In a case defended by Michelle LaFayette of our Chicago office, the Appellate Court issued a decision on September 27, 2018, in which it upheld the decision of the Commission that the Petitioner failed to prove she sustained a work accident arising out of and in the course of her employment.

Facts

The Petitioner, Sammye Meyer, was employed as a meat stocker for WalMart. She alleged that she sustained a work accident on June 28, 2011, resulting in an injury to her right ankle and right lower extremity. She further alleged that this accident led to the development of an infection to her right heel, which resulted in the amputation of her right lower extremity below the knee.

On the date of the incident, the Petitioner completed an accident report with the assistance of her supervisor. The report states: “Associate states she just fell down, did not slip or trip, just felt herself falling. Associate states doesn’t think anything was on the floor.” She signed the statement and acknowledged that “all information contained herein is true and correct.”

At trial, however, the Petitioner testified that she slipped on a piece of paper and fell when she entered what she described as a dimly lit walk-in cooler to obtain stock.

Medically, the Petitioner subsequently developed an ulceration on her right heel. Due to pre-existing diabetes and peripheral vascular disease, it became necessary to amputate the right lower extremity below the ankle. The treating physician testified the work incident initiated the infection, which led to debridement and ultimately amputation. He admitted, however, that he did not examine the patient until 3 months after the incident and did not review complete medical records.

Dr. John Krause, an orthopaedic foot specialist retained by Respondent, testified that while Petitioner may have sustained an ankle sprain on June 28, 2011, there was no evidence she sustained a break in the skin which resulted in an infection. He also noted Petitioner’s pre-existing history of poorly controlled diabetes, diabetic neuropathy and peripheral vascular disease, which likely led to development of a foot blister of which Petitioner was unaware. In his opinion, the overwhelming cause of the right heel ulceration and amputation was the Petitioner’s peripheral vascular disease and associated diabetes.

Issues Presented

– Did the incident on June 28, 2011 constitute an accident arising out of and in the course of employment?

– Did the incident cause the eventual need for amputation of the right lower extremity?

Outcome

– The arbitrator found that Petitioner sustained an accident arising out of and in the course of employment, resulting in a sprain of the right ankle only, awarding 10% loss of use of the right foot and a short period of TTD benefits. The arbitrator denied the accident was the cause of the amputation.

– Both parties sought review of the arbitrator’s decision. The Commission reversed the decision of the arbitrator, finding the Petitioner failed to prove she sustained an accident arising out of and in the course of her employment, and denied all benefits.

– The Commission found that Petitioner’s testimony that she slipped on a piece of paper in the meat cooler was not credible. There was nothing in the record to substantiate the testimony, and in fact was a contradiction of the signed statement which affirmatively stated that she did not slip or think that anything was on the floor. The first reference to the alleged paper in the meat cooler was in a hypothetical question during the treating physician’s deposition. The Commission found the claimant’s fall was idiopathic or associated with a risk personal to the Petitioner, namely her severe diabetes and peripheral neuropathy. With regard to medical causation, the Commission also found the opinions of Dr. Krause, the Respondent’s expert, to be more persuasive than the opinions of the treating physician. The Circuit Court affirmed the Commission decision.

– The Appellate Court affirmed the decision of the Commission, finding the Commission decision was not against the manifest weight of the evidence.

Take-Aways

– The Commission and Appellate Court put great weight on the accident report completed by Petitioner on the date of the incident, in which she denied slipping or tripping, or that anything was on the floor. She also denied slipping on anything when seen at the emergency room on that date. This emphasizes the importance of taking a complete and accurate statement from the employee as soon as possible after the alleged accident.

– The Commission and Appellate Court also found the Respondent’s medical expert to be more credible than the treating physician. While the treating physician admitted that he did not examine the Petitioner until three months after the accident and did not review the treating records to that point, the IME physician was provided with both the initial accident report and a complete set of medical treatment records. The more information provided to your IME physician, the more weight his/her opinion will carry with the finder of fact.

Sammye Meyer v. IWCC, 2018 IL App (5^th) 170455WC-U