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Kudlacz v. Lindberg Heat Treating Co.6/25/2002
The pro se plaintiff, Henry B. Kudlacz, appeals from the decision of the workers' compensation review board (board) affirming the finding and dismissal of the plaintiff's claim by the workers' compensa- tion commissioner (commissioner). The plaintiff claims that there was no substantial reason to dismiss his claim. We affirm the decision of the board.
The commissioner found the following facts. The plaintiff had two employers. On May 29, 1992, the plaintiff was employed by the defendant Lindberg Heat Treating Company (Lindberg), as a delivery driver. On June 3, 1992, he was employed by the defendant United Parcel Service (UPS).
On May 29, 1992, the plaintiff was making a delivery for Lindberg to one of its customers. The plaintiff backed his truck to the loading dock, which had rubber bumpers. After the truck was unloaded, the plaintiff had to remove the loading plate. To do so, he put his right foot on the dock and his left foot on the rubber bumper. As he lifted the plate, the rubber bumper gave way and, according to the plaintiff, he fell between the truck and the loading dock. The first report of injury that the plaintiff filled out indicated that he fell between the truck and the loading dock. The plaintiff testified to this effect numerous times during his deposition on June 30, 1995.
The commissioner found that it was physically impossible for a man of the plaintiff's size, standing six feet three inches tall and weighing 215 pounds, to fall between the seven inch space between the truck and the dock. On cross-examination at the formal hearing, the plaintiff denied that he had testified previously that he had fallen between the truck and the dock. The commissioner found other instances in which the plaintiff's testimony with respect to the alleged May 29, 1992 incident was contradictory.
The plaintiff did not seek medical attention until June 5, 1992, when he was examined at a hospital emergency room. The emergency room records indicate that the plaintiff had fallen two days before, which would have been June 3, 1992. The records do not mention a May 29, 1992 injury. The plaintiff also received treatment at a health care center on June 8, 1995, where he sought treatment for lower back pain. According to the history taken at the center, the plaintiff first noticed the lower back pain when he was at UPS on June 5, 1995. The history does not mention the alleged fall between the loading dock and the truck.
The plaintiff testified that for three or four weeks prior to May 29, 1992, he had pain in his lower back, which he attributed to the performance of his duties at UPS. He had been employed by UPS since July, 1991, where his duties required repetitive lifting. According to the plaintiff, the pain in his lower back peaked on June 4, 1992, while he was at UPS. The pain was so severe that he had to perform his duties on his knees. At the formal hearing, the plaintiff contended that he hurt his head and neck when he fell while in Lindberg's service on May 29, 1992. He did not hurt his lower back when he fell on that date. According to him, the lower back pain is the result of the repetitive lifting he performed at UPS.
The commissioner heard contradictory evidence regarding X rays of the plaintiff's lumbosacral spine. The plaintiff's expert opined that the plaintiff had a compression fracture. The independent medical expert opined, however, that the plaintiff did not have a compression fracture. The commissioner credited the testimony of the independent expert.
On November 10, 1992, the commissioner approved a voluntary agreement entered into by the plaintiff and Lindberg. The agreement indicated that the date the p
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