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Tom Flaherty
Hennessy & Roach
Chicago
partner
  • Bachelor of Science – University of Illinois at Urbana-Champaign, 1994
  • Juris Doctor- Valparaiso University School of Law, Valparaiso Indiana, 1999
  • Admitted to practice in Illinois in 1999
  • Honorable Discharge Illinois Army National Guard 1999

Professional Affiliations:

  • Chicago Bar Association

Practice Areas:

  • Defense of Workers’ Compensation

Significant Arbitration Decisions

1. Swanson Park Collision, Inc./Accident Fund v. Ill. Workers’ Comp. Comm’n, et al., 2011 Ill. App. (2d) 101052WC-U

Petitioner filed two applications for adjustment of claim. Both applications alleged that the petitioner sustained injuries to both his hands. On September 25, 2001 petitioner told respondent’s general manager that he was having problems with his right hand. On October 23, 2001, petitioner’s physician opined that claimant’s work activities could be a causative factor in the hand condition. Petitioner testified that this was the first time he heard that he could possibly have capsulitis, tendinitis, or carpal tunnel syndrome and that he did not know prior to October 23, 2001 what was wrong with his hand. The first application listed an accident date of September 25, 2001. The second application listed an accident date of November 2, 2001. Respondent’s insurance coverage changed on October 15, 2001 from one insurer to a subsequent insurer. Petitioner was eventually diagnosed with a repetitive trauma injury. At arbitration, the first insurer argued under the case of Durand v. Industrial Commission, that the accident date should be the October 23rd date and that liability should fall on subsequent insurer. The arbitrator found, under Durand, that for repetitive trauma cases the accident date is the date the injury manifests itself and when the causal connection between the injury and work would become plainly apparent to a reasonable person. The arbitrator found that the accident date was October 23, 2001 and awarded workers’ compensation benefits to be paid by the subsequent insurer including TTD, medical, and a wage-differential award. The subsequent insurer appealed. The Commission affirmed and the Circuit Court confirmed. The appellate court affirmed.

2. Steven Gascoinge v. Hcc, Inc.

Petitioner alleged that he sustained an accident at work while inspecting a tractor. He testified that, while checking the tractor’s operations, the hydraulics stuck causing the tractor to “slam” down. Petitioner alleged he sustained a disc herniation at L5-S1. Respondent introduced a witnessed who testified Petitioner told her a few days before his accident that he had fallen off his roof. Additionally, Respondent introduced Petitioner’s emergency room records which stated that Petitioner’s back pain “started suddenly after coughing.” The Arbitrator found Petitioner’s testimony not credible and denied compensation. The Industrial Commission affirmed the decision on review.

3. Kandy Auer v. Praireland Food Co.

Petitioner, a manager at a Denny’s Restaurant, alleged sustaining a disc herniation after a fall at work on July 5, 1996. During Arbitration, Petitioner testified that she did not suffer any previous back conditions. Respondent impeached Petitioner by introducing evidence establishing Petitioner sought medical treatment for her back condition five months previously. Respondent also introduced into evidence the Form 45, which was filled out and singed by Petitioner on the date of accident. On the Form 45, Petitioner listed the nature of injury as a disc herniation at L5-S1. On cross-examination, Petitioner testified that she filled the form 45 out following her accident on July 15, 1996. Respondent then established by way of Petitioner’s medical records that Petitioner back- dated the form 45 as she did not receive the diagnosis of a disc herniation at L5-S1 until July 29, 1996. The Arbitrator denied compensation and the Industrial Commission affirmed the decision on review.

4. April Garcia v. Illinois Bottle Manufacturing

Petitioner alleged that she slipped on a bottle top and twisted her right knee while at work on April 9, 2002. At hearing, she testified that she immediately reported her accident and injury to her supervisor. She also testified to going to her doctor with complaints of knee pain following the accident. Respondent produced Petitioner’s supervisor to impeach Petitioner’s testimony. Petitioner’s supervisor testified that Petitioner never reported her accident and that he only became aware of the injury a month prior to hearing. He also testified to Respondent’s procedures for reporting work place accidents. In addition to Petitioner’s supervisor, Respondent also relied on the history as to the onset of Petitioner’s right knee pain in her treating records. Petitioner’s treating records were absent a history of accident and indicated that Petitioner had right knee pain for months. The Arbitrator found the testimony of Respondent’s supervisor and history in the medical records more reliable than Petitioner’s testimony and denied compensation.

