In 2006, the Illinois Supreme Court denied the Chicago Board of Education's appeal of our below Appellate Court decision. This matter was  returned to the Illinois Workers' Compensation Commission for additional proceedings to determine the claimant's financial benefits.

Illinois Appellate Court :

In Rotberg v. Industrial Commission (No. 1-04-3013WC October 5, 2005), Wittenberg, Dougherty & Maglione, Ltd., successfully appealed this case to the Illinois Appellate Court, Workers' Compensation Commission Division. The Appellate Court reversed and remanded the finding by the Illinois Workers' Compensation Commission that a teacher’s disability resulting from anxiety disorder and depression was not causally related to his employment was against the "manifest weight of the evidence" because the event which caused his condition to become so severe that he could not longer tolerate classroom work arose out of and in course of his employment. After he broke up a fight between students, he was called into principal’s office, falsely accused of battery, handcuffed and taken to a police station where he was mistreated. The Court found he would not have been in position of being arrested had he not broken up fight in the course of his employment.

Click link below to read full opinion:
 http://www.state.il.us/court/Opinions/WorkersComp/2005/October/Html/1043013.htm 

Cases of Interest:

Post Traumatic Stress Disorder 

57 year old company repairman was severely burned on his thighs and genitals while attempting to repair a valve on a condensation tank. The burn injuries caused an inguinal hernia, erectile dysfunction (impotence) problems and psychological problems (Post Traumatic Stress Disorder and severe depression). On arbitration, it was held that he was entitled to total temporary disability benefits from the time of his injury until the time of hearing, 2 ½ years later, because although his conditions were causally related to the burns he sustained, he was still under psychiatric treatment and was not yet released to return or attempt to return to gainful employment by his treating psychologist. This case is still pending further developments in his treatment and attempts to return to gainful employment.

A 55 year old male worker on a food assembly line fell when his feet became entangled in an air hose, injuring his left hand and left knee. Arthroscopic surgery was performed on the knee for a torn meniscus. Two separate surgical procedures were performed on the left hand; the first for a fracture of the distal radius and, subsequently, by a second hand surgeon, for left carpal tunnel syndrome. When the employee returned to work a dispute arose as to whether the work required of him met the medical restrictions provided. The employee made repeated re-visits to his doctors and each was finally of the opinion there was likely an element of malingering present since his complaints seemed excessive. Based upon the belief that there might be something else medically to consider, a psychiatric referral was made by the second hand surgeon to a Spanish-speaking psychiatrist. He diagnosed a work-related Post Traumatic Stress Disorder and ordered the employee not to return to the same employer under any circumstances since there was a high degree of hostility expressed by the employee as to the way he had been treated. The employee applied for and was awarded Social Security disability benefits. The employer strongly contested the employee’s psychiatric diagnosis and further contested that there was any causal relationship between his alleged condition and the work injury sustained. Wittenberg, Dougherty & Maglione, Ltd., ultimately procured a settlement of $115,000.00 which included a Medicare set-aside for possible future medical treatment, including psychiatric services. The employee is also receiving Social Security disability benefits and his work pension.

61 year old woman, bakery-worker, with history of multiple psychiatric admissions, tore her right rotator cuff lifting heavy objects. This resulted in two psychiatric admissions and, in the psychiatrist’s opinion, her inability to return to work. Her employer disputed the causal connection of her psychiatric condition. The case was settled for $42,500.00 after a prior final offer from her employer’s insurance carrier of $15,000.00.

