Chicken wing injury results in Walmart workers' comp lawsuit

By Staff reports | Sep 1, 2017

HUNTINGTON – A Braxton County woman claims she discriminated was against by Walmart after she filed a workers’ compensation claim when a 30-pound box of chicken wings fell on her in the deli’s poorly lit walk-in freezer.

Heather Tanner filed her complaint Aug. 18 in Cabell Circuit Court against Wal-Mart Associates Inc.

Tanner, who lives in Gassaway, says she had worked for Walmart for 11 months in March 2016 when she says she was wrongly terminated about two months after the deli incident occurred and filed for workers’ compensation, which was denied.

In her complaint, Tanner says she worked at the Walmart location in Sutton as a deli associate. On Jan. 15, 2016, she says she went to the walk-in freezer to get a 30-pound box of chicken wings.

“The light in the freezer was burnt out, and it had been burnt out for about one month prior,” the complaint states. “A maintenance man was working in the freezer at the time the plaintiff went into the freezer to get the box of chicken wings.

“As the plaintiff grabbed for the box of chicken wings, a smaller box underneath of it buckled and the box of chicken wings ultimately fell on the plaintiff. The plaintiff tried to stop the boxes but was unsuccessful.”

Tanner says she twisted toward her left and went down on her knees with the box of chicken wings. Then, she felt pain in her left shoulder and had spasms in her back. She claims the maintenance man kept asking her if she was OK, but she says she couldn’t move for a minute and didn’t want to be touched.

She says her department manager heard the accident and heard Tanner yell. Tanner says she also reported the incident to the store manager “who indicated that she had no reason to question the injury.”

Tanner went to an urgent care facility for the pain, and she filled out a workers’ compensation report stating she had a shoulder strain. She says she actually went to two urgent care providers because her supervisors didn’t know which one was approved by Walmart’s workers’ comp carrier.

After her diagnosis, Tanner was placed off of work until Jan. 19, 2016. When she went to her primary care physician on Jan. 18, she was placed off of work until Feb. 1.

She also says a claims administrator told her she needed to see a doctor on an approved physicians list instead of her primary care physician. Tanner claims that is an incorrect statement of the law. Still, she went back to the CareXpress urgent care facility.

On March 18, 2016, Tanner says her claim was denied, allegedly based on a recorded statement from the plaintiff and written statements from witnesses.

“Plaintiff never saw a copy of any written statement by any witness that refuted that the plaintiff was injured in the course and scope of her employment, and the plaintiff never gave a recorded statement that reflected that she was not injured in the course and scope of her employment,” the complaint states.

Soon after, Tanner says she received a letter stating she needed to let the company know within three business days if she was returning to work. She says she called Walmart, left messages with Human Resources and went to the store to try to speak to someone about it. But she says no one would see her.

She was fired in March 2016, and filed a protest on the denial of her claim on April 18, 2016. On April 17, 2017, the West Virginia Workers’ Compensation Office of Judges reversed the denial of her claim and ordered the claims administrator to deem Tanner’s claim compensable.

Tanner accuses Walmart of workers’ compensation discrimination, and she says she has been severely damaged by the loss of wages and benefits. She also claims she has suffered mental anguish, aggravation, inconvenience and annoyance. She also says she has sustained legal fees, court costs, attorney fees and other damages.

She wants past and future compensatory damages, back pay and front pay as well as pre- and post-judgment interest. She also calls Walmart’s actions vindictive, malicious, willful, wanton, vexatious, retaliatory, fraudulent and in bad faith, and she seeks punitive damages because of that.

Tanner is being represented by James D. McQueen Jr. and Chelsea R. Bailey of McQueen Davis in Huntington and Christopher J. Heavens of Heavens Law Firm in Charleston. The case has been assigned to Circuit Judge Alfred E. Ferguson.

Cabell Circuit Court case number 17-C-479

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Cabell Circuit Court Heavens Law Firm, PLLC McQueen Davis, PLLC

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