A FEW OF OUR SUCCESSFUL OUTCOMES
• Bagwell v. Illinois Workers’ Comp. Comm’n (Nestle USA, Inc. ), 2017 IL App (4th) 160407WC, 84 N.E.3d 1149, 1151.
Shawn Biery successfully defended a claim for inclusion of concurrent wages in a unique case where the Respondent was aware that the claimant held himself out at a preacher, and they were aware of that status prior to the alleged work injury. However we argued successfully that the Respondent was not aware of actual wages being received for preaching, thus saving over $400 per week from a lifetime wage loss claim which spread over life expectancy could have resulted in over $630,000 in additional benefits.
• Sanders v Illinois Workers’ Comp Comm’n (ITT McDonnell & Miller) 2014 L 050624 Cook County Law Division
Shawn Biery successfully appealed an award declaring Petitioner totally and permanently disabled. Upon review, a full IWCC review panel reversed the perm total award and lowered it significantly to 40% of the person along with denying a portion of temporary total disability and medical awarded. On Circuit Court appeal, Biery further clarified the award to specifically end medical charges for dates of service past August 12, 2009 which then allowed the firm to successfully argue for a $0 MSA to CMS which was approved after submission. The savings on the reversal of the perm total was over $523,000 over the life expectancy and the prior MSA proposal of $287,000 was rendered moot by the success in clarification at the Circuit Court.
• Root, James v. Adient 18 WC 1244
Shawn Biery successfully defended a claim for odd lot permanent total disability by convincing the Arbitrator that claimant would be able to work, but for a concurrent personal health condition and further achieved denial of prospective medical to avoid six figure future medical exposure. The final award was 30% of the person with credit for portions of TTD and maintenance paid and no future medical, which denied a future proposed surgery and resulted in likely avoiding $378,000 in projected future lost time and medical benefits. The case was then successfully settled for $2,800 over the award after Petitioner filed a Petition for Review to the IWCC seeking to reconsider perm total and medical closure.
• Todd, Darnell v. RUMC 13 WC 38350
Petitioner is a 46 year old food service supervisor who alleges a questionable, but initially accepted, back sprain/strain resulting from a slip and fall in the dish room. An x-ray of the lumbar spine indicated mild degenerative changes, most advanced at L4-L5. A laminectomy was performed prior, in 2010. The diagnosis of the previous treating surgeon was lumbar sprain/strain and L4-5 post-laminectomy syndrome. We authorized two injections and then denied low back surgery recommended by treating physicians with reports of our IME experts. Three depositions were taken. At trial, on cross examination, surveillance and an intervening motor vehicle accident were used to impeach Petitioner regarding his back issues and treatment post this date of loss as well as his functional abilities.
The Arbitrator denied prospective treatment of lumbar fusion surgery and approximately a year of TTD. The Arbitrator found Petitioner’s testimony contradicted by the records of treating physicians and noted inconsistencies on cross examination. He included language that Petitioner’s testimony “lacked credibility.” Regarding the conflicting medical opinions the Arbitrator indicated Petitioner’s expert opinion reports were incomplete or erroneous based on an understanding that the preexisting back problems were not serious prior to the November 17, 2013 fall. As such, they were unpersuasive. Our experts had a complete medical history to support their opinions.
• Sherri Loeb v. NorthShore University Health System 12 WC 26016 – Claim denied
A research nurse walking through a public parking lot tripped over a curb and broke her right shoulder. At trial, video of the event was introduced and a picture of the curb was properly admitted on cross examination as KCBA was able to lay foundation for the picture with Petitioner’s own testimony. The Arbitrator denied all benefits relying on Caterpillar v. Industrial Commission finding the evidence showed no defect in the curb or parking lot and Petitioner was not under the control of her employer as she was heading towards the only entrance both employees and visitors could enter.
• Young Park v. Glenbrook Hospital 07 WC 51048 – Claim denied
A phlebotomist alleged repetitive type trauma injuries to her hands when she developed carpal tunnel syndrome. Petitioner testified on cross examination she initially realized her condition was worsening when the hospital changed from metal needles to plastic needles in early 2004. Petitioner’s Application was not filed until November of 2007 and evidence was entered to show several position change requests were made specifically due to a pre-existing arthritic condition in her hand. The Arbitrator denied the claim and the Commission unanimously affirmed a finding that no benefits were due. The Arbitrator and Commission specifically relied on White v. Industrial Commission in finding Petitioner not only failed to report her alleged injury or condition, she failed to report its industrial nature to her employer.
