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.

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.

Teresa Radzik v. ABM Janitorial Services

The petitioner alleged that on January 2, 2002, she had an accident arising out of and in the course of her employment with the respondent that injured her back. Except for a short period immediately following the accident, the petitioner has not worked since the incident. The case went to trial before Arbitrator Lammie, and Arbitrator Lammie found that the petitioner's present condition of ill-being is not causally related to the injury. He specifically found that the petitioner's testimony was not credible. She admitted seeing a doctor shortly before the alleged incident, which she had previously denied. The petitioner was seen by Avi Bernstein on behalf of the petitioner, who found that her back problems were causally connected to the June 2, 2002, accident. However, it was brought out that the petitioner had not told him about her prior back problems, and he based his opinion on the fact that the pain started on January 2, 2002. Dr. Alexander Ghanayem also testified, and he testified that the January 2, 2002, incident is irrelevant. He testified that the petitioner's condition was virtually the same before and after the alleged incident. The arbitrator found Dr. Ghanayem to be the only one who directly compared the petitioner's prior problems and findings with her condition after the alleged accident. He also considered all the records and reports that dispute the petitioner's allegations. The arbitrator found the opinions of Dr. Ghanayem to be persuasive and credible, and he adopted those opinions.

The petitioner claimed almost eight years of temporary total disability benefits, and over $100,000.00 in medical benefits.

-Attorney Mark F. Vizza

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 Uproots Planter's Exposure Claim

BCM Law, P.C. recently obtained a victorious defense decision from Arbitrator Edward Lee of the Illinois Workers' Compensation Commission. The claimant, a plant propagation manager at a greenhouse, alleged that he spilled fertilizer on his pre-existing amputation stump, resulting in lost time and the need for a replacement leg prosthesis. The initial investigation turned up a suspicious sequence of events. The claimant had not reported the claim to the employer until 83 days after the alleged incident. In the meantime, he had seen two medical providers for a rash on his stump, but never mentioned any alleged chemical exposure. One of the providers, a prosthetics lab, mentioned that the existing prosthetic leg was in poor condition and that the rash was caused by severe pressure of the prosthetic against the stump. BCM Law, P.C. worked with the claims team to obtain expert opinions from an industrial hygienist and a medical doctor with experience in burn wound treatment and treatment of amputations and prosthetics. The hygienist ultimately testified that the diluted fertilizer used by the claimant had an acidity level less than 1/100 that of common table vinegar. The medical expert opined that this would have been insufficient to cause a chemical burn and that the claimant did not ever have objective medical findings of a burn, but rather only had pressure sores from his ill-fitting prior prosthesis. The petitioner retained a prosthetics expert from Rush, but on cross-examination by BCM Law, P.C., this expert admitted he did not have any opinion as to whether a chemical burn injury actually occurred, or whether such a burn was a factor in the claimant's subsequent need for a replacement prosthesis. The arbitrator agreed with the defense argument that the claimant had failed to prove a compensable work accident or injury occurred. No benefits were awarded, and the case was dismissed (pending the outcome of any further appeals.) This outcome provides a great example of how the investment into a thorough investigation of a suspicious claim can build a winning defense at trial.

Gonzalez-Hernandez v. Perennial Plant Pros, IWCC No. 06 WC 55047 (2011).