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Recent Zero Awards & Significant Wins
Congratulations to the University of Illinois and John Fassola for their successful defense of a claim before Arbitrator Carlson. The claimant sustained an undisputed injury to the right wrist, but subsequently also claimed an injury to the cervical spine. As a result, he filed a Motion seeking medical expenses and lost time related to the alleged neck injury. We successfully argued that the claimant had a pre-existing condition of the cervical spine and used his prior medical records to impeach his credibility. We also used surveillance video to contrast his appearance on film with the subjective complaints given to his doctor in the same time frame. The Arbitrator found that Petitioner failed to prove his cervical spine condition was related to the workplace injury and declined to award benefits.
Congratulations to Park District of Highland Park and Elena Cincione for obtaining a favorable decision from Arbitrator Dollison in Vladimir Fedorov v. Park District of Highland Park. The case involved an accepted knee injury and a dispute regarding the calculation of average weekly wage. The Petitioner worked part-time teaching ice-skating lessons for the Park District and also operated an independent business teaching ice skating lessons. The independent business was incorporated as an S Corp., and Petitioner was the sole shareholder, resulting in his receiving the entirety of the business’s income. At trial, Petitioner argued that the business income should be included in calculating the average weekly wage. Respondent argued his weekly wage should be calculated using only Park District earnings based on Appellate Court precedent Mansfield v. IWCC, 2013 Ill.App.(2d) 120909WC, also defended by Power & Cronin.
Additionally, Petitioner argued he should be awarded a loss of profession award because, though Petitioner was able to return to working as an ice skating instructor, he was only able to teach the lowest skill levels where he previously taught more advanced students. At trial, Respondent presented evidence that Petitioner advertises his independent business in the same manner as before the injury, holds the same professional certifications, that he charges the same rates, and that he has always charged the same rates for students at low skill levels and high skill levels. Petitioner requested an award of 40% loss of use of man as a whole and 125 2/7 weeks of TTD using an average weekly wage of $1,701.03 for a total of $275,020.83. The Arbitrator relied on Mansfield and the evidence presented by Respondent regarding Petitioner’s current and former work to award 125 2/7 weeks of TTD and 32.5% loss of use of leg at the average weekly wage calculated using only Park District wages, $76.90, for a total award of $15,007.88.
Congratulations to the Village of Oak Brook and John Fassola for their win before the Workers Compensation Commission on a firefighter “rebuttable presumption” claim. The claimant was a fireman who was diagnosed with prostate cancer, and claimed the condition was work related based on a statutory provision creating a presumption that cancers in firefighters are related to the hazards of employment. The Arbitrator awarded benefits to the claimant, finding that the Respondent had failed to present sufficient evidence rebutting the presumption in favor of the claimant. However, on Review to the Commission, we successfully argued that the opinion of the defense expert, finding that the condition was not work related and was instead attributable to a family history, was sufficient to rebut the presumption. The Commission, in a two to one decision, also found that once the presumption had been rebutted, the burden of proof shifted back to claimant. The Petitioner based his claim, in part, on an expert opinion from a doctor who, while licensed in the State of Illinois, did not maintain an active medical practice. Therefore, we vigorously impeached his credentials and credibility on cross-examination. The Commission ultimately found Respondent’s expert more persuasive than that of the claimant and found the Petitioner had not proved a compensable workplace exposure.
Congratulations to John Fassola for successfully obtaining Summary Judgment in Bernard Johnson v. Pace Suburban Bus, a liability claim pending in Will County Circuit Court. The Plaintiff alleged that he was injured while driving a bus, when he was unexpectedly punched by a passenger leaving the bus. The passenger in question had not previously caused any problems or appeared to be threat. Plaintiff alleged that Pace failed to provide sufficient security to prevent the attack. We filed a Motion for Summary Judgment contending that the risk of an unexpected criminal attack by a passenger was not foreseeable under the circumstances. Therefore, the Plaintiff could not establish that a duty was owed to provide additional security since there was no recognizable risk of harm. The Judge agreed and granted Summary Judgment in favor of Pace. Plaintiff has opted to pursue an appeal.
Congratulations to Schneider National/APS and Rory McCann for their significant win in the matter of Tequila Smith v. Schneider National/APS. A unanimous Commission panel decision affirmed Arbitrator Flores' decision in our favor. The effect is a denial of over $600,000 in medical bills incurred after two fusion procedures, plus nearly $100,000 in TTD exposure and the scope of the ultimate PPD award. We had accepted an accident and paid 6 months of benefits back in 2011. Minimal findings were noted on MRI, but pain complaints worsened and were inconsistent with objective findings. The Petitioner was eventually referred to Dr. Thomas Gleason for an IME. A few months after that, she went to Dr. Mark Lorenz of Hinsdale Orthopedics, who found her back condition causally related, and he performed a surgical fusion based on the Petitioner’s mechanical back pain. The fusion eventually failed and she began treatment with Dr. Siemionow. She underwent a revision fusion surgery, right after the trial in March 2015. Both Dr. Gleason and Dr. Lorenz were deposed. At this point, the matter pends on appeal before the Circuit Court.
