Arbitrator denied all benefits to petitioner’s claims of a repetitive walking injury

Noah Hamann was victorious in his defense against petitioner’s claims of a repetitive walking injury. His efforts disproved causal connection and resulted in a denial of all benefits at arbitration and on review before the Illinois Workers’ Compensation Commission.

Petitioner was a 44 year old custodian for a temporary staffing agency. It was undisputed that her job required constant walking. However, the respondent was immediately suspicious of the petitioner’s claims because they were not raised until after the petitioner was terminated for failing to disclose a felony. Likewise, petitioner’s claims were not raised until petitioner had retained counsel and was treating with a petitioner-friendly physician.

Noah P. Hamann was successful in limiting a head injury case to a laceration only

Noah P. Hamann was successful in limiting a head injury case to a laceration only as opposed to the two cervical surgeries that were sought by the petitioner. The defense was victorious at arbitration, on review before the Illinois Workers’ Compensation Commission and before the Union County Circuit Court.

There was no dispute that on May 22, 2012, petitioner was injured while turning a large wrench. The wrench gave way and struck the petitioner on his head. The petitioner sustained a laceration and required several staples. He did complain of neck pain on the date of accident, but a CT scan was normal as was petitioner’s physical exam.

Petitioner alleged that over the next few months his neck pain began to gradually worsen. He claimed that he was not a complainer and that he tried to work through the pain, but eventually his pain became so bad, he sought treatment with a neurosurgeon in October 2013. The neurosurgeon diagnosed the petitioner with spondylosis and foraminal stenosis of the cervical spine.

Do Not Go Gently: Defending a Perm Total Claim

Petitioner, a truck driver, was in a work-related collision and hurt his back. Initial treatment providers recommended conservative measures. An independent medical examination report reflected a diagnosis of back strain that should have resolved.

Petitioner then sought treatment with another surgeon who recommended a fusion surgery which was done on July 28, 2009. Petitioner underwent multiple subsequent procedures including hardware removal, treatment for infections and eventually spinal cord stimulator placement. After being released from care, the surgeon opined that he was unemployable and permanently and totally disabled.

Depositions were taken of the various doctors prior to hearing. Our preparation revealed that in addition to his Comp case, Petitioner also had pending a civil action. Materials secured from that litigation, most prominently, the surgeon’s prior deposition testimony, proved invaluable.

The surgeon testified in his Comp deposition that petitioner’s disc tears or annular tears would occur from a torsional load or flexion extension injuries. He did not find an axial load would contribute significantly.

Brady, Connolly & Masuda, P.C. Prevails Before Appellate Court Regarding Erroneous Finding of Lien Waiver

Timothy Cooley v. Power Construction Company, et al. 2018 IL App (1st) 171292

On June 11, 2018, the Appellate Court of Illinois, First District reversed the trial court's ruling that a window subcontractor, Reflection Window and Wall, LLC ("Reflection"), waived its workers' compensation lien rights in its subcontract agreement. Reflection was represented by attorneys Andrew R. Makauskas and Jeffrey F. Clement in the appeal.

An employee of Reflection was injured on the project and filed suit against Elston Window and Power Construction. Reflection entered into a subcontract agreement with Elston Window & Wall ("Elston Window") for the project involving the installation of window units. The subcontract agreement stated Reflection expressly agreed that its obligation to indemnify, defend and hold harmless Elston Window and Power Construction would not be diminished by any tort or constitutional immunity or limitations of liability or recovery under workers' compensation laws. Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155 (1991) held that an employer's liability for its employee's injury is capped at an amount not greater than the employer's workers' compensation liability to its employees. However, courts have held that such Kotecki protections can be waived by contract.

In the trial court, Power Construction filed a motion that Reflection had waived its Kotecki cap. The trial court found that Reflection contractually waived its limited liability protection under Kotecki based on the language of the subcontract agreement. However, in that same order, the trial court also ruled that Reflection waived its workers' compensation lien. On behalf of Reflection, Brady Connolly & Masuda, P.C. appealed the aforementioned lien waiver finding.

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