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Knell & O’connor Workers’ Compensation Case Result

Case Name:  Joy Breese v. Andrew Corporation

Venue:  Chicago – Arbitrator Robert Williams

Handling Attorney:  Bradley C. Knell and Brian P. Wojcicki

Case No.:  06 WC 38472 

Date of Accident:  7/29/04

Case Trial Date:  02/25/11

Benefits Awarded:  $0 – Case reinstatement denied

Knell & O’Connor is again pleased to announce another victory.  By diligently pursuing our defense, we were able to obtain a formal denial of reinstatement of Petitioner’s claim following its dismissal for want of prosecution.

CASE SUMMARY BACKGROUND:

Petitioner alleged a left forearm laceration and bilateral carpel tunnel conditions, with an accident date of July 29, 2004.

At the time, Petitioner was working as a cable associate, making coaxial cable and running a seam welder; however, both injury reports and medical records raised questions as to notice of the accident and its connection to the alleged carpal tunnel syndrome.  In addition, Petitioner’s Application for Adjustment of Claim only listed the left forearm, and did not indicate the injury was a repetitive trauma.

Although several attempts were made to avoid unnecessary litigation through a nuisance settlement, Petitioner continued to reject Respondent’s offers, and eventually failed to prosecute her claim.  More specifically, Petitioner’s claim was dismissed for failing to seek a trial date after being on the Arbitrator’s docket for over three years.

Although a claim is routinely reinstated if requested within 60 days of dismissal, Petitioner failed to appear at her reinstatement hearing in December 2009, and the claim was removed from the Arbitrator’s docket.  After Petitioner’s appeal, the Commission ordered the Arbitrator to hold a formal hearing on the record regarding reinstatement.

As a result, Respondent filed a motion for a hearing to deny reinstatement of Petitioner’s claim, which was held on February 25, 2011.

TRIAL STRATEGY:

By focusing on the denial of reinstatement, we were able to foreclose any possibility of exposure for permanency or medical expenses.

In monitoring the claim, we were aware that the Arbitrator previously ruled in favor of Respondent based on Petitioner’s failure to pursue reinstatement of the claim.  The Arbitrator interpreted the Illinois Workers’ Compensation Act to mean Petitioner was required to pursue reinstatement at the scheduled hearing in December 2009.

At trial, we cross examined opposing counsel regarding his failure to appear at the December 2009 hearing, and subsequent failure to seek reinstatement until March 2010.  Knowing Petitioner’s only defense was to claim Respondent stipulated to reinstatement or otherwise misled Petitioner.  To counter such a defense, Brian Wojcicki (trial handling attorney) put the undersigned on the stand.  The undersigned denied ever agreeing to any stipulation or agreement to the reinstatement. With a clear understanding of Commission rules, we emphasized on direct and cross examination that Respondent, at no time, stipulated to reinstatement or misled Petitioner.

Lastly, the Arbitrator departed from common Illinois Workers’ Compensation Commission practice by entering an Order denying reinstatement.

SIGNIFICANCE:

The potential liability saved with our defense was between $8,938.37 and $19,531.92.  Permanency exposure for bilateral non-operative carpal tunnel syndrome was evaluated between $7,719.50 and $15,439.02, and for minor disfigurement due to scarring, between $1,218.87 and $4,092.90.

With our defense strategy, Petitioner’s claim and Respondent’s liability was completely foreclosed, and we are now in a position to possibly establish an interpretation of the Act that is favorable to employers.

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell