Orlando Mendoza v. Bear Cartage and Intermodal, Inc.

The petitioner alleged in this case that he was an employee of Bear Cartage, and that he suffered an accident arising out of and in the course of his employment on October 27, 2009. While the respondent did not contest the incident, the respondent contested that the petitioner was an employee of Bear Cartage at the time of the incident. The respondent alleged that the petitioner was an independent contractor. After the trial of this case, Arbitrator Carlson found that the petitioner was an independent contractor and not an employee of the respondent, Bear Cartage, on the date of the accident.

The arbitrator found that there was no controversy regarding the petitioner's method of payment, as he was paid with no deductions taken out other than for insurance and communications. No income tax was withheld, and it was agreed that the petitioner drove his own truck, and not the truck of the respondent, to perform his duties. The petitioner told the admissions people at Christ Hospital after the accident that he was self-employed. The petitioner also applied for an EIN through the Internal Revenue Service for his own corporation. The arbitrator found there was no evidence in the record that anyone had direct control over the petitioner, other than to give him assignments. It was evident from the petitioner's own testimony that the respondent had no control over his actions. Bob Urso testified on behalf of the respondent that Bear Cartage had employee drivers and also owner-operators who were independent contractors. If the driver was an employee of Bear Cartage, they would direct him what route to take. If the driver was an owner-operator and not an employee, they would not tell him what route to take, they only cared about the fact that the trailer was brought from point A to point B. The arbitrator found that the petitioner himself testified that the respondent had no control over the route he took to complete his duties. Based upon the evidence, the arbitrator found that the petitioner was not an employee of the respondent at the time of the alleged accident.

-Attorney Mark F. Vizza

Successful in defending a case

Successful in defending a case before the Illinois Workers' Compensation Commission in the case of Michael McIntyre v. Fluor Maintenance

Mark Vizza was successful in defending a case before the Illinois Workers' Compensation Commission in the case of Michael McIntyre v. Fluor Maintenance. The case was tried before Arbitrator Hennessy in Joliet, and Arbitrator Hennessy found that the petitioner failed to prove that he suffered an accident arising out of and in the course of his employment with the respondent. The petitioner filed an appeal to the Illinois Workers' Compensation Commission and the panel of Susan Pigott, James DeMunno, and Nancy Lindsay, issued a unanimous decision upholding Arbitrator Hennessy's decision.

The petitioner alleges that on July 24, 2003, he suffered an accident arising out of and in the course of his employment with the respondent. However, by his own testimony, there was nothing to establish that anything occurred on that particular day. The petitioner did testify that prior to that, he had a neck problem and had surgery and returned to work full duty. He indicated that some time in June 2003, he began having pain in his neck when he hit his head on scaffolding and/or low pipes. He testified that this continued through July 9, 2003, at which time it got worse when he was working on his computer at home, turned his head and felt something pop in this neck. The petitioner testified that subsequent to this, his neck continued to get worse. He did file a written statement which indicates that he did not know on what day he hit his head on a scaffold bar and that he went to the doctor on July 23, 2003, which was one day before the alleged accident. A representative of the employer testified that he had a conversation with the petitioner, and he indicated that he did not know when or where he hurt his neck and that he only filled out the accident report because the union wanted him to fill it out. The medical records showed that the petitioner sought treatment on July 9, 2003, when he had neck and shoulder pain for ten days, and at that time it was becoming worse with an incident at his computer. The medical records also show that there was no change in MRIs of the petitioner's neck from October 25, 2001, and one done on July 25, 2003. The arbitrator further found that the petitioner had provided no medical documentation regarding whether or not his current condition of ill-being was causally connected to the July 24, 2003, incident. The Commission upheld the arbitrator's finding on causal connection, as well as accident and all other issues.

Petitioner's failure to follow employer's reporting protocol helps prove accident did not occur

Noah Hamann recently obtained a favorable verdict from the Illinois Appellate Court in Mark Karnes v. Wright Tree Service, 03-13-0140WC. All issues were in dispute on an appeal by the petitioner following victories by the defense at Arbitration, the Commission and the Peoria County Circuit Court. During the appeal process petitioner's attorney was unwilling to settle for anything other than full trial value and continued medical treatment involving a left shoulder acromioplasty. Petitioner's last settlement demand was $100,000.00.

