Joliet Office

60 North Chicago St.
Joliet, IL 60432


Tel: 312.277.3000
Fax: 312.277.3008
Springfield Office

One West Old State Capitol Plaza
Suite 801
Springfield, IL 62701

Tel: 217.801.9733
Fax: 312.277.3008
Chicago Office

901 W. Jackson Blvd.
Suite 301
Chicago, IL 60607

Tel: 312.277.3000
Fax: 312.277.3008

Case Name: Josue Piceno v. Coleman Floors
Venue: Chicago – Arbitrator George Andros
Handling Attorney: Robert M. Harris
Case No.: 09 WC 16578
Date of Accident: 6/15/07
Benefits Awarded: $0

 

CASE SUMMARY BACKGROUND: 

Petitioner worked as a union tile setter and alleged that he injured his neck and right shoulder while carrying heavy cement bags up a stairway when he felt a tug on the right side of his neck. The evidence was unclear as to whether this was a specific trauma case (a single bag carrying incident) or a repetitive trauma case (carrying several bags that day). The accident occurred on a Friday afternoon and there were no witnesses present at the scene.

The case presented several disputed issues and involved conflicting medical evidence. Of note was the fact that Petitioner waited until Monday to see his treating chiropractor and another physician as well as a visit to the emergency room. A supervisor’s report of injury form was completed on that Monday but it also indicated Petitioner had called his supervisor on Sunday and left a message to him indicating that Petitioner had hurt his neck on Sunday and would not be coming into work on Monday in order to see a doctor. There was no mention of a work-related injury in that telephone message.

Besides offering conflicting opinions, the medical records indicated that Petitioner failed to report to his earliest providers that he was visiting them for treatment due to a work-related injury. Petitioner also told some providers about his chronic neck pains but not other providers.

The medical records over time indicate the problems not only with a lack of accident reporting but with presenting inconsistent and contradictory symptoms and complaints. The records also indicated that Petitioner returned to work at full duty nearly two years after the accident for a different employer. While Petitioner testified he aggravated his condition while working for the new employer and had to seek additional medical treatment and take himself off work as a result, the treating medical records contemporaneous in time to this incident failed to indicate that Petitioner reported either that he was working full time or that he had hurt himself again while working.

Petitioner was seen by several treating physicians over time, none of whom indicated any serious problems with Petitioner until he visited his last treating physician about 2-1/2 years after the accident. This orthopedic surgeon wanted a new MRI and possible surgery, while no other medical professional who examined Petitioner shared these opinions. While other physicians had reviewed the cervical MRI and found it to be benign, only this latest physician indicated that it not only showed problems, but was of poor diagnostic quality and a new one needed to be performed as a result.

Petitioner was also subject to a Section 12 evaluation by Dr. Jonathan Citow, a board-certified neurosurgeon, who found no objective abnormalities and simply found Petitioner, per history, had suffered a sprain/strain cervical injury with no need for further treatment. Dr. Citow examined the MRI and found it to be acceptable and completely normal.

A record review was performed per respondent’s request by board certified neurologist Dr. Arthur Itkin who agreed completely with Dr. Citow’s evaluation and also found that the MRI was completely normal and of acceptable diagnostic quality. Dr. Itkin also indicated in his review of the medical records a glaring absence of any early reporting of an accident sustained at work as well as other inconsistencies and contradiction.

TRIAL STRATEGY:

The trial took place over the course of two days. The arbitrator found the evidence was so voluminous and the issues so complex that he ordered the parties to prepare a closing statement for the record in order to assist him in understanding the facts and disputed issues.

At trial, under cross examination, Petitioner did not come across as a credible witness. The absence of early reporting to his treating providers and his statement that he always told the truth to his medical providers indicated his lack of trustworthiness. Petitioner was also caught in a problematic situation where he admitted that for approximately a one-year period he had visited multiple treating physicians for a variety of physical complaints and ailments but was forced to admit that he advised none of them he was having any neck or shoulder problems. This failure to mention his neck and shoulder problems must be analyzed in the context of having these same physicians perform complete physical examinations and their medical records even indicated that their neck examinations were normal and there were no other neurological problems found. Obviously the objective medical records contradicted Petitioner’s testimony regarding his symptoms and complaints.

SIGNIFICANCE:

This case was tried pursuant to section 19(b). Petitioner’s attorney had requested that the arbitrator award 148-2/7 weeks of TTD totaling approximately $119,000. Even though Petitioner admitted he did not have off-work notes for this period of time and was further forced to admit that while he was visiting his physician and his treating chiropractor during this disputed period of time, the chiropractor’s records make no mention of an inability to work nor did it mention any restrictions at all being imposed. Further, Respondent denied the claimed need for additional medical care and the arbitrator’s denial of this claim saved the employer almost $14,000 in requested payment of medical expenses as well as a denial of prospective medical care and treatment. It goes without saying that the denial of the claim also saved Respondent the value of Petitioner’s alleged permanency.

The trial strategy utilized in this case involved the time-honored tradition of carefully lining up all your ducks and presenting the evidence in a straight-forward, logical and persuasive manner. Although the records in this case clearly spoke for themselves, there was conflicting options and evidence that had to be addressed to the Arbitrator. Petitioner’s cross-examination testimony revealed his lack of credibility and several harmful admissions were elicited. It of course makes no sense for Petitioner to claim he was injured on a certain date and that he advised his treating physicians he was injured on such a date and then review those same medical records and find a complete absence of any mention of not only an accident date, but that any accident at work ever took place.

Further, when medical records offer inconsistent findings and conclusions, the well-reasoned objective and meticulous opinions of Respondent’s IME doctors were able to persuade the arbitrator in the correctness of Respondent’s position. Drs. Citow and Itkin were completely in agreement with each other’s opinions which cited directly to the medical evidence. While Petitioner’s treating physicians could not complement each other, that was just the opposite case with Respondent’s experts. Further, Respondent’s experts made use of all of the available medical evidence which clearly put them in a more advantageous and more knowledgeable position than any one of Petitioner’s individual treating physicians, none of whom had access to all of the available medical and other evidence.

The case represents a fine example of an arbitrator issuing a decision based upon what we hope is a new and lasting trend of actually seriously and objectively considering the actual evidence. We would also note that Arbitrator Andros adopted Respondent’s proposed Arbitration Decision in its entirety.

As of this date, Petitioner’s attorney has not filed a Petition for Review, although we would anticipate such an action.
As always, if you have any questions or comments regarding this excellent result for Respondent, please feel free to give Mr. Harris a call.

Very truly yours,

KNELL & O’ CONNOR

Bradley C. Knell