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Knell O’Connor Danielewicz Workers’ Compensation Trial Result
Case Name:  Robert Cedillo v. Four Seasons Heating&Cooling

IWCC No.:  03WC 61117

D/A:  11/3/03

Venue:  Geneva – Arbitrator Akemann

Respondent’s Attorney:  Jack O’Grady

Petitioner’s Attorney:  Craig Mielke

Knell O’Connor Danielewicz is pleased to announce that it has secured yet another favorable decision for an employer which, if affirmed, will work to the benefit of employers everywhere in the State of Illinois.

This most recent decision involved Section 19(d) of the Act. Known as the ‘injurious practices‘ doctrine, Section 19(d) allows an Arbitrator to reduce or suspend the compensation otherwise owed to an injured employee. As explained below, this section of the Act is rarely approved by Arbitrators or Commissioners. Here, we were able to secure a 19(d) finding based on the employee’s excessive alcohol use/abuse. This ruling is unprecedented and groundbreaking.

In order for the ‘injurious practices’ doctrine to apply, the employer must prove that the injured employee persisted in ‘unsanitary or injurious practices which tend to either imperil or retard his recovery’. This section of the Act has been constantly invoked by employers’ attorneys, but 99% of their efforts have been shut down by the IWCC. The typical scenario would involve an employee who continued to smoke cigarettes following spinal surgery, in spite of doctors’ orders to quit smoking due to the surely ill effects on spine/bone recovery. Another example would be the injured employee who not only refused to participate in therapy following knee or spine surgery, but who also made excessive weight gains against doctors’ orders.

Arbitrators and Commissioners have overwhelmingly declined to make 19(d) findings, often citing the tired and amorphous cliché ‘an employer takes an employee as it finds him/her’. We have been able to identify only one other case where injurious practices has been found, and that finding required an extreme amount of misconduct by the injured employee, including incessant smoking, excessive drinking, weight gain, refusal to take off a removable leg cast which inhibited recovery when worn, and disobeying of every single medical recommendation.

In this case, we set out to carry the ball far beyond the goal-line, repeatedly stressing the favorable evidence so as to remove any doubt that the ‘injurious practices’ doctrine applied. We even reached back to the evidence from the prior arbitration hearing (a tactic normally prohibited, yet permissible here) in order to establish the pattern of injurious practices. (Although we did not prevail as to this issue at the prior hearing, we re-asserted our argument while incorporating new and additional evidence.)

We were able to marshal the evidence to prove to the Arbitrator how the employee’s treating physician repeatedly advised him to stop drinking alcohol, as it would exacerbate his condition; how the employee showed signs of intoxication during more than one treatment visit; how surgery (to treat the employee’s torn elbow tendon) actually had to be cancelled due to intoxication; and how the physician’s credibility made these facts so compelling.

The end result: The Arbitrator suspended the employee’s TTD as of the date that the physician refused to treat the employee due to alcohol use/abuse. Instead of awarding the more-than-3 years of TTD as asserted by the employee’s attorney, the Arbitrator limited TTD to only 6½ months. Thus, the employer was spared 2½ years (126.8 weeks) of TTD liability, along with any potential penalties. This resulted in savings to the employer totaling $111,618.24. We are currently seeking review of this case as to the issue of penalties assessed, and we will continue to defend any challenge to the 19(d) ruling.

This latest Knell O’Connor Danielewicz victory regarding section 19(d), if affirmed, will be a relevant and helpful litigation weapon in every employer’s defense arsenal; and it proves that tenacity and aggressiveness, in defense of the employer, can achieve the correct result.