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Knell & Poulos Workers’ Compensation – Trial Result

Case Name:  Eric Lambie v. APComPower
IWCC No.:  05 WC 012078
D/A:  3/2/05
Venue:  Peoria – Arbitrator Neal
Petitioner’s Attorney:  John Wendt, Law Offices of Mark Lee
Respondent’s Attorney(s):  Tina Swanson & Marcus Schantz

Trial Facts:

The petitioner suffered an undisputed injury to his left shoulder on March 2, 2005. He sought medical attention on March 4, 2005 at a local hospital complaining only of shoulder pain. He was laid off for force reduction on March 5, 2005.

The petitioner continued to treat with two other physicians during the following month only complaining of left shoulder problems and providing a history which only included an injury to his left shoulder. However on April 14, 2005 he sought treatment from an orthopedist now complaining of an injury to his right knee arising from the March 2, 2005 accident. Respondent’s on-site accident report, which was prepared the day of the accident and only mentioned a left shoulder injury, was submitted into evidence at hearing.

The petitioner was confronted on cross-examination by Tina Swanson with numerous inconsistencies in the history of the accident he provided to numerous medical treatment providers. Petitioner’s testimony was severely impeached. The petitioner testified that prior to the March 2, 2005 accident he had been working regularly and physically was in good condition. However, a medical record was submitted at trial from January 2005 which read that the petitioner had not been working for the previous 18 months secondary to a boating accident seven years prior.

The petitioner also had a prior workers’ compensation award for 30% loss of use of his left arm. A certified copy of the Commission’s award record was introduced at trial and placed in the record. Respondent, therefore, was due a credit equal to 30% loss of use of the left arm in this matter. Per stipulation, Respondent was also due an 8(j) credit in the amount of $11,355.20.

Petitioner was seeking 139 weeks or $146,226.61 in additional TTD benefits as well as future Section 8(a) medical for surgery to the right knee.

Prior to trial Respondent offered petitioner settlement of 5% loss of a leg on a disputed basis but this offer was rejected and the case proceeded to arbitration on October 24, 2007.

Decision of Arbitrator Neal:

Respondent submitted a proposed finding of no accident or causal connection with regards to the alleged right knee claim. There was a dispute regarding temporary total disability due to petitioner. Respondent had paid $30,507.71 in TTD benefits for the left shoulder but did not pay benefits relating to the alleged knee injury.

Arbitrator Neal signed off on Respondent’s proposed finding in full, finding there was no accident to the petitioner’s right knee. Accordingly there was also no causal connection regarding the right knee and therefore petitioner was entitled to no further TTD benefits and no Section 8(a) medical for treatment to his right knee.

This denial resulted in a savings of $146,226.61 in past TTD and estimated future surgical costs of $25,000. There were also further savings of $8,415.92 in post-surgery TTD (assuming 8 weeks until the petitioner would be at MMI and returned to work full duty), and a permanency award of 25% of a leg or $28,393.50. Therefore the estimated savings total $208,036.03.

Respondent stipulated that there was $871.00 due for Section 8(a) medical relating to treatment for the left shoulder. However, respondent was due an 8(j) credit in the amount of $11,335.20 so this was in effect a zero award.

Per our 8(j) credit, we will be seeking the balance of $10,464.00 from the petitioner.

Future Legal Strategy:

Document all work accidents immediately upon notification. In this case, Respondent’s accident form was prepared by the on-site safety manager which only indicated an injury to the left shoulder. Although the initial medical records were silent regarding an alleged right knee injury, this document, introduced into evidence, was likely persuasive since it was the first record made after the accident.

Furthermore, it is important to make sure you claim all of your 8(j) credit when applicable. An employer can claim an 8(j) credit for medical or disability benefits paid to the petitioner when they “wholly or partly” pay the premium or contribute to a union disability fund or group medical provider.