• Gail Trent v. MacMurray College 09 WC 37664 – Claim denied
A custodian alleged repetitive trauma type injuries to her elbows after developing cubital tunnel syndrome. Petitioner’s initial medical records indicated she injured herself while working at home. Petitioner’s treating doctor testified on cross examination her condition could possibly be a flare up and might then elicit pain symptoms while at work if she truly injured herself at home. On cross examination at trial, Petitioner recanted prior testimony and admitted she injured herself at home resulting in a finding by the Arbitrator that no benefits should be awarded.
• Tammy Wyatt v. Western Distributing Co. 08 WC 52995 – Claim reduced on appeal
An over the road driver alleged she suffered a sprained ankle while stepping out of the cab of her truck which allegedly devolved into CRPS of the ankle. We took the claim over from a prior defense firm that allowed TTD to be paid for four years for a soft-tissue ankle strain. Our IME experts debunked the medical claim for CRPS. The Arbitrator awarded past and future benefits worth over $1.4 million dollars at trial despite three separate IME physicians with specialties in orthopedic foot surgery or board certified in pain management who testified Petitioner did not suffer from CRPS. The matter was appealed/argued. The Commission panel vacated the Arbitrator’s award and reduced the Arbitrator’s award by $1.2 million dollars.
• Lenoue v. Resurrection Healthcare 08 WC 5540 – Claim denied
Demand 40% LOU leg following an unexplained fall down with two surgeries. Claim denied by Arbitrator after full hearing in 2014. The denial was affirmed by Commission panel after oral argument in 2015. The panel found one leg not related at all, one leg had a de minimis contusion – all subsequent care and both surgeries were related to pre-existing conditions which were not aggravated or accelerated by her injury.
• G. Zambrano v. American Presidential Lines 12 WC 32105 -- Claim denied
Tried at arbitration and won in 2015; Arbitrator denied spine surgery performed as well as denial of proposed hip fusion recommended by treating doctor where our IME found the surgeries unreasonable and unnecessary. $200,000 in medical bills denied as well.
• Melendez, Ferdinan v. James McHugh Construction 14 WC 25033 – Claim denied
Bilateral carpal tunnel claimed from using heavy power tools. The case was tried and denied. Arbitrator indicated Petitioner failed to prove an injury arising out of and in the course of his employment. The actual time worked was too short to establish causation. Disputes were carefully outlined by our client on the record regarding Petitioner’s use of the heavy power tools and duration they were used.
• Johnson-Clemons, Sandra v. Rush University Medical Center 14 WC 29622 – Claim denied
Low back injury with injections claimed, tried, and denied. The Arbitrator made the specific determination in the body of the decision that Petitioner lacked credibility. Multiple medical records and reports did not mention a work related injury. The MRI showed degenerative rather than acute pathology. The Arbitrator was in agreement with our examining physician regarding it being unlikely that the described incident could have exacerbated Petitioner’s underlying condition.
• Sharwarko, Daniel v. Village of Oak Lawn 07 WC 40637 – IL WC Appellate Court Victory
Petitioner was a 62-year-old retired municipal inspector who sustained an accepted injury to his right arm/elbow. Initial diagnosis was medial epicondylitis and ulnar neuritis. Petitioner later developed cubital tunnel syndrome which our IME confirmed was a result of his work injury. Petitioner retired voluntarily as part of an early retirement package offered by the Village to its employees.
Petitioner underwent right elbow surgery in August 2006, but ongoing complaints of worsening pain led to a second surgery. His complaints persisted and he sought another opinion and was diagnosed with Complex Regional Pain Syndrome (CRPS). He continues to treat to this day. Petitioner is treating with Dr. Konowitz but was essentially MMI and the matter proceeded to hearing on 11/14/11.
Arbitrator Kelmanson awarded 80% loss of use of the arm or $119,774.24 plus 188-2/7 weeks of TTD at the rate of $913.04 per week or $171,907.17 at trial. Upon receipt of the Arbitrator’s decision we filed a Petitioner for Review seeking reduction of permanency and TTD. Despite the Arbitrator’s denial of an odd-lot permanent total award counsel was seeking, we asserted the duration of TTD to be excessive and clearly a misapplication of Interstate Scaffolding v IWCC. We believed the Arbitrator’s analysis to be flawed as it was un-rebutted Petitioner voluntarily retired and removed himself from the workforce in 2006. Counsel also filed a cross-review, attempting to have the denial of the odd-lot T&P claim reversed and he sought an increase of that aspect of the award.
