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Case Name: Michael Oros v. Sealy Mattress Company
Venue: Peoria – Arbitrator Giordano
Trial Attorney: Brian P. Wojcicki
Head Attorney:         Bradley C. Knell, 2nd Chair
Case No: 11 WC 08483
Date of Accident: 2/25/11
Benefits Awarded:    $0 – Benefits Denied

CASE SUMMARY BACKGROUND:

Petitioner alleged that he suffered right and left shoulder as well as elbow injuries while delivering and unloading mattresses.  More specifically, Petitioner claimed that he went to unload mattresses from the truck trailer, and the mattresses collapsed because they were not properly stacked.  The mattresses fell, Petitioner raised his hand in a catching motion to protect his face, and the mattresses hit his arms and caused a popping and tearing sound.  Petitioner testified that there were no witnesses, but the customer (Sherman Furniture’s supervisor) rebutted that testimony by offering that he saw Petitioner the entire time and witnessed no accident.

Thereafter, Petitioner was able to complete the Sherman delivery and was able to drive from Peoria to Batavia, Illinois (approximately 2-1/2 to 3 hours).  Petitioner failed to notify his employer about his accident during the completion of his delivery route.  The injury reports and witness statements confirmed that Petitioner did not notify Respondent of the accident until returning to the Petitioner’s location at 3:00 p.m.  The time of the alleged accident was 11:00 a.m.  Furthermore, witness statements and live testimony supported that Petitioner admitted to being injured at the previous delivery location.  The previous delivery was at Ashley Furniture, and an Ashley witness countered that he did not see any accident.

With respect to Petitioner’s medical treatment, Petitioner was first diagnosed with bilateral elbow strains, right shoulder strain and left bicep muscle strain.  Petitioner soon thereafter presented himself to Hinsdale Orthopedics.  The employer feared and we agreed that if the “door was opened”, the medical treatment costs and the resulting permanency would be significant.  A 19(b) and 8(a) were immediately filed upon the employer’s rejection for payment of benefits.

We wanted to set up an IME, but the Arbitrator ruled that if we wanted an IME, we had to pay TTD or an advance against permanency.  However, we thought that an IME might just confirm Hinsdale’s diagnosis and recommendations.  Our main defense was no accident.  We had valid and credible documentation as well as testimony to support our accident defenses.  The Hinsdale doctors diagnosed Petitioner’s condition to be a labral lesion, biceps tendonitis and possible rotator cuff tear.  In addition, the Hinsdale doctors also feared possible impingement and some cubital tunnel symptoms.  But for good measure, they added an alternative diagnosis of cervical radiculopathy.  Later, the Hinsdale doctors recommended right shoulder surgery for the right shoulder labrum and possible rotator cuff tear.  The Hinsdale doctors further recommended a cervical MRI and continuing treatment for the neck.

TRIAL/CLAIM STRATEGY:

Respondent’s goal was not to allow the “door to be opened” for Petitioner’s treatment at Hinsdale Orthopaedics.  The Hinsdale doctors had provided causation opinions.  With respect to TTD, we had offered light duty, but Petitioner stated he could not drive a truck or drive his car to work due to pain medications.  Nevertheless, we had caught him in surveillance driving his own car.  The pain medication that was prescribed was only to be taken at night/bedtime.  We brought this up later during the course of cross-examination.  The employer did not want to offer any TTD or advance against permanency under these circumstances.  Further, with a full briefing of the risk and rewards, the employer was allowed to decide whther to proceed, and it paid off.

We advised opposing counsel and the Arbitrator that we did not want to pay any TTD, advances or medicals.  We further advised the court that we wanted our day in court and that one of our key witnesses had been flown in from Ohio.  The Arbitrator then immediately pushed for the trial to start.

TRIAL SUMMARY/ARBITRATOR FINDINGS:

During direct examination, Petitioner claimed that he went to unload mattresses from his truck trailer at the Sherman delivery location when the mattresses collapsed, causing box springs stacked on top of the mattresses to fall upon him.

Petitioner admitted on cross-examination that he spoke to his direct supervisor near the middle of his deliveries on the date of accident, but claims that the conversation took place prior to his delivery at Sherman’s.  However, the supervisor’s witness statement, trucking delivery logs and the testimony of the HR Manager placed their conversation close to, if not after, the time Petitioner arrived at the Sherman’s delivery location.  Either way, Petitioner did not report the accident until after returning to Respondent’s office nearly four hours later.  It was also brought up during cross-examination that according to Respondent’s supervisor’s witness statement that Petitioner on February 24th had requested Friday, February 25th off and was not very happy when that request was denied.

Regardless as to when Petitioner reported the accident, once Petitioner did report the accident later that day, his account of the accident was not consistent with the witness statements provided by Ashley Furniture and Sherman’s, and at trial, Petitioner failed to credibly detail how the accident occurred.  In addition, the warehouse supervisor at Sherman’s favorably testified to being present the day of the alleged accident and not witnessing any incident, and also confirmed admissions by the Petitioner that he was actually injured prior to reaching Sherman’s.

The Respondent’s HR Director was cross-examined as to whether or not the Sherman’s witness statement could still mean the accident occurred at work because it would have then occurred at Ashley Furniture; however, the witness statement from Ashley Furniture indicated no accident was witnessed at the delivery site either.

On direct examination, Petitioner presented a general scenario where the box springs fell from the mattresses that collapsed sometime after he reached the Sherman’s delivery location; however, when pressed for more detail on cross-examination, Petitioner was unable to describe the accident, and in light of the witness statements highlighting discrepancies in Petitioner’s statements, the mechanism of the accident was vague at best.

The Arbitrator found that the burden is on Petitioner seeking an award to prove by a preponderance of credible evidence, all evidence of his claim, including the requirement that the injury arose out of and in the course of his employment (Parro v. Industrial Commission, 630 N.E.2d 860, 862, (Ill. App. 1st Dist. 1993).  Further, the Arbitrator ruled that an Arbitrator cannot be left to speculate when an accident occurred after being presented with all the evidence (Granite City Steel Co. v. Industrial Commission, 233 N.E.2d 358,359 (Ill. 1968); American Brake Shoe Co. v. Industrial Commission, 169 N.E.2d 256, 260 (Ill. 1960).

SIGNIFICANCE:

We believe that this Decision confirms that an employer that has valid and credible documentation as well as testimony can prevail at the Industrial Commission.  The key to prevailing is to have the employer carefully investigate the alleged accident right after it happens.  The interviewing of witnesses and performing accident site inspections are vital as well.  For example, we inspected how mattresses are loaded per company policy.  By doing so, we were able to determine that it was very unlikely the accident occurred as alleged.

We also acknowledge that a key factor in the trial decision process is determined by the pending and assigned Arbitrator to a case.  It is no secret that an Arbitrator’s reputation and known “leanings” are clear at the Commission but very relevant to the litigation decision process.  Lastly, it can be worth “rolling the dice” when there is a significant medical exposure which also leads to a significant TTD and permanency exposures.  Sometimes, you have to ask why not try the case if the resulting exposures are significant?

LITIGATION SAVINGS:

We estimate that we avoided medical, surgical and physical therapy costs of over $100,000.00 and TTD savings of six months, or approximately $25,000.00.  The employer further avoided potential permanency exposure in excess of $75,000.00.  Lastly, by trying the case at the “early stage”, the employer avoided IME and deposition costs – $10,000.00 to $15,000.00.  The total estimated savings was approximately $215,000.00.

 Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell