Recently, one the firm's convenience store clients had an emergent Motion for Medical and Temporary benefits filed against it by its sales associate. The associate alleged that on May 19th she was splashed in the eye by hot water and cappuccino mix that shot out of store's cappuccino machine while she was trying to unclog it. The accident was not witnessed by any other store employees.
Although the sales associate claimed that she told her general manager at the end of her shift on the day the incident happened, it appears that no formal report was made to the general manager of the store until June 30, 2014, (41 days later). The incident was denied by the employer. The employee claimed to have severe right eye pain after the incident that got progressively worse and she noted that she experienced progressively worse vision in the right eye through the end of June. The employee was diagnosed as having a retinal detachment in the right eye- opined by her optometrist to be related to the May 19 event. She was found to be in need of immediate surgery if the right eye vision was going to be saved. The employee admitted that she did not seek medical treatment from June 19th through June 30, for her eye.
Counsel for the employee filed an emergent motion on a Monday which was received by the client on the next day, Tuesday, and heard by the court on that Friday. In the defense of the motion, the client was able to produce both the general manager for the store and the company's safety manager. We maintained that the incident could not have happened as the employee described it. We also questioned the qualifications of optometrist (eye care specialist who prescribes glasses) to give the opinion that surgery was in fact necessary.
During the employee's cross examination she admitted that she worked her regular shift the two days after the alleged incident and took off for two day after that for a non-work related arthritic condition. The general manager denied that the employee ever complained to him about hurting her right eye as a result of cleaning the cappuccino machine. After hearing the testimony of the employee and general manager, but before the safety manager testified, the judge recommended strongly to the employee that she entertain an agreement to settle the case for a lump sum payment of benefits along with a dismissal with prejudice.
The file was open in our office for nine days and closed via a Section 20 settlement (dismissal with prejudice).
If employers want to successfully defend emergent motions they must have all of their relevant fact witnesses in court and their counsel should insist that any medical expert relied upon by the employee should produce his complete file, including all reports and any communications between the employee's counsel and the medical expert. Counsel for the employer should make certain that the employee's proposed medical expert also possesses the requisite expertise relevant to medical issues in the case, including whether surgery is warranted.
By: Richard K. Tavani