Employee who Fell in Small Hole Fails to show Neck Injury


Westbury, NY (WorkersCompensation.com)–Employers should consider each injury for which an employee seeks benefits—even when the claims purportedly arose from the same accident. In Kennedy v. 3rd Track Constructors, No. 533556 (N.Y. Sup. Ct. App. Div. 02/2/23), an employee for a construction company first sought benefits for his foot and ankle, but later added on a neck injury, after he fell into an excavated hole. The company successfully challenged the neck injury as not causally related to the accident.

The operating engineer slipped and fell into the hole at a worksite. In describing the incident, the employee said the hole was five feet wide and eight feet deep. He said there was a drill in the hole and that he fell up to his armpits into a two-foot gap between the drill and the side of the hole.

The engineer obtained workers’ compensation benefits for his foot and ankle. Later, he claimed he injured his neck as well during the incident. But the carrier, smelling a rat, refused to pay for the neck injury.

The Workers’ Compensation Board agreed, finding that the engineer failed to show that his neck was an additional injury site.

The engineer appealed.

The court explained that it was up to the employee to show, through competent medical evidence, that the fall on the day in question caused his neck injury. The court held that he failed to do that.

First, the company’s witnesses described the accident differently than the engineer. The court pointed out that the the engineer said he fell "way down" and up to his armpits into the gap between the drill and side of the hole, and that the gap was approximately two feet wide, and that he was "buried," had to be pulled out by his coworkers, and had to lie on the ground for roughly 20 minutes after the accident. 

While no one saw the accident, the court noted, two coworkers who were placing boards around the hole, contradicted the engineer’s description of the gap, as well as the degree to which he actually fell into it. “According to the coworkers, the gap was 6 to 12 inches wide and, at best, one of claimant's legs fell into it,” the court wrote.

Further, both coworkers testified that the engineer got up from the ground on his own within a few minutes of falling. Photos of the accident scene, including of the gap, supported their statements.

In addition, the court noted that the engineer failed to mention to his treating physicians his prior neck and shoulder pain. For example, he had complained of severe shoulder pain in 2019. He had suffered a neck injury following a car accident in 1995. But he mentioned neither of those things in his medical histories.

While numerous doctors reported that they believed falling in the hole caused the engineer’s neck pain, their opinions were entitled to little weight, given that they lacked a truthful medical history.

The court affirmed the Board’s denial of benefits.

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