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Knell & Poulos Workers’ Compensation – Trial Result

Case Name:  Scott Thoma v. Midwest Mechanical / KHB Group

IWCC No.:  07 WC 53804

D/A:  8/22/07

Venue:  Joliet – Arbitrator Hennessy

Respondent’s Attorney:  John P. O’Grady

Petitioner’s Attorney:  Neal Wishnick

K&P GETS COMMISSION TO REVERSE ARBITRATOR AND ISSUE A ZERO: After receiving an adverse decision at the arbitration level, Knell & Poulos appealed to the Commission and proved that there was No Accident and Insufficient Notice. The Commission reversed/vacated the arbitration award, effectively issuing a Zero Decision. Knell & Poulos protected yet another employer from having to pay out on a false claim.

BACKGROUND:

The petitioner, an apprentice sheet-metal worker, claims to have herniated a lumbar disc while performing duct-work for Midwest Mechanical on 8/22/07. In order to defend against this claim, Knell & Poulos performed some good old-fashioned investigation and obtained an array of records/documents that proved that the accident was fabricated. As the records indicated, the petitioner:

—Told his co-workers that his back pain was due to a long plane trip to/from an Arizona vacation in October 2007.

—Told his physical therapist that his pain started in Sept. 2007, “for no apparent reason”.

—Told his orthopedist that his back pain started on 8/1/07.

—Told his chiropractor that his back pain started sometime in June 2007.

—Told his Safety Manager that he did not know when/how he hurt his back, so he assumed it happened at work.

As the Commissioner ultimately found: “In fact, the record demonstrates that Petitioner provided a different history to just about every doctor he saw.”

This case clearly was going to be won or lost on the issue of whether the petitioner was credible. So, in advance of the trial, Knell & Poulos lined up all the necessary witnesses and exhibits that would disprove everything that the petitioner could possibly claim from the witness stand. Knell & Poulos called four witnesses on behalf of Midwest Mechanical and also succeeded in neutralizing the testimony of the petitioner’s only witness.

RESULTS:

At the trial level, the arbitrator found in favor of the petitioner and awarded:

—$22,828.79 in Temporary Total Disability (TTD) benefits; and

—$25,541.11 in Medical Expenses (the petitioner had disc-decompression surgery).

This award of $48,369.90 would be just the start of the money that Midwest Mechanical would have to pay out, as this was a Section 19(b) immediate hearing. The case would eventually have to be tried again, to determine what additional money would be awarded in TTD and permanency/PPD, which easily would have matched the 19(b) award.

Fortunately, the Commission found that the arbitration decision was just plain wrong:

While the Commission generally defers to an arbitrator’s credibility assessment, recognizing that he or she is in a better position to judge the appearance and demeanor of a witness, it is not able to do so in this case.”

The Commission agreed with Knell & Poulos and found that the petitioner failed to prove a compensable injury and failed to establish timely notice: No Accident, No Notice. The arbitration decision was reversed, and the award was vacated in its entirety.

SIGNIFICANCE:

During the Review process, Knell & Poulos told its client to be “cautiously optimistic” that the Commission would find that the petitioner fabricated this claim (i.e.: lied). Knell & Poulos felt that the evidence, and the efforts that put it together, were too compelling for the Commission to ignore. Those efforts succeeded in protecting the employer’s pocketbook and obtaining the most economical result possible. Knell & Poulos will not rest while your livelihood is at stake.

There is no easy, magical formula for obtaining a Zero Decision. To borrow from the great inventor, it takes “1% inspiration and 99% perspiration”. It comes down to hard work, sound judgement and vigilant trial-preparation. You deserve an attorney who will use these tools and who will fight to protect your interests.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell