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Case Name:  Lawrence Carmody v. Riggs Construction, Inc
Case No:  05 WC 5459
Venue:   Chicago – Arbitrator Robert Williams
Trial Attorney:  Brian P. Wojcicki
Trial Result:  Denied Wage Differential

Case Summary Background:

Petitioner was a union carpenter, who was injured on January 21, 2005 when he jumped down from wood blocks attached to a wall, and fell approximately 10 feet through a piece of Tyvek wrap paper covering a large hole.

Diagnostic records the day of the accident revealed a comminuted L1 fracture and C5-6 and C6-7 disc space narrowing.  A subsequent MRI confirmed cervical stenosis from C3- C7.

The claim was initially litigated on June 29, 2005 and November, 25 2006 as a result of investigations revealing that Petitioner’s own actions brought him outside the scope of his employment at the time of the accident.

After Petitioner prevailed in establishing the accident and his spinal injuries, Petitioner underwent additional conservative and operative treatment, and was eventually returned to work by January 2007, which was the focus of the recent trial in this case.

Trial Strategy:

Petitioner claimed that he continued to experience neck symptoms after returning to work, which allegedly caused his employers to limit his work, and quickly lay him off.

Although Petitioner returned to carpentry work for several different employers over the course of three years, he claimed that the work was never permanent because of his disability, and eventually resulted in a career change to light duty work, which formed the basis of his wage differential claim.

Petitioner’s wage differential claim was disputed specifically because of his documented return to work at a union wage and lack of medical treatment for the three years he returned to work.

It was not until Petitioner sought settlement for the nature and extent of the claim that a wage differential was claimed.

Trial Summary:

At trial, Petitioner testified to his intermittent return to carpentry work and continued symptoms, and introduced the opinions of Dr. Michel Malek and a vocational consultant to argue for Petitioner’s original accident and related conditions necessitating a change in careers.

On the other hand, Respondent was successful in objecting to several hearsay and speculative statements offered by Petitioner that his employers let him go as a result of his injuries interfering with his work.  We also focused our argument on the return to carpentry work, large gap in treatment after his return to work, and burden of establishing a wage differential.  In addition, we obtained the well-supported opinions of Dr. Matthew Ross with Midwest Neurosurgery & Spine Specialists, disputing that his current career change was caused by his January 21, 2005 accident and injuries.

The Arbitrator ultimately agreed with our argument and found Petitioner’s claims as a transparent attempt to validate the career change he had already made.

The Arbitrator denied medical, temporary total disability, and maintenance liability after Petitioner’s initial return to work on January 2, 2007, denied the wage differential claim, and denied the petition for penalties and fees.

Significance:

In the end, the award sought by Petitioner of approximately $550,000.00 was reduced to a percentage loss of a person, and resulted in nearly $400,000.00 being saved.

Of note in this case, Dr. Michel Malek is a physician who often appears in support of a petitioner’s claim for significant disability or surgery.  Our research consequently focused on cases where the Commission has expressly rejected the opinion of Dr. Malek as not credible, and resulted in a section of our proposed decision dedicated to the skewed nature of Dr. Malek’s opinions. See Jackson v. Grand Prairie Transit, 10 IWCC 1260; Jobe v. Joliet Public School District, 10 IWCC 0147; Reed v. Area Salt & Chemical, 08 IWCC 0840; Fenwick v. Area Wide Septic, 07 IWCC 0769; Violante v. Chef Solutions, 06 IWCC 0405; Martin v. Addus Health, 05 IWCC 0914.

Although the Arbitrator did not specifically cite to these cases, he did expressly note the opinions of Dr. Malek as not convincing or persuasive not consistent with the evidence and of no probative value.

On another note, it is clear from the arbitration findings that gaps in medical treatment and the development of symptoms remain one of the most significant factors in denying liability, and should continue to be emphasized by employers.

If you should have any questions or insight as to the aforementioned, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell