News

April 03, 2007

Vincent Buza, a 52 year old marine shipping warehouse manager, was supervising the unloading of cargo and when he entered into the warehouse to take inventory, he tripped over a piece of wood, falling on his hands and knees.  The following morning, he was seen at the Trinity Hospital, complaining of pain in his left knee and left shoulder, together with a burning sensation in his fingers and left hand.

The claimant had a preexisting condition of paralysis of the right hand and a right-legged limp resulting from a childhood accident.  While the claimant was essentially left handed, he used his right hand to hold or lift objects although a physician described the claimant’s right hand as functionally limited to a large extent.

On April 3, 1999, the claimant began a course of treatment with multiple physicians which treatment continued for several years.  Such treatment included surgical procedures to the left knee and back.  The treating physicians presented conflicting opinions as to when and if the claimant could return to regular work.

Both parties obtained vocational rehabilitation consultant reports with significantly different conclusions.  Edward Rascati, who was retained by Federal Marine, concluded that the claimant possessed transferable skills which permitted him to operate the sedentary duties of a security guard, a dispatcher, or a field clerical worker for a township assessor.  Susan Entenberg, retained by the claimant, concluded that based on the claimant’s age, education, work experience and physical limitations that the claimant was not capable of gainful employment and was not a candidate for vocational rehabilitation.  The Commission found that the claimant was permanently and totally disabled and the appellate court has now affirmed.

Jurisdiction

Federal Marine contended that the Longshoremen’s Act preempted the workers’ compensation jurisdiction and that the Longshoremen’s Act limited the recovery to 104 weeks of compensation after which the Federal Second Injury Fund would make all subsequent payments.  The court reviewed the legislative history of the two statutes and concluded that the claimant had a right to select the appropriate statute.  The court stated:

The legislative history of the 1972 amendments does not mention preemption of state remedies and does not suggest that Congress intended to exclude state workers’ compensation statutes from applying.  Concurrent jurisdiction over land-based injuries, such as the one at issue in this case, does not frustrate Congress’ intent to aid injured maritime workers.

Federal Marine then argued that the injuries sustained by the claimant as a result of his fall on March 30, 1999, coupled with the pre-existing condition of his right hand, resulted in the ultimate finding that the claimant was totally and permanently disabled.  On that basis, Federal Marine argued that the argument was based on Section 8(f) of the Compensation Act which provides that if the employee had previously incurred the total loss of the use of one member and then sustains the additional loss of another member, then the finding of permanent total disability will be partially paid by the Second Injury Fund.  However, the court felt that there was evidence that the claimant’s right hand was paralyzed as a result of a childhood injury but that there was no evidence that the paralysis resulted in the prior complete loss of use of that hand.

Finally, Federal Marine argued that the record indicated some evidence that the claimant might return to some type of work if he had the benefit of vocational rehabilitation. Various medical opinions disagreed as to whether the claimant was capable of performing sedentary work.  In response, the court stated:

The Commission’s finding that the claimant is permanently and totally disabled is supported by competent evidence and an opposite conclusion is not clearly apparent.  We, therefore, reject Federal Marine’s argument that the Commission’s determination in this regard is against the manifest weight of the evidence.

Editor’s Note:

Federal Marine was in a difficult position in attempting to establish that the previously injured hand would enable the claimant to perform sedentary work.  If that were true, that previously injured hand could not have been totally disabled.

Federal Marine Terminals v. Industrial Commission, No. 1-06-1738WC, decided March 6, 2007

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105