In a case defended by Julia Murphy of our Chicago office, the Commission issued a decision on September 16, 2016, upholding the arbitrator’s denial of liability for an alleged work accident on December 5, 2013.
The Petitioner, Moises Cervantes, worked as a “taper” for Respondent Five Star Decorating, Inc. He alleged that on December 5, 2013, he was performing his regular work activities on a scaffolding, when the scaffolding collapsed and he landed on his left side. He claimed to have reported the injury to his supervisor immediately, but did not seek medical treatment for another three months. He eventually underwent left shoulder surgery.
Two witnesses testified on behalf of Respondent at trial, including a supervisor and a co-worker. Both denied any knowledge of the collapse of the scaffold, and denied that Petitioner reported a work accident on that date or within the 45 day statutory reporting period. Both testified that Petitioner continued to perform his regular work activities without complaint for at least another month after the alleged accident date.
When Petitioner sought treatment for his left shoulder in March of 2014, he denied any previous treatment to his left shoulder, and related that he underwent right shoulder surgery in 1999. He later admitted on cross-examination, however, that he in fact underwent left shoulder surgery in 2003, but kept this information from his treating physician and the Respondent’s IME physician.
– The arbitrator found that Petitioner failed to prove he sustained an accident arising out of and in the course of his employment on December 5, 2013. The arbitrator specifically concluded the Petitioner’s testimony was not credible, focusing on the lack of pain reported to his supervisor on the date of the accident, and the fact he continued to work another month without complaint and did not seek medical treatment for another three months.
– The arbitrator also found Petitioner failed to report the alleged accident to Respondent in a timely fashion. The arbitrator relied on the testimony of the supervisor and co-worker in support of this finding, as well as the lack of immediate medical treatment for what would seemingly be a traumatic incident, as well as inconsistent medical histories.
– Finally, the arbitrator found the Petitioner failed to prove that the condition of the left shoulder was causally related to the alleged accident. An MRI scan showed severe degenerative changes in the left shoulder and the subsequent operative report revealed post-operative changes in the shoulder. The Petitioner did not report this previous surgery to his treating physician, and the IME physician opined the need for surgery was related to the pre-existing degenerative condition, and not to the alleged work accident. The arbitrator therefore found the IME physician to be more credible than the treating physician.
– The Commission affirmed and adopted the arbitrator’s decision in its entirety.
– The defense of this case was on three fronts: no accident, no notice and no medical causation. Bringing in two witnesses to rebut Petitioner’s testimony effectively rendered this testimony unbelievable and defeated his claims with regard to accident and notice. Obtaining the pre-accident and post-accident medical records, and providing such records to the IME physician for review in conjunction with his examination of the Petitioner, provided a strong basis for the doctor’s opinion that there was no medical causal relationship between the alleged accident and the condition of the left shoulder.
– This aggressive and comprehensive approach assured a positive outcome for the Respondent.
Moises Cervantes v. Five Star Decorating, Inc., 14 WC 09817, 16 IWCC 0602 (9/19/16)