The case involved two alleged dated of accidents, 10/18/06 affecting the left shoulder and 4/7/07 affecting the right elbow and left shoulder. In the 2006 incident, petitioner claimed he was holding a chainsaw in his right hand while cutting branches that he was holding in his left hand. The petitioner claimed that when he sawed the branch, it dropped and the petitioner felt a pop in his left shoulder. With regard to the 2007 incident, the petitioner denied any acute injury but complained of general soreness to his right elbow and left shoulder as a result of his work duties. The petitioner attempted to argue that the 2007 condition was a continuation of the 2006 condition.

At arbitration, the alleged accident of 2006 was disputed in entirety. Through witness testimony, it was shown that the company had clear procedures in place for reporting injuries. The petitioner knew these procedures as he reported an injury following the alleged 2007 accident. In 2007 an accident report was filed, a workers' compensation claim was submitted to the insurance carrier and the petitioner was given medical treatment. Petitioner's supervisor testified petitioner did not report an injury in 2006.

Arbitrator finds no accident or causal connection in exposure claim

In Vincent Glaviano vs. Dulin Metals Company, 97 WC 60265, the petitioner alleged that he was exposed to metals and chemical solvents during his work as a plant manager. He testified that this exposure caused fatigue, numbness in his upper arms, face and legs, memory loss, inability to focus and loss of fine motor skills. The petitioner was plant manager for the respondent from February of 1996 through July 17, 1997. The respondent is a broker, trader and dealer of industrial scrap metal. The petitioner claimed he was entitled to $246,000 in TTD benefits and maximum wage differential benefits with a present cash value of $275,000.

Arbitrator Cronin did not find the petitioner to be credible. A representative of the insured testified that the petitioner spent little time touching metals or solvents and that the metals and solvents he did touch were not dangerous. This contradicted the testimony of the petitioner. There were many inconsistencies in the medical treatment records regarding complaints of his condition, including some complaints that were anatomically impossible. The petitioner was not believable when discussing his search for employment and his inability to perform tasks. As such, Arbitrator Cronin did not find that petitioner sustained any accident that arose out of and in the course of the petitioner's employment.

The Arbitrator also found that the petitioner's condition was not causally connected to his employment. The petitioner's treating physician testified that the petitioner was suffering from multiple chemical sensitivity (MCS). This assertion was refuted by the respondent's examining physician. Arbitrator Cronin was also made aware of the 2005 case of Bernardoni vs. Industrial Commission, 362 Ill.App.3rd 582, 840 N.E. 2nd 300 (Ill.App.3 Dist. 2005), in which the 3rd District Appellate Court 22874.28 stated that MCS was not sufficiently established to have gained general acceptance in the medical community. It was argued to Arbitrator Cronin that the petitioner provided no evidence that since the Bernardoni decision that this diagnosis had gained general acceptance in the medical community.

Arbitrator adopts IME doctor over treater

Mark Vizza prevailed in the case of Jerry Pratt v. Vactor Manufacturing. The Arbitrator found that the petitioner's present condition of ill-being is not causally-related to any accident arising out of the course of the petitioner's employment with the Respondent.

Arbitrator Granada in his Decision noted that he was persuaded by the opinions of Dr. Breslow, respondent's Section 12 doctor, when compared to those of Dr. Chudik, the treating physician. Dr. Chudik had originally diagnosed a tear of the lateral cartilage of the meniscus current and an old bucket handle tear of the medial meniscus. He then performed orthopedic surgery and found that diagnosis was incorrect. He then performed a right chondroplasty with abrasionplasty. At no time prior to the operation did Dr. Chudik ever diagnose the petitioner with chondromalacia. The Arbitrator found that it was apparent that the petitioner suffered a contusion and had increased pain in his right knee. The Arbitrator found there is no indication that the chondromalacia found by Dr. Chudik was caused or aggravated by the accident. The petitioner was then seen by Dr. Rhode who stated he was unclear as to the condition the petitioner was suffering from at the time of the accident.

The petitioner in his Proposed Decision requested that the Arbitrator award the petitioner 12-2/7 weeks temporary total disability benefits, $18,374.50 in medical, and a hold harmless for the medical paid by the group carrier in the amount of $2,379.50. The petitioner then also requested that the Arbitrator find that the petitioner had suffered the loss of use of the right leg to the extent of 22.5% loss of use. The 22.5% loss of use of the leg had a dollar figure of $24,959.57. Arbitrator Granada did not award any temporary total disability benefits, awarded approximately $835.00 in medical expenses and 5% loss of use of the leg. The Decision resulted in a net savings to the client of approximately $45,000.00.