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Case Name: Lena Marks v. Verizon
Venue: Herrin – Arbitrator Gerald Granada
Handling Attorney: Brian P. Wojcicki
Case No.: 08WC 28921; 09WC 19490; 09WC 19491 (consolidated)
Date of Accident: 5/6/08; 10/6/06; 3/31/09
Case Trial Date: 07/27/12
Award: Denial of Permanent Total and Wage Differential Claim

Dear Clients:

Above all else, this recent arbitration decision appears to be the result of workers’ compensation reforms over the past year.

CASE SUMMARY:

Petitioner suffered several repetitive trauma injuries that resulted in operative treatment for bilateral carpal and cubital tunnel conditions, and bilateral thoracic outlet syndrome, with suspected complex regional pain syndrome.

Petitioner was eventually released to sedentary duty, but unable to return to her position with our client.

Petitioner attempted her own job search for three months and underwent vocational rehabilitation for three months before presenting her claim to the Arbitrator, requesting permanent total disability or, in the alternative, a wage differential award.

TRIAL STRATEGY:

At trial, we forced the Petitioner to prove each element of her claim. Although a seemingly obvious task, arbitration decisions in the past decade seemed to minimize the threshold requirements for proving a permanent total disability and wage differential claims.

For a permanent total disability claim, Petitioner had to establish either (1) her condition was so medically disabling that she was permanently and totally disabled from gainful employment, or (2) that she performed a sufficiently diligent but unsuccessful job search. With no medical opinion establishing permanent and total disability, and with vocational consultant testimony regarding Petitioner’s promising job prospects, the Arbitrator was persuaded in denying the permanent total disability claim.

Not only was the Arbitrator persuaded to question the diligence of Petitioner’s job search, but also whether it was actually unsuccessful.  The Arbitrator highlighted in the decision that “Petitioner…testified…she applied for Social Security Disability and that she would rather not continue her job search—factors which clearly cast doubt on the Petitioner’s motivation to actually find work.” The Arbitrator also found that “Petitioner is able to return to some type of work” based on the testimony of the vocational consultant, i.e. not an unsuccessful job search.

For a wage differential, Petitioner had to establish both that (1) she was unable to return to her usual and customary trade and (2) suffered a loss in earning capacity because of her injury.  During testimony and in post-trial arguments, we highlighted the fact that Petitioner’s restrictions did not automatically exclude Petitioner from her prior field of work, and that her job searches tended to include employment opportunities similar to her prior field of work.

CASE DECISION SIGNIFICANCE:

Ultimately, the Arbitrator denied the wage differential claim along with the permanent total disability request, and limited the award to a percentage loss of a person, which saved our client between $130,000.00 and $300,000.00, respectively.

We contend that this decision points out the significance of emphasizing factors that “cast doubt” on a petitioner’s motivation in finding a job, as it goes directly to the determination of whether a job search was diligent.  In this case, that was done through cross examination of Petitioner regarding her application for Social Security Disability Insurance (SSDI) and admission of not wanting to return to work.

In many permanent total disability cases, the petitioner has not only applied, but is also receiving SSDI benefits. In such cases, a respondent may further highlight that the petitioner does not have any financial incentive to find a job while receiving SSDI since doing so would jeopardize the continued receipt of SSDI benefits.

With the new legislative reforms and review of Arbitrator appointments, Arbitrators appear to be more strictly following fundamental thresholds for IWCC proceedings and proving a claim.  From basic issues regarding notice of a Petition for Immediate Hearing to establishing each legal element of a claim at trial, again, it appears that more Arbitrators (especially the new ones) are requiring both sides to strictly adhere to Commission Rules and Illinois case law precedent.

We are truly encouraged by the aforementioned trend, and hopefully, we will be able to secure such similar results in the future.

If you should have any additional questions or thoughts about this decision, please do not hesitate to contact the undersigned or the handling attorney, Brian P. Wojcicki.

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell