Wednesday, July 30, 2014

The Motel 6 of Justice

Jose Nunez worked as a laborer and driver for Dig Right In Landscaping in Illinois. He claimed that he injured his right shoulder while loading a piece of equipment onto a truck at work in July 2008.

Nunez did not lose any time from work as a result of his injury.

About a month later, Nunez cut his left hand in a work-related accident. He received treatment for this injury from Dr. Hasan Kahn. Dr. Kahn's treatment records contain no mention of shoulder pain complaints or the alleged July 2008 accident.

Dig Right terminated Nunez for cause in September 2008 after learning he was using company equipment to perform "side jobs."

When Dig Right fired him, Nunez made no requests for medical treatment or disability benefits related to his right shoulder.

In March 2009, Nunez sought treatment for right shoulder pain at St. Anthony's hospital. He reported that he had fallen about six months prior, in September 2008. The hospital referred him to an orthopedic surgeon, but Nunez never followed up.

In July 2009, Nunez filed an application for adjustment of claim regarding his alleged July 2008 (or was it September of 2008 ...) injury. His doctor reported that he had a right shoulder impingement. The doctor recommended right shoulder arthroscopy, subacromial decompression and debridement.
"We'll leave the lights on for you..."
Something obviously smelled fishy about this claim and that odiferous feeling didn't escape the trial level arbitrator who found that Nunez's shoulder problems were not causally-related to his July 2008 accident.

The Illinois Workers' Compensation Commission reversed, but a circuit court judge set aside the commission's decision and reinstated the decision of the arbitrator.

On further appeal the Appellate Court ruled that the Commission's award of benefits was not against the manifest weight of the evidence, conceding however that it was "a close case."

It is the exclusive function of the Commission to judge credibility and assign weight to medical opinion testimony, the court said, and the trial judge had erred in setting aside the Commission's award to Nunez.

In other words, Nunez got his benefits.

I've often said that workers' compensation litigation is the poor man's dispute resolution system - when you look at the facts of this case through the glasses I'm wearing this morning, it's pretty obvious that Nunez was upset at getting fired for using company equipment on his own jobs without authorization.

And the latency between the "shoulder injury," the continuity of working post injury date, the fact that there was an intervening industrial injury without mention of a shoulder issue, and the failure of Nunez to follow up on the initial medical referral...

I know there are probably plenty of excuses for this chain of events.

But really, from my vantage point, this is just an example of "sticking it to The Man."
Workers' compensation courts provide an avenue to vent in a relatively civil manner feelings of disparagement, unfairness and wrongdoing. It's not the purpose of work comp, but it is the reality.

Which is why workers' compensation is the Motel 6 of justice. Cheap, no frills and the lights are left on for anyone to check in at any time.

The case is Dig Right In Landscaping v. Illinois Workers' Compensation Commission, No. 1-13-0410 WC, 07/28/2014, published.


  1. "Nunez got his benefits". It is arguable that this form of wording obscures or decides the issue. I used to tell employers (shame on my younger self perhaps) to remember that when someone said "I just want my money", they actually meant "I just want your money". As you say, it looks from your description, as though this is a revenge claim. It might have been clearer to have said "Nunez got benefits", leaving the question of legitimacy handing in the air.....

    1. You have a point John, except the system is called "WORKERS' compensation" - note the plural possessive before "compensation."

  2. Justice, and workers compensation? It is starting to look like neither the employers nor the injured patients, are getting what they paid for. Yet many folks are making a very nice living off comp... I tired to get some help form a lawyer here in WA yesterday to address how workers are being cheated and how I was, but she does not handle those kind of cases...none of the Workers Comp Lawyers in WA STATE care that the grand bargain is only being used when the employer and the big ins. co.s feel it is warented, yet it should be being honored for any oji. Period, not take decades and spend 100 of thousands of dollars over something, that had the grand bargain been honored as it should be, would have costed only 5 to 15 thousand.

    More time and money spent to deny the bargain than if folks would have just honored the laborers bargain to start with.

    Some folks know this system is broken and prosper of the misery it all causes, and are happy keeping this machine broken as is... NOT ME THIS labor bites back. NO one will respect my bargain, I will respect no one either. It is that simple. MAN TO MAN justice does get served in the end.

  3. When one group imposes this kind of injustice upon another group, it is oppressive. Then having the roads to justice hindered for decades for the injured parties to ever get justice for the harm done. Is class war fare being carried out willy nilly as the great keeper with their sniff and a grin get to deem who is worthy of justice in their health care or not?

    Not a system that is helping, but one that is harming many patients and then making them worse off with all the injustice, when folks really should have just honored the agreement to start with.