The ALJ found the Claimant had failed to establish his claim for Section 48 discrimination.
Claimant here has not met his burden. Both Sharpless’ testimony and Employer’s internal
emails show that Employer decided to terminate the employment before Claimant mentioned
filing a claim under the Act.
The ALJ found the Claimant permanently and totally disabled, and awarded the Employer Section 8(f) relief
During the last year of his employment with Employer, Claimant sustained compensable
cumulative traumatic injuries to his lower back and legs, to his left elbow, and to his hands
(carpal tunnel). He became temporarily totally disabled and left work as of October 23, 2006.
On October 26, 2007, he reached maximum medical improvement and became permanently totally disabled. Although unable to return to his prior job, on November 18, 2009, Claimant
became able to work with a retained earning capacity of $360 per week. As of that date, he
became permanently partially disabled. Employer is entitled to relief from the Special Fund, and
is not liable for penalties for discrimination under section 48a of the Act.
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