You work in a cafeteria. Your job involves reaching out and up, and even standing on your toes, to place a very light plate of food onto a glass partition. One day, while doing this, you hear a pop in your shoulder, and feel pain.
Obvious work injury case, right? And an employer’s workers’ compensation carrier would surely just approve any order for diagnostic imaging, treatment, and so on, that you’d need, right?
Wrong.
As is sadly often the case, the insurance carrier made life difficult for a lady with this situation.
There is an old Vince Lombardi quote: “Winners never quit and quitters never win.” When the insurance company made life difficult for the lady in this situation, she did not quit. She hired a workers’ compensation lawyer to fight for her rights.
In the Illinois workers’ compensation case of Colleen Mackey v. Aramark Inc., Ms. Mackey was a food service worker at a cafeteria. Because of the mechanism of her injury, it should be noted that Ms. Mackey is approximately 5 feet 1 inches tall. On the day of Friday, June 13, 2014, she was performing her job duties, in which she “is required to stand behind a food preparation board and then reach over a glass partition to place a customer’s order for pick up onto the glass partition.” She described that there were three rows of food, and a preparation board, and her job required her to prepare the food, and then reach over the food and the board to place the item on the glass counter top above. She “testified that the glass counter was as high as her forehead and thus she was required to stand on her toes while reaching out with her left hand and arm to place the food order on the glass counter.” Leading up to that fateful day, she had worked for the employer for 4 months in that position. She actually gave her two weeks notice just four days prior to the date of accident.
On the accident date, she “placed the food order plate onto her open left palm with her palm under the plate while lifting the plate to the counter.” She described the plates as styrofoam and “flimsy,” and said the plates themselves weighed about 1 ounce, and when a plate held the omelets, it weighed about 5 ounces. On the morning of the accident, by 7:54 am, she testified that she had done this motion about 40 to 50 times, when finally, when she did it again with one plate, she “heard and felt a pop” in her left shoulder, experienced immediate pain, and could not move her left arm away from her body. She also felt pain in her neck on the left side, as well as numbness in her left hand. (Often times, shoulder and neck injuries co-exist, and / or a person injures one of those parts, and experiences problems in both, and the origin is often not clear until a doctor properly diagnoses the issue.)
Ms. Mackey reported the injury to her supervisor. She was sent to an occupational clinic at Concentra. As is typical of occupational clinics, they did the absolute minimum for her: They diagnosed her with a shoulder “strain,” gave her a sling for her arm, and provided a prescription for ibuprofen and ice packs, and ordered her off work for the day. By Sunday, June 15, her pain was still present, she had swelling in her neck, and swelling into the fingers on her left hand, so her mother took her to the Lutheran General Hospital emergency room. There, they only performed x-rays of her left shoulder, which were negative, and she was prescribed norco, and written off work up through June 18. They told her to follow up with an orthopedic doctor.
On June 16, Ms. Mackey returned to the Concentra clinic, complaining of continued pain in her left shoulder, as well as radiating down her left arm, and numbness and tingling of her left fingers. Concentra’s doctor actually ordered an MRI, which is somewhat surprising, as occupational clinics rarely seem to recommend MRI’s to properly diagnose injuries that early, if at all, in a case. However, the workers’ comp insurance carrier denied the ordered MRI. Ms. Mackey was provided work restrictions of one-handed duty, and informed her employer. Her employer was not able to provide light duty under those restrictions.
Instead of helping to move along her medical care, the insurance carrier dragged the process out, as they usually do. They sent Ms. Mackey to an IME (independent medical exam) on July 17, 2014, with a doctor well known for taking the side of insurance companies. The IME doctor acknowledged that Ms. Mackey had no prior history of left shoulder problems, and that her current problems appeared to be connected with the work incident. However, the doctor made the claim that: “…based upon the mechanism of injury, there does not appear to be a significant amount of force having been placed on the left shoulder area to cause Ms. Mackey’s current subjective complaints. Based upon the mechanism of injury, this event did not cause the petitioner’s current subjective complaints and inability to use the left upper extremity.” The IME doctor took it a step further, and concluded she needed no further medical treatment, she was at maximum medical improvement (MMI), and she could return to work full duty. Based on this report, the insurance carrier denied all benefits.
On July 18, 2014, Ms. Mackey was seen by an orthopedic doctor of her choice, who ordered an MRI, which revealed, “mild supraspinatus and infraspinatus insertional tendinosis with peritendinous fluid near the supraspinatus myotendinous junction without evidence of a rotator cuff tear.” The doctor diagnosed her with adhesive capsulitis. She received an injection of lidocaine, and was prescribed physical therapy. When the conservative care failed to relieve her symptoms, the doctor recommended diagnostic arthroscopic surgery with possible capsular release and manipulation under anesthesia. He also found, “based upon a reasonable degree of medical certainty,” that Ms. Mackey’s condition and need for medical care was causally related to her work injury sustained on June 13, 2014. The doctor also provided a precise rebuttal to the IME doctor’s claim that the accident could not have caused her problems, and he noted that the IME doctor had failed to review the MRI or the records that followed it. In response, the IME doctor wrote a second report, and the contents of the report were exactly as one would expect. In the report, he said that the treating doctor’s report and the MRI did not change his opinion.
Ultimately, on May 28, 2015, the arbitrator ruled in favor of the petitioner. He assigned greater weight to the petitioner’s treating doctor’s opinion versus the opinion of the insurance company’s IME doctor. The treating doctor’s thorough explanation of the mechanism of injury as well as his expertise in shoulder injuries were certainly key factors in the decision of the arbitrator. It is interesting to note that it seems the IME doctor’s lack of a thorough exam counted against his opinion, in that the arbitrator notes that the IME doctor only asked for a verbal description of the injury, and did not ask the petitioner for a demonstration of how she was injured. We often hear this complaint by numerous clients of our firm, who express frustration that an IME doctor only sees them for five minutes or less, and barely looks at them or exams them in any detailed manner. In every such situation, we remind our clients that the IME doctors often have little interest in investigating what’s wrong with the injured workers, but rather they have interest in maximizing the amount of IME’s they can cram into one day, to maximize their profits from the insurance carriers.
On February 10, 2016, the Commission affirmed and adopted the decision of the arbitrator.
Independent Medical Exam (IME), Maximum Medical Improvement (MMI), Medical Care, Occupational Clinic
