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:  Antonio Gomez v. Carl Buddig & Co.
Venue:  Chicago – Arbitrator Simpson
Handling Attorney:  Andrew M. Fernandez
Case No.:  11WC 14928
Date of Accident:  01/26/2011
Settlement Demand:  $131,940.00
Potential Exposure:  $600,000.00
Decision/Award Date:  06/19/14
Benefits Awarded:   -$21,298.16 (credit to Respondent)

Dear Clients:

With a recent arbitration decision in favor of Respondent on all disputed issues, we are pleased to announce our victory.

CASE SUMMARY BACKGROUND:

Petitioner worked for Respondent since 2000 as a forklift driver.  He alleged injuries to his back in 2004, 2007, and 2008.  Petitioner underwent a L4-5 lumbar discectomy in 2004, and settled claims at the Illinois Workers’ Compensation for his prior back injuries.  In January of 2011, Petitioner alleged another acute injury to his lumbar spine, after he allegedly slipped and fell on a piece of meat on the floor.  The alleged accident was unwitnessed.  Petitioner claimed to have had no problems with his back from 2008 to 2011.

Petitioner did not treat for the alleged injury until 6 weeks after his alleged accident.  He was prescribed physical therapy.  Subsequently, Petitioner alleged no improvement and changed doctors (at the recommendation of his attorney).  Petitioner proceeded to treat, and eventually received three steroid injections and a trial placement of a spinal stimulator, racking up approximately $170,000.00 in disputed medical bills.  His attorney-referred pain management physician recommended permanent placement of a spinal stimulator, estimated at an additional cost of $300-400,000.00 (over the Petitioner’s lifetime) despite denial of the procedure by UR, IME, and warning against it from his prior treating doctor.  Petitioner also alleged depression and anxiety as a result of his chronic pain following the alleged accident.

In order to avoid unnecessary litigation of such a disputed claim, several attempts were made to resolve Petitioner’s case through a settlement.  However, Petitioner’s attorney’s “best and final” demand was 50% of the outstanding medical bills (approximately $85,000.00), 20% MAW (approximately $36,240.00), and $10,700.00 in TTD.  He used the threat of continued treatment as leverage to get the company to buy the unreasonable treatment and settle for far more than the case was worth.

As a result, Petitioner’s claim was eventually set for trial with disputed issues of accident, causation, nature and extent of the injuries, TTD, medical bills, and prospective medical treatment.

TRIAL STRATEGY:

Knowing that Petitioner has already recovered twice for an alleged back injury, that he’d previously treated with a highly-reputable doctor, and that he was treating now at the behest of his attorney-referred-physicians, we thought it critical to dig up all medical records documenting his baseline condition and progression of injury since 2004.  Credibility of the Petitioner and expert medical witnesses would be key in defeating the new claim and requested benefits.

We performed a review of the prior claims, performed a medical canvass, and subpoenaed all medical records.  Although the results were voluminous, careful examination of the records revealed deadly weaknesses in the Petitioner’s case.
Namely, Petitioner hid the fact that he’d treated just four days before his alleged accident (for low back pain and left leg pain), and that he treated regularly for back pain from 2008-2011.  Respondent spotted this discrepancy, and at trial we cross examined Petitioner to confirm testimony that he was “all better” after 2008.  When we offered into evidence complete medical records – showing treatment from 2008-2011, we destroyed the Petitioner’s credibility and proved that Petitioner’s baseline condition was unchanged.

But we also gave the Arbitrator additional ammunition to deny the claim.  We showed that, despite complaints of severe pain in January 2011, Petitioner waited an unusual 6 weeks before getting treatment.  We got on the record the fact that the accident was unwitnessed.  And, Petitioner admitted that he changed doctors at the request of his attorney.  The Arbitrator noted with disapproval, “[I] cannot conclude that Petitioner’s motivations were genuine in seeking treatment from [the attorney-referred physicians] given that the Petitioner had regularly been treating with a different physician for pain management, and the Petitioner lied [about that].”

Had the Arbitrator concluded that there was a compensable workplace accident, we also had UR’s, IME’s, and depositions, where doctors consistently opined to the vast majority of treatment being unreasonable and unnecessary, and denying the requested spinal stimulator.

SIGNIFICANCE:

The potential liability saved with our defense was approximately $600,000.00 for medical (past and future), disputed TTD, and permanency.  Costs of future TTD and medical would have increased that (by an amount impossible to determine) considering possible phych treatment and time off for the stimulator surgery and follow-up treatment.  Opposing counsel emphasized that – compared to potential exposure – his demand of merely $132,000.00 was a “steal”.

Our defense strategy, to thoroughly investigate all the facts – including the Petitioner’s extensive medical history – prior to trial, to spot case-killing inconsistencies, and keep those inconsistencies in our “back pocket” at trial, gave us an incredible advantage over Petitioner’s attorney.  Whereas he spent time and energy focusing on irrelevant details, such as costs associated with spinal stimulator implants, we were establishing a damning timeline of events to shatter any recovery whatsoever.

In fact, the Arbitrator wrote, “considering the totality of the evidence… the Arbitrator cannot also believe that the Petitioner is telling the truth about having a workplace accident on January 26, 2011…. The preponderance of the evident suggests that no accident happened whatsoever on January 26, 2011, and that Petitioner’s condition remained unchanged from his baseline.”

Respondent’s success at trial resulted from establishing a clear timeline of events to rebut Petitioner’s allegations and to highlight Petitioner’s questionable antics and over-treatment in trying to force his employer to over-pay on a very questionable claim.  We are very happy that such abuse of the system has been recognized and aborted.  And the icing on the cake – Petitioner owes us $21,298.16 in TTD and medical treatment paid out prior to Respondent’s dispute of the claim!