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Knell & Poulos Workers’ Compensation – Trial Result

 

Case Name:  Ann Getz v. Michael Nicholas Carpentry

Venue:  Commission Level:  Geneva – Arbitrator Kinnaman

Circuit Court Level:  Kane County – Judge Colwell

Respondent’s Attorney:  Bradley C. Knell

Petitioner’s Attorney:  David Olivero

 

FACTS:

Arbitrator Kinnaman awarded the petitioner TTD for 68-5/7 weeks, or $32,566.62, and penalties for $21,566.62.  These penalties were awarded on the basis of the non-payment of TTD and medicals.  Arbitrator Kinnaman awarded the noted TTD and penalties despite respondent offering the petitioner a light duty job within her restrictions and based upon a nurse’s note (not a doctor’s note) that the petitioner could not work at all.  However, on a very important side note, the nurse never saw the petitioner.  There was no examination whatsoever.

RESULTS: 

 The Commission affirmed the noted Decision, but Judge Colwell reversed the penalties portion of the award.  While we are not pleased with the TTD award remaining intact, we are encouraged about the penalties being reversed and cut in their entirety.  We do intend to appeal the remaining TTD to the Appellate Court.  We are beginning to see that both the IWCC and the reviewing court are routinely knocking out penalties.  We believe that these reviewing panels are tired of seeing appeal after appeal based upon erroneously awarded penalties.  For a while, it was a “rule of thumb” that if an employer tried a case, that employer was going to get hit with penalties.

LITIGATION SIGNIFICANCE:

In this case at bar, we had excellent testimony from adjuster Ray Wills.  Mr. Wills presented a concrete defense as to TTD and penalties.  It was obvious that Arbitrator Kinnaman was frustrated with Mr. Wills’ testimony.  In fact, Arbitrator Kinnaman found that while Mr. Wills and our IME Dr. Goldberg’s testimonies were credible as to the petitioner being at MMI, she still awarded penalties for the non-payment of medicals after the MMI date.  Unbelievable.  We are hopeful that the reviewing Commission and court panels will take note of such inconsistencies and strike down non-warranted penalties.  In order to prevail at trial, it is essential to have the proper documentation and supporting testimony.  In this state, the employers basically have the burden to prove “beyond a reasonable doubt” that the petitioner is not entitled to benefits.

If you should have any questions or would like a copy of this Decision, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell