Decisions From Around the Office

Saturday, June 2, 2007 | 0

By Michael E. Rusin

Dan Egan obtained an excellent result on behalf of Travelers Insurance Company in the case of Bulmaro Vilchis v. Aubrey Mfg., 01 WC 52928, 03 WC 18181. Petitioner claimed a specific trauma October 30, 2000 and a repetitive trauma July 9, 2001 allegedly causing a medial meniscus tear in his right knee. We disputed causation in the first case and accident in the second case. We admitted that petitioner struck his right knee on a table, but we disputed that he tore his meniscus as a result of it. We produced medical records with inconsistent histories and the arbitrator denied the case. Petitioner then tried to prove repetitive trauma. He claimed that his work required him to pivot on his right leg. However, when we asked petitioner to demonstrate his work activities, he pivoted on his left leg. The arbitrator found petitioners actions and the medical testimony inconsistent. Compensation was denied in its entirety.

John Maciorowski obtained a finding of no accident on behalf of the Risk & Insurance Management Company in the case of Scott Fitchorn v. Village of Bloomington, 02 WC 2309. Petitioner claimed an accident date of November 16, 2001 when he was lifting and claimed that he felt a pop in his back. We proved that he didnt report the accident promptly. We presented contradictory medical records. We proved that prior to his first medical treatment, he had actually helped a relative move his residence. A co-worker took the stand to support petitioner but we discredited his testimony showing bias, a dispute with the witness own workers' compensation claim, and inconsistent statements. We presented the testimony of four different witnesses, all of whom work with petitioner and denied witnessing any work injury as alleged by petitioner. The arbitrator found that petitioner failed to prove an accidental injury which arose out of and in the course of his employment.

John Maciorowski also obtained a favorable decision on behalf of EMC Insurance Companies in the cases filed by Willie Mays v. FCA Manufacturing, 05 WC 2316 and 2317. Petitioner claimed accident dates of November 10, 2004 and January 4, 2005. disputed the accidents even though the claims had initially been accepted once it was discovered that petitioner had given false histories. A pretrial conference resulted in recommendation for a negotiated settlement. We had an initial IME report which was unfavorable, but it was based on petitioners false history. Mr. Maciorowskis cross examination showed that petitioner was not credible. His complaints were inconsistent and he had multiple criminal convictions. He failed to report the accident timely despite instructions to timely report all accidents. After hearing all of the evidence, the arbitrator found that petitioner failed to prove accident and failed to prove causal connection.



Maciorowski also obtained a no accident decision for AIG Insurance, in the case of Greg Cantway v. K M Plant Services, No. 04 WC 49181. Petitioner claimed an accident August 20, 2004 as a result of being burned by chemicals. Petitioner claimed that he gave notice to certain individuals, but we proved that the alleged witnesses werent even on the job site. We also proved that petitioner failed to report the accident timely and that he actually called and left a phone message quitting because he thought he had been unfairly treated with respect to his hours. We presented witnesses who contradicted petitioners claim that he had reported the work injuries to the co-workers. Petitioner definitely suffered from disfigurement, but the claim was ruled not compensable. Dan Arkin obtained an excellent result for Safeco Insurance in the case of Sandra Kinkner v. Barjan Products, 01 WC 12290 and 01 WC 43453. This case involves a dispute over liability for an alleged borrowing-lending situation. We claimed that only the lending employer was responsible. The arbitrator ruled in our favor. Our insured was not required to make any payments. The lending employer was forced to accept liability for 123 weeks of TTD and 30% loss of use of the arm. The total liability we avoided was over $50,000.00.

Mark Cosimini obtained two excellent decisions from the Commission recently. On behalf of OneBeacon Insurance, he obtained a zero award in the case of Elicia Guerra v. Trisler Seed Farms, 02 WC 40014 (07 IWCC 245). Petitioner filed a claim August 5,2002 alleging an accident date of July 25, 2000. Petitioners attorney didnt move the case for trial. On April 18, 2005, we presented a motion for trial and the arbitrator granted the motion setting the case for trial July 18, 2005. We notified petitioners attorney of the trial date. On July 18, 2005, we appeared for trial but neither petitioner nor the attorney appeared. We requested and we were allowed to proceed to trial. No evidence was presented on behalf of petitioner, and the arbitrator found that petitioner failed to prove a compensable accident and denied compensation. Petitioners attorney received the decision and filed a petition for review. The attorney claimed he knew about the trial date but inadvertently failed to appear. The Commission found that it wasnt improper for the arbitrator to have proceeded to trial ex parte. The Commission found that the attorney knew the case was set for trial and he had ample opportunity to appear. The denial of benefits was affirmed.

