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Case Name: Evangelina Diaz v. Elite Staffing
Venue: Chicago – Arbitrator Milton Black
Handling Attorney: Karolina M. Zielinska
Case No.: 11 WC 163
Date of Accident: 10/26/10
Case Trial Date: 2/26/13
Award: Denial of Elbow, Right Shoulder and Cervical Spine Claim and Two-Level Cervical Spine Fusion Surgery


Petitioner alleged she sustained several injuries due to repetitive sewing activities at work, including right wrist/hand tenosynovitis which required surgery, right elbow pain, right shoulder pain and neck pain for which she ultimately underwent a two level fusion. Respondent accepted Petitioner’s right wrist/hand injury and disputed all other body parts.

At trial, Petitioner was seeking an award for medical, TTD and PPD amounting to $418,500 for her disputed elbow, shoulder and neck injuries. We were able to save the client every dollar of the alleged award.


Our defense strategy consisted of three main focus areas. First, we thoroughly analyzed over 1,000 pages of medical treatment records in order to put together an accident defense for the elbow, shoulder and neck injuries by emphasizing the inconsistencies in Petitioner’s reported symptoms following the accident. Secondly, we relied on our Independent Medical Examination (IME) to argue against causal connection for these injuries. Lastly, we went after the Petitioner’s treating physician/cervical spine surgeon on cross examination at his deposition in order to diminish his credibility.

Prior to trial, we spent a significant amount of time carefully reviewing the treating records and the histories contained therein. Upon doing so, it was apparent that Petitioner’s initial complaints when she presented for treatment were limited to her hand and wrist. We even uncovered a medical intake form filled out by Petitioner in her native language in which she herself indicated that her injuries were only to her right hand and wrist and failed to identify any additional body parts. This was further supported by diagnostic testing.

Nonetheless, as time progressed, Petitioner began complaining of elbow pain, right shoulder pain and ultimately neck pain for which she underwent unauthorized and costly cervical spine surgery and for which she remained off work through the date of trial. Collecting the right evidence in order to dispute these injuries was our main objective in preparing for trial.

Reviewing the treatment records as carefully as we did, we knew exactly what type of evidence we required at trial and we obtained that evidence by deposing and cross-examining Petitioner’s cervical spine surgeon. At his deposition, the doctor reaffirmed his opinion that Petitioner’s n eck injuries were caused by her October 26, 2010 work accident in which she heard a pop in her neck while pulling on elastic material. The doctor opined that Petitioner required surgery as a result of this accident. However, by using various cross-examination techniques, we were able to get the doctor to admit that he was not positive of Petitioner’s exact mechanism of injury and that he was not aware of the inconsistent histories of accident Petitioner reported to her previous treating physicians a year prior. We were also able to get the doctor to admit that he did not review prior treatment records and that his current opinions were in fact inconsistent with the records and opinions of other physicians involved in Petitioner’s treatment. By doing so, we destroyed the credibility of this physician and inadvertently strengthened the opinion of our IME doctor whom disagreed with Petitioner’s cervical spine surgeon.

Additionally, we attacked the treating physician in regards to his last minute attempt to establish causal connection regarding the cervical spine. After presenting the doctor with evidence of initial treating records which clearly lacked any reports of neck pain, the treating physician attempted to outsmart us and located some complaints that Petitioner made regarding tingling into the fingers. The treater then testified that cervical spine symptoms sometimes present as carpal tunnel symptoms, and therefore, he opined that this further supported the fact that Petitioner had early symptoms of neck complaints which were merely missed by the treaters. However, we were not going to let this opinion go without a fight, and because we were so familiar with the treating recor ds at this point in time, we immediately presented the doctor with additional notes showing that Petitioner admitted in other records that she did not begin having any tingling in to her fingers until months after her injury. Moreover, a separate treating physician had specifically opined in the records that the carpal tunnel symptoms which the Petitioner was complaining of were clearly unrelated. After presenting the doctor with this on cross examination, we were able to again diminish his credibility before the arbitrator.

Our final preparation for trial consisted of drafting a strong cross-examination of the Petitioner.  At this point in the litigation process, we had the necessary medical opinions and needed to focus on the anticipated testimony of the Petitioner. Our strategy was to use the prior intake form she completed as well as her patient statements and reports made to her treating physicians and to use those pieces of evidence against her current allegations. We anticipated Petitioner would testify to a specific event that led to her injuries. We knew whatever event Petitioner testified to would not be consistent with her previous reported symptoms because of our thorough review of ALL treating records.

Our cross examinations proved fatal. The Arbitration decision specifically noted that the Arbitrator did not find Petitioner to be a credible witness due to the various inconsistencies between her t reatment records and her testimony on direct versus cross examination. Additionally, the Arbitrator noted he was not persuaded by the opinions of the cervical spine surgeon.


This case proves that careful and thorough review of medical records, while a tedious and time-consuming process, is extremely significant when disputing accident. We see cases like this very often where a Petitioner’s injury begi ns with a hand, wrist, ankle or foot sprain and ultimately ends with a disputed back or neck surgery. By spending the time and noting the inconsistencies contained in the treatment records, we have the necessary ammunition to use later on during cross examination.

Ultimately, in this particular case, we were able to save our client $350,000 in medical benefits and approximately $22,000 in TTD benefits. Additionally, we saved our client future costs for permanency (approximately 30% MAW, or $46,500).

If you should have any additional questions or thoughts about this decision, please do not hesitate to contact the undersigned or the handling attorney, Karolina M. Zielinska.

Very truly yours,


Bradley C. Knell