5. Deborah Weiss-Borgg v. Culligan, 02 WC 3046

Petitioner alleged that, as a result of lifting and moving a water cooler at work on September 9, 1997, she developed pudendal nerve entrapment. In support of this allegation, she relied on the opinions of an expert in the field of pudendal nerve entrapment. On direct examination, the expert testified that the water cooler moving incident and other repetitive micro-trauma caused an aggravation of pre-existing condition, and, that as a result of that aggravation, Petitioner was disabled and in need of additional medical treatment. On cross examination, Respondent established with the expert, by way of Petitioner’s treatment records, that Petitioner sought no treatment for symptoms associated with pudendal nerve entrapment after December of 1997. The records showed that, not until November of 1999, did Petitioner seek treatment for symptoms associated with pudendal nerve entrapment. In conjunction with treatment for pudendal nerve entrapment, the treatment records indicated Petitioner was hospitalized for an upper respiratory infection and hacking cough. After her hospitalization for the upper respiratory infection, Petitioner began to complain of constant and worsening symptoms associated with pudendal nerve entrapment. Petitioner’s expert conceded on cross-examination that coughing associated with an upper respiratory infection could aggravate a pre-existing pudendal nerve entrapment. He also conceded that he did not know when Petitioner’s “process started.” The Arbitrator found that the accident of September 9, 1997 caused only a temporary aggravation of a pre-existing condition and that Petitioner’s ongoing disability ability was not related to the work accident.

6. Caroline Zazra v. Urban Outfitters, 05 WC 4609

Petitioner alleged breaking her left foot while walking across Respondent’s storeroom floor. Evidence at trial showed that the storeroom floor was designed to give a rustic feel and that the floor boards were warped. Petitioner testified that she caught her left foot on a floor board and feeling a “pop” in her foot. Through the testimony of Petitioner’s Supervisor, Respondent showed that, at the time of the alleged accident, Petitioner was assigned to a cash register and there was no reason for her to walk the storeroom. Additionally, company policy required that the employees assigned to registers are to remain at the register. The supervisor also testified that Petitioner reported rolling her foot in the parking lot after work. Respondent also relied on Petitioner’s treatment records, which showed she had numerous breaks to both of her feet in the past. Petitioner testified that, prior to the accident, she never had broken her left foot. The Arbitrator denied compensation, finding that testimony of Respondent’s supervisor’s testimony and the histories in the medical records more credible than the testimony of Petitioner on the issue of accident.

7. Donald Maiberger v. River Oaks Lincoln Mercury, 01 WC 40204

This claim involved a dispute between two carriers. On August 2, 2000, Petitioner lifted a tire at work and felt an immediate onset of low back pain. He subsequently received a diagnosis of a herniated disc at L4-L5. Petitioner underwent conservative treatment for this condition and returned to work full duty in May of 2001. In March of 2003, Petitioner slipped on ice while parking a customer’s vehicle and re-aggravated his pre-existing L4-L5 disc and ultimately underwent lumbar disc surgery. The subsequent carrier for Respondent argued that the disc and need for surgery related to the August 2, 2000 accident. The Arbitrator/Commission found that Petitioner’s ongoing disability and need for surgery related to the second accident as testimony and medical evidence showed Petitioner reached MMI in May of 2001 following the August 2, 2000 accident and returned to work full duty without complaint until the accident of March 2003.

8. Lori Mikols v. St. Francis Hospital, 04 WC 15716

Petitioner alleged an injury to her left wrist and left shoulder on May 1, 2003 after a combative patient twisted her left upper extremity. Respondent accepted the left wrist injury as compensable but denied the left shoulder claim. At trial, Respondent relied on Petitioner’s treatment records that showed Petitioner made no complaints of left shoulder pain at the time initial treatment and that not until October of 2004 did she begin seeking treatment for the left shoulder. Respondent also relied on Petitioner’s allegations in the Application for Adjustment of Claim. Petitioner filed an Application for Adjustment of Claim in March of 2004 alleging only an injury to the left wrist. Lastly, Respondent produced an expert who opined that a causal relationship did not exist between the alleged work injury of May 1, 2003 and Petitioner’s left shoulder condition. The Arbitrator found that Petitioner failed establish a casual connection between her left shoulder condition and work accident of May 1, 2003.

9. Geralda Morgan v. AT & T, 06 WC 19059

Petitioner worked for Respondent as a customer service representative and she alleged developing carpal tunnel syndrome on account of her work, which in large part consisted of typing. In support of her claim, she relied on the opinions of her treating doctors who offered the opinions that a causal relationship existed between her work and carpal tunnel syndrome. Petitioner also retained an expert who opined that Petitioner’s carpal tunnel syndrome related to her years of work typing on a computer as a customer service representative for Respondent. In defense of the claim, Respondent obtained its own expert, who opined that typing would not be a cause of, or a causative factor in aggravating or accelerating carpal tunnel syndrome. He further found it significant that Petitioner’s symptoms of carpal tunnel syndrome continued in spite of her no longer working for the Respondent. He opined that based on that fact one could not conclