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Marilyn Nash vs. Motorola, Inc.

Beverly N. Masuda recently received a "no award" decision from the Arbitrator in this matter. The petitioner, a cell phone assembler, claimed that she injured her neck when she leaned over a conveyor belt to set three boxes of parts down on the opposite side of the belt. Each box weighed approximately five pounds and petitioner claimed she felt a "shock in her neck" when she sat them down. Petitioner completed her work shift and testified that she reported the injury when she "called off from work" on her next scheduled work day. Petitioner gave a recorded statement two weeks after the alleged date of accident at which time she claimed injury to her back. Initial treating records indicated that petitioner complained of pain in the middle of her thoracic spine and left shoulder. The first history of a work injury given to a treating physician occurred a month after the alleged date of accident. On instructions from her attorney, the petitioner refused to provide any information regarding how an injury occurred at work to the respondent's Section 12 examiner.

Petitioner's supervisor testified that the petitioner never reported a work injury to her.

The Arbitrator specifically found that the petitioner's testimony regarding "accident" lacked credibility and that the description of the accident was implausible. The Arbitrator further found that the description of accident as given by the petitioner at trial appeared no where in the entire record, including her own recorded statement and in the treating records. The Arbitrator cited the many instances when petitioner stated that she did not know what happened. The Arbitrator also found that the petitioner was inconsistent in the description of her symptoms. Further evidence of the petitioner's lack of credibility was found in her explanation of why she did not report an injury to her supervisor. She claimed ignorance of workers' compensation yet, filed her claim a day later.

BCM wins for Respondent after petitioner found not credible

William Brewster tried this case before Arbitrator White in Urbana. Holt v. Jeld-Wen/Caradco, No. 04 WC 25989. The petitioner, a 48 year old plant utility worker, alleged that on May 13, 2004, he felt a "popping" sharp pain in both shoulders while lifting boxes weighing 50 to 75 pounds. He also complained of a left knee injury. The petitioner alleged notifying his supervisor, Steve Hunter, of the incident several days later, by voice mail. When asked by Mr. Hunter to describe the incident and assist in filling out a First Report of Injury, the petitioner refused to answer his questions. Although he was thereafter given light duty restrictions by Dr. Zhong at Carle Clinic, and the respondent company was able to accommodate same, the petitioner refused to return to work, despite the respondent company's two written offers. When asked at trial what outside activities he was engaged in the petitioner testified that he could hardly get to the mailbox without having to sit down and rest and stated, "I pretty much turned into a couch potato." However, when pressed regarding his activities with his daughter's softball team, whose season ran between April and July of 2004 the petitioner admitted that he not only head coached the team he missed very few games, ran all the practices and traveled with the team the entire summer.

The petitioner's testimony was contradicted by fellow employee Daniel Burley who testified that he had known the petitioner for almost two years prior to the alleged incident and worked with him the entire day of the alleged injury. Burley testified that the two of them lifted several boxes weighing 30-50 pounds and not 50-75 pounds as alleged by petitioner and that he did not observe Mr. Holt showing any signs or symptoms of hurting his knee, right or left shoulder, and further petitioner had no difficulty that day, worked at a steady pace and did not report a work incident to his supervisor, Ty Papiernik, prior to leaving work. The petitioner had testified on direct that he never knew Daniel Burley and did not work with him on the day in question.

BCM wins on accident: Mushroom packer's duties are not repetitive

Peter J. Stavropoulos succeeded in proving no accident in a decision by Arbitrator Andros. Guareiola v. Monterey Mushrooms, No. 05 WC 00263 (decision filed on March 29, 2006). Respondent presented evidence proving that the job duties of a portabella packer were extremely varied and did not require repetitive, forceful gripping. Consequently, Arbitrator Andros decided that there was no accident as related to petitioner's job duties.

With there being no accident, the Arbitrator found there could no causal connection. Supporting this finding was the testimony of Dr. Weiss, who testified that petitioner's job duties did not cause or aggravate her bilateral carpal tunnel syndrome as work activities must involve exposure to forceful or vigorous vibration or involve highly forceful repetitive gripping activities in order to cause or contribute to carpal tunnel syndrome. Dr. Weiss opined that petitioner's carpal tunnel syndrome was caused solely by her being a middle aged woman who smoked.

Petitioner relied on Dr. Eilers, who performed an independent medical evaluation at petitioner's direction. Dr. Eilers was unfamiliar with the job duties of a portabella packer.

BCM wins credit for employer

Peter J. Stavropoulos prevailed at arbitration before Arbitrator Falcioni, resulting in the petitioner owing the employer $14,027.35 after a credit was awarded to the employer for payment of unrelated medical services and temporary total disability benefits. Coffin v. Monterey Mushrooms, No. 02 WC 60350 (decision filed July 21, 2004).

The petitioner alleged an accident that occurred on April 11, 2001. The truck that the petitioner was driving was involved in motor vehicle accident.

The petitioner, through his proposed decision, was seeking 10% loss of use of a man as a whole, temporary total disability benefits from April 11, 2001, to May 5, 2001, and from March 30, 2002, through December 12, 2002. The respondent had paid temporary total disability to the petitioner from April 11, 2001, to May 5, 2001, and from March 30, 2002, through June 6, 2002.

Petitioner was also seeking payment of unpaid medical bills totaling $742.44, and was seeking to avoid a credit for payment of unrelated medical bills totaling $13,743.41.

Petitioner's ability to perform heavy work after accident date basis for Arbitrator's finding of no causation

Julia McCarthy tried this case before Arbitrator Akemann in Geneva on petitioner's 19(b)/8(a) petition. Thomas Horist v. Western Industrial Contractors, No. 05 WC 16438.  Petitioner claimed injury on February 7, 2005, to his low back and was seeking ongoing TTD as well as authorization for further medical care, specifically fusion surgery. The arbitrator found petitioner sustained an injury to his low back on February 7, 2005, which was reported to the respondent on that date. Petitioner initially declined medical treatment. Petitioner continued working as a millwright on the job site until completion of the job on February 17, 2005. Testimony was given on behalf of the respondent by the supervisor who worked with petitioner on a daily basis on the job site. It was agreed petitioner worked up to 10 hours a day on some days following the injury. Further, it was agreed that his work constituted heavy work. On the final day on the job site, February 17, 2005, petitioner commented to the supervisor “what about my back”. Petitioner was advised to contact the HR representative in the home office. Petitioner did contact the HR representative and she advised him to follow-up with her regarding any treatment he sought on his back. She had no further contact from petitioner.

Medical records from petitioner's treating physician reflected he was seen February 21, 2005, and reported history of injury. He was diagnosed with a back strain. He was seen for follow-up on March 5, 2005, and March 16, 2005. He underwent an MRI on April 1, 2005, and an epidural injection was recommended.

  • 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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