On review, the Commission panel unanimously reversed the TTD award, reducing the TTD to the amount already paid and left the permanency award alone. At that time the award was paid in order to cut off ongoing interest to reduce ongoing costs or statutory interest to the Village on the undisputed part of the claim. Counsel appealed all issues to the Circuit Court. The Circuit court affirmed and counsel appealed to the Appellate Court, WC Division. The matter was argued before the Appellate Court and their decision was received affirming the Circuit Court/IWCC rulings. We consider this an important ruling for all Illinois employers and government bodies on the issue of claims for TTD following voluntary retirement.
• Holly Ghalioungui (Fawcett) v. RUMC 08 WC 32893
49-year-old nurse alleged a right knee, fractured patella suspicious origin—Petitioner returned to work from unrelated ACL reconstruction and allegedly fell causing fracture. The matter was accepted then later denied after medical records noted several falls, but all after date of loss and a dubious history of injury was exposed by records obtained after the incident was report.
Our IME initially provided tepid opinion, opining injury could not have occurred on DOL as medical history did not support fall on date, but also opined other work-related falls did cause the patella injury. Due to lack of solid IME support we agreed to accept the patella fracture at that time. Petitioner was in PT and released to modified duties but RUMC was unable to accommodate—Petitioner then complained of hip pain and treater, Dr. Domb related condition to patella injury and ultimately Petitioner has undergone bilateral hip replacements. After review of additional records our IME provided more definitive opinion denying causation of hip complaints and confirmed the knee injury was also not related and we terminated benefits. Dr. Terry provided opinion for Petitioner on hip complaints, his deposition was taken and the verbal opinion not particularly strong—he did give up position on history of injury and even mentioned financial gain.
Petitioner was claiming inability to work as a nurse and was angling for permanent total at trial—based upon a 33 year life-expectancy, full value permanent total exposure would have been in the range of $1,219,132.00 with a present day value of $525,711.97 at a 6% discount rate. Matter proceeded to hearing on 2/2/12 and after we spent the bulk of cross-examination attacking Petitioner’s history of injury/credibility, Arbitrator Mason denied an accident occurred, leading to a full denial of the claim—Arbitrator went to great lengths to point out credibility issues with Petitioner.
• Robert Troxell v. Nestlé 05 WC 20348 & 09 WC 22298
Arbitrator Tobin/Jacksonville; tried 5-12-10—05WC 20348 award for Petitioner of 10% BAW/09WC 22298 denied on notice. Petitioner alleged an accepted back injury lifting bagged ingredients (4/11/05) and later alleged a repetitive trauma back injury/herniated disc on 5/15/09 which coincided with the date his treating doctor took him off work.
Petitioner treated conservatively for the first injury with some injections in 2005 for an L4-5 disc herniation and was released to a 50# lifting restriction/full duty, at his own request on 1/26/06. Regarding the second alleged injury, Petitioner underwent fusion surgery in 9/09 by Dr. Malman and returned to work full duty as of 11/23/09—surgery was put through group and Petitioner received STD while off. Regarding the second claimed injury, our IME denied work relation and opined all complaints were degenerative in nature and debunks the meralgia parethetica diagnosis.
Exposure for a multilevel fusion would be 0-50% MAW or up to 250 weeks for high-end exposure of $166,180.00 at the PPD rate of $166,180.00 and prior to trail counsel lowered his demand to 35% MAW or 175 weeks representing $116,326.00 at the PPD rate of $664.72, 23-6/7 TTD at the rate of $740.93 representing $17,767.44.
The matter was tried to completion on 5/12/10—Petitioner made a significant error during his testimony creating a notice issue which we exploited. Counsel’s proposed decision requests 35% MAW plus TTD and the hold harmless—our proposed decision sought denial of the second back claim and payment of 7.5% MAW on the first claim. Decision was received 7/19/10 with Arbitrator Tobin awarding 10% BAW or $25,740.00 with STD credit. Matter was appealed and affirmed all the way through the Appellate Court.
