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Case Name: Douglas McMullen v. Hollister-Whitney Elevator
Venue: Quincy, IL – Arbitrator Dearing
Handling Attorney: Thomas R. Boyd
Case No.: 13 WC 30373
Date of Accident:04/22/2014
Trial Dates: February 4, 2015
Arbitrator Findings: Claimed TTD benefits denied, prospective medical treatment denied

Dear Clients:

With a recent Arbitration decision in favor of Respondent on Petitioner’s 19(b) motion for emergency hearing, we are pleased to announce our victory. We feel this decision provides potential future guidance in trying and prevailing in cases involving disputed benefits and necessity of future medical treatment.

FACTS:

Petitioner testified that on April 22, 2014, he sustained a shoulder injury while working with metal beams involved in elevator construction. Petitioner testified that he injured his shoulder when he pushed away an approximately 150lb. beam that was swinging toward his head. Petitioner testified in great detail to his lengthy medical treatment, and his testimony glossed over several long gaps in receiving care. Petitioner maintained that he had shoulder pain and triceps pain every day since the date of accident. However, after careful review of medical records, we discovered that Petitioner had not complained of triceps pain until several months following the accident and had refrained from treating for several months at a time.

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 hospital, who opined that Petitioner’s shoulder injury had resolved at the time of his examination. We exposed the inconsistency of reported symptoms on cross-examination and emphasized the fact that Petitioner had been inconsistent and undisciplined with treatment.

Critically, and as a result of careful review of treating records, we exposed Petitioner during cross examination regarding his claim that he needs future medical treatment per his doctor’s recommendations. Specifically, we exposed the fact that Petitioner was discharged from care by his treating physician, but insisted for a referral to an outside orthopedist and was eventually given one. This lent itself to our defense theory that Petitioner was malingering and had no desire to achieve full-duty work status.

With respect to medical bills in dispute, and with respect to any future treatment, Respondent was ordered to pay all reasonable and necessary medical benefits for dates of service from April 22, 2014 through September 3, 2014 pursuant to the fee schedule. Critically, all medical bills for services rendered after September 3, 2014 were denied and Respondent was found not liable for any medical following the date of our Independent Medical Examination. Further, any and all prospective medical treatment was denied by Arbitrator Dearing. Regarding Petitioner’s argument for prospective medical, the Arbitrator found our IME doctor to be most credible. Our expert found Petitioner to be at MMI and returned him to work with no restrictions. As such, the arbitrator adopted our IME date as the date on which Petitioner reached MMI for his alleged work-related injuries.

With respect to TTD, Petitioner sought TTD for an additional 12 weeks. Seeing as the Arbitrator cut off benefits from the date of our IME, the claim for TTD was denied. Further, Petitioner was found by the Arbitrator to have been overpaid $917.41 in TTD benefits. As such, Respondent was entitled to a credit of $917.41 to count toward any future permanency award in this matter.

Petitioner’s counsel pushed for trial after rejecting a $10,000 lump sum settlement offer made by Respondent made immediately prior to hearing.

LEGAL ANALYSIS/DEFENSES:

On the date of trial, February 4, 2015, Petitioner’s counsel asked for a pretrial on the issue of prospective medical care and disputed claimed TTD benefits. Our response was that we had made a reasonable, all-inclusive offer of $10,000.00 that was rejected by opposing counsel and in lieu of that rejection, to proceed with trial.

We knew prior to trial that our Independent Medical Examiner had reviewed diagnostic films as well as nerve studies, and had conducted a thorough physical examination of the claimant. His report provided a sound medical basis for us to deny any and all prospective medical treatment. This report bolstered our defense enough to confidently proceed with a trial on the merits of the case.

We also asked Petitioner to demonstrate the mechanism of injury on cross-examination, and asked him to show specifically how he pushed the I-beam out of the way to avoid it hitting his face. Petitioner was quick to re-enact the accident in great detail, and in doing so diminished his credibility, since he sat still, clutching his shoulder throughout direct examination and used the left shoulder animatedly and freely in demonstrating the accident.

In reaching her decision to deny disputed TTD and deny any future medical treatment, it seems the arbitrator relied most heavily on the credibility of our Independent Medical Expert, the inconsistency of treatment, and the demonstrated physical inconsistencies of the Petitioner on the day of trial.

FUTURE CLAIM/LITIGATION RECOMMENDATIONS:

When an Independent Medical Examination is appropriate, ensure that the doctor is able to personally review all records and all diagnostic/radiologic studies. This adds immeasurable credibility to the Independent Medical Report when coupled with the physical examination of Petitioner.
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 protects/nurses the injured body part, yet uses the injured body part involuntarily in displaying job duties or mechanism of injury, it can be very useful in impeaching their testimony and showing that they are not as injured as they claim to be.
Lastly, always pay careful attention to treatment records, and exploit any gaps in treatment or inconsistencies in self-reported symptoms.

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