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Case Name:  John Bober v. Central Rug & Carpet Co., Inc.

Case No:  06 WC 45392 & 08 WC 20526

Venue:  Chicago – Arbitrator Robert Lammie

Trial Attorney:  Brian P. Wojcicki

Trial Result:  Denied Permanent Total Disability

 

Case Summary Background:

Petitioner worked in carpet laying over 33 years at the time of the initial injury on September 15, 2006, and had been working for Respondent approximately 11 years.

Initial Left Knee Injury

Petitioner alleges he sustained a left knee injury with a date of accident on September 15, 2006, resulting from repetitive kneeling, crawling, and use of a knee kicker. Petitioner’s initial left knee injury was not disputed, and on November 16, 2006, he underwent arthroscopic surgery before being placed at maximum medical improvement (MMI) on November 30, 2007 with permanent light duty restrictions, which were accommodated.

Right Shoulder Injury

On February 4, 2008, Petitioner sought treatment for right shoulder pain and weakness. However, this was a year and a half after the accident claim, and our own investigation revealed a complete lack of notice regarding any right shoulder injury. Petitioner’s right shoulder injury claim was therefore denied.

Petitioner consequently obtained a causation opinion from his treating physician, and subsequent medical care consisted of injections, surgical repair of a rotator cuff tear, and therapy, after which Petitioner was placed at MMI without restrictions for the right shoulder on August 31, 2009.

However, Respondent was no longer able to accommodate Petitioner’s left knee work restrictions.

Trial Strategy:

Rather than simply seek a wage differential award, Petitioner sought permanent total disability (PTD), relying on his permanent restrictions, a self-directed job search since September 2009, and a lack of transferrable skills. Due to the denied payment of benefits for the right shoulder, Petitioner also sought an award for penalties and fees.

The most significant areas of disputed liability were the approximately $73,000.00 in medical expenses for the right shoulder injury, and overall liability for the PTD claim up to a present cash value of nearly $650,000.00.

Respondent’s defense focused on completely isolating the right shoulder as a separate accident, for which no notice was provided, and diminishing the legitimacy of Petitioner’s alleged inability to find stable work.

Trial Summary:

At trial and in Respondent’s proposed decision, we highlighted a timeline of right shoulder symptoms that demonstrated a questionable gap between Petitioner’s work and the injury, in addition to demonstrating a complete lack of notice, which was admitted by Petitioner on cross examination.

Regarding the PTD claim, we emphasized the generic nature of his job search, and the areas of work Petitioner may have sought employment given his knowledge of structural design and interior finishing.

The Arbitrator ultimately agreed with Respondent’s arguments that Petitioner’s right shoulder injury was separate and apart from his work for Respondent, and that Petitioner’s work restrictions and job search were not in fact sufficient to establish a permanent total disability claim.

Significance:

Potential savings from disputing Petitioner’s claims amounts to nearly $275,000.00. In addition, the ruling is instructive both in how the arbitrator ruled, and also for the rationale used.

Often a diligent job search over a year, even if self-directed, can establish a PTD claim where the petitioner had little to no transferrable job skills, as were the circumstances alleged in this case.

However, the Arbitrator’s decision shows that the mere length of a self-directed job search and number of pages of job search logs introduced is not sufficient alone simply because the injured worker is a former laborer restricted to modified duty work.

Regarding the right shoulder, the Arbitrator denied causation due to the delay in symptoms and notice, even though a causation opinion was provided by Petitioner’s physician; nonetheless, there is some caution to be noted with the Arbitrator’s unwillingness to rule based on lack of notice.

The Arbitrator found that a June 9, 2008 amended Application for Adjustment of Claim provided Respondent with at least defective notice, which triggers a burden shift nearly impossible to overcome.

However, there should have been no discussion of defective notice in this case since the only possible notice was beyond the statutory reporting period of 45 days under Section 6(c) of the Act. With the arbitrator’s rationale, a petitioner may potentially claim an injury to a new body part on the date of trial, and simply argue that this was defective notice.

Although of limited use, Section 6(c) of the Act at least provides a clear line to completely bar a claim for lack of notice, and the Arbitrator’s rationale in this case should be guarded against in future cases.

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell