As stated in an earlier blog, a worker has the burden of showing four things to establish a right to compensation for work injury—(a) employment; (b) injury; (c) that the injury arose out of the employment; and (d) that the injury occurred in the course of employment. This blog focuses on the “injury” element.
This is the easiest element for a worker to fulfill. Any worker taking the stand and giving sworn testimony that they are suffering from an actual injury has produced enough evidence to win their case and force the employer to produce some evidence (probably a medical opinion) that there is actually no injury that has occurred.
The only time this blogger has seen a worker who failed to carry the burden of proving injury was in Marco v. Atlantic Golf Construction, commission file 1198522 (10/18/00). The worker in Marco gave testimony that a work incident left him not ‘feeling right’ and that he was suffering from a “malaise.” The hearing judge ruled that this was too vague to constitute an injury. But usually, alleging that you are suffering from regular pain in a specific part of your body is sufficient to show this element of the case.
The main issue regarding the “injury” element of a workers’ compensation case is which of two categories your injury falls under. All injuries are either “traumatic” or “gradual” (or “cumulative”). A traumatic injury is one where the worker can describe a specific moment in time when the injury occurred. This is most commonly due to something striking your body in the injured location (a piece of equipment at a worksite; a car if you are in a wreck while working; the ground in a slip and fall at work, etc.). A trauma might happen when you have a sudden onset of back pain while you are lifting something heavy at work. The other category describes problems you are having of pain and/or function where you cannot identify a moment of onset—the problem came on slowly over time, steadily worsening, until you feel a need for care. Common cumulative-type injuries include: carpal tunnel syndrome; epicondylitis, low back pain, plantar fasciitis, stress fracture, shoulder impingement, and knee arthritis.
Traumatic and cumulative injuries each have issues of proof, and there is some overlap between the two categories. (There is also another category of problems—occupational illness—to consider which will be discussed in future posts). The Ellis Law Offices, P.C. stands ready to guide you in how to present each kind of injury in the most effective manner possible under the law.
Click here to read about the other two parts of the worker’s burden of proof.
This information does not develop an attorney-client relationship and is not legal advice. You should consult with an attorney for advice on any worker’s compensation matter.
Author: Peter M. Sand
