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Case Name: January 2015 – Floridalma Funes v. Elite Staffing
Venue: Wheaton – Arbitrator Luskin
Handling Attorney: Thomas R. Boyd
Case No.: 13 WC 30373
Date of Accident:08/10/2013
Trial Dates: 11/10/14 & 11/13/14
Arbitrator Findings: $0 Award

Dear Clients:

The above recent trial result reveals the possible IWCC “trend” in which the repetitive allegations were not accepted by the Arbitrator.  Hopefully, this decision provides potential future guidance or a “road map” in trying and prevailing in cases involving repetitive trauma injuries.

FACTS:

Petitioner testified that on August 10, 2013, she sustained a shoulder injury while working on a food packaging line for Respondent.  Petitioner told her supervisor that the pain “suddenly became worse” on August 8th, 2013.  However, she told one of her treating physicians that the pain had been constant for more than one year prior to August 8, 2013. After careful review of medical records, we discovered that Petitioner told the initial physician that the pain was sudden and that she had had “no prior shoulder problems”.  The Petitioner’s orthopedic surgeon claimed that the shoulder required surgical repair, and that the symptoms were a direct result of Petitioner’s job.

In response to these inconsistencies related to the claimed injury, we scheduled an Independent Medical Exam with a reputable orthopedic shoulder specialist at a Chicago-area teaching hospital, who opined that Petitioner’s shoulder injury would be work related “if 50% or more of her job required working at or above shoulder height.”

Petitioner’s counsel pushed for trial after rejecting a $5,000 lump sum settlement offer made by Respondent in August 2014. The crux of the trial would be Petitioner’s job duties, specifically whether or not she spent the majority of her day with her arms at or above shoulder height.

At trial, Petitioner was sworn-in while raising her left arm. She reported that her right arm was in too much pain to lift to take the oath. This was observed by us, as well as the Arbitrator. While testifying, Petitioner was asked to demonstrate some of the motions that were required by her at her job. Petitioner readily demonstrated that she had to reach up and outward, often throwing her arms above shoulder height.

After Petitioner testified, we called her supervisor as a defense witness to testify about Petitioner’s job duties. The supervisor was selected due to his intimate knowledge of the facility in which Petitioner claimed injury. We presented two photographs during his testimony, which he explained were pictures of the assembly line where Petitioner worked. The tape measure in the photo was read off by the witness as being thirty-seven inches in height, far below Petitioner’s shoulder height. The second photo showed other workers standing at the assembly line, which struck them at approximately waist-height.

LEGAL ANALYSIS/DEFENSES:

On the initial date of trial, November 10, Petitioner’s counsel pushed to have the trial conducted in its entirety on that day. We successfully argued that our witness, who was unable to be present on the 10th, was material to the proceedings, and that a bifurcated trial was necessary. Our request for bifurcation was granted, allowing our witness to come and testify on November 13. This was critical to our defense. After direct and cross-examination of the Petitioner on the 10th, we had ample time to assess her testimony and to prepare specific questions for our witness to rebut her claims.

As a result of bifurcating the trial, we also had time to procure photographs of the assembly line on which Petitioner worked, after she testified on November 10th that the line was near head-height for her.

In preparing for and during trial, we made it our goal to paint as clear a picture as possible showing that Petitioner’s work did not require her to reach above shoulder height. We succeeded in doing so by introducing photographs of Petitioner’s work station into evidence, despite objection from Opposing Counsel, with a tape measure indicating the precise height of the assembly line on which she worked. These photos were given context by our defense witness, who had an intimate knowledge of the site where Petitioner claimed injury.

We also asked Petitioner to demonstrate the type of work she did, and the types of motions required to perform her job. In showing that she lifted above shoulder height during her testimony, Petitioner exposed the fact that she was, at the time of trial, readily able to reach above shoulder height. In reaching his decision, the Arbitrator gave great credence to this demonstrated physical inconsistency.

FUTURE CLAIM/LITIGATION RECOMMENDATIONS

  1. In repetitive trauma cases, it is vital that the employee’s job description is understood by the Arbitrator, and any defense witnesses or physician enlisted by defense. This knowledge of the job description directly impacted the credibility of our defense witness, and our defense physician’s opinion.
  2. In repetitive trauma cases, it is vital to have an Independent Medical Examination report that specifically addresses causation and not simply pathology or applicable work restrictions. Our IME was specific in noting that the injury could not have been caused by a work-related accident if the Petitioner’s job did not involve her reaching above her shoulder height for a majority of the time. Obtaining an IME from a highly credible and objective physician also gives the report itself more weight for the Arbitrator than a doctor who has a widely-known bias.
  3. The introduction of photos of an accident site helps provide the Arbitrator with an objective context in which to assess a claimant’s injuries. Here, the crux of the case was related to the height at which the claimant performed her job. Thus, having photos entered into evidence showing her job post helped erase ambiguity for the Arbitrator.
  4.  Witnesses with firsthand knowledge of the job site and duties of the injured worker can be critical. A former supervisor of Petitioner’s helps give the Arbitrator a context in which to evaluate the claimant’s alleged injuries.
  5. Lastly, pay close attention to the physical behavior and mannerisms of a claimant when they are on the stand. If, as in this case, the claimant uses the injured body part involuntarily, it can be very useful in impeaching their testimony and showing that they are not as injured as they claim to be.

If you should have any additional questions or comments concerning this decision, please feel free to contact the undersigned or Mr. Thomas R. Boyd.
Very truly yours,
 
KNELL O’CONNOR DANIELEWICZ