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August 2017:               Francisco Guzman v. Midwest Canvas

                                    14 WC 39499

Handling Attorney:     Steven M. Reising
Date of Accident:        11/08/2014

Potential Exposure:     Uncertain, but estimated to be in excess of $200,000

Result:                         Arbitrator found no accident or causation; both past/prospective medical benefits and past/future TTD benefits denied


Case Summary & Background


On November 8, 2014, Petitioner was working for Respondent and using a machine to package and roll the bubble wrap when his right glove got caught inside of the machine. Using his left hand, Petitioner tried to pull his other arm out of the machine. Petitioner continued to pull on his right arm and, in doing so, twisted his lower back. When Petitioner was finally able to release his hand from the machine, he fell approximately 5’6” to the ground and landed on his left shoulder. The only thing that he could do was sit and wait to be taken for medical treatment. Petitioner stopped working for the day and was taken to MacNeal Hospital.


Petitioner’s immediate supervisor, who also happened to be the individual responsible for operating the machine, testified on behalf of Respondent. The supervisor testified that he was working on the machine and was standing approximately one foot away from Petitioner. The supervisor saw Petitioner reach his right hand over to pull plastic out and his glove, primarily his four fingers, caught on the tape found on the plastic. Within seconds, the supervisor recalled seeing Petitioner snatch his hand out of the machine. The supervisor did not witness Petitioner struggle or engage in any jerking movement other than Petitioner yanking his hand out of the machine quickly. Moreover, the supervisor did not witness Petitioner fall or call out for help, and neither him nor another employee activated the emergency shut-off on the machine. Once Petitioner freed his right hand from the machine, the supervisor testified that Petitioner did not have any complaints of pain until approximately an hour following the incident. Petitioner’s primary complaint to the supervisor related to his right thumb. During the time between the incident and Petitioner’s complaint, the supervisor testified that Petitioner continued to perform his full job duties, including carrying a roll of bubble wrap over to another machine.


Petitioner treated with Dr. Salehi who recommended lumbar fusion surgery at L5-S1. Dr. Cherf and Dr. Graf performed IMEs, both finding a significant amount of nonorganic pain signs as well as a lack of objective medical evidence supporting Petitioner’s subjective complaints.



Prior to trial, Petitioner demanded $250,000 to settle the claim while Respondent offered $25,000.


Legal / Claim Strategy


Respondent primarily focused its attack on whether a compensable incident occurred and whether Petitioner’s ongoing subjective complaints were causally related to the alleged incident. Testimony from Petitioner himself and the supervisor on duty would call into question whether an accident occurred. Respondent’s IME reports and the treatment medical records would be used to question the credibility of Petitioner as well as the opinions/conclusions of the treating physician. From there, Respondent anticipated that the rest of the issues raised would fall in its favor.


Arbitrator’s Findings


AccidentThe Arbitrator found that Petitioner failed to prove that he sustained a compensable work injury to the lumbar spine. This finding was based on Petitioner’s inability to give a coherent and plausible description of the alleged event, as well as other factors adversely affecting his credibility. Two days after the incident, Petitioner filled out a body diagram indicating the areas that he had pain, but did not indicate pain in his low back or legs. The Arbitrator also found that Petitioner’s subjective complaints of leg pain and paresthesias morphed/evolved in an inconsistent manner over time. The Arbitrator noted Dr. Salehi’s lack of explanation for these variances in light of the opinion that there was no nerve compression or impingement as this would be the likely cause of genuine sensory loss.


Causation:  The Arbitrator found that an accident did not occur so the issue of causation was rendered moot. Nevertheless, the Arbitrator explained in his decision that he would otherwise find that Petitioner failed to prove that his claimed current condition of ill-being is causally related to the claimed work incident after finding that the opinions of Dr. Cherf and Dr. Graf were more persuasive than the opinions of Dr. Salehi.


Remaining Issues:  Since Arbitrator Fruth found that there was no accident and also that there was not any causational link, Petitioner was not entitled to prospective medical care, payment of any medical services rendered, and payment of TTD benefits. Respondent was due a credit for amounts previously paid on the claim as well.


Potential Exposure


The potential exposure saved was 35% loss of the person as a whole ($55,223.00), more than 100 weeks of TTD benefits (totaling a minimum of $31,556), and the cost of the L5-S1 fusion surgery and post-operative care (estimated by the treating physician at approximately $150,000).




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