Cosimini also got a good decision from the Commission on behalf of Broadspire/Kemper in the case of Theresa Lynch v. Tekni-Plex/Action Technology, 03 WC 5001 (07 IWCC 275). This repetitive trauma case was tried before Arbitrator Giordano. Petitioner was seeking future medical. Petitioner complained of repetitive trauma to both hands based on 14 years of work for the employer, who manufactured plastic tubing. Although petitioner testified as to various job duties which might have constituted repetitive trauma, petitioner actually hadnt performed many of the job duties for many years prior to the date of the accident. We contended petitioners current condition of ill-being wasnt causally related to work done many years earlier. We contended that her repetitive trauma, if any, was limited to her right hand and not the left hand. The arbitrator ruled that petitioner was entitled to PPD and denied prospective medical. He awarded 8% of the right hand and 2% of the left hand. Petitioner appealed and the Commission affirmed. The Commission again denied future medical. In addition, the Commission found that petitioner failed to prove a causal relationship between her work duties and her left hand condition. The award of 2% loss of use of the left hand was reversed.

Ted Powers won a favorable decision on behalf of Wal-Mart in the case of Tina Feagens v. Wal-Mart Super Center, No. 02 WC 13883. Petitioner claimed an accident on October 27, 2001. Petitioner testified that she injured her left arm and neck while scanning a 40-pound bag of water softener on October 27, 2001 at 5:30 p.m. Petitioner denied having any prior problems with her neck or left arm. Petitioner denied being in any motor vehicle accidents. However, we presented evidence that petitioner didnt even handle a 40-pound bag of water softener at the time she claimed. We presented proof that petitioner while working as a cashier on that date did not handle any water softener bags.

Further, we presented witnesses who testified they overheard petitioner complaining of injuring her arm in a motorcycle accident. We also presented a witness who testified that prior to the alleged date of accident, petitioner came to work holding her arm, claiming an arm injury while doing housework. After consideration of all of the evidence, the arbitrator found inconsistencies in petitioners testimony and denied compensation.

Kelly Moore won a case on behalf of State Farm Insurance. In the case of Krystyna Baran-Iwanska v. Fern Bomchill Davis, 04 WC 15934, petitioner claimed that she tripped and fell down some stairs while working as a housekeeper for respondent. Petitioner claimed that the incident occurred on a Saturday when she made a special trip to the respondents home to deliver some boxes. We brought in the respondent to testify that she never asked petitioner to get any boxes. Moreover, respondent testified that petitioner initially reported that she was injured at her own home. We presented medical records which documented inconsistencies in petitioners reporting of the accident. Arbitrator Hagan accepted the testimony of respondent and denied the case in its entirety.

Ted Powers also obtained a great decision for State Farm Insurance from Arbitrator Peterson in the case of Mark Schmiedl v. DuPree Construction, 05 WC 40473. Petitioner claimed an injury on October 12, 2004. The case appeared compensable and the carrier had initially accepted it and paid $67,000.00 in medical and TTD. Petitioner claimed that he injured his right shoulder while working for respondent on October 12, 2004. However, we proved that in the week prior to the alleged accident date, petitioner was actually on vacation in Cancun, Mexico. Medical records showed that petitioner had been suffering from shoulder pain for a week prior to the alleged accident since developing pain while swimming during vacation. We proved petitioner wasnt credible. Petitioner denied telling his doctor about a vacation injury. The accident was unwitnessed and occurred within an hour of petitioners returning to work following his vacation and his vacation injury. Moreover, petitioners credibility was challenged by the fact that petitioner denied but we proved that he had a side business performing the same type of work as for respondent. The arbitrator found that petitioner failed to prove that he sustained an accident and denied compensation.