• Martinez, Isaura v. Staffmark 10 WC 30853
Zero Award; Petitioner alleged she injured her right shoulder as a result of a fall; however, she never reported a shoulder injury to her employer and her shoulder treatment started six months after the fall while working for a new employer. The Arbitrator found Petitioner’s shoulder injury and permanent restrictions unrelated to the fall and that she had made material misrepresentations for the purposes of obtaining workers’ compensations benefits. All benefits were denied.
• Dixon v. Rush University Medical Center 11 WC 4178; 12 IWCC 0902; 12 L 51194; 1-13-1050WC
Denial of all benefits. Obtained reversal on appeal and denial of all benefits including the arbitration award of prospective lumbar surgery. The Commission agreed with the arguments made in our brief and at oral argument holding Petitioner failed to prove she sustained accidental injuries arising out of her employment. It noted the act of walking across a floor at the employer’s place of business does not establish a risk greater than that faced by the general public. As such, Petitioner failed to prove a connection between her employment and her injury. Surprisingly the Cook County Circuit Court reversed, but on March 10, 2014 the Illinois Appellate Court reinstated the Commission’s denial indicating the decision was within the manifest weight of the evidence.
• Wilson v. Davis Staffing 12 WC 5764
Zero award. Petitioner was seeking TTD and past and prospective medical treatment in the form of bilateral carpal tunnel surgeries. Arbitrator Luskin noted Petitioner would have been exposed to the work for a limited period of time before the asserted symptoms, the variance in job tasks actually performed by Petitioner during that time, and the treating doctor did not offer a causation opinion. He reviewed depositions of doctors involved and found our IME doctor’s opinion more supported by the evidence than that of the initial treating doctor.
• Rescino v. Sysco Chicago 11 WC 5472
Zero Award; Petitioner seeking $100K+ in Medical, TTD and PPD for disputed back strain loading truck. Arbitrator Kelmanson reviewed our video evidence indicating claim of accident fraudulent in reliance on surveillance video from nearby children’s preschool. WC fraud complaint to follow.
• Burger v ICG Illinois 10 WC 32357
Zero Award; Petitioner was seeking PPD award for a lumbar fusion. Arbitrator Lindsay agreed Petitioner was injured at home or somewhere other than at work.
• Ghalioungui v Rush University Medical Center 08 WC 3289
Zero Award; Petitioner was seeking over two years of TTD benefits, and PPD award for fractured patella and bilateral hip replacements. Arbitrator Mason denied claim based upon credibility issues. We agreed not to pursue fraud complaint for Petitioner’s agreement not to appeal decision.
• Seijas v Nestle 06 WC 44784 & 08 WC 20468
Zero Award; Petitioner was seeking TTD and PPD benefits for a hernia. Arbitrator Andros agreed Petitioner did not prove the accident occurred on the date alleged.
• Towns v Culbertson 09 WC 2322
Zero Award; Petitioner was seeking TTD and PPD benefits for a shoulder injury. Arbitrator Gallagher completed bifurcated trial that was started by Arbitrator Tobin. Petitioner, already in prison, was denied benefits based upon lack of credibility.
• McKee v Alton Steel 10 WC 21483
Zero Award; Petitioner was seeking PPD benefits for hearing loss claim. Arbitrator Kinnaman denied claim based upon failure to prove compensable hearing loss. We produced baseline hearing tests from time of hire.
• Bartunek v Village of Oak Law 08 WC 3041, 08 WC 51241 & 10 WC 14968
19(b) denied Petitioner was seeking vocational rehabilitation and TPD maintenance. Arbitrator Kelmanson denied claim based upon failure to prove loss of income. Matter on review; Oral Arguments set for September 20, 2012.
• Gudziunas v Rush University Medical Center 11 WC 18026
19(b) denied Petitioner was seeking 14 months of TTD and prospective treatment. Arbitrator Kelmanson denied claim, adopting Dr. Zelby’s opinion and credibility issues. Awarded 2-2/7 weeks of TTD and no prospective medical expenses.
• Thornton, Piper v. Xylem (formerly ITT Bell & Gossett) 09 WC 16035
Denial; Petitioner alleged right shoulder injury with surgery and had demand in excess of $100,000 for all issues. We were able to secure a witness who had investigated the accident and argued it could not have occurred as stated. Between the witness testimony and our cross exam of Petitioner which raised doubts of his credibility, the matter was denied.
