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Relationships Are Key to Defending WC Claims

Relationships can be tricky, and often a lot of time is spent wondering whether the relationship is there, in the real world, or just sharing a bench with the Easter Bunny and Santa Clause (figments of your imagination, all).  Think back to grade school, when Gina asked to borrow your eraser and then returned it with a nice “thank you.”  How many hours were spent agonizing over whether you were now in a committed relationship?

Such was the case with the unfortunate Mr. Graves in the matter of Graves v. Roy’s Concrete & Masonry, Inc.  Applicant claimed to have sustained an injury, but defendant tenderly placed his its finger to his lips, whispering “hush… you were never an employee.”

The matter proceeded to trial and applicant claimed that he had been paid $100 per day as an employee of Roy’s Concrete.  But the Judge noticed that, before the Labor Board, applicant testified to being paid $25.00.  He claimed to have gotten emergency treatment for his injury, but cross-examination showed him to have gotten treatment for his migraines.

In other words, the Judge was not impressed, and found applicant’s credibility to be lacking.  A take-nothing order was issued.

In his petition for reconsideration, applicant argued that the WCJ should have undertaken a Borello analysis.  The WCAB gave this argument very little credence, noting that if there is an affirmative finding that applicant is not a credible witness, then it is easy to proceed to a finding of no credible evidence of an employment relationship.

Defendant was saved from a whole world of pain in this case because the defense attorney was able to properly impeach the applicant-witness.  But, if you pull back the curtain here, you can see there was a lot of communication between the employer and the insurer.  The insurer probably didn’t have much interest in the Labor Board proceedings against the employer, but by all parties sharing information and working together, applicant’s inconsistent testimony could be properly laid out for the record.

Your humble blogger knows it takes extra time and extra money, and sometimes can be downright difficult to do – but while the employee and the employer is sorting out their relationship status (for the Facebook generation, that would be the “it’s complicated” category) the relationship between the insurer and employer should be solid, glowing, and one of trust and cooperation.

And no, dear readers, in case you’re wondering, Gina actually just needed to borrow your eraser – you can still see other people.

Have a good weekend!

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