Staffing Firm Wins Favorable Result in Case of Malingering Claimant
Case Study

Staffing Firm Wins Favorable Result in Case of Malingering Claimant

September 22, 2021

In a case where a malingering claimant sought excessive treatment, Goldberg Segalla’s Kyle P. Carlson, special counsel in the firm’s Workers’ Compensation group based in Chicago, obtained a trial victory before the Illinois Workers’ Compensation Commission―resulting in savings of approximately $58,000 for our client.

In this matter, a 61-year-old temporary employee was hired through a staffing agency that we represent. The petitioner’s job duties largely involved stacking boxes full of product on pallets and wrapping them in plastic. After only a few weeks of work, the petitioner alleged she slipped on a plastic wrap roll and fell onto her right side. The petitioner was found on the ground by her coworkers, but she refused treatment on the date of the accident despite multiple offers to take her to the emergency room. The next day, the petitioner sought treatment in an emergency department and was diagnosed with a scalp contusion and right hip contusion. The petitioner was restricted to two days of light duty work, but never attempted to return to work in any capacity.

Instead, the petitioner sought unauthorized treatment by presenting to emergency departments at several facilities and was able to obtain numerous X-ray and CT scans of a wide variety of body parts, which were all unremarkable for any acute injuries. At these treatment visits, the petitioner alleged injuries to her head, right shoulder, right hip, right knee, lumbar spine, thoracic spine, cervical spine, and left elbow. The petitioner also sought out chiropractic care for several months, resulting in over $10,000 in medical bills without any reported subjective improvement in her symptoms. After several MRIs, an orthopedist diagnosed a right shoulder rotator cuff tear and right knee internal derangement. The petitioner underwent right shoulder and right knee cortisone injections, and her doctor recommended an FCE to assess permanent physical restrictions.

In defending this case, Kyle obtained the independent medical examination opinions of Dr. Nikhil Verma, who testified that the petitioner’s right shoulder and right knee conditions were entirely pre-existing, long-standing conditions and there was no evidence of any aggravation occurring from the alleged work accident.

At trial, the petitioner’s testimony was self-contradictory and inconsistent with the medical documentation. Kyle was able to pick apart a number of nonsensical allegations. For example, the petitioner testified that immediately after the accident her right knee was swollen and black and that she felt something “dripping” off of her lumbar spine. However, the right knee exam was normal in the emergency room the day after the incident, and the lumbar spine had not demonstrated any acute abnormal findings according to any provider. The petitioner testified that after she fell at work the employees of the company laughed at her, refused to help her, and prevented her from seeking treatment.

On cross-examination, she was forced to admit that she refused treatment and waited alone in the cafeteria for several hours for her carpool to arrive. We also confronted her with her initial accident statement that only referenced right hip, right knee, and head pain complaints. The petitioner failed to pursue the FCE but alleged she was unable to return to any job for any employer; by the time of trial she was 64 years old.

The petitioner blamed the mismatch between her testimony and the medical documentation on the fact that she was primarily Spanish-speaking. She alleged that some of the doctors simply did not understand her. However, during the trial, she answered some of Kyle’s questions in English and responded to questions several times before her interpreter had completed translating them into Spanish. We pointed out that none of the medical records documented any communication difficulties.

In his trial decision, the arbitrator sided with our staffing agency client. He held that the petitioner merely suffered right hip and scalp contusions. He found the petitioner’s testimony to not be credible and explicitly held that no other body parts were injured from the trip and fall at work. He awarded the petitioner only 2 percent PAW ($2,200) for permanent partial disability benefits. Nothing was awarded toward the temporary total disability and medical expense benefits that had been demanded.

At trial, the petitioner had requested an award of approximately $60,000 in permanent partial disability, temporary total disability, and medical bills. Had the arbitrator awarded open medical rights, because of the petitioner’s age, we would have needed to consider Medicare’s interests and fund a Medicare Set-Aside to close out the claim. This was an excellent result for our client and an example of the aggressive defense work clients can expect from Goldberg Segalla.

MORE ABOUT GOLDBERG SEGALLA’S WORKERS’ COMPENSATION GROUP:

Goldberg Segalla’s success in efficient file handling, as well as long-range strategic risk-management, has earned us a national reputation for exceeding our clients’ expectations and driving positive change in the practice of workers’ compensation law. One of the first law firms ever to approach workers’ compensation in this manner and at this scale, we have been able to achieve extraordinary cost savings for leading employers in sectors ranging from construction to retail to the gig economy.