Case Results

312-425-3131

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

211 Landmark Drive, Suite C2, Normal, IL 61761

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Filadelfo Antunez v. Brennan Masonry

We were able to convince the arbitrator that the petitioner’s ongoing complaints of pain were not credible and that he was not in need of any additional medical care or temporary total disability benefits as a result of an admitted accident. The petitioner was working on a two-story wall when a storm arose causing the cinderblock wall to fall on him and coworkers. He missed one week of work which was paid by the employer and then came back and worked a few days before going back out of work, seeking counsel and seeking medical care. He claimed several months of temporary total disability benefits as well as the need for ongoing extensive care including a surgical recommendation.

We were able to establish that the petitioner sought care with a doctor to whom he was referred by his attorney. Additionally, we had a spine specialist examine the individual and opined that the petitioner was not in need of anything further and had suffered nothing more than a sprain. We noted negative objective testing as well as inconsistent reports by the petitioner. In the proposed decision to the arbitrator we prepared a lengthy recitation of the migrating pain complaints that had been made by the petitioner and we contrasted that with video surveillance of the petitioner washing his car at a car wash doing many of the activities he was claiming he was unable to perform.

Mucenski v. Red Movers & Van Lines, Inc.

Arbitrator orders non-employee to reimburse respondent $4,500

This case was tried by Bill Brewster. The central issue in the case was whether the petitioner was an employee or an independent contractor. The petitioner, an automotive car painter was hired by the respondent company, who was in the business of moving and storage, to paint and perform body work on several of the company's trucks. The company's owner testified that he became aware of the petitioner's painting skills by word of mouth. Although the opportunity for full-time employment might have existed following completion of the painting jobs, no promise of future employment was given. The petitioner did not fill out a job application, was never given a written employment contract, had no taxes withheld or social security and was given no health insurance, 401K or any other benefits. He was never officially placed on payroll.

The respondent company's owner showed the petitioner which trucks to paint but never attempted to direct or control the manner in which said trucks were painted, except for the color. From time to time the owner would check the petitioner's work to see how he was doing but never offered any suggestions or criticisms. The petitioner provided several tools including electric drills, spray and primer guns, grinders, wrenches, screwdrivers, plier sockets and hammers and also supplied his own car to get to and from the job site. The company allowed him to lock his tools on the premises overnight. The company also provided several tools including air compressors, lights, ladders and an air hose. The petitioner ordered materials from a paint store and the company paid for same.

Airborne Express, Inc. v. IWCC – Voluntary Overtime Excluded from AWW

This case involves the issue of overtime wages and whether to include them in the calculation of average weekly wages. The claimant here worked a standard eight-hour shift each day as a delivery driver, but was required to finish all his deliveries before his shift could be ended.

In addition, he could request voluntary overtime based on his seniority. Neither the claimant nor the regional manager for the employer could recall any time during the relevant year prior to the work injury when the claimant worked overtime other than voluntary. He earned $28,845.09 in regular wages during 32 weeks. He also worked 538.7 hours of overtime, including some hours in 31 of the 32 weeks. Two union representatives also testified regarding the overtime scheme, but apparently had no knowledge whether the petitioner worked any type of overtime other than voluntary. The arbitrator excluded the overtime, but the Commission included the hours at the straight-time rate for total earnings of $40,475.62. The circuit court confirmed the Commission.

On appeal, the appellate court referenced the exclusion of overtime in Section 10 of the WCA. The court noted the ordinary meaning of overtime is working time in excess of a minimum total set for a given period. The court then analyzed the following cases: Edward Hines and Ogle (finding that mandatory overtime should be included as part of the regular working hours of 67 and 48 per week, respectively); Edward Don Co. (holding that mere fact of overtime in 15 of 16 pay periods, without evidence overtime was mandatory, was insufficient to prevent exclusion under Section 10); and Freesen (overtime excluded where there was no evidence it was mandatory or a set part of regular hours worked each week).

J.S. Masonry, Inc. v. Industrial Commission, No. 1-06-0717

The main issue involved the alleged violation of a safety rule. The claimant, a mason, admittedly violated a safety rule in failing to close a railing on a scaffold. Later, when he lost his balance and fell against the railing, it opened, and the petitioner fell four meters, injuring himself. Relying on Saunders v. Industrial Commn, 189 Ill. 2d 623, 727 N.E.2d 247 (2000), the employer argued that the injury did not arise out of his employment due to the safety rule violation. The court, affirming the award of benefits from all lower levels, distinguished Saunders, which involved a worker who rode on forklift forks for purely personal convenience and not in furtherance of any work duties. Here, there was no dispute that the petitioner was engaged in activities for the benefit of the employer (i.e., erecting a wall) when he lost his balance.

Comparing the present case with Chadwick v. Industrial Commn, 179 Ill. App. 3d 715, 534 N.E.2d 1000 (1989), the court found no conflict in the law. Summarizing, the court stated that any injury that occurs while an employee is performing duties for which he was hired arises out of the employment, without regard to the fact that the employee knowingly violated a safety rule. In Saunders, the employee was not engaged in any authorized work activity when the safety rule violation occurred. Perhaps the following language from the opinion says it the best:

In Republic Iron & Steel Co. v. Industrial Comm’n, 302 Ill. 401, 134 N.E. 754 (1922), the supreme court set forth the proposition which governs cases in which an employee violates a rule and is injured.

BCM successfully defends against illegal alien's claim for vocational rehabilitation

Brady, Connolly & Masuda, P.C. succeeded on behalf of the defense in a recent decision by Arbitrator Dollison denying vocational rehabilitation for a claimant who admitted he was an illegal alien and was not legally allowed to work. Espinosa v. Imperial Plumbing, 04 WC 28040 (decision filed September 1, 2006). The arbitrator also awarded the employer a credit of $7,455.29 for maintenance benefits paid prior to trial. Citing U.S. Supreme Court precedent, Paul successfully argued that vocational rehabilitation and maintenance would be futile and contrary to federal immigration law and public policy.

In this case, the employer's vocational expert (the only one who testified) stated that the only vocational rehabilitation appropriate for the claimant was job placement, except that his immigration status precluded him from being hired. But for his immigration status, the expert identified several available jobs for which the claimant was otherwise qualified. The arbitrator also noted that the claimant had lied on his job application and supplied a phony social security number in order to get hired by the employer, as well as by a previous employer in Indiana. The arbitrator concluded that federal immigration statutes precluded further job placement as a matter of law, and that forcing the employer to provide vocational rehabilitation would be the same as requiring the violation of federal statute.

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