Total and Permanent Disability

36 year old female suffered a herniated lumbar disc filling a water cooler at work on a Saturday. She notified a Human Resources supervisor the same day, and was sent to her primary care physician on Monday when she arrived at work in obvious pain.  She was referred to an orthopaedic specialist who prescribed an MRI, confirming the herniation. Conservative treatment, including physical therapy, commenced. Petitioner had suffered back trouble but no frank herniation previously. The orthopaedic put her on a part time work schedule, which her immediate supervisor did not fully accommodate. He began to schedule mandatory afternoon meetings, which forced petitioner to work longer than the four hours recommended by her doctor. The supervisor began to harass petitioner about her job, yelling at her and slamming his hand on her desk.  She feared her job was in danger, went to Employee Assistance for help, and was referred to the Northwestern Crisis Center at the Stone Institute of Psychiatry. Petitioner was hospitalized twice for psychiatric treatment and continued out-patient treatment upon discharge she continued with orthopaedic treatment as well, and underwent two surgical procedures, a partial laminectomy and a posterior lumbar fusion, and numerous courses of physical therapy. She continues to have significant back pain and limitation of movement. She also treats with a psychiatrist regularly, with a diagnosis of Post Traumatic Stress Disorder.

The adjuster for the worker’s compensation carrier refused to acknowledge liability.  Initially, petitioner received short term disability benefits through group coverage based on her psychiatric diagnosis. When these benefits reached the maximum pay-out, Wittenberg, Dougherty & Maglione, Ltd., had them converted to coverage for her low back, which the employer had not disclosed to the carrier.  Petitioner continued to receive group benefits while treating her psychiatric and orthopaedic conditions. She made slow progress in both areas.  Her worker’s compensation claim was filed after thirty three months had passed because petitioner had not been capable of presenting a coherent history before then.

Still the adjuster would not acknowledge liability, yet he never requested an independent medical evaluation to verify his position.  In-house counsel’s recommendations to the adjuster were ignored.  At arbitration, petitioner presented live testimony by the treating psychiatrist, and the arbitrator adopted this opinion in the Decision.  Respondent presented no expert testimony.  Petitioner was awarded total permanent disability benefits, reimbursement of out-of-pocket medical expenses, a hold harmless provision for medical costs paid by group insurance, and penalties under Sections 19 (k) and (l), and Section 16 of the Worker’s Compensation Act. This Decision was affirmed on appeal before the Illinois Industrial Commission and Circuit Court of Cook County. The initial pay-out was more than one hundred fifty thousand dollars and petitioner will receive weekly benefits and related medical care for life.

Respondent urged its carrier to appeal the Arbitrator's Decision awarding permanent and total disability benefits. The Industrial Commission affirmed that decision and Respondent appealed to the Circuit Court of Cook County. However, respondent continued to tell its counsel that the carrier was working towards a settlement. Unfortunately, this did not occur in a timely fashion and counsel did not file its supporting brief to the circuit court in a timely fashion. Consequently, the court affirmed the decision and remanded the case back to the jurisdiction of the Industrial Commission where Petitioner' attorney filed a penalty petition for respondent's unreasonable and vexatious delay of benefits payment due to the circuit court appeal. Commissioner Barbara Sherman awarded penalties for the time period during which the circuit court appeal delayed payment of benefits.

Teacher was pushed into blackboard by student’s uncle during a classroom conference. This aggravated his chronic fatigue syndrome and back problems and caused an unrelenting psychological condition. Wood v. Chicago Public Schools.

Following work-related back surgery, janitor was diagnosed with depression and psychogenic pain syndrome. Barner v. Soil Test.

Ticket agent who was robbed, assaulted and struck in ticket booth developed post-traumatic stress disorder. Norman v. CTA.

Hospital transporter injured knee and later developed psychological disorder. Employer offered a job, which employee could not perform, but refused to provide psychological treatment which might have permitted employee to participate in vocational rehabilitation or attempt to return to work at desk job. Wells v. Mt. Sinai Hospital.

Janitor sustained extensive second and third degree burns when boiler exploded. Employer argued employee was malingering and obtained videos from investigator. Ragowski v. LaGrange Colonial Manor Nursing Center.

Dietary worker injured finger which was subsequently amputated. Employer refused to provide work which employee could perform without a substantial risk of re-injuring her finger. Watson v. County of Cook.

