Safety and OSHA News

She says she reported her work injury, bosses say she didn’t; does she get comp?

Did this employee injure her shoulder by lifting at work, or by tripping over her dog at home? 

Carmen Heichel worked as a baker at a Super 1 Foods store in Kalispell, MT.

Heichel says while working alone on Sept. 21, 2015, she injured her right shoulder and neck sometime between 1:00 and 2:30 a.m. when lifting a 50-pound bucket of corn syrup. She says she lifted the bucket to a counter to open it, but the bucket was only partly on the counter when it began to fall and she tried to grab it. Heichel says the bucket yanked her arm and she heard a loud pop in her shoulder and neck, and felt pain. She didn’t inform the manager on duty that night about the incident.

The bakery manager says Heichel didn’t tell her about the incident or that she was feeling pain that day. Heichel claims she the told the bakery manager about her injury when the manager reported for work a few hours later. Heichel wasn’t scheduled to work on the two days following her alleged workplace injury. She says she told the bakery manager once again, on her next work day, that her shoulder hurt. The bakery manager denies that conversation took place.

On Sept. 27, Heichel tripped and fell over one of her dogs in her driveway. Heichel told the bakery manager about her fall because she had a large scab on her elbow.

Heichel saw a doctor on Oct. 1 for shoulder pain. In his write-up about the visit, the doctor didn’t note a workplace injury. His notes said, “Not sure what triggered the pain … fell a couple of days ago on the right arm.”

After a second visit to the doctor a week later, the bakery manager says Heichel commented to her that she probably injured her shoulder “cranking doughnuts.” The manager thought Heichel was kidding. Heichel denies having this conversation with the manager.

The store manager and grocery manager recall a conversation with Heichel on Oct. 13. The two managers say Heichel told them she injured her shoulder when she fell over her dog. A week later, Heichel filled out paperwork under the Family and Medical Leave Act (FMLA). She wrote, “Shoulder injury due to lifting,” and didn’t specify where or when the lifting took place.

Heichel’s FMLA expired Nov. 20. On Nov. 23, she mailed an injury report to the Montana Department of Labor and Industry. In the paperwork, Heichel said she reported a workplace injury to the bakery manager on Sept. 21.

Super 1’s workers’ comp carrier denied Heichel’s claim. The Montana Workers’ Compensation Court recently heard the case.

3 reasons for decision

The court found Heichel didn’t meet her burden of proof that she gave notice for her alleged injury to Super 1 within 30 days as required by state law. The court gave three reasons for its decision:

  • There were too many inconsistencies in Heichel’s testimony to find her a credible witness.
  • There’s no evidence corroborating Heichel’s claim that she was injured in the bakery on Sept. 21 and that she told Super 1 managers about it within 30 days of that date.
  • Heichel claimed the store discouraged employees from reporting workplace injuries. The store was able to show instances where workers filed injury reports, therefore Heichel didn’t prove this claim either.

That last point is important. By showing a paper trail of previous injury reports, the store was able to show two things. One, it had a method in place for when employees reported workplace injuries – a method it would have followed if Heichel had properly reported an injury. Second, it didn’t discourage injury reports from employees.

Heichel was denied workers’ comp for her shoulder injury.

(Carmen Heichel v. Liberty Mutual Insurance, Workers’ Compensation Court of Montana, No. 2017-3947, 3/12/18)

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