ALJ BERGSTROM DENIES CLAIMANT BENEFITS

FRANCIS R. FITZGERALD v. VIRGINIA INTERNATIONAL TERMINALS, INC SIGNAL MUTUAL INDEMNITY ASSN. LTD., c/o ABERCROMBIE, SIMMONS & GILLETTE,
Read Full Decision Here

Excerpts

Claimant’s counsel argues the Claimant is entitled to temporary total disability benefits from
August 7, 2010 to May 10, 2011 and permanent partial disability benefits from May 11, 2011 to
present and continuing.  Claimant injured his back in a work-related injury on May 5, 2010,
however he did not realized the extent of his injury until he saw a doctor in August.  At this point
he reported his injury to his Employer.  Claimant admits this notice to Employer was not timely,
but asserts the Employer has not been prejudiced by this delay in notice as they were able to
effectively investigate the Claimant’s claim.  Claimant then suffered a cumulative injury on
August 20, 2010.  Counsel argues his work for Employer over several years has contributed to
his back condition.

Employer’s counsel highlights inconsistencies in the Claimant’s reports of pain.  At his first visit
to Dr. Wardell on June 9, 2010 the doctor noted the Claimant had back pain since April without
any injury.  On the initial form filled out regarding this claim the Claimant indicated the pain
started on May 1, 2010, several days before the alleged injury.  Claimant then returned to Dr.
Wardell on August 9th, 20th, and September 9th, but did not alter his intake report until September 3, 2010.  Counsel notes this was after Claimant received Dr. Wardell’s August 31, 2010 letter.
Additionally, Claimant testified he decided to file a workers compensation claim in August when
his back did not get any better.  However, medical records show that the Claimant’s back was
improving in August and September, and he had begun making retirement inquiries in July.
Employer argues that Claimant’s false statements on his medical records destroy the weight of
his entire testimony.

Conclusion

The Claimant’s statements of events and extent of injury are not corroborated by other
witness statements, clinical findings, or well-reasoned medical opinions.  Dr. Skidmore reviewed
the Claimant’s medical history and concluded, contrary to the Claimant’s assertions, “It does not
appear that the patient has sustained a specific injury” (EX 3).  Even Dr. Wardell’s off-work
restrictions are based mainly on the Claimant’s subjective complaints of pain and self-reports of
limitations.  The Claimant’s assertion that he began investigating the cause of his back pain after
he failed to improve is without merit.
After deliberation on the evidence of record, this Administrative Law Judge finds that the
Claimant is not credible and has failed to establish by a preponderance of the evidence that a
workplace back injury occurred as alleged.  Accordingly, he is not entitled to benefits under the
Act