Wage Differential

Printer injured his low back and had surgery which prevented a return to his usual and customary line of employment. Occupational counselor testified employee suffered a loss of earning capacity and his new job (black jack dealer) was suitable given his physical restrictions, educational and employment history. Stickles v. Daily Racing Form.

Death Benefits

Janitorial employee who had been continuously harassed by his supervisor was found dead in his car in employer’s parking lot. His death was attributed to emotional stress, anxiety and depression which was a causative factor contributing to a fatal heart attack. Marino v. County of Cook.

Repetitive Trauma

Legal secretary’s repetitive twisting and stooping over a 2 day period while collating thousands of pages of documents caused her knee, which had pre-degenerative joint disease, to collapse. Dillon v. Kirkland & Ellis.

Exposure to Occupational Hazards

Clerical employee with history of allergies and asthma was exposed to paper with chemical agents which aggravated her condition. Irizarry v. Illinois Bell Telephone Company

Piercing the Corporate Veil

Secretary fell and when her employer, a corporation owned by a husband and wife, alleged it had no assets, the claim was amended to name the husband and wife individually as the real employers. English v. The Vassa Group, et al.

Miscelaneous

43 year old male machinist fractured left and third metatarsal. 20% of the left foot and payment of medical bill. Szubert v. Chicago Turnrite.

31 year old male campaign worker held by arbitrator to be an employee despite respondent's claim that he was an independent contractor. Over $16,000.00 in medical bills ordered paid for treatment related to auto accident as well as 3 weeks for disfigurement of left leg. 2003 Decision.

A United flight attendant tore her ACL when a passenger pulled a piece of wheeled luggage into her knee.  She had previously torn that ACL playing college basketball.  The claim was initially denied as being a pre-existing problem.  Eventually the carrier accepted liability, after an emergency petition was filed.  The surgical reconstruction failed despite aggressive post-operative physical therapy.  The carrier denied a second reconstruction.  The petitioner had the surgery under her group medical coverage.  After a full hearing, the arbitrator awarded all benefits owed and awarded the treatment costs for the second reconstruction.  The permanency settled for 47.5 per cent of the leg.

Heavy truck mechanic, age 64, needed bilateral hip replacements.  The causal connection to his job was not strong, but was premised on a repetitive theory.  The respondent's first independent medical evaluation found his condition "in part related to his work."  The second IME, not surprisingly, found no connection.  Treating records did not contain a strong history connecting the complaints.  After prolonged negotiation, petitioner received 32.5 percent disability to each leg, and a Medicare set-aside trust for future medical costs.

56 year old machine operator, had very bad osteoarthritis in both knees. He had been seen and treated for this for some time. He slipped on the oily floor near his machine at work and landed on one of his knees. The Workers’ Compensation insurance carrier defended his claim stating that it was already so bad that it needed surgery even without any accident. The Arbitrator held the work incident aggravated his pre-existing condition and he should be covered for his injury and treatment, a total knee replacement.

46 year old  nurse's aide, got into a heated argument with a belligerent patient when she was in the patient’s room at the hospital. Ms. Love had a prior history of a stroke and was treated extensively in a conservative fashion for a possible new stroke. The treatment was very extensive and involved every possible modality to rule out a new stroke. Her final diagnosis was that she had not suffered a stroke but had had an anxiety attack. Her group insurance carrier paid a bill of over $110,000.00 to the hospital and physicians for her treatment. When fully advised of all of the circumstances in the case, the group insurance carrier agreed to accept the sum of $2,000.00 and executed a Release for any additional amounts of money that Ms. Love might or could owe them in connection with the treatment she received.

Representative Workers' Compensation Settlements:

A union Concrete finisher injured his low back and underwent surgical repair. Despite some relief from his physical symptoms, the man was not able to return to work, and continued to receive treatment for a number of years. He received a lump sum settlement of $250,000.00 and an additional sum for a Medicare set-aside account to cover future treatment related to his work injury. When the employee contacted Wittenberg, Dougherty & Maglione, Ltd., the Workers’ Compensation carrier was denying responsibility for any work-related injury.

