Successes

Bad Medicine: Goldberg Segalla Cracks Claimant and Treater Credibility April 10, 2019

In the recent defense of a national staffing company, Emily E. Borg of Goldberg Segalla’s Chicago Workers’ Compensation Practice Group successfully secured a decision denying bilateral knee surgery, lumbar interventional pain management, and excessive prescribed medications and therapy modalities. By thoroughly and aggressively cross-examining the claimant at trial and the treating physician at deposition and presenting evidence obtained through a comprehensive surveillance investigation, GS persuaded the Illinois Workers’ Compensation Commission that the claimant lacked credibility and that he had failed to prove his claim.

The claimant, a laborer, alleged that while he was attempting to lift a 200-pound engine, the part slipped and struck his legs, causing him to fall. He alleged injuries to his knees, head, neck, back, and chest and sought authorization for bilateral meniscal-repair surgery and lumbar epidural injections. At trial, however, his testimony was repeatedly inconsistent regarding where the engine struck his legs and whether he suffered a direct blow to the knees. The commission noted that he also failed to provide his treating physicians an accurate mechanism of injury. And, although at trial he alleged high levels of pain, the commission noted that extensive investigation by the respondent demonstrated symptom magnification. Surveillance video captured the claimant sitting without apparent discomfort for upwards of one hour at a time; walking stooped and bent at the waist; lifting heavy objects; and squatting, kneeling, and crawling. Most notably, surveillance showed the claimant changing a car tire, a physically demanding activity. Based on this evidence, the commission found that the claimant was disingenuous, if not untruthful, and his questionable credibility undermined the causation opinions in his favor. Because he failed to meet his burden of proof, surgery was denied.

The commission’s decision also importantly denounced the rampant trend of prescription pain medications, where the evidence in the record failed to support the reasonableness and necessity of that treatment. In this case, the physician prescribed multiple medications, including analgesic creams as well as oral medications. The respondent used Section 8.7 of the Illinois Workers’ Compensation Act. offering unrebutted Utilization Review Evidence, which non-certified the prescribed Tramadol, Protonix, Colace, Fexmid, and topical pain cream. In addition, the respondent successfully argued that ongoing prescriptions of these pain medications, despite affirmative knowledge on behalf of the prescribing physician that the claimant was not using them, further undermined the credibility of the treating physician. The doctor, who ordered periodic drug screens, failed to investigate that three drug screens subsequent to the first failed to show a need for the use of analgesics. Despite the lack of evidence of a need for the continued use of analgesics, the doctor continued to prescribe the multiple medications.

Illinois employers can herald this decision as a victory against the over-prescription of medication where the evidence fails to support its necessity. Likewise, employers can have confidence that the Illinois Workers’ Compensation Commission will require a claimant’s credibility, as well as an accurate and reliable report of accident and injury, to support a compensable claim.