• Lovett, Sammy v. Pepper Construction 05 WC 44847 & 05 WC 4518 & 06 WC 14982
Denial of two claims (stroke and CTS); Petitioner alleged a stroke arising out of employment as well as arguing his carpal tunnel was related to work after being diagnosed with same while recovering from stroke. Based upon cross-exam of his MD in deposition, we were able to create doubt of the stroke claim and with our cross-exam of Petitioner on all issues; we managed to obtain denial of both claims avoiding exposure in excess of $1 million.
• Koch, Daniel v. Village of Schiller Park 06 WC 4756 & 11-L-050734
Heart attack award reversed on appeal; Police officer awarded claim for heart attack which occurred while he was on duty, however with the evidence we had been able to get admitted at hearing and with cross exam of Petitioner which was not given appropriate weight by the Arbitrator, we were able to obtain a reversal based upon our brief and oral arguments on review and the matter was denied as not compensable.
• Porter, Angela v. Target 3-11-0895 & 11-MR-403--08 WC 25068 & 09 WC 1797
Knee injury award reversed on appeal for current denial; Store worker who was awarded claim for knee injury alleged to have occurred in work-hardening for arm claim. Evidence admitted at hearing had been left unmentioned by the Arbitrator and we were able to obtain a Commission reversal based upon our brief and oral arguments on review and the matter was denied as not compensable.
• Salisbury, Marie (Widow of Charles Salisbury) v. Frank's Flying Service (Akamai, Inc.) 09 WC 46413
Statutory death benefits were being paid at the statutory maximum as due to death of pilot in plane crash. Based upon pre-trial arguments before prove up, we achieved our argued wage rate so the award was made at the statutory minimum death claim payments over their demand/trial argument for statutory max rate. This saved client $1.09 million if full 25 year benefit is paid.
• Wilson, Cynthia v. Schnucks 09 WC 4915
$0 award; claim denied. Petitioner alleged bilateral carpal tunnel syndrome related to light duty work activities, denied based on superiority of defense evidence and greater credibility of witnesses.
• Culhane, Brenda L. v. Nissan North America 11 L 69609, WC 17226
$574.00 award; Petitioner alleged a plethora of conditions and demanded $590,000.00 settlement, rejected $120,000.00 offer and secured $574.00 award based on absence of causation for all but lumbar strain with recovery within three days based on superiority of defense evidence.
• Coor, Norman v. LaGrou Distribution 07 WC 36507
Permanent total denied in favor of nominal 8(d)2 award. Petitioner alleged permanent disability related to work injury, disability causation denied and matter awarded for 15% person, affirmed on appeal.
• Devin, David W. v. Veolia Environmental
Nominal permanency at trial, denial of medical benefits and penalties on appeal. Minor surgical knee condition with excessive demand, awarded permanency of $1,184.51 with liability for medical bills and penalties; medical bills and penalties stricken on review.
Cesario v Village of Oak Lawn
Demand for TTD denied where Petitioner refused light duty offer; despite union agreement which blocked light duty.
• Regan v Jiffy Lube
Zero Award; Petitioner was assaulted by a co-worker and received neurological injuries. The Arbitrator found the fight was unrelated to Petitioner’s employment with Respondent and denied benefits.
• Ramos v Elite Staffing
Zero Award; Petitioner fractured her ankle upon leaving from work. The injury occurred near an employee entrance to work, but in a location the employees were told not to traverse. The Arbitrator found Petitioner’s injury was unrelated to her work activities and denied benefits.
• Burdel v General Cable
Zero Award; Petitioner allegedly injured his low back while lifting material during work. Causation was fully disputed. The arbitrator found Petitioner’s injury was unrelated to work activities and denied benefits.
• James Max v ABF Freight Systems
Zero Award; Petitioner alleged sustaining CTS after being burned by the engine parts of his truck while inspecting fluids. The Arbitrator found Petitioner’s condition unrelated to his work activities and denied benefits.
• Jaime Garcia v Davis Staffing 08 WC 010129
No benefits awarded. Petitioner was seeking permanent total benefits. Utilized surveillance, independent medical examination report, and effective cross examination of Petitioner and his wife to establish injury pre-existed the alleged date of loss.
• Dismissals Obtained:
o Cerero, Freddy v. Tower Automotive
o Muldrow, Gary A. v. Tower Automotive
o White Sr., Milton L. v. Tower Automotive
o Christensen, Carolyn J. v. Target
o Houston, Heleema v. Target
o Marasco, Jessica v. Target, Inc.