Francisco Gomez v. Labor Temp South

While working at a parts plant, petitioner was assigned to clean a designated area. While cleaning the area, petitioner stood on top of a dunnage (pallet) and allegedly fell three feet to the ground, injuring his left shoulder. Petitioner received treatment for his left shoulder injury and was eventually referred to an orthopedic surgeon for a surgical consultation.

Petitioner testified that he noticed a stack of dunnage lids sitting next to the dunnage which were askew. He climbed on top of the dunnage to straighten the stack when he misstepped and fell from the dunnage. Petitioner testified that he was instructed by his immediate supervisor to straighten the area out, and was not instructed to refrain from climbing on top of dunnages.

The plant manager was put on the witness stand, and testified that immediately after the accident he investigated the scene. Petitioner indicated which dunnage he fell from, and the plant manager noted this was the only single stacked dunnage in the area. The plant manager testified that this area was shut down for cleaning, and no materials were taken in or out of the location. Upon investigation, the plant manager noted that there were no footprints on top of the dunnage which petitioner claimed he had climbed upon to straighten the stack of lids. Photographs were taken of the area. A witness stepped forward and informed the plant manager that he saw petitioner rising from the ground 10 to 15 feet away from the dunnage that petitioner claimed he fell from.

Petitioner’s immediate supervisor testified that he did not instruct petitioner to climb on top of dunnages. He stated that this was an unwritten rule. On cross-examination, the supervisor testified that there were no written rules restricting workers from climbing on top of dunnages. He testified that he instructed petitioner to clean the area the morning of the accident.

The witness testified at trial that he saw petitioner getting up from the floor 10 to 15 feet from the dunnage he claimed he fell from. He testified that he had an accurate view of petitioner rising from the floor with no obstructions.

On cross-examination, petitioner was asked how many prior claims he had filed with the Commission. Petitioner testified that he had filed three claims. When petitioner was confronted with records from the Commission noting that he had, in fact, ten prior claims filed with the Commission, petitioner indicated that he could only recall three.

On re-cross, petitioner testified that the reason for going on top of the dunnage was to remove lids from the stack and take them outside as he was instructed.

When confronted with photographs of the accident area, petitioner testified that he fell in the location where he was seen rising from the ground. He attempted to explain that the reason why he was 10 to 15 feet away from the only single stacked dunnage in the area, petitioner testified that there was another dunnage in the area which must have been moved prior to the photograph being taken of the accident area.

In his decision, the arbitrator noted that petitioner was not credible. He ruled that petitioner did not sustain an accident that arose out of and in the course of his employment. Further, the arbitrator ruled that petitioner’s current condition of ill-being was not causally related to the accident.

Due to the petitioner’s inconsistent testimony, the arbitrator concluded that petitioner had not presented himself as a credible witness and awarded him zero benefits.

JRSsk

PS:

Arb decision upheld by Commission. Remanded back to Arb. We filed Motion to Dismiss as no further issues in dispute without accident. Motion granted.