Our firm has recently received three favorable arbitration decisions which highlight the importance of documenting accident reports in a claimant’s own words and obtaining contemporaneous medical histories attributed to the claimant.  Documentation of pre-existing problems including obtaining family physician and prior treating records is also helpful. 

In the first case, the claimant alleged an aggravation of prior low back problems.  He gave several different histories regarding how his low back was reinjured which included grinding components, pushing a large object at work, pushing a box at work, opening a door at work and returning from a break with his legs not holding him.  Initial examination findings indicated an unremarkable MRI and very few findings.  Several months after the accident, an employee health nurse contacted a company physician and advised that the claimant was concerned about not knowing why he had low back pain, noting that while he had pushed an object at work, it required minimal effort and involved his arms and not the lower back muscles.  Thereafter, the claimant saw a surgeon who repeated the MRI and diagnosed discogenic low back pain from a disc protrusion and an annular tear.  Attorney Gary Gale obtained a denial of the claim with the Arbitrator finding that the claimant’s testimony regarding the alleged accident and histories to various healthcare providers were inconsistent.

Attorney Robert Ulrich represented the employer in the second case.  It involved an issue of causal connection between an accident and low back complaints.  The accident itself was not disputed – the dispute focused on which parts of the claimant’s body were affected.  On the accident report, handwritten and signed by the claimant, she reported a right upper back injury extending down her arm to her hand while pulling overhead a stuck part out of a baking oven.  This was contrasted by her Arbitration testimony where she alleged that while pulling the part out, she twisted like a pretzel and her whole body jerked.  Similar versions involving twisting and jerking were reported to treating providers many years after the accident. 

However, immediately following the accident, the claimant had no low back complaints or treatment, though she did receive treatment for her right upper back, shoulder, arm and hand.  Histories to these contemporaneous medical providers indicated only an injury to her shoulder down to the hand.  There was no mention of low back problems in follow-up office notes.  When the claimant switched to a different treating chiropractor, she still had no low back pain complaints.  The employer sought opinions from two different doctors who reviewed these treatment records and concluded that the contemporaneous notes documented only a right shoulder injury and that it was inconceivable that the shoulder condition would mask low back pain. 

In quite detailed findings and conclusions, the Arbitrator denied benefits for the low back condition and noted that the claimant had a chronic, pre-existing low back problem which was more significant and permanent than she had indicated in her testimony.   Yet, he noted that the claimant’s specialist had no grasp of her earlier history.  The Arbitrator completely questioned the claimant’s credibility, finding that her “clinical picture,” taken from family doctor’s records, indicated she had engaged in doctor-shopping, sought aggressive treatment contrary to her family doctor’s advice and displayed significant emotional instability.  He inferred that she had attempted to stage evidence for purposes of the litigation and manipulate the legal system.  The Arbitrator noted that when the claimant pressed her doctors for either back surgery or imposition of work restrictions, several physicians found she was not a surgical candidate and had too few findings and too much overlay!

In the most recent decision, Attorney Gale again received another favorable ruling issued only a few weeks ago.  The evidence presented similar inconsistencies in testimony and histories of a knee injury given to various medical providers.  The claimant testified that the accident occurred after kneeling down for several hours one day while repairing a furnace and then later on the same day, throwing some furniture in a dumpster.  Medical histories included kneeling down while repairing the furnace as well as going up and down ladders.  Other doctors reported no known injury with generalized complaints of knee pain.  The accident report, again handwritten and signed by the claimant, did not reference kneeling while repairing a furnace and also indicated an earlier date of accident.  During his testimony, the claimant stated that he had signed the accident report when he was confused, but he later independently remembered the correct date of accident.  He also admitted to a history of memory problems for which he had taken medication. 

Given these circumstances, the Arbitrator did not need to find the claimant lacked credibility to deny benefits.  He found that the claimant had either alleged differing accounts of how the injury occurred or provided no account at all.  Due to the number of inconsistencies, the Arbitrator stated that to find an accident, he would have to speculate as to which events caused his knee problem and as liability may not rest of speculation, the claimant had failed to prove he sustained an accident on the date alleged.  The claimant has already filed a review to the full Commission. 
 
It is clear from these three decisions that the thoughtful gathering of prior and contemporaneous medical records is invaluable in proving inconsistencies that an arbitrator can cite to deny claims.  Equally important are accident reporting forms – best completed by the claimant with a signature.  If such evidence indicates inconsistencies, a claimant may then be discredited during testimony before an arbitrator.