Congratulations to Kane County Forest Preserve and Bob Luedke for receiving a positive decision in Harmon v Kane County Forest Preserve 10 WC 35376. In Harmon v Kane County an IWCC review panel consisting of Commissioners Luskin, DeVriendt, and White reversed the Permanent Total Disability award of Arbitrator O'Malley and awarded 40% man as a whole. The IWCC review panel noted that Dr. Brayton had released the Petitioner to full time sedentary employment. The IWCC found the Petitioner reached MMI years before and had no job search.
Arbitrator O'Malley found the Petitioner was permanently and totally disabled. Arbitrator O'Malley's decision awarded Permanent Total Disability benefits for life. Arbitrator O'Malley awarded medical bills of $40,707.36 for a September 2013 surgery, which occurred years after the accident. The IWCC reversed the Arbitrator’s decision and found that the Petitioner's September 2013 neck surgery was not causally connected to his work accident. The net present cost of Arbitrator O'Malley's decision was approximately $300,000. The IWCC awarded 40% man as a whole, or 200 weeks of compensation. This resulted in a savings of approximately $200,000 to the employer. The employer’s brief and oral argument reminded the panel that the Petitioner had no job search and that Permanent Total Disability benefits were inappropriate pursuant to the Appellate Court’s decision in Shawarko.
Congratulations to Rory McCann and Andrew Luther for their significant win in Erdin Selmani v. 3600 N. Lake Shore Drive Condominium Association. A unanimous Commission panel affirmed an order issued by Arbitrator Carlson denying Petitioner's motion to reinstate the previously dismissed claim. The significance of this decision is that the claim had not reached the "red line" at the time of the Arbitrator's dismissal. Further, the initial dismissal was entered after Respondent's first motion. Petitioner presented an oral argument to the Commission having failed to file a supporting brief. At argument, we pointed out the logical inconsistency of Petitioner arguing diligence without having taken the time to apprise the Commissioners of the relevant facts and case law in writing. The Petitioner will have until July 1, 2016 to appeal this order to the Circuit Court.
Congratulations to Northwestern Memorial Healthcare and Elena Cincione for a Commission decision affirming the zero award from Arbitrator Hegarty in Sheryl Faust v. Cadence Health. The Petitioner alleged a repetitive use back injury resulting from excessive sitting, standing, and bending over while working. Commissioner Basurto noted in his opinion affirming the Arbitrator’s award that the Petitioner’s standing and bending were not excessive enough to subject her to harm greater than a member of the general public; and therefore, constituted activities of daily living. The Commission found that the Petitioner did not sustain an accidental injury. Medical bills at trial were in excess of $200,000. TTD and penalties requested by the Petitioner brought the incurred exposure to approximately $400,000.
Congratulations to Liberty Mutual, Comcast Corporation and Daniel Artman. In September 2014, the Petitioner, who worked at Comcast Corporate offices, slipped and fell in the Corporate Headquarters’ lobby resulting in a humerus fracture. The Respondent does not own or maintain their Corporate Headquarters. The lobby where the Petitioner fell is open to the public. The Petitioner did have key card access to the lobby when it was not open to the general public before 6:00 a.m. The Petitioner parked in a parking lot opened to the general public and walked through a wet, rainy parking lot, and entered the building with water on her shoes and cane, which she was using due to a non-work related prior surgery. Upon entering the building, the Petitioner went to the mailroom to get the day’s mail and then proceeded to the elevator. Security camera footage shows the Petitioner walking in the lobby, putting her cane down on the ground as she nears the elevator, at which time, the cane slipped out from under her and she fell. The Petitioner argued that since she was in the lobby at a time when it is not open to the general public and she was walking on a polished tile floor, she was subject to an increased risk, which resulted in her claim arising out of her employment with the Respondent. Arbitrator Steffenson found some portions of the Petitioner’s testimony to be lacking at trial. In addition, he agreed with Respondent’s argument that even if she was in an area of the building not open to the general public at the time of the fall, there still needs to be a risk incidental to the employment which caused the fall, which there was not. Furthermore, the Arbitrator ruled that there was no defect on the floor and that a polished floor does not rise to the level of an increased risk. The Arbitrator denied all benefits under the Illinois Workers’ Compensation Act.