Petitioner's failure to follow employer's reporting protocol helps prove accident did not occur

Noah Hamann recently obtained a favorable verdict from the Illinois Appellate Court in Mark Karnes v. Wright Tree Service, 03-13-0140WC. All issues were in dispute on an appeal by the petitioner following victories by the defense at Arbitration, the Commission and the Peoria County Circuit Court. During the appeal process petitioner's attorney was unwilling to settle for anything other than full trial value and continued medical treatment involving a left shoulder acromioplasty. Petitioner's last settlement demand was $100,000.00.

The case involved two alleged dated of accidents, 10/18/06 affecting the left shoulder and 4/7/07 affecting the right elbow and left shoulder. In the 2006 incident, petitioner claimed he was holding a chainsaw in his right hand while cutting branches that he was holding in his left hand. The petitioner claimed that when he sawed the branch, it dropped and the petitioner felt a pop in his left shoulder. With regard to the 2007 incident, the petitioner denied any acute injury but complained of general soreness to his right elbow and left shoulder as a result of his work duties. The petitioner attempted to argue that the 2007 condition was a continuation of the 2006 condition.

At arbitration, the alleged accident of 2006 was disputed in entirety. Through witness testimony, it was shown that the company had clear procedures in place for reporting injuries. The petitioner knew these procedures as he reported an injury following the alleged 2007 accident. In 2007 an accident report was filed, a workers' compensation claim was submitted to the insurance carrier and the petitioner was given medical treatment. Petitioner's supervisor testified petitioner did not report an injury in 2006.

Petitioner's witness concerning the 2006 accident was discredited by showing that he was a friend of the petitioner's and that the two had a social relationship.

It should be noted the defense also obtained an IME opinion finding that regardless of accident, the petitioner's condition did not require surgery, but rather conservative management.

The arbitrator denied the 2006 accident and found the petitioner not to be credible. With regard to the 2007 incident, due to a lack of any acute incident or testimony concerning repetitive trauma of the left shoulder, only a right elbow strain was awarded. No causation was found for the left shoulder. At trial, exposure was 39 weeks of TTD ($53,433.60), $7,192.14 in medical bills, future shoulder surgery and permanency on the left shoulder if surgery was ultimately rendered. Petitioner's attorney's only demand was for $100,000.00 for all issues. The arbitration decision was upheld on appeal before the Workers' Compensation Commission and the Circuit Court.

On appeal to the Appellate Court by Noah Hamann, the defense successfully proved that the arbitration decision was not against the manifest weight of the evidence. The petitioner's appeal was yet again denied. The parties are now working on settlement of the matter for strain value to the right elbow, somewhere in the range of 5% of the arm right arm, or $6,144.86.

-Attorney Noah P. Hamann