Grinberg: Evolving Mechanism of Injury Opens Door for Defense
Monday, October 7, 2019 | 0
Have you heard the case of Ndiawar Diop?
He worked as a nurse for the California Institution for Men in Chino and filed a workers’ comp claim for a needle stick in his finger. At first, he had reported that he accidentally stuck himself with the needle, then the story evolved to it being an intentional attack by an inmate — maybe — before finally becoming the result of Diop trying to shield himself from an inmate needle attack aimed at his neck.
Well, the matter proceeded to a criminal investigation and trial, with Diop being sentenced to six and half years in county jail, five of which would be served on mandatory probation. He was also ordered to pay $97,164 in restitution.
What I see happen often enough is a DWC-1 is provided to the employer at the time of injury — this one authored by the injured worker — and then a second DWC-1 is completed with the “guidance” of the applicant’s attorney after the injured worker retained counsel. Mechanism of injury is not a given and can be a basis for dispute, sometimes evolving with medical exams.
An evolving mechanism of injury provides excellent grounds for cross-examination and impeachment. When the injured worker’s description of how the injury occurred changed significantly with time, that’s a solid base for a trier of fact to conclude that either the applicant can’t be relied upon to tell the truth, or that the applicant can’t be relied upon to remember accurately.
In either case, both the medical-legal examiner and the workers' compensation judge should be made aware of the issues, so keep an eye on the narrative.
Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefense blog.