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Knell & Poulos Workers’ Compensation – Litigation Result

Case Name:  Timothy Slater v. Select Build, Inc.

Court No.:  06WC 053501

D/A:  7/12/06

Venue:  Geneva – Arbitrator Kinnaman

Respondent’s Attorney:  Bradley C. Knell

Petitioner’s Attorney:  Michael Goldberg

Facts:

Petitioner was a 35-year-old journeyman carpenter at the time of his stated injury on July 9, 2006.  Petitioner had alleged an injury to his back and claimed that he was injured when he was swinging a sledge hammer inside of a small closet.  When he was using the sledge hammer, the Petitioner claimed that “something popped” and his back gave out.  This incident was unwitnessed.  The Respondent paid a total of $26,111.67 (39 weeks) in TTD from the following time periods: 7/13/06-1/18/07 and 1/26/07-4/19/07.  The Respondent stopped paying the Petitioner after 4/19/07 because Respondent believed in good faith that the Petitioner was no longer under work restrictions at that time.  The Petitioner never obtained light duty with the Respondent.

The Petitioner’s position was that he was entitled to additional TTD totaling $20,591.69 representing 28 4/7 weeks or the time period from April 20, 2007 until June 23, 2007 and then from August 29, 2007 until December 6, 2007.  Respondent’s position was not only that the Petitioner was not entitled to the additional 28 4/7 weeks of TTD but that Respondent was actually entitled to a credit for overpayment of TTD.  Respondent maintained that it was entitled to credit for any TTD paid after January 1, 2007.

Prior to trial, Respondent discovered that the Petitioner had been secretly working during the time period in which he was receiving TTD.  Through Info Max Investigations, Respondent conducted a surveillance of the Petitioner because of its suspicions that the Petitioner was working elsewhere.  Info Max conducted its surveillance on February 22, 26, and 27, 2007.  On February 22, 2007, the investigators trailed the Petitioner but ended up losing sight of him.  However, on February 26-27, 2007, the investigators followed the Petitioner and discovered that the Petitioner was working as a carpenter.  The investigators videotaped their discoveries and the videotape was shown at the trial which took place on December 6-7, 2007.

Up until trial and even during trial the Petitioner had denied working during the month of February 2007 during the same period he was collecting TTD.  The Petitioner lied under oath at trial and only when he was confronted with the videotape undeniably demonstrating to the Arbitrator that he had indeed been working during the same period he was collecting TTD did he come clean and admit he had been working.  However, when the Petitioner did finally admit to working he still attempted to squirm around the truth by saying he was only working for his nephew and that he was just doing so to do his nephew a favor.

The videotape was the smoking gun of the trial.  The videotaped demonstrated the Petitioner working at a medium to heavy duty, lifting heavy dry wall (weighing about 75-100 lbs), vigorously shoveling hard snow, and constantly bending down to the ground.  The Petitioner was caught red handed in a lie and completely destroyed his credibility at trial.

Results: 

As mentioned above, the case proceeded to trial on December 6-7, 2007 in Geneva before Arbitrator Kinnaman.  From the beginning we were at a slight disadvantage because Arbitrator Kinnaman is notorious for being pro Petitioner.  However, because of the Petitioner’s fraudulent actions, it did not take much to destroy his credibility.

The three main issues at trial were whether the Petitioner’s ill being was causally connected to the alleged injury; the amount of TTD due; and whether the Respondent was entitled to credit.  The main defense efforts in this case were to demonstrate that (1) indeed Petitioner was extremely incredible and that his deceitful actions amounted to fraudulent receipt of TTD benefits, (2) that he was not entitled to any additional TTD, and (3) that Respondent was entitled to credit for the overpayment of TTD that it paid to the Petitioner while the Petitioner was deceitfully receiving an income elsewhere.

Because the Respondent’s IME doctor, Dr. Skaletsky, was unable to testify at trial due to time conflicts, he was deposed on December 12, 2007.  During his deposition, he opined that the Petitioner’s current condition was not caused by the original alleged injury but rather was more likely caused by the work for his nephew.  His basis behind his opinion was because the MRI that was taken after his alleged injury different from the more recent MRI that was taken after his work for the nephew.  The original MRI did not show a disc herniation; however, the recent MRI did show a disc herniation.  After Dr. Skaletsky viewed the Info Max videotapes, he determined that due to the heavy duty work the Petitioner was performing, he very likely caused his herniation from working for his nephew.

In Arbitrator Kinnaman’s decision, she found that the Respondent was only entitled to TTD for 24-6/7 weeks (from 7/12/06 to 1/1/07) and that the Respondent was entitled to a credit for the overpayment of TTD, which totaled $8,107.14.  Also, the Petitioner was not entitled to any further medical care based on the finding that his condition after February 26, 2007 was not causally connected to his work accident.  Arbitrator Kinnaman stated in her decision that while the Petitioner strained his low back from his accident on July 12, 2006, he did not suffer from a disc herniation from this original accident.  Most notably, she used extremely strong words in her decision regarding the Petitioner’s credibility.  She stated that the “Petitioner’s credibility was completely destroyed by his own initial false denials that he worked as a carpenter after his injury”.

Additionally, we represented the employer in the Unemployment matter.  We found out during the Unemployment hearing that the Petitioner had worked for subsequent employers.  We used that evidence/information at the pending Workers’ Compensation trial as well.  We also prevailed at the Unemployment hearing because Select Build was not the last chargeable employer.

Potential Future Impact:

It is undetermined whether the Petitioner will file a review of this decision to the Commission.  However, even if the Petitioner chooses to do so, the cards will be stacked against him because of the strong wording of Arbitrator Kinnaman’s decision regarding his lack of credibility and his blatant lies.

It is very unusual in Workers’ Compensation for the Respondent to receive a “zero” judgment against it as well as actually being owed money as credit.  However, in Workers’ Compensation justice still can prevail for Respondents when Respondents present a well-founded case grounded in solid, credible evidence.

This case can be a reminder to all Respondents that the Respondent can still prevail in a pro Petitioner environment and specifically before an extremely pro Petitioner arbitrator if the Respondent builds a solid case against the Petitioner.  In this case, the Petitioner’s actions amounted to fraud and the Respondent built evidence against the Petitioner via the investigators to effectively prove the deception.  It would have been an utter injustice and against the purpose of the Workers’ Compensation statute (to compensate employees when they are out of work from a work related injury) for the Arbitrator to rule in any other way than she did in this matter because the Petitioner was receiving double payment: payment from TTD and payment for his job with his nephew.

Lastly, it is our understanding that we will be filing a Civil Fraud action against the Petitioner.  Under the Illinois Insurance Civil Fraud Act (720 ILCS 5/46-1), an employer can get back three times the amount defrauded or two times the attempted amount defrauded, plus attorneys’ fees.

If you should have any questions or concerns about this decision or the Illinois Insurance Civil Fraud Act please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell