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.

Major strikes against petitioner's credibility include the fact that he is a convicted felon and served 14 years out of a 37 year sentence for murder and arson as well as the fact that he lied on his employment application. Both of these points were factors relied upon by the Arbitrator in reaching his decision.

The Arbitrator could have merely found that the petitioner's condition was not causally related to the work duties because no accident occurred but, instead, he provided a well-reasoned explanation supporting the denial of causal connection.

Petitioner's chiropractor was deposed, and the Arbitrator disregarded his opinions, finding that he did not understand the job duties, nor did he have a firm diagnosis.

The treating orthopedic surgeon, Dr. Lorenz, was also deposed. The evidence Mr. Stavropoulos elicited on cross-examination was relied upon by the Arbitrator, in that the evidence showed that Dr. Lorenz's understanding of petitioner's job duties was that he was required to look up with an extended neck for up to 8 hours per day. The Arbitrator also relied upon Dr. Lorenz's admission during cross-examination that he could not state with specificity whether the prolonged extension (which Dr. Lorenz was wrong about) temporarily or permanently aggravated petitioner's pre-existing condition.

The Arbitrator ultimately found respondent's Section 12 examiner, Dr. Zelby, more credible. He held that Dr. Zelby's opinions and testimony to be well founded and more persuasive than those of the witnesses petitioner called, particularly because Dr. Zelby had a firm understanding of the petitioner's job duties.

The Arbitrator also found Mr. Stavropoulos persuasive in his two-pronged argument. First, from a common sense standpoint, the fact that petitioner's symptoms had not subsided since he stopped working for the respondent on February 10, 2010, showed that the work activities did not contribute in any way to petitioner's degenerative changes in his cervical spine. Second, because the petitioner continued to work full time and full duty for the entire time that he was employed by the respondent from the time his symptoms allegedly started in October of 2009 through his layoff in February of 2010, the petitioner's symptoms were not caused, aggravated or accelerated by his job duties.

-Attorney Peter J. Stavropoulos