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Case Name: Daniel Langner v. American Transportation of Wisconsin (United Heartland)
Venue: Rockford – Commissioners Lamborn and Dauphin
Trial: 19(h) and 8(a) – Petitioner seeking additional compensation under the “oddlot” category.  The petitioner was awarded 10% man as a whole in 2008.
Handling Attorney:Karolina M. Zielinska, Robert M. Harris, Bradley C. Knell
Civil Mediation:John J. O’Connor
Case No.: 07WC 36761
Date of Accident: 05/01/2007

Award:
 
19(h) award 7.5% man as a whole (approximately $19,000.00) and 8(a) award $51,000.00 for a total award of $70,000.00.  Employer had $350,000.00 in a third party set-off.  Thus zero due to the petitioner.
 
Case summary:
 
On May 1, 2007, the petitioner injured his back when a semi truck ran into the rear the semi truck he drove for respondent.  Subsequently, an MRI revealed a right paracentral disc herniation at the L5-S1 impinging on the right S1 nerve root.  The petitioner underwent a right L5-S1 hemilaminotomy/discectomy.  Thereafter, on December 20, 2010, the petitioner underwent a spinal cord stimulator implantation.
 
This case was tried on April 10, 2008 and the Industrial Commission awarded 20% man as a whole.
 
Commissioner Lamborn held a 19(h) and 8(a) hearing in Rockford.  Again, the petitioner was claiming under Section 19(h) his mental condition had “worsened” since 2008.  Specifically, in 2009 and 2010, the petitioner was diagnosed with post-laminectomy syndrome, and it was recommended the petitioner undergo a spinal cord stimulator placement surgery.
 
Trial strategy:
 
Our first line of defense strategy involved taking the deposition of treating doctor, Dr. Yakolev.  On February 15, 2012, Dr. Yakolev testified that the petitioner’s condition had deteriorated since he first began treating him.  Dr. Yakolev further opined, “The petitioner was not able to operate a motor vehicle and would likely require narcotic medication, the use of a wheelchair and cane, and placement of an extended medical care of a rehabilitation facility for the rest of his life.”  Dr. Yakolev concluded, “The petitioner was completely disabled.”  Please take note that the petitioner was 33 years old at that time.
 
To counter such an opinion, we consulted an IME with Dr. Arthur Itkin, a neurologist.  Dr. Itkin found that the petitioner should not be wheelchair-bound and that his neurological findings did not support wheelchair use at all.  However, the key to our defense was vital surveillance videos which contradicted the petitioner’s allegations as well as Dr. Yakolev’s opinions.  Dr. Itkin had reviewed these videotapes but we asked him not to disclose his viewing of the videotape.  The element of surprise is key in prevailing at a workers’ compensation trial.
 
At trial we showed the two surveillance videos which clearly show the petitioner driving a truck, no use of a wheelchair or cane and using a chainsaw in which he did so over a period of 113 minutes.
 
The Commission found that the videos clearly contradicted the petitioner’s testimony that he had become wheelchair bound and that he could not bend over.  They also found Dr. Yakolev’s testimony to be inconsistent and not reliable at all.  The Commission, in very confusing fashion, did award the petitioner 7.5% man as a whole and $51,000.00 in additional medical.  But more importantly, the Commission found that the petitioner is not an odd lot permanent total candidate.  We feel that there is no solid evidentiary justification in awarding the additional 7.5% man as a whole.
 
Decision significance:
 
Provided that the petitioner is only 33 year old and seeking an odd lot permanent total, we were able to avoid a lifetime award of approximately $1.5M in future permanent total and medical expenses.  Beyond the significant future odd lot and medical savings, we were able to secure a third party set-off of $350,000.00 as a result of our participating in 2010 mediation.  At that mediation, the petitioner was awarded $450,000.00.  However, we were able to recover 75% our $100,000.00 workers’ compensation lien which we had paid out as a result of the 2008 trial award.  Furthermore, the employer retained a $350,000.00 third party “buffer.”  [$450,000.00 - $100,000.00 workers' compensation lien = $350,000.00 set-off buffer.]  The significance of the $350,000.00 set-off buffer is that the petitioner needed to get a 19(h) award above and beyond our $350,000.00 set-off buffer before he would get $1.00 from the employer.  Obviously, the petitioner fell well short in reaching that goal for he was only awarded $70,000.00 in additional 19(h) benefits.
 
Lastly, we contend when you have one law firm handling both the workers’ compensation and the third party liability defenses, it is far easier to formulate and coordinate your prospective strategies.  By doing so, an employer can achieve such maximum results as demonstrated in this matterVery truly yours,
 

Very truly yours,

KNELL & O’CONNOR