Dan Egan won an excellent decision from Arbitrator Peterson on behalf of Tower Automotive and Gallagher Bassett. The case may even merit referral to the Workers Compensation Fraud Unit. In the case of Marwan Khouri v. Tower Automotive, 04 WC 33099, petitioner claimed a back injury while lifting June 3, 2004. He claimed that he couldnt work and stated that he had pain at the level of 8 on a scale of 10. Medical records showed that petitioners physical findings were not always consistent.

Despite petitioners treatment and alleged disability, we had arranged for surveillance of petitioner. Contrary to petitioners allegations of severe pain and disability, the surveillance showed that he wasnt having any problems. He moved quickly and fluidly without any hesitation. The day before he went to his doctor complaining of severe pain he engaged in extensive yard work. He went to a nursery and bought several yard plants and bushes. He dug holes using a spade and pickax. He planted several relatively large plants and bushes. The arbitrator heard petitioners testimony, reviewed the medical records, and saw the video. He felt petitioner committed perjury during the hearing and also lied to his doctors. The arbitrator denied compensation in its entirety.

I tried and won a case on behalf of Dominicks/Safeway. In the case of Scott Plutz v.Dominicks, 06 WC 41295, petitioner suffered an accident at work. He drove his forklift truck from the warehouse to the dock and struck an overhead door. He was thrown from the forklift and suffered a severe shoulder injury. However, we denied the case because we learned that petitioner had no business reason to drive to the dock. He was simply driving out to the dock to "give some grief" to a co-worker. We presented witnesses to prove this fact and the arbitrator denied compensability.

Conclusion

This series of case decisions continues to demonstrate little change in the direction of the court. The courts have continued to protect employer rights and strictly construe the workers compensation statute. This is most evident with respect to court decisions protecting the employers workers compensation lien. The Supreme Court and the appellate court continue to publish case decisions protecting the employers lien. The employers lien is given paramount consideration prior to a claimants recovery in a civil suit. The Borrowman case was an aberration and should be ignored.

Similarly, in Virginia Surety v. Bills Builders, the courts protected the rights of the insurance carrier. The court ruling that the carrier didnt need a specific waiver in order to exclude an officer from the policy shows that the court is willing to give a literal reading of the Act rather than a reading which makes it difficult for carriers to issue policies. Many corporate officers opt to exclude themselves from policies. Many corporate officers are highly paid individuals. That means the premium on their wages is high. Nevertheless, if an officer opts out of the policy, he opts out of the benefits associated with the Workers Compensation Act.

These case decisions show that employers should continue to fight cases despite adverse precedents. Sometimes an appellate court ruling will simply be wrong. If we choose to blindly accept an improper ruling, we can never get it changed. There are frequently decisions from one district of the appellate court which contradict another district. Employers should not be afraid to attack unfavorable decisions especially if an adverse appellate ruling is from a different district.

Alternatively, the case decisions are less favorable when they deal with appeals from the Workers Compensation Commission itself. The change in commissioners in the past several years has led to more adverse decisions for employers. This is especially evident in the independent contractor truck driver case. In older cases, less favorable facts when presented before the Commission resulted in a finding of no employer-employee relationship. However, in the recent case, the Commission found that an employer-employee relationship existed and the court affirmed that finding. This ruling will make it much more difficult for trucking companies in the future to question the compensability of claims for workers compensation from owner-operators.

Any analysis of the costs of claims since the change in the statute February 1, 2006 is premature. However, with the combination of the changes in the Act increasing benefits and the change in the commissioners, award levels and costs have to be at their highest ever. This is true for both the low wage earners who benefit from higher minimum TTD and PPD rates, and the high wage earners who are entitled to new, higher maximums for wage differential and PPD. Overall medical costs have to be significantly higher despite the enactment of the very generous Medical Fee Schedule.

Michael E. Rusin is a senior partner of the Chicago firm Rusin, Maciorowski, Friedman. He can be reached at merusin@rusinlaw.com or by phone at (312) 454-5119.

-------------------------------