A United Parcel Service truck driver injured his neck due to the repetitive trauma of his job as an over-the-road truck driver. He had previously injured his neck at work, undergone two surgical procedures, and settled that claim in 2004 for approximately $75,000.00. United Parcel Service accepted responsibility for the new complaints, and the driver underwent two additional fusion surgeries to his neck. He accepted a settlement of $245,000.00, the present cash value of permanent disability benefits, and an additional sum for future treatment related to his Workers’ Compensation injury.

$222,955.00 - 40 year old male bander operator with right wrist carpal tunnel and left shoulder injury. Present cash value settlement with Social Security Disability Benefits.

$187,500.00 - 42 year old male auto mechanic tore right arm rotator cuff becoming unable to perform mechanic work. Lump sum wage differential settlement.

$170,000.00 - Plus all related medical paid, including a disputed ankle strain.  A package delivery person injured himself when he slipped climbing back into his truck during a winter storm.  He hurt his knee and hip.  The company denied work related injury.  The arbitrator, in a pretrial, recommended the carrier accept liability.  The employee had a knee replacement and hip replacement, and received a permanent 50 pound restriction.  He could not return to that job.  The parties settled for the present cash value of a wage difference based on the types of jobs where a vocational specialist was sending the employee to interview.

$160,000.00 - 43 year old male pipefitter tore right arm rotator cuff becoming unable to perform pipefitting work. Lump sum wage differential settlement.

$150,000.00 - 44 year old male Ford Motor employee injured back requiring surgery. Lump sum settlement with Social Security Disability Benefits.

$150,000.00 - 48 year old male truck driver tore right arm rotator cuff becoming unable to drive truck. Lump sum wage differential settlement. 

$140,000.00 - 38 year old male warehouse worker injured left knee crawling under conveyer belt. Meniscus tear with restricted return to work. Employer disputed causal connection after paying months of TTD. This case was tried as an emergency 19(b) hearing and was successful. The employer appealed and employee later accepted lump sum settlement and resignation.

$140,000.00 - 41 year old male electrician with herniated disc and nerve impingement. Lump sum settlement.

$130,000.00 - 51 year old male employee injured  when struck by vehicle while working. Injury to arm, leg and hand. TTD paid for months and dispute arose over whether employee refused to return to work modified duty.  Lump sum settlement with resignation.

$124,497.43 - 34 year old male mechanic injured lifting engine block. Left and right shoulder impingement syndrome, low back syndrome. 40% loss of the person as a whole, 30% loss of use of the left arm and 25% loss of use of the right arm settlement.

$106,000.00 - 32 year old female public school teacher attacked by student. TMJ and psychiatric injuries. Lump sum settlement with Disability Benefits.

$104,921.70 - 44 year old male Ford Motor employee struck by forklift. Back and left arm injury with surgery. Lump sum settlement with Social Security Disability Benefits.

$96,500.00 - 33 year old male heavy equipment operator. Injured left shoulder requiring surgery. 66% loss of the person as a whole with Social Security Disability Benefits.

$95,400.00 - 55 year old male truck driver. Injured left shoulder requiring surgery. 65% loss of the person as a whole with Social Security Disability Benefits.

$82,500.00 - 40 year old male carpet layer injured knees and unable to perform carpet laying work. Lump sum wage differential settlement.

$75,000.00 - 24 year old male sales representative injured right arm requiring distal clavical resection. Disputed claim settled as wage difference and 65% loss of use of the arm.

A union contractor tripped and fell while installing a show at McCormick Place. He had surgery to his right knee and ongoing complaints of back pain. He retired with Union benefits and received a lump sum settlement of $70,000.00 and an additional sum for a Medicare set-aside account.

$68,808.77 - 43 year old plumber herniated disc in back with surgery. 25% loss of the person as a whole plus reimbursement of group medical benefit payments in the amount of $28,817.87 and payment of outstanding medical bills of $14, 719.08.

