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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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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).

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.

Brady, Connolly & Masuda, P.C. Obtains Defense Jury Verdict In Lumbar Fusion Case

Andrew Makauskas of Brady, Connolly & Masuda, P.C. successfully represented defendants, Ronald C. Bentkowski and Aspen Plumbing Company, Inc., in a personal injury lawsuit filed by Thomas McCann.  The case was tried before Judge Terrence Sheen in Wheaton, Illinois from July 31, 2006 to August 3, 2006.  After deliberating three and a half hours, the jury returned a verdict in favor of both Defendants. 

The Plaintiff, Thomas McCann, alleged that an automobile accident of August 30, 2002 was caused by Defendant, Ronald Bentkowski, an employee of Aspen Plumbing Company, Inc.  The Plaintiff alleged that Mr. Bentkowski entered Plaintiff's lane of traffic from a private drive without stopping or yielding the right-of-way to Plaintiff. This action caused Plaintiff's vehicle to go over three curbs, each six inches tall, and then hit a light standard. 

The Plaintiff claimed that his pre-existing spondylolisthesis, the movement of the L5 vertebrae forward on the S1 vertebrae, was aggravated by the accident of August 30, 2002.  Furthermore, Plaintiff alleged that the exacerbation of the pre-existing spondylolisthesis required fusion surgery from the L4 to the S1 level performed on August 29, 2005. The Plaintiff incurred $197,000.00 in medical bills.  Before trial, Plaintiff's counsel demanded $500,000.00 to settle the case. 

BCM wins $6000 credit in dismissal of claim for subjective complaints

Brady, Connolly & Masuda, P.C. recently prevailed at arbitration before Arbitrator Hennessy in Joliet, securing dismissal of the petitioner's application (claim), as well as a credit requiring the claimant to pay back $6,037.28 in medical and temporary total disability benefits paid on the claim prior to trial. Fowler v. Midwest Model Aircraft, et al., No. 04 WC 24518 (decision filed July 11, 2006). Not surprisingly, the claimant has appealed to the Workers' Compensation Commission.

The decision turned on a complete record of evidence, including records of the petitioner's job duties, samples of the actual parts involved, thorough cross-examination of treating physician, the testimony of the IME physician, and the claimant's inconsistent testimony that was revealed on cross-examination at trial. The arbitrator ultimately found that the petitioner's testimony concerning the accident and alleged injury lacked credibility and dismissed the claim. The arbitrator also ordered the petitioner to pay back the benefits paid by the employer prior to trial.

This case involved a claimant who worked as a receptionist/clerk for a company that manufactured and distributed model aircraft and railroad parts. The claimant's job duties consisted of answering the office phones, taking customer orders, and handling some bookkeeping duties. The employer's business received only about ten to twenty calls per day. On the alleged date of accident, the claimant was asked to fill time in between phone calls by placing individual brass model railroad rails into plastic containers. The rails and containers combined weighed less than two ounces. On the date in question, the claimant completed 93 packages in 1.5 hours, an average of approximately one per minute. That same date, the phone records for the respondent showed ten total phone calls. The claimant claimed that while she was placing a rail in a container, her right wrist "popped" and she felt pain.

Intoxication Defense Upheld by Circuit Court

In an order entered on August 18, 2006, the Honorable Judge Bonnie Wheaton of the Circuit Court of DuPage County, Illinois, affirmed the Illinois Workers' Compensation Commission's denial of benefits to the petitioner. Judge Wheaton found that there was sufficient evidence to uphold the Commission's finding that the petitioner's intoxication was the cause of his work incident. As a result, the petitioner failed to prove that he sustained an accident which arose out of and in the course of his employment.

In Dan Rogers vs. Gibson Electric, the petitioner alleged that he sustained fractures to both ankles as a result of a work-related incident. The incident occurred on a Monday morning, approximately 45 minutes after the petitioner started work. On the morning of the incident he had moved five pieces of switch gear by using a pallet jack. Each piece of switch gear was estimated to be eight to nine feet tall and weighed 875 pounds. Mr. Rogers moved the first five pieces of equipment without incident. As he was moving a sixth piece of equipment, he noticed an electrical cord was on the floor in his path. After seeing the electrical cord, he “spun the pallet jack around” and then bent down to pick up the electrical cord with the intention of throwing it over the switch gear. As he did so he saw the switch gear falling toward him. He attempted to catch the switch gear and sustained fractures to both ankles.

The petitioner was taken to the emergency room and was given a drug test. He tested positive for the presence of cocaine metabolites in his system. The petitioner admitted at trial that for approximately twelve hours, from Friday afternoon to the Saturday morning before the incident, he had smoked approximately one gram of cocaine.

  • 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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