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.

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.

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.