$55,000.00 - 35 year old claimant performed work as a key punch operator for several years. In late 1997 she noticed numbness and pain in both hands but neither reported this to her employer nor sought medical treatment for her complaints. A few months later she went on pregnancy leave. Following the birth of her child she returned to her old job and within a few days noticed severe problems with both hands. This time she received medical treatment. She was diagnosed with bilateral De Quervaine's disease and over the next several years had multiple surgical procedures to each wrist and applied for and received Social Security Disability benefits. She attempted to return to work several times but never lasted more than a few days because of pain in her hands. Claimant's employer defended on the theory she failed to timely notify it of her injures and failed to properly identify the time of these injures. After prolonged settlement negotiations the claim was settled.

$55,000.00 - 51 year old male Cook County electrician. Herniated lumbar disc with no surgery. 27.71% loss of the person as a whole settlement.

$45,278.00 - 25 year old male City of Chicago employee injured both knees using sledgehammer. 25% loss of use of each leg. 

$45,000.00 - 31 year old female factory worker developed carpal tunnel syndrome from repetitive trauma. 50.63% loss of the person as a whole and 80% loss of use of the right arm settlement with Social Security Disability Benefits.

$40,084.94 - 50 year old female laboratory technician developed bilateral carpal tunnel from repetitive trauma. 17.5% loss of the right hand and 25% loss of the left hand.

$40,000.00 - 43 year old female factory worker with wrist strain. Lump sum settlement with resignation payment.

$39,821.40 - 49 year old male forklift operator developed bilateral carpal tunnel syndrome in his hands from repetitive trauma. Case was settled on a disputed basis for 21.22% of each hand and 10 weeks of TTD benefits.

$38,222.98 - 45 year old male mechanic injured left elbow requiring cubital tunnel release. 30% loss of the use of the left arm.

$29,046.55 - 22 year old male electrician with fractured left 2nd and 3rd metatarsals. 33% loss of the left foot.

$27,682.05 - 44 year old utilities system operator developed bilateral carpal tunnel syndrome. 15% loss of the right hand and 15% loss of the left hand.

$27,392.42 - 24 year old male SBC Ameritech employee suffered partial tear of supraspinatus, left arm. 27.5% loss of use of the left arm.

$25,000.00 - 30-year-old female camera operator was involved in a motor vehicle accident when she was struck under the lower lid of her left eye by a tripod, breaking her glasses. There was swelling under the eye and the eye was visibly reddened but there was no immediate or serious loss of vision noted when she was seen a few days after the incident by an ophthalmologist. Approximately six months later, she began to notice some additional symptoms in her eye. She was seen and an angiography showed a small chorodial neovascular membrane located nasal to the central macula. She subsequently had laser treatment and follow-up angiographer showed the neovascular process was adequately treated. She ultimately ended up with vision of 20/30 in the left eye.

Her medical experts, Morton F. Goldberg, M.D., Head, Department of Ophthalmology, Johns Hopkins University and Kirk H. Packo, M.D., Head, Department of Ophthalmology, Rush Medical Center, opined that her history of significant blunt trauma around the eye could be a causative factor in the development of the neovascularization. Although no chorodial rupture was noted, there could have been micro-ruptures within the Bruch’s membrane tissue beneath the retina that ultimately led to the neovascular process. The highly disputed case was settled for $25,000.00.

$25,000.00 - 22 year old male herniated lumbar discs from electric shock first week on the job. 30.32% loss of the person as a whole settlement. 

$16,880.53 - 45 year old male UPS worker with elbow spur and knee strain. 15% loss of use of the right arm and .5% loss of use of the left knee settlement.

$15,000.00 - 39 year old male UPS worker with operated left carpal tunnel syndrome. 20% loss of use of the left hand settlement.

$10,000.00 - 35 year old sales manager suffered hearing loss during airplane descent. 42.95% loss of hearing in the left ear.