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

211 Landmark Drive, Suite C2, Normal, IL 61761

211 North Broadway, Suite 2200, St. Louis, MO 63102

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Francisco Gomez v. Labor Temp South

While working at a parts plant, petitioner was assigned to clean a designated area. While cleaning the area, petitioner stood on top of a dunnage (pallet) and allegedly fell three feet to the ground, injuring his left shoulder. Petitioner received treatment for his left shoulder injury and was eventually referred to an orthopedic surgeon for a surgical consultation.

Petitioner testified that he noticed a stack of dunnage lids sitting next to the dunnage which were askew. He climbed on top of the dunnage to straighten the stack when he misstepped and fell from the dunnage. Petitioner testified that he was instructed by his immediate supervisor to straighten the area out, and was not instructed to refrain from climbing on top of dunnages.

The plant manager was put on the witness stand, and testified that immediately after the accident he investigated the scene. Petitioner indicated which dunnage he fell from, and the plant manager noted this was the only single stacked dunnage in the area. The plant manager testified that this area was shut down for cleaning, and no materials were taken in or out of the location. Upon investigation, the plant manager noted that there were no footprints on top of the dunnage which petitioner claimed he had climbed upon to straighten the stack of lids. Photographs were taken of the area. A witness stepped forward and informed the plant manager that he saw petitioner rising from the ground 10 to 15 feet away from the dunnage that petitioner claimed he fell from.

Francisek Filipkowski v. Tru Vue

The Commission recently affirmed an arbitrator decision finding fully in favor of respondent Tru Vue in a case where the petitioner was alleging he was permanently and totally disabled and requesting benefits at the rate of $1035 per week for the rest of his life with a life expectancy of approximately 25 years. The petitioner alleged that shortly before his lay off he was pushing an object at work causing significant back pain. He admitted not telling anybody at work at the time of the alleged occurrence and through cross-examination we were able to establish that he was aware of the work requirement to do so and showed significant ability for him to have done so if the accident would’ve occurred as alleged. Through witness preparation and testimony during Respondent’s case in chief, we were able to show that the petitioner made no complaints of any back pain prior to his report of an inability to work due to back pain. His initial report to the respondent was actually through his daughter and made no mention of any work incident. It was not until several months later when a therapist requested payment for a bill that there was any notice to the respondent that the petitioner was claiming a work injury. Case law prevented a viable notice defense because the respondent was aware of the injury within 45 days even though there was no report that it was work related.

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.

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.

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.

  • 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
One Metropolitan Square
211 North Broadway, Suite 2200
St. Louis, MO 63102
Phone: 314-300-0527
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