Trial Result : Bertell McKenzie v. Enterprise Rent-A-Car

Case Name: Bertell McKenzie vs. Enterprise Rent-A-Car of Chicago

Venue: Chicago – Arbitrator Watts

Handling Attorney: Torrie N. Poplin

Case No.: 20 WC 11544

Date of Accident: 03/02/2020

Trial Date: 03/12/2021

Arbitrator Findings: $0 Award, no accident or causal connection; both past/prospective medical benefits and past TTD benefits denied.

FACTS:

Petitioner testified he injured his right shoulder and back at work while removing plastic from the back seat of a car. Contrary to his medical records, Petitioner testified he described his symptoms as “excruciating pain to the lower back and right shoulder” at every doctor’s appointment and always had limitations to range of motion in his right shoulder and lumbar spine as a result of the injury. Petitioner contended as a result of the work injury, he was forced to undergo shoulder and lumbar spine steroid injections with no relief. Petitioner requested continued treatment and care.

In response to Petitioner’s inconsistencies related to the claimed injury, Respondent secured a Section 12 opinion from a credible orthopedic specialist at a Chicago-area hospital, who opined Petitioner’s alleged mechanism of injury could not have caused Petitioner’s alleged labral tear and the source of Petitioner’s pain was unknown, as Petitioner’s subjective complaints do not match any of the objective findings. Petitioner, at most, sustained a right shoulder strain which did not require any steroid injections. Regarding Petitioner’s lumbar spine injury, the Section 12 physician testified that before the examination, Petitioner walked very slowly through the office and seemed very deliberate in his walk. After the exam, Petitioner was observed walking into the parking lot to his car. Petitioner had no issue getting into the car and was walking more briskly and freely and did not see the same very slow step or slow deliberate appearance. At most, Petitioner sustained a soft tissue injury as a result of the alleged work incident that did not require steroid injections or future treatment and care. Petitioner could work full duty without restrictions.

AWARD:

The Arbitrator found Petitioner to not be a credible witness. The Arbitrator specifically noted that during direct examination, “Petitioner gave the same complaint of excruciating pain over and over again in a way that suggested that if you asked him if the sky was blue he would answer that he was in excruciating pain.” During cross examination, the Arbitrator noted Petitioner was evasive and seemed to be searching for words as if to recall rehearsed testimony during direct examination.

Further, the Arbitrator stated in his decision that there was no version of the injury contained in Petitioner’s medical records that matches Petitioner’s trial testimony. Therefore, the Arbitrator concluded that due to Petitioner’s inconsistent reports of injury, he failed to prove by a preponderance of the evidence that an accident occurred on March 2, 2020 in the course of Petitioner’s employment with Respondent, Enterprise Leasing Co. of Chicago.

On cross-examination, Petitioner was exposed as not only a poor historian, but also in several misrepresentations. Petitioner eventually conceded that he had obtained employment at several companies in the months and years following his employment, most recently working full time in a warehouse as a picker, earning higher wages than while working for Respondent before the alleged May 5, 2017 accident. On cross-examination, Petitioner clarified that he felt little to no pain on the accident date, and that he didn’t think it was significant. He punched out for the day and walked to his car in the parking lot.

The Arbitrator denied all benefits in this matter including Petitioner’s claimed TTD benefits and past and future medical treatment as Petitioner failed to prove an accident occurred on March 2, 2020. The Arbitrator also noted Petitioner’s current condition of ill-being as it relates to his right shoulder and lower back were not causally related to the March 2, 2020 work accident based on Petitioner’s inconsistent reports of pain, unremarkable objective findings contained within the treatment records, and Petitioner’s lack of credibility during direct and cross examination.

TRIAL STRATEGY:

At trial, Respondent exposed Petitioner’s multiple inconsistencies in Petitioner’s report of the mechanism injury as well as his complaints of pain. Petitioner’s own testimony called into questions whether or not an accident occurred. Respondent’s IME report and Petitioner’s treatment medical records were used to question the credibility of Petitioner. From there, Respondent anticipated that the rest of the issues raised would fall in its favor.

FUTURE CLAIM/LITIGATION RECOMMENDATIONS:

There are several lessons that we as a firm learned from this victory about how to win at the IWCC, which can be a very hostile venue for Employers. These are the most important:

Detailed reporting procedures are crucial: Because our client had a clear, reliable, and well-known accident reporting procedure, the Petitioner was “locked in” to an early version of history, including how he was allegedly injured. Respondent’s Form 45 was submitted into evidence without an objection. When Petitioner tried to change his story he contradicted himself and damaged his own credibility.

Pay close attention to the physical behavior and mannerisms of a claimant when they are on the stand: The Arbitrator in this case specifically noted in his decision that Petitioner’s body language and pace of speaking markedly change between direct and cross examination which spoke to Petitioner’s lack of credibility. The Arbitrator pointed out that there was a particular moment during cross examination where Petitioner seemed to realize that he needed to state that his back and shoulder injuries occurred at exactly the same time rather than in series.

Details win cases: In this case, we outlined every inconsistent reporting in our proposed decision regarding Petitioners’ mechanism of injury, pain levels, and range of motion. We grouped the inconsistencies together by topic and compared it to Petitioner’s trial testimony. We were able to expose all of Petitioner’s inconsistent statements in one concise manner. In the Arbitrator’s decision, he used our outline of inconsistencies as support for his decision of finding Petitioner failed to prove he sustained a work-related injury.

The significance of this decision is that just because Petitioner claimed to be injured at work, reported his injury right away to his employer and treated immediately after the claimed incident, with a lot of diligence, Respondents can still prove that a work-related accident did not occur. It is important to note Respondent obtained this favorable decision without the employer’s testimony.