BCM wins $6000 credit in dismissal of claim for subjective complaints

BCM Law, P.C. recently prevailed at arbitration before Arbitrator Hennessy in Joliet, securing dismissal of the petitioner's application (claim), as well as a credit requiring the claimant to pay back $6,037.28 in medical and temporary total disability benefits paid on the claim prior to trial. Fowler v. Midwest Model Aircraft, et al., No. 04 WC 24518 (decision filed July 11, 2006). Not surprisingly, the claimant has appealed to the Workers' Compensation Commission.

The decision turned on a complete record of evidence, including records of the petitioner's job duties, samples of the actual parts involved, thorough cross-examination of treating physician, the testimony of the IME physician, and the claimant's inconsistent testimony that was revealed on cross-examination at trial. The arbitrator ultimately found that the petitioner's testimony concerning the accident and alleged injury lacked credibility and dismissed the claim. The arbitrator also ordered the petitioner to pay back the benefits paid by the employer prior to trial.

This case involved a claimant who worked as a receptionist/clerk for a company that manufactured and distributed model aircraft and railroad parts. The claimant's job duties consisted of answering the office phones, taking customer orders, and handling some bookkeeping duties. The employer's business received only about ten to twenty calls per day. On the alleged date of accident, the claimant was asked to fill time in between phone calls by placing individual brass model railroad rails into plastic containers. The rails and containers combined weighed less than two ounces. On the date in question, the claimant completed 93 packages in 1.5 hours, an average of approximately one per minute. That same date, the phone records for the respondent showed ten total phone calls. The claimant claimed that while she was placing a rail in a container, her right wrist "popped" and she felt pain.

The claimant was first treated on the same day, but the records from that facility contained no history of any work injury. No objective diagnosis was ever reached by the physician, who was unable to find any pathology to support the pain complaints. About one month later, the claimant sought treatment with Dr. Welch, an orthopedic surgeon. Dr. Welch noted a history of "moving very small pieces into a bag for two hours," and initially found some swelling in the first and second dorsal compartments of the claimant's right hand. However, at his deposition, Dr. Welch conceded that the actual parts in question (presented to him during the deposition) would be less likely to cause the claimant's complaints. More importantly, all the claimant's symptoms had resolved by the second office visit with Dr. Welch, when the claimant complained of numbness and tingling in a different area of her hand. Dr. Welch's associate, Dr. Payne saw the claimant and noted still different symptoms in a different area of the hand. Dr. Welch testified that none of these new complaints were related to the petitioner's job duties. The employer's IME physician, Dr. Stogin, reviewed the prior records, examined the claimant, and found she had non-anatomical symptoms on an objective filament test conducted with the claimant's hand hidden under a drape (so she could not see when or whether the filaments were touching her hand. Dr. Stogin also noted strapping marks that were not consistent with any kind of splint. The implication was that the claimant may have been artificially inducing the appearance of swelling. Shortly after this examination, the claimant was involved in a motor vehicle accident and sought treatment with another physician who repeatedly examined the petitioner's hands and found them both to be normal on each occasion.

At trial, the petitioner contradicted the employer's business records concerning the number of parts she worked with on the date in questions, she also contradicted the histories given in the medical records. Her claim that she had ongoing, excruciating right hand pain from 2004 through 2006 was also contradicted by the normal findings following her motor vehicle accident just three months after the alleged work injury. Also, the arbitrator noted that there was never any medical evidence of an objective diagnosis, and the "injury" consisted entirely of subjective complaints of pain without any physiological basis. Adding all this up, the arbitrator chose to believe the medical providers and business records over the petitioner's claims. Because there was no proof of an actual injury, the claimant failed to prove a compensable accident had occurred.

This case presents a good example of how the defense can prevail with thorough investigation of the facts of the alleged incident, as well as careful inquiry into the medical records and questioning of the treating physician.