Leroy Cass v. New Balance Shoe– Where Cass had a known pre-existing left shoulder condition and the employer’s medical dept. evaluated both work and non-work conditions, the ALJ was not compelled to infer that New Balance had some indication his injury might be work related. In Cass v. New Balance Shoe, Dec. No. 22-36, Cass had a pre-existing right shoulder condition known to the employer. He had symptoms for that condition prior to a 7/4/17 shutdown. While out of work during the shutdown Cass fell on his right shoulder. He returned to work on 7/10/17 and his symptoms intensified resulting in his reporting the pain to his team leader on 7/12/17. Two days later he reported his pain to his supervisor. On 7/31/17 he was seen at the New Balance medical dept., which routinely evaluated employees for work and non-work related conditions. He completed a dept. form which sought information about his symptoms during work hours. Cass checked boxes indicating he was having pain during all work hours. A work station evaluation was completed.

At hearing both the team leader and supervisor denied that Cass told them the pain was related to his work and believed it to be his pre-existing condition. The ALJ determined that the date of Cass’s gradual injury was 7/12/17 but that he failed to meet his burden of proof that he provided timely notice of the work injury within 30 days. His petitions for award and for payment of medical services were denied. On appeal Cass argued that the ALJ was compelled to infer that New Balance had knowledge that his right shoulder injury might be work related because (1) his job involved repetitive work, (2) he reported the pain to his supervisors, (3) they referred him to the medical dept., (4) where he completed a form indicating pain during his work hours, and (5) the dept. evaluated his work station. The Appellate Division affirmed the ALJ concluding that given New Balance’s knowledge of his pre-existing right shoulder problems and the medical dept. evaluates employees and their work stations whether conditions are work related or not, the ALJ was free to conclude that inferring knowledge of work relatedness was possible, but not probable. Inferring notice of injury must be based on probabilities, and not mere possibilities. Finally, the ALJ had the discretion to judge the credibility of the employee and supervisor testimony to determine that the supervisors were not told by Cass the right shoulder condition was caused or aggravated by his work.

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Thomas Getchell
Daniel F. Gilligan