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I&F Prevails where Amending Application Backfires on Petitioner

In a recent Illinois case handled by I&F, the arbitrator held that Petitioner lacked credibility and denied all benefits.

Petitioner, a maintenance worker, had filed an original Application alleging a specific trauma shoulder injury from suddenly reaching and pulling in July 2014.  The event was not reported for a week, and the initial medical treatment (a hospitalization over a weekend) was also delayed,  with inconsistent histories given. The case was therefore denied. There were divergent ER histories in the initial treatment records indicating no trauma or accident, and noting that the onset of shoulder pain occurred simply while walking the day before. A later medical note alluded to an effort by Petitioner to get the original history changed in the records so as to indicate a work injury.

Petitioner’s original attorney at the time secured a narrative report from an orthopedic IME who opined that her shoulder condition was related to the alleged specific, traumatic work accident and that  further treatment was warranted.  Respondent secured its own initial IME opinion finding that Petitioner had significant pre-existing arthritis and degeneration with no objective evidence of work injury.

Petitioner continued to sporadically treat under Public Aid at various Cook County clinics, with Petitioner’s new attorney claiming that Petitioner  needed shoulder surgery. Respondent then obtained an updated Section 12 exam in 2017 from a different IME who opined that, based upon her history, the petitioner had sustained a minor shoulder strain, but from which she had fully recovered. The petitioner’s underlying arthritis was not related and was not aggravated by the accident.

Respondent extended an offer based on a shoulder strain, which was rejected. Thereafter Respondent took the depositions of both of IME doctors and objected on a hearsay basis  to Petitioner’s IME report. Petitioner did not schedule their IME’s deposition and filed an Amended Application, changing the mechanism of injury to repetitive trauma from the original allegation of specific trauma only 2-1/2 weeks prior to the final trial date (and four years from the claimed DOL).

On the day of trial, the Petitioner asked for a continuance, insisting that the records proving the need for surgery would be available “any day.” Due to the number of previous continuance requests, with no progress shown, the arbitrator denied the request. Respondent also objected to the late amending of the Application to repetitive trauma from specific trauma, which was overruled. At trial, Petitioner provided no testimony to support a repetitive trauma theory, and insisted it was a single traumatic event.   The Petitioner also denied what was clearly shown in the medical records – namely that  there were efforts made to change the initial ER medical  history  to reflect a history of a work injury. Petitioner presented no medical records to support the need for the claimed surgery and attempted to offer her causation IME report into evidence over Respondent’s continuing hearsay objection. The objection was sustained and the IME report was not introduced into evidence.

The Arbitrator held that Petitioner failed to prove either a compensable repetitive trauma injury or a single traumatic injury at work. He  found the Petitioner to lack credibility based upon the earliest histories indicating no accident or  trauma and her later efforts to change the medical  histories in the records. The Arbitrator also noted that Petitioner had filed a pleading that her injuries were caused by repetitive trauma, yet at trial offered no testimony or medical evidence in support of the repetitive trauma theory. The Arbitrator explained that Petitioner’s overall lack of credibility outweighed even the fact that one of Respondent’s IME doctors  had opined that there was a minor injury.

This case illustrates the importance of the timely securing of  medical and expert evidence though IME reports and deposition testimony if required, and the need for persistence in forcing the matter to trial  in the face of delays and continuance requests. Congratulations to Partner Terry Donohue for the excellent result.

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