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312-425-3131

10 South LaSalle Street, Suite 900, Chicago, IL 60603

211 Landmark Drive, Suite C2, Normal, IL 61761

211 North Broadway, Suite 2200, St. Louis, MO 63102

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Arbitrator finds no accident as fractures pre-dated the accident date

Julia McCarthy tried James Norton v. Peoria Midwest, No. 04 WC 28720 and 05 WC 33293, before Arbitrator Neal in Peoria. Ms. McCarthy was successful in securing a no accident decision with denial of all benefits and right to recover TTD and medical benefits previously paid.

Petitioner initially alleged injury on December 27, 1999 involving his left foot and subsequently filed an amended application claiming injury of November 30, 2000. Petitioner was diagnosed with multiple fractures of the foot and Charcot foot, eventually resulting in surgery. Petitioner claimed TTD from December 8, 2000 through February 27, 2001 and October 12, 2001 through May 29, 2004. Further, petitioner claimed medical for approximately $117,000.00.

It was our position petitioner did not sustain a work-related injury and his foot condition was the result of activities of daily living affecting a Charcot foot. Petitioner is a diabetic.

The medical reflected petitioner initially sought treatment in December of 1999. There was no history of a work injury. He complained of his feet being sore after being on his feet all day. He did reference chopping wood, which was done at home. Petitioner was seen in follow-up January of 2000, at which time his complaints regarding his feet decreased.

Petitioner next sought treatment for his foot November 30, 2000. He was seen by a podiatrist. He was diagnosed with multiple foot fractures of various stages. The podiatrist continued to treat the petitioner and based on a history given to the podiatrist in February of 2001 of petitioner's activities at work, the podiatrist provided an opinion it could be the result of his work activities.

Subsequently, during deposition testimony, the podiatrist admitted that when he saw petitioner on November 30, 2000, the foot fractures were at various stages and had pre-existed for approximately 9 – 12 months. Further, if there was a history of chopping wood in December of 1999 with subsequent complaint of onset of right foot pain, the doctor would think the fractures may have been incurred while chopping wood.

On behalf of respondent, Dr. George Holmes testified. It was his opinion petitioner's diagnosis was Charcot arthropathy of the foot. It was his opinion the Charcot foot condition was the result of activities of daily living. He testified that diabetics who have a neuropathy of their foot have abnormal healing as they lack the normal sensation in the foot.

The arbitrator found the medical evidence reflected the fractures in petitioner's foot and the Charcot foot pre-dated November 30, 2000. All of the medical evidence reflected that activities of daily living would aggravate the petitioner's foot. The arbitrator distinguished this claim from the Sisbro case noting that in Sisbro the claimant stepped out of a delivery truck, into a pothole, while making a delivery for work, injuring his ankle. In the present case, there was no specific history of a work-related injury.

The arbitrator found petitioner failed to prove an accident arising out of and in the course of his employment and denied all benefits. The arbitrator noted respondent was not liable for any TTD or medical expenses. Respondent was entitled to recovery for all expenses previously paid.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
One Metropolitan Square
211 North Broadway, Suite 2200
St. Louis, MO 63102
Phone: 314-300-0527
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