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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.

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.

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.

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 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.

  • 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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