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

211 Landmark Drive, Suite C2, Normal, IL 61761

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Do Not Go Gently: Defending a Perm Total Claim

By Jason R. Stetz

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. Wins for General Contractor Before Appellate Court

On March 20, 2015, the Appellate Court of Illinois, First District, affirmed summary judgment in favor of general contractor, F.H. Paschen, S.N. Nielsen, Inc., (Paschen) in Kevin E. O'Gorman v. F.H. Paschen, S.N. Nielsen, Inc., et al. 2015 IL App (1st) 133472. Paschen was represented by attorneys Robert J. Winston and W. Scott Trench in the trial court and on appeal. Paschen contracted with the City of Chicago to act as a general contractor for the conversion of a former police station into a custodial youth center. The plaintiff, a general foreman of general trades for the City of Chicago, accessed the roof of the building through a roof hatch to inspect a heating and air conditioning unit. The plaintiff stepped on a piece of wood with an embedded nail as he exited the roof hatch. While attempting to remove the piece of wood from his foot, the plaintiff fell through the roof hatch 13 to 15 feet to the floor below and suffered a herniated cervical disc. The plaintiff alleged the wood was construction debris from Paschen's masonry subcontractor, Old Veteran, which was performing work adjacent to the roof hatch. The plaintiff argued Paschen, in its contract with the City of Chicago, was responsible for job site safety and housekeeping. The trial court granted summary judgment in favor of Paschen, holding that Paschen delegated the responsibility for safety and housekeeping to its subcontractor, Old Veteran, based on the language in Paschen's subcontract and, therefore, owed no duty to the plaintiff pursuant to Restatement (Second) of Torts, §414.

Alleged Accident Refuted by Surveillance Video

Petitioner alleged accidental injuries occurring on August 19, 2011. He sustained injury while pushing a cart loaded with 300 to 400 pounds of flour across the floor to a disposal area at the respondent company’s plant. He testified that one of the cart wheels became stuck on a piece of flour, causing him to strain himself by pushing the cart. Petitioner was diagnosed with a right inguinal hernia and underwent surgery shortly thereafter.

Petitioner’s testimony on cross-examination was noted by the Arbitrator to be non-responsive and inconsistent. Petitioner admitted that the cart was only half full at the time of the incident, that he failed to notify any of his co-workers or supervisors about said incident, and, in fact worked the entire shift with no complaints whatsoever. He insisted that the cart became stuck on dough and that he had to push so hard that another employee had to come over and assist him to dislodge the heavy cart from the dough, allowing him to continue to the garbage area. However, the respondent company authenticated and submitted into evidence the surveillance video of the dock compactor area where petitioner claimed the accident occurred at the exact time that he claimed it occurred. The surveillance video clearly showed the petitioner pushing a container to the compactor in a smooth fashion, with no interference from any object on the floor, pushing the compactor button, dumping the contents of the container, and then pushing the container back to its place of origin, out of view of the camera. The video did not show the container becoming stuck at any point, nor did it show a co-employee assisting the petitioner in pushing the cart as he alleged in his testimony. The respondent’s video did show a piece of dough laying on the floor, but as the petitioner pushes the cart, it was clearly evident that the middle of the cart passed directly over the substance and that it did not come close to touching any of the cart wheels.

Luis Cuadrado v. F.H. Paschen, S.N. Nielsen, 11 WC 45776

The primary issue in the matter of Luis Cuadrado v. F.H. Paschen involved causation between an initial fall at a work site and bilateral knee injuries. The petitioner, a Union concrete finisher, sought a wage differential claiming after the incident he was physically restricted from returning to his job. Throughout the claim, extensive investigation was conducted into the petitioner’s whereabouts and activities including surveillance and securing bank records that confirmed the petitioner was running his own concrete finishing business.

At trial, the Arbitrator awarded a wage differential totaling over $900,000 over the course of petitioner’s lifetime.

The respondent appealed the matter to the Commission where the Arbitrator’s findings on causation of the knee and the wage differential award were overturned. The Commission found that the respondent’s IME doctor was more credible than the treating doctor in light of his greater knowledge of the petitioner’s physical capabilities and medical issues connected with the matter. The Commission also placed greater weight on the respondent’s evidence of the petitioner’s capability to work subsequent to the date of accident. The Commission’s decision reversed the causation finding altogether thereby removing the wage differential award for the knee and saving the client upwards of $900,000.00.

The petitioner appealed to the Circuit Court where the Order of the IWCC was affirmed. The matter is on appeal to the Illinois Appellate Court.

Theory of Multiple Chemical Sensitivity Rejected by Arbitrator

The petitioner, a computer monitor for Bremen High School, alleged that on June 6, 1996 while in the school’s computer laboratory, she was sprayed with dust-off by one D. Jackson. She alleged that Mr. Jackson came up from behind her, placed the dust-off red straw in her ear and sprayed. Over the course of the next decade, the petitioner treated with numerous physicians and complained of itching in the right ear, burning in the eyes, itching in the face, head pain, headaches, sensation to flashing lights, facial numbness, dry mouth, lips and eyes, symptoms of arthritis, Sjogren’s syndrome, migraine headaches, difficulty with blurred vision, memory problems, confusion, and problems concentrating, and finally pain in the top of her head. In November of 2000 she solicited the services of Dr. Raymond Singer for an independent medical evaluation in Santa Fe, New Mexico. Dr. Singer opined her symptoms were those of neurotoxicity and diagnosed her with multiple chemical sensitivity. At the respondent’s request, petitioner saw Dr. Shirley Conibear for an independent medical examination in November of 2000 and then again in April of 2007. Dr. Conibear opined that her review of the treating medical records did not support the petitioner’s contention that the straw-like device was placed in her ear. She reviewed in detail the material safety data sheets for difluoroethane, the chemical petitioner was sprayed with, opining that fluorocarbons are not well absorbed in the intact skin and further are the least toxic of the group of hydrofluorocarbons. She opined that if the petitioner had been sprayed in the right ear, she would have had signs of frostbite in the E.R., including redness, swelling and blotchiness as well as thawed tissue, but none of those were seen on initial examination. She diagnosed the petitioner with hypertension, neuralgia and dry eyes of unknown etiology, indicating her neurology and hypertension had no bearing to the alleged work accident.

Petitioner also saw Dr. David Hartman, neuropsychologist, on October 10, 2005 at the request of the respondent. Dr. Hartman opined that petitioner had no evidence of brain injury, was malingering, and out for secondary gain. He disagreed entirely with Dr. Singer’s opinions that the petitioner had significant exposure to difluoroethane and opined there was no literature, either scientific or clinical, supporting the multiple varied symptoms complained of by petitioner. He further found that Singer’s diagnosis of multiple chemical sensitivity did not meet the standards of general acceptance and scientific adequacy in the medical community.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
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
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