BCM closes down petitioner's claim for future medical

Beverly N. Masuda successfully limits the Arbitrator's award to elements that were, from the outset, deemed compensable, but avoided prospective medical treatment, including repeat surgery for bilateral carpal tunnel syndrome and ulnar neuropathy, with its related periods of TTD and medical expenses.

Petitioner, a 45 year old assembler in a production department, claimed injury to both hands due to repetitive work activity. Her manifestation date was February 8, 2001. The employer accepted compensability for bilateral carpal tunnel conditions for which she underwent left and right releases, on August 27, 2004 and April 30, 2005, respectively. Following these releases, however, petitioner continued to complain of symptoms in her hands and also developed symptoms in the left elbow. The treating physician was of the opinion that petitioner did not have a simple case of carpal tunnel syndrome but cervical radiculopathy, a double crush injury, neuritis, and significant neural injury as well. He recommended repeat carpal tunnel releases and cubital tunnel ulnar nerve transposition on the left.

Evidence depositions were taken of the treating physician and one of the two respondent's medical experts. The treating doctor testified that petitioner's carpal tunnel syndrome and ulnar nerve problem was related to repetitive use and aggravation as a result of her work activities. He further testified that petitioner could not perform any job activity which required repetitive lifting over 10 pounds or working in cold weather. The treating physician testified that the recurrence of carpal tunnel syndrome in this case was both unusual and expected.

Daniel Cody Proves Office Worker Not As Hurt As She Alleged

In the case of Belousek v. Orthopedic Associates, an office worker at a doctor's office claimed she fell off a step stool injuring multiple body parts. Based on the evidence, the accident itself was not disputed and the defense focused on nature and extent of the injury. The petitioner alleged due to the pain she was unable to work and needed continued follow up care. She was treated by Suburban Orthopedics who recommended back surgery, carpel tunnel release and a psychological review and treatment for depression. The petitioner alleged she was depressed because of her injuries and inability to perform activities of daily living without pain. Her psychologist felt an underlying psychological problem was aggravated based on the work injuries and the petitioner's perceived inability to get correct care.

The Petitioner claimed temporary total disability benefits of $346.67/week for 17 7/8 weeks for $6,190 and reasonable and necessary medical services of $10,293.95 plus future medical for two surgeries. On behalf of the Respondent we submitted two reports from our orthopedist who found the petitioner suffered only a strain at best and was not in need of further medical care. We also presented the report of a psychologist who performed a psychological exam. The report found that the petitioner was depressed but also that she had a need to be the victim and blame others for her problems. He found that the petitioner may have had the depression aggravated but only if she truly was hurt and not exaggerating her symptoms which the doctor felt she was.

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

BCM proves that petitioner who claims to have lost all her memories, except for how her accident occurred, is not permanently and totally disabled

Mark F. Vizza tried this case on behalf of the respondent. This matter involves a woman who alleges she suffered an accident arising out of and in the course of employment when coming out of the bathroom stall she tripped on a bucket and hit her head. Susan Davis vs. American Heritage Protection, 03 WC 27813. She alleges that since that day in 2003, she has no memory of any aspect of her prior life, except for how her accident occurred.

Accident and causal connection were disputed in this matter. This matter went to trial before Arbitrator Edward Lee of the Illinois Workers' Compensation Commission, and after hearing testimony from the petitioner and all the medical evidence regarding this case, awarded the petitioner 104 weeks temporary total disability benefits and 15% loss of use of the man as a whole and $20,000.00 in medical.

The petitioner had requested that she be found permanently and totally disabled, as she was claiming she was unable to return to any employment as she had forgotten all her training as a security guard and was nervous in crowds or around people after her accident. She contended that four years after the accident, she still did not remember any aspects of her life prior to the alleged accident. She did not remember her husband, her children, her sisters, or any other aspect of her life.

Union Painter's Neck

BCM's Peter Stavropoulos Secures Zero Award, Proving Union Painter's Neck Condition is Not Related to Work Activities

Peter J. Stavropoulos prevailed on a repetitive trauma claim brought by a union painter and secured a “zero” award from the Arbitrator on October 29, 2012, which was affirmed by the Illinois Workers' Compensation Commission on December 19, 2013. The petitioner claimed a neck injury as a result of painting a ceiling on an industrial painting job over the course of 5 months. Petitioner was seeking $83,097.50 in temporary total disability benefits accrued at the time of trial and continuing beyond that at a rate of $966.25 per week ($109,186.25 in additional temporary total disability at the time of the Commission Decision), $35,165.28 for incurred medical expenses and future medical including a 2-level cervical fusion.

The Arbitrator held that the petitioner did not suffer an accident. Petitioner claimed that his job duties required him to look up while painting a ceiling for 8 hours per day every day. The Arbitrator found the petitioner not to be credible and, instead, sided with the employer's witness, finding that the petitioner's job duties were credibly described by the insured and “did not result in a repetitive trauma to the petitioner.” The insured's witness testified about the variety of job duties performed by the painters on the project, the amount of down time, the time spent setting up and breaking down as well as the fact that the project required painting more than just ceilings.