The Truth is Out There

December 2018

By: Mark F. Vizza

Curtis Linen claimed he hurt his right shoulder, lower back, and neck while driving a tractor-trailer for Marten Transportation on April 25, 2016. The version he gave of the trauma was that his rig had been stopped a short time when, suddenly, he felt a large jolt. The only other thing he recalled of the accident was getting out of his cab and seeing another truck which had been damaged. He was transported on an emergency basis to Edward Hospital where he was treated and released. The next day he underwent a blood test.

He didn’t treat for the injuries he associated with the vehicular accident until May 9, 2016. On that date, he presented to Illinois Ortho Network where physical therapy was prescribed for his neck, back, and right shoulder. He underwent the therapy from May 11, 2016 through August 23, 2016. His pain and limitation did not abate so his treating orthopedist, Dr. Giannoulias, recommended shoulder surgery. Throughout this time period, Linen was also being treated by a psychologist, Dr. Kelly, for mental disability he attributed to the April 25, 2016 accident.

Linen asserted he was medically disqualified from work commencing April 25, 2016 and running through October 3, 2016. On the latter date, he returned to driving for Jerry Trucking. In taking this job, Linen signed a statement that he had never tested positive on an employee drug test. His relationship with Jerry Trucking terminated on November 17, 2016 due to his alleged physical inability to perform the job.

He got another trucking job on October 12, 2017, this time for Trans Am Trucking. As with Jerry Trucking, petitioner represented to Trans Am, in writing, that he had never tested positive on an IDOT drug test. He was fired after just one day for failing to list all prior employers on the application.

Throughout all this time, Linen claimed that the right shoulder and neck pain sustained in the April 25, 2016 accident persisted. He testified, as well, that his low back pain greatly intensified. Accordingly, on November 22, 2017, Dr. Giannoulias again recommended surgery.

BCM’s investigation revealed the incident on April 25, 2016 was not the first collision petitioner suffered in 2016. On January 22, 2016, he had been a passenger in a car involved in a smashup. Records uncovered at State Farm showed that Linen treated at Mid-City Rehabilitation and with a Dr. Elmusa. Records from these providers were accessed showing that, to each, petitioner gave a history of the January 22, 2016 accident. He historicized right shoulder pain and stated, further, he was having difficulty shifting gears in his truck at work. Evidence associated with this earlier crash documented petitioner was also having low back problems.

Finally, the medical evidence revealed that the blood test performed on petitioner on April 26, 2016 was positive for cocaine. Marten denied that the alleged April 25, 2016 truck accident was the cause of petitioner’s neck, right shoulder, and back problems. Additionally, Marten denied that the care prescribed by Dr. Giannoulias was reasonable and necessary inasmuch as the need for it did not arise from the Comp injury on April 25, 2016.

Marten stood by the denial and litigation proceeded.

Dr. Giannoulias testified he felt petitioner’s right shoulder problems commenced on April 25, 2016 because Linen had denied any difficulties before that date.

On behalf of Marten, Dr. Gleason testified under Section 12 that petitioner’s right shoulder problems pre-existed April 25, 2016 and were, in fact, caused by the January 2016 vehicular collision wherein petitioner was a passenger.

For his part, petitioner testified that he could not be sure how long he worked for Marten, perhaps one or two months. When confronted with the evidence of the prior motor vehicle accident in January, he acknowledged that he had a vague recollection of its occurrence. Even though shown the medical records, he denied that he had problems shifting the gears in his truck after January 26, 2016. He admitted that he passed a DOT physical preparatory to taking the job for Jerry’s Trucking. He admitted he had not listed Marten on his job Application for Trans Am, though he stated he listed all others.

While acknowledging that he had tested positive for cocaine, he asserted that he took the drug only after the accident, about 10 or 11 p.m. on April 25, 2016. He wanted to quiet his nerves as he was exceedingly upset.

In her decision Arbitrator Ory stated that she did not believe Linen. She felt that his claim that he injured his right shoulder was not supported by medical evidence. Linen had no complaints of right shoulder problems immediately after the April 25, 2016 accident. Indeed, in actuality, as referenced by State Farm records, Linen had been having right shoulder problems starting with the January 2016 accident, including difficulty shifting gears in his truck at work.

She further found that Dr. Giannoulias’ opinion lacked credibility as he relied upon the false statement by the petitioner that he had no problems with his right shoulder before the April 25, 2016 accident. The arbitrator found Dr. Gleason to be more credible as he reviewed all the medical reports including those related to the January 2016 accident. The arbitrator further denied the petitioner’s PTSD condition as he was not reliable.

The arbitrator awarded only medical bills from the ER for Linen’s care on the loss date amounting to $12,756.00. Linen was seeking to recover $25,370.23 in medical expenses so that in trying the case he lost $12,614.23. He also sought 87-3/7 of past TTD, or $46,931.89. That claim was denied as was, with the ruling, his entitlement to further TTD.