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Knell & Poulos Workers’ Compensation – Trial Result

Case Name:  Michael Nicholas v. The Workers’ Compensation Commission and Michael Burk

No.:  09 IWCC, 0516, 04 WC 24689

Venue:  Workers’ Compensation Commission (Geneva)

Respondent’s Attorneys:  Robert M. Harris, trial and Review

Bradley C. Knell, Circuit Court

SUMMARY: UPON REMAND ORDER FROM CIRCUIT COURT, COMMISSION RULES AGAINST PETITIONER ON ALL ISSUES, FINDS THAT PETITIONER FAILED TO PROVE ACCIDENT AND CAUSAL CONNECTION AND VACATES ITS PRIOR ORDER AND TAKES AWAY ALL BENEFITS.

ISSUES IN CIRCUIT COURT:

 

(1) Was the Commission’s Decision and Opinion on Review modifying the Arbitrator’s award against the manifest weight of the evidence?  YES

(2)  If so, what should the Circuit Court order as a result?  The Circuit Court remanded the case back to the Commission with orders to issue a new Decision adopting in full the arguments of the employer (“the reasons advocated by the appellant”)

Upon Remand, the Commission panel (Mason, Dauphin, Lindsay) held that “based upon the arguments that Respondent raised in its Circuit Court brief, the Commission finds that Petitioner failed to prove that he sustained accidental injuries arising out of and in the course of his employment on April 27, 2004 and that Petitioner failed to establish a causal connection between those claimed injuries and his condition of ill-being.

The Commission then vacated its prior award of 21-2/7 weeks of TTD at $608.89 week ($12,960.83), Section 8(a) medical benefits of $27,915.23, and permanent partial disability benefits totaling 30 weeks at $548.00/week ($16,440.00; representing 10% of leg and 2% of a man).   This saved the employer $57,316.06.

Lastly, the Commission awarded the employer full credit under Section 8(j) of the Act totaling $8,399.19;  $5,936.79 in group medical paid and $2,462.40 for group disability benefits paid.

FACTS:  Petitioner alleged a right knee medial meniscus tear and a back strain. The employer disputed accident based, in part, on Petitioner’s obvious lack of credibility regarding his claimed accident history and other issues and its reliance on the live witness testimony of three co-employees who denied that any accident occurred as alleged.  The employer further disputed causal connection, in part, based on the fact that Petitioner suffered a slip and fall on ice about 8 months after the alleged accident and that he sustained new and increased symptoms after the fall, resulting in the new medical need, for the first time, for 4 MRI exams, an EMG/NCV which revealed a new lumbar radiculopathy and a new diagnosis of a torn medial meniscus.  Employer argued that in addition to disputing the initial claimed accident, this slip and fall was an intervening, superseding accident which acted to sever the chain of causal connection between Petitioner’s present condition of ill-being and the initial accident, if any.

The Arbitrator rejected all of the employer’s arguments and awarded benefits. Both parties filed Reviews to the Commission.

The Commission modified the Arbitrator’s Decision, mainly reducing the medical awarded after a December 30, 2004, office visit to treating physician Dr. Kacmar, who noted Petitioner’s increased symptoms after the ice slip and fall. The Commission, though, made no comment or finding regarding the effect the ice slip and fall had on causal connection and TTD, even though it cut additional medical benefits after that same incident.

The employer filed its Review in the Circuit Court, arguing against the finding of accident and that the Commission’s Decision was unreasonable and erroneous based on the clear effect of the ice slip and fall, which the Commission only partially recognized, and failed to find that it was an intervening, superseding accident.

In an uncommon ruling, the Circuit Court agreed completely with the employer and issued its Remand Order based on its arguments.

SIGNIFICANCE AND LESSONS:

An improper award can be successfully challenged (even if eventually) when the employer relies on high-quality claim investigation showing a Petitioner’s lack of credibility and when it carefully builds a defense using, in addition, the testimony of key supporting witnesses (if available).

In this matter, the Petitioner was clearly not credible and the medical evidence of a treating physician was very compelling.  This medical evidence of an intervening, superseding accident should have been recognized and acknowledged by the Commission, if not the Arbitrator, for what it plainly was. Unfortunately, it required arguing the matter in the Circuit Court for a judge to set the matter right and to consider this evidence in an objective light, which then defeated Petitioner’s claim.  Perseverance in the pursuit of the defense of this claim ultimately paid off.

Please feel free to contact me with any questions or comments.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell