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Case Name: June 2015 – Casey Fletcher v. Asplundh Tree Expert Co.
Venue: Chicago

Arbitration /Trial  Attorney: Bradley C. Knell
Appeal Attorney: Andrew M. Fernandez
Case No.: 11 WC 44029
Date of Accident:10/13/2011
Trial Date: 12/12/2013
Arbitrator’s Total Award: $548,478.54

IWCC Appeal Award: $37, 579.47

 

Dear Clients:

Knell O’Connor Danielewicz is again pleased to announce the recent reversal of the above Arbitration decision. This reversal has resulted in significant savings for our client.

CASE SUMMARY BACKGROUND:

The Petitioner, Casey Fletcher, worked as a tree trimmer for Asplundh Tree Expert Co. On October 13, 2011, Petitioner injured his right wrist and arm while attempting to lift a fallen branch. On June 25, 2012, Dr. Velagapudi at Castle Orthopedics performed surgery and released petitioner back to work with restrictions on July 3, 2012. Petitioner had a FCE and Dr. Velagapudi released him from care with permanent restrictions stating that if Respondent had any one-handed work available, Petitioner would be able to perform that. Otherwise, Petitioner needed to remain off of work. Vocamotive Rehabilitation Services was hired by Petitioner’s attorney to perform a vocational assessment. Vocamotive concluded that Petitioner did not have any transferable skills. In contrast, on December 10, 2013, Respondent’s vocational rehabilitation counselor, Mr. Minnick, prepared an assessment that negated Vocamotive’s findings and found Petitioner did have transferable skills. We attempted to settle this matter on a disputed “loss of trade” basis, but our offer was rejected. Petitioner’s counsel insisted this matter was a §8(d-1) wage differential and demanded such. In addition, Respondent offered several full-time light duty positions but they were rejected by Petitioner as well. We felt we had a no choice but to try the case.

TRIAL STRATEGY:

Before we tried this case, we held several pre-trials in front of the Arbitrator. It was our goal to educate the Arbitrator that we were acting in good faith by offering Petitioner a job within his restrictions. Petitioner’s counsel rejected our offers because they were “too far away” (distance). On a key note, the Arbitrator at pre-trial felt the employee’s job offers were “valid and reasonable”. The job offers that were made were job estimator and flagger; both of which paid nearly the same as a tree trimmer ($1.40 less per hour).

At trial, we put on Regional Manager Mr. Williams, and he testified that the job offers that were presented to Petitioner were “very stable and legitimate” offers. Mr. Williams also testified that it is not unusual for his employees to drive 60-70 miles each way to a job, which Petitioner refused to do so. In a complete reversal from his prior pre-trial opinions, the Arbitrator did not find the offers valid and viewed them as sham offers. The Arbitrator also awarded Petitioner a wage differential of $317.47 a week based on the aforementioned rationale that the job offers were invalid. Further, $44,000.00 in penalties was awarded against the employee for failing to meet their burden of proving a justifiable reason for non-payment.

On Appeal, the Commission fortunately was persuaded by Mr. Williams’ testimony as to the validity of the job offers. The Commission first modified the Arbitrator’s decision by terminating all TTD benefits since there were suitable job replacement offers that Petitioner failed to take. Additionally, the Commission noted Vocamotive’s testimony not to be persuasive due to their lack of expertise in the tree trimming industry. Due to this assertion, the Commission concluded that Petitioner failed to meet their burden of proving that Petitioner was entitled to a wage differential. The Commission, looking at the record as a whole and all other surrounding factors, determined that Petitioner suffered the permanent loss of 30% use of his left hand.

SIGNIFICANCE:

The potential exposure saved was approximately $510,899.07 including penalties, §8(d-1) wage differential, TTD and medical bills. The initial Arbitrator’s award was $548,478.54 but was reduced to $37,579.47, which represents 30% loss of a hand. Respondent further received a TTD credit for prior overpayment of $5,753.22. Lastly, Vocational Rehabilitation was denied.

We believe the keys to this victory are two-fold:

1. Credible witnesses that are knowledgeable to the issues at hand; and
2. The best defense is a good offense – providing stable and valid job offers to employees with permanent restrictions.

To view this IWCC decision, please click here: IWCC Decision Fletcher. If you wish to discuss this IWCC decision in greater detail, please feel free to contact either Bradley Knell or Andrew Fernandez.

Very truly yours,

KNELL O’CONNOR DANIELEWICZ