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Case Name: nez Gutierrez v. Carl Buddig
Venue:   Chicago – Arbitrator Cronin / Commissioner DeVriendt
Trial Attorneys:  Bradley C. Knell and Andrew M. Fernandez
Appeal Attorney:   Andrew M. Fernandez
Case No.:   09WC6906; 10WC23945
Date of Accident:  12/19/08; 11/05/09
Original IWCC Award:    Approximately $370,000.00 in TTD, “prospective” fusion surgery
Circuit Court Reversal Award:  Zero; no accident
Total Savings:  19(b) – $370,000.00 and future permanency or permanent total award ($500,000.00)?

 

Dear Clients:

Knell & O’Connor is pleased to announce two more victories, with the Circuit Court reversal of a Commission decision finding causation and awarding medical benefits and TTD; and with the Circuit Court upholding the Commission’s reversal of Penalties and Fees on the companion case.

CASE SUMMARY BACKGROUND:

On December 19, 2008, Petitioner injured her lower back when she slipped and fell during a routine on-site medical examination.  Petitioner was diagnosed with a contusion and strain to the lumbar spine, treated for this first undisputed accident, returned to work full duty, and was opined to have reached MMI by August of 2009.

On November 5, 2009, Petitioner alleged a second at-work accident involving her lower back.  Petitioner alleged that she was injured when a custodian pushed a large garbage cart into her lower back.  Her physicians agreed that such an accident could cause her subsequent condition of ill-being – a disc herniation at L5-S1 requiring surgical repair.

Petitioner’s second claim was disputed based on questionable reporting, an investigation that revealed inconsistent histories of the alleged accident, as well as an examination of the cart showing that the cart was too tall to have struck Petitioner in the lower back.  Meanwhile, Petitioner demanded payment for all medical services and refused to differentiate medical treatment for accident 1 and accident 2.

Arbitrator Cronin ruled that Petitioner’s alleged second accident resulted in her condition of ill—being and awarded TTD and prospective medical treatment.  He also awarded penalties and fees for non-payment of benefits regarding the first undisputed accident.  The Commission affirmed and adopted Arbitrator Cronin’s Decision with regard to causation and benefits, but the Commission reversed the Arbitrator’s findings with regard to Penalties and fees.  On appeal, the Circuit Court reversed the decision of the Commission with regard to causation. Therefore, Petitioner is also due and owing no benefits (cost of medical treatment (including fusion), cost of TTD) for the second alleged accident.  The Circuit Court also affirmed the decision of the Commission regarding penalties and fees.

TRIAL STRATEGY:

At trial and through Respondent’s briefs, our focus was to show that the garbage cart could not have possibly caused her low back injury, to show that her doctors’ opinions regarding causation were based upon Petitioner’s misleading history of accident, and to show that Petitioner was not credible in her account of her second accident.  Between Petitioner’s testimony, the cross examination of her doctors, and the testimony of Respondent’s employees, the Circuit Court agreed.  Below, please see a copy of the actual garbage can with a model (same height as Petitioner – 5’2’, but much prettier) standing next to the cart.  The point of the cart was approximately a little over 4’2”.  The Petitioner was 5’2”.  Thus, as demonstrated in the picture, the cart/point could not have hit the Petitioner in the low back.  The Petitioner advised all of her doctors and the IWCC she was struck in the low back.  We brought the actual cart at trial and at the Review hearing.  We made the Petitioner stand up against the cart, which clearly demonstrated the Petitioner could have only been struck in the lower head/neck area.  Petitioner was crying the entire time.  Arbitrator Cronin did take “judicial notice” of this fact – but failed to mention his “judicial notice” in his decision.

It has been our motto throughout this case, “If it doesn’t hit, you must acquit”.  This live demonstration in court clearly brought us back to Johnny Cochran and the O.J. Simpson case.

Judge Brennan noted that the Commission’s finding of causation was based upon “the merest scintilla of the relevant evidence” and improperly relied on Petitioner’s credibility.  Judge Brennan pointed out Arbitrator Cronin’s misstatement of Petitioner’s testimony regarding where she was hit, and she also accounted for Gutierrez’s different and misleading histories given to medical providers.  She concluded that “[t]his variation in reporting to her physicians impaired their ability to provide a reliable medical opinion as to causation.”  Perhaps most significantly, Judge Brennan addressed Dr. Yapor’s opinion that the location of the injury was irrelevant.  Judge Brennan called Dr. Yapor’s opinion “nonsensical” and further stated that “[i]t is most certainly relevant, particularly when the claimant in the present case alleges a lower back injury where the claimed mechanism could not possibly have struck her in that location.”

Additionally, Judge Brennan stated that Carl Buddig’s “request that [claimant] differentiate the medical bills between those related to the first incident and second, as well as that the bills reflect current amounts owed is a reasonable request to expedite payment regarding a workplace incident… Further, it relates to [claimant’s] burden to demonstrate the reasonableness and necessity of the bills submitted.”  Judge Brennan further noted the substitution of counsel and that opposing counsel “appears to presume that no leeway be given for a substituted counsel…and instead acts as if substituted counsel had delayed proceedings from the onset…”  This, Judge Brennan noted, was not the case.

SIGNIFICANCE:

It is notoriously difficult to get a Commission Decision overturned by the Circuit Court, especially with a “manifest weight of the evidence” standard, and here we succeeded in doing so.  Moreover, we continued to keep Penalties and Fees from being awarded.  It is the first time in 24 years the undersigned has ever experienced such a result.

By continuing to appeal the liberal decision of the Arbitrator and the Commission, we eventually prevailed in showing that Petitioner did not meet her burden in proving causation by a preponderance of the evidence.

In doing so, Respondent avoided the costs of medical treatment, TTD for a significant period of time, and a potential Permanent Total Disability award down the road.

We are hopeful that this victory sends a message to Arbitrators and the Commission that the history of a Petitioner, alone, is not enough proof of causation of an accident, and that all evidence must be considered.  Additionally, we are hopeful that it reinforces the notion that Respondent does not have the burden to prove that something else caused Petitioner’s condition of ill-being; a Respondent must merely offer more credible evidence rebutting Petitioner’s allegations as to causation.

As always, if you have any further questions about this result, please contact Mr. Andrew Fernandez.

 

“If it does not hit (low back), you must acquit”

(Actual cart in question, but not the actual Petitioner. Model is 5’2” which is the Petitioner’s height)

 

 

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell