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Knell & Poulos Workers’ Compensation Trial Result

Case Name:  Janice Wilke v. Pearle Vision,

Venue:  Chicago – DeVriendt

IWCC No.:  07 WC 50820; 09 WC 1049

Respondent’s Attorney:  Robert M. Harris

Petitioner’s Attorney:  Donna Zadeikis; Kenneth B. Gore, Ltd.

SUMMARY:  THE ARBITRATOR FOUND PETITIONER PROVED ALL DISPUTED ISSUES, INCLUDING ACCIDENT AND NOTICE AND FOUND HER TESTIMONY REGARDING NOTICE WAS MORE CREDIBLE THAN THAT OF THE EVIDENCE PRESENTED BY RESPONDENT; ACCORDINGLY, HE AWARDED COMPENSATION.

UPON RESPONDENT’S REVIEW, THE COMMISSION REVERSED THE ARBITRATOR AND FOUND THAT PETITIONER FAILED TO PROVE SHE SUSTAINED ACCIDENTAL INJURIES ARISING OUT OF AND IN THE COURSE OF HER EMPLOYMENT WITH RESPONDENT AND HER CLAIM FOR BENEFITS WAS ACCORDINGLY DENIED. THE COMMISSION FURTHER FOUND THAT PETITIONER FAILED TO PROVIDE RESPONDENT TIMELY NOTICE UNDER THE ACT. THE COMMISSION MADE A SPECIFIC FINDING THAT PETITIONER WAS NOT CREDIBLE (SPECIFICALLY DISAGREEING WITH THE ARBITRATOR).

ISSUES:  ACCIDENT, NOTICE, CAUSAL CONNECION, MEDICAL, TTD, NATURE AND EXTENT and CREDIT.  An assessment of Petitioner’s CREDIBILITY was a threshold issue in this claim, affecting all issues.

FACTS:  Petitioner, a 60-year-old optician, claimed that on March 1, 2004 she fell at work in the lab slipping on an unknown liquid on the floor, injuring her left knee. The facts of this claimed accident were in hot dispute. At trial, Petitioner testified that she landed hard on her knee on the ground when she fell; however, medical records indicate a history only of  “twisting” but no fall and no “landing” (and no history of a fall at work).  The employee accident report also indicates only a “twisting” injury but makes no mention of any liquid causing her to fall. At trial, Petitioner testified that her accident was witnessed. However, in direct contradiction to this testimony, she indicated in the employee accident report that there were no witnesses to her accident. The record contains abundant examples of these kinds of contradictions and inconsistencies.

As the Commission emphasized, the record reveals that Petitioner’s testimony was inconsistent, contradictory and against common sense (e.g., while she testified that she felt “excruciating pain” after the accident, and that this pain only got worse, she did not see her physician until April 28, nearly 8 weeks later). Even more damaging to her claim was the inconvenient fact that not one of her treating records made any reference to an injury sustained at work on March 1, 2004; to the contrary, a treating physician’s report dated June 1, 2004, makes no mention whatsoever of any work-related accident or condition but rather contains a history directly in opposition to any work-related accident – that “She states she has had it (left knee pain) since approximately the beginning of April 2004. She denies any history of injury. However, she feels she may have twisted her knee while walking or during daily activities.” (It is disturbing – but not really surprising – that the Arbitrator did not even mention this record in his Decision.  In fact, the Arbitrator failed to mention any medical records that fail to prove Petitioner’s claims)Other medical records contained different histories, but none relating the injury to work, and none to a date of March 1, 2004.

Respondent’s two employee witnesses at trial denied that any accident occurred and denied that any notice of this fall was given to them. While Petitioner testified on direct that she completed and turned in an accident report on the day of the accident (denied by Respondent’s witness) the report itself indicates that it contained information regarding medical treatment that occurred months after the accident date (therefore, it could not have been submitted within the 45 day notice period). Further, Petitioner then changed her testimony under cross-examination and admitted that she did not complete the report on March 1, 2004 and she admitted that she did not submit the injury report until November of 2004 and further admitted that she told the claims adjustor that she did not report her injury because she did not know it would lead to surgery (3 months later).  Further, Petitioner asked her physicians to alter their medical records to change the recorded histories to reflect a work-related accident. Petitioner also, strangely, denied that her signature was on her Application for Adjustment of Claim.  Lastly, Petitioner chose to submit her medical bills to her group health insurer – doing so before she was advised that her workers’ compensation claim was being denied, an act inconsistent with an assertion of a claim for a compensable work injury.

RESULTS:  In a refreshing and expressive style, it is apparent that the Commission considered the actual evidence in the record and correctly concluded that Petitioner was not credible and had failed to prove her claim. Considering the overwhelming negative evidence found in this record, it is rather difficult to imagine how any objective trier of fact could have found in Petitioner’s favor.

The Commission found that Petitioner was not credible and that her testimony was inconsistent and unsupported by the record. The Commission further found that her behavior was, at the very least, questionable.  Petitioner failed to prove accident based on her “…lack of credibility, inconsistencies in medical records as to how and when Petitioner’s injury occurred and the lack of any reference to a work related injury in those records…”   The Commission also found that “…there was a clear failure on the part of Petitioner to provide timely notice of the alleged accident to Respondent.”

SIGNIFICANCEThis case result is a shining example of what should result when a Petitioner is caught in a tangled web of lies and deceit and her credibility is roundly shredded by her own words and records. Further, Respondent’s two credible employee witnesses also offered good support for the defense, providing sound rebuttal evidence that there was no accident and no timely notice (as well as other rebuttal testimony). Petitioner’s claims could have been defeated by any combination of the multiple reasons and examples cited in the Decision (and there were others as well).  In clear fact, the evidence against Petitioner was overwhelming and straightforward, and unusually so.  Literally nothing can objectively be found in the record in her favor. The Commission’s Decision points this out, example by example.

This case is a solid example of what happens when the Respondent and its attorneys work together to target the inconsistencies and incredulousness of Petitioner’s claims and the serious defects in the records, especially the absence of any work-related accident histories in the treating medical records. The rebuttal testimony of the co-workers was also significant. Through the meticulous work of all those involved in this trial, Knell & Poulos was able to clearly demonstrate that Petitioner was not credible and her claims – to put it kindly – remain unproven. We expect Petitioner to file an administrative Review in the Circuit Court.

We will continue to keep you updated on this matter.  If you should have any questions, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & POULOS, P.C.

Robert M. Harris