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Knell & O’Connor Workers’ Compensation Case Result

Case Name:  Salvador Moreno v. OBRC Construction Co., L.L.C.

Venue:  Chicago – Arbitrator Dollison

Handling Attorney:  Bradley C. Knell and Jeff Travis

Case No.:  06 WC 41942

Date of Accident:  8/17/06

Case Trial Date:  10/20/10

Benefits Awarded:  $0

We are pleased to announce our first case result under the Knell & O’Connor banner.  (The below trial result was tried during the tenure of Knell & Poulos, but Knell & O’Connor received the Decision from the IWCC.)

As before, it is Knell & O’Connor’s goal to provide the same aggressive and proactive approach in defending your cases.  Further, our legal services extend beyond the Workers’ Compensation arena.  We have an experienced civil litigator, John O’Connor, to provide you excellent counseling in the areas of third party liability, construction law, insurance coverage and employment.  We believe our diversified practice will provide you more comprehensive legal services in order to protect your interests.

Also, Knell & O’Connor is pleased to announce that Nick Caputo has joined our firm, Of Counsel.  Mr. Caputo is an Adjunct Professor at the Chicago-Kent College of Law and handles a wide variety of cases ranging from labor, employment and contract disputes to complex commercial matters.

CASE SUMMARY BACKGROUND:

Petitioner, a roofer, alleged a work-related injury only two months after his hire. Petitioner claimed that he incurred blisters to his left great toe which led to its amputation. Petitioner treated with Chiropractor Melvin D’Souza who opined that Petitioner’s exposure to hot roofing materials caused the blisters and the eventual need for amputation.

FACTS AND LITIGATION STRATEGY:

Petitioner was a diabetic for 22 years, and it was our goal to show that Petitioner’s loss was attributable to his diabetes and not his employment.

We began by reviewing Petitioner’s medical records. We discovered that Petitioner’s “injury” predated his alleged accident date. In fact, Petitioner testified that his blisters began four weeks prior his alleged accident date. He also conceded, on cross-examination, that on the day of his initial examination he never told the doctor that he was a roofer, or that he believed his injury was related to his employment.

Next, we successfully attacked the opinions of Petitioner’s treating chiropractor, Dr. D’Souza. On cross-examination Dr. D’Souza admitted that he had not reviewed Petitioner’s initial treatment records. He further conceded that he “would have different opinion probably” had he been provided those records.

In addition, Petitioner was examined, per our request, by highly-qualified, board-certified orthopedic surgeon, Dr. George Holmes. Dr. Holmes reviewed Petitioner’s medical history, and after his examination of Petitioner, he opined that the amputation of Petitioner’s left great toe was caused by a manifestation of his diabetes and not his alleged work injury.  He testified to the same during his deposition.  Dr. Holmes opined that Dr. D’Souza’s chiropractic treatment was not appropriate for Petitioner’s diabetic condition.

We further presented three witnesses from the insured to rebut Petitioner’s allegations.  Our first witness, Mr. Mark Cannon, president of OBRC, provided excellent testimony in that the roof in question was never hot to the Petitioner, due to the safety shoes being worn.  Also, Petitioner never had direct contact with any hot tar.  Mr. Cannon and his two subordinates further added that Petitioner never provided any notice except for the fact that he had a diabetic condition.  We were also able to obtain information from the Roofers Union that Petitioner tried to submit this as a non-workers’ compensation condition, yet he did not qualify because he did not work long enough in order to qualify for union benefits.  It came out during the course of testimony that Petitioner was advised by the Union to “go and try to put it under Workers Comp”.

SIGNIFICANCE:

Respondent faced considerable exposure in this matter.  We had offered $5,000.00 for cost of litigation settlement, but this was rejected by Petitioner’s counsel.  The employer faced $10,678.95 in TTD payments; a $21,865.00 permanency award (Petitioner’s demand), representing 38 weeks, or 100% loss of use of a great toe; and $20,789.68 in medical bills, penalties and attorney’s fees.  Nevertheless, through aggressive cross-examinations during the evidentiary depositions and at trial, we were able to establish that Petitioner’s amputation to his toe was not causally related to his employment, thus saving our client more than $53,333.63.

We felt that one of the key elements in prevailing was to establish that Petitioner’s Chiropractor was not qualified to testify as to the “causation” or “aggravation” of Petitioner’s diabetic condition and subsequent amputation.  However, we did not stop at the medical aspect of this matter.  We further obtained documentation and testimony to show that Petitioner never provided notice of any work related injury.  In fact, Petitioner admitted that he told his fellow co-workers that he was simply suffering from diabetes and was seeking treatment for the same.  All three of the Respondent’s witnesses were members of the Petitioner’s Union.  We believe that this fact carried a lot of weight with the Arbitrator.

In conclusion, we prevailed at the Illinois Workers’ Compensation Commission by carefully selecting our medical expert and obtaining documentation and testimony to rebut the Petitioner’s erroneous allegations.

Very truly yours,

KNELL & O’CONNOR, P.C.

Bradley C. Knell