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Case Name:  Mary Mikesic v. Carl Buddig
Venue:  Chicago – Arbitrator Carlson / Commissioner DeVriendt
Handling Attorney: Andrew M. Fernandez
Case No.:   10WC23395
Date of Accident:  12/11/07
Benefits Awarded:  $0

 

Dear Clients:

Knell & O’Connor is pleased to announce a victory at the Commission.  The Commission dismissed a Petition for Review filed by opposing counsel, based upon the arguments presented in our Brief.

CASE SUMMARY BACKGROUND:

On December 11, 2007, Petitioner injured both shoulders at work.  She received treatment and was released at MMI with permanent restrictions.  An MSA Recommendation was obtained, and subsequently, settlement negations ensued.

Eventually, the parties reached agreement that the case would be settled in a lump sum, for all issues, for $70,000.00.  We prepared contracts, and in the contracts, we specified that the MSA was to be self-funded, self-administered, and paid “from settlement proceeds”.

Contracts were sent to opposing counsel with a letter asking him to review the contracts to ensure their accuracy.  The letter stated that if opposing counsel agreed to the terms, he should sign, have his client sign, and have contracts submitted to the Arbitrator for approval.  The contracts were signed and approved.

Subsequently, opposing counsel contacted us seeking payment for the MSA recommendation in addition to the $70,000 payment sent to Petitioner.  We refused any additional payment.  Opposing counsel filed a Petition for Review, and we filed a Response Brief.

STRATEGY:

Where opposing counsel did not explicitly state that settlement was to be for $70,000.00 plus the MSA, we interpreted the terms of settlement conservatively.  We wrote contracts as being for $70,000.00 including the MSA.  We gave opposing counsel the opportunity to review the contracts and request changes; he failed to do so.

In our Response Brief to the Commission, we explicitly pointed out opposing counsel’s signature on the contracts, indicating understanding and agreement to its terms.  We also argued that since the Contracts were approved, the Commission lacks jurisdiction to hear opposing counsel’s claim.

The Commission agreed. In its Order, the Commission wrote that “an approved settlement agreement becomes a final award after 20 days if no petition for review is filed, and the Commission no longer has jurisdiction to reopen or reconsider an award beyond that date.”  The Commission noted that opposing counsel missed the 20-day window, and therefore the Commission dismissed the appeal.

As a side-note, although opposing counsel failed to file an appeal to the Circuit Court, we believe that he also would have lost there.

SIGNIFICANCE:

Careful drafting of settlement contracts can yield savings to the client now and in the future.  There is no case law prohibiting payment of an MSA recommendation from the proceeds of settlement. However, it appears that opposing counsel did not expect that and did not take timely action to request changes to the contracts.  As such, our client saved the cost of the MSA recommendation.

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

Very truly yours,

KNELL & O’CONNOR

Bradley C. Knell