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Harrington v. TFE Group5/19/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from an opinion of the Court of Appeals which upheld the Workers' Compensation Board in affirming the decision of the Administrative Law Judge to dismiss the claim for workers' compensation benefits by Harrington. The dismissal was based on the failure of the claimant to prove causation sufficient to establish a work-related injury .
Harrington was employed as a material handler at the warehouse of TFE Group. The majority of his work involved moving items throughout the warehouse with a power jack. A power jack is similar to a forklift; however, the prongs are in the back. To operate a power jack, a left-handed employee such as Harrington, must stand on the right side of the power jack deck with his back to the forks and operate the controls with his left hand and hold on with his right hand. The fork that is used moves stacks of product on a skid from the receiving area to the storage area inside the warehouse.
Harrington testified by deposition and at the hearing that he suffered a work-related injury on June 5, 2002 when he was stepping off his power jack to go to the break room. He felt as though he was going to twist his ankle. He jerked to the left to counter balance his awkward step, and as he did so, he felt pain in his lower back. He went on break, but as he sat in the break room his discomfort increased. After returning to work, he began to experience numbness in his lower back extending to his right leg. He later notified his supervisor and an accident report was completed. Harrington was taken to the St. Elizabeth Business Health Center immediately after he reported his injury where he was treated by Dr. Agatep. When his condition failed to improve, the physician scheduled an MRI which indicated the presence of a disk herniation at L3-4. Based on the MRI report, Dr. Agatep discontinued physical therapy and referred Harrington to Dr. Duplechan, board certified in physical medicines, rehabilitation and electrodiagnostic medicine, who first saw him on July 2, 2002.
In this appeal, Harrington contends that the order of the AU dismissing the claim was based on conjecture and must be reversed. He also asserts that the opinion and order is not supported by compelling evidence.
Initially, after the alleged injury , Harrington received temporary total disability benefits and medical benefits from June 6, 2002 through July 10, 2002. Following an investigation by the company, TFE terminated the benefits asserting that the injury did not arise out of or in the course of his employment. Harrington filed a motion for interlocutory relief which was later expanded into a claim for benefits. Subsequently, the claim was bifurcated on the issue of work-related causation.
The human resources manager of TFE testified by deposition that he investigated the alleged incident and confirmed that Harrington had called in sick on June 3 and 4, 2002 because of sunburn. Upon a return to work, Harrington was questioned about the sick leave, and the human resources manager stated that he did not see any signs of tan, sunburn, redness or peeling. It is unclear as to exactly when this interview took place. The manager also testified that there were approximately 53 cameras operating within the plant at any given time and that these cameras take a series of rapid pictures but do not record streaming or a
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