Building Engineer zeroed by Arbitrator Erbacci

William Brewster tried the case of Jordan v. Hamilton Partners and Hines Interest before Arbitrator Erbacci in Waukegan.  Petitioner, a 44 year old building engineer was hired by Hamilton Partners on December 2, 2003 and was terminated four and a half months later on April 24, 2003. Subsequently he was employed by Respondent Hines Interest, LLP, also as building engineer, from July 14, 2003 until December 2006, when he was terminated again. Both jobs were primarily supervisory in nature and entailed maintaining and repairing commercial office buildings.

Petitioner alleged repetitive trauma injuries to his right wrist, right and left hands, right and left elbows and right shoulder while performing his job duties for both respondents. Petitioner submitted into evidence a self authored eight page, single space, typed detailed job description in which he grossly exaggerated the preventive maintenance and repair work allegedly performed for both respondents, and in fact attempted to take credit for work done by Hamilton Partners' general contractors. Petitioner testified that while working for Hamilton he maintained and repaired eight commercial office buildings, repaired roof leaks, HVAC units and exhaust fans on roofs, hauled supplies, performed frequent snow removal including lifting 50-80 pounds sacks of salt, and replaced motor compressors, full air conditioning units, pumps and pipes, rodded out drain lines, removed and replaced toilets and bathroom fixtures, etc.

He testified to using pipe wrenches, box end wrenches, open wrenches, ratchets, pliers, wire cutters and strippers, saws, drills and many other hand tools daily on a daily and weekly basis, maintaining that he spent at least six hours a day on average working with tools requiring the use of his hands. Respondent, Hamilton refuted these allegations with the testimony of several witnesses including assistant supervising engineer, Jim Kelly who testified that the petitioner's job duties at Hamilton were primarily supervisory in nature and that only 20% of his daily activities involved the actual use of his hands. Respondent submitted into evidence a job video narrated by Mr. Kelly, showing him performing Mr. Jordan's activities during a typical day at work.

While acknowledging the petitioner was a "working supervisor" he testified that outside contractors were utilized by Respondent to perform larger scale roofing work HVAC build outs, large valve replacement, rodding of long pipes and snow removal. Respondent submitted into evidence dozens of Hamilton Partner's preventive maintenance and repair tickets from December, 2002 through April, 2003, several of which bore Mr. Jordan's name, but only supervising engineer, the actual work being performed by his subordinates.

Respondent also called to trial Hamilton Partner's general contractors, John Szlenk and Roger Hansen who testified that they did much of the work Jordan attempted to credit to himself. Respondent also submitted into evidence record of snow fall between December 2002 and April of 2003 from the National Climatic Data Center which showed that snow fall during that time period was minimal, with only a few days showing accumulation of more than one inch, directly contradicting petitioner's testimony that he was constantly shoveling snow.

In finding that petitioner failed to prove an accidental injury arising out of and in the course of his employment, Arbitrator Erbacci also found that his diagnoses of bilateral medical epicondylitis, bilateral cubital tunnel syndrome, bilateral carpal tunnel syndrome and right shoulder impingement syndrome were not medically causally related to his job activities for either respondent. He further found that petitioner's proposed surgeries including bilateral carpal tunnel release and bilateral epicondylitis were not related to the alleged accident. In so ruling, he found credible the testimony of Dr. Michael Vender who examined the petitioner twice and viewed a detailed written job description and job analysis videotape. Dr. Vender found that the petitioner's job was not repetitive in nature and bore no relationship to his several diagnoses. Arbitrator Erbacci also found credible the opinions of Dr. Charles Carroll who reviewed the petitioner's treating medical records, job description and job analysis videotape and opined that his numerous injuries were not caused or aggravated by his job activities at Hamilton Partners.

The Arbitrator questioned the reliability and persuasiveness of the petitioner's treating physician, Dr. Hall who opined that the petitioner's upper extremity injuries were causally related to his job activities at Hamilton and Hines, as Dr. Hall did not have actual knowledge or an accurate understanding of the petitioner's job activities of either respondent, nor did he know what percentage of time the petitioner spent performing those various activities. Dr. Hall admitted that he was not presented with the petitioner's self authored job description until one hour before his deposition.

On October 10, 2008, the Illinois Workers' Compensation Commission affirmed the Arbitrator's Decision in its entirety.