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

211 Landmark Drive, Suite C2, Normal, IL 61761

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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.

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 secures Commission modification of Arbitrator's finding on causation; Circuit Court confirms favorable Commission decision

Mark Vizza secured an Order from the Circuit Court of Kankakee County, Judge Wenzelman, which confirmed the decision of the Illinois Workers' Compensation Commission. Emma Martin v. Addus Health .  That decision of the Illinois Workers' Compensation Commission modified the decision of Arbitrator Gomora in favor of the respondent.

Arbitrator Gomora had found that the petitioner's present condition of ill-being was causally related to an accident arising out of and in the course of her employment with the respondent, and that the petitioner was entitled to temporary total disability benefits and the cost of performing a discogram.

After oral arguments on a Petition for Review filed by the respondent, the Commission found that the diagnosis and causal connection opinion regarding the petitioner's current condition of ill-being provided by her treating doctor, Dr. Malek, was based upon a faulty history by the patient and is not credible and deserving of little weight. That, based with the opinion of respondent's Section 12 examining physician which found that the petitioner sustained only a temporary aggravation of her degenerative disc disease and that she should attend therapy for four to six weeks, was the basis for the Commission's decision finding that the petitioner was temporarily totally disabled from December 22, 2003, through April 23, 2004, and that the petitioner is not entitled to medical expenses incurred after April 23, 2004, and vacated the award of prospective medical treatment in the form of the prescribed discogram.

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.

Petitioner's inaccurate history to his doctor leads to finding of no causal connection

Mark Vizza received a decision from the Illinois Workers' Compensation Commission affirming the decision of Arbitrator Prieto in its entirety. David Bratcher v. Proviso East High School District 209 .  Arbitrator Prieto had found that the petitioner's present condition of ill-being was not related to his accident arising out of and in the course of his employment on September 29, 2003.

The petitioner had testified that on the evening of September 29, 2003, he had suffered an accident arising out of and in the course of his employment. The petitioner did testify that he had prior back surgery in 2001.

A two-level fusion was recommended at that time, however the treating doctor proceeded with only a one-level fusion. The petitioner testified that upon his return to work, he performed the same job duties. However, he had to take days off because his back hurt, he would have back pain and leg pain, and was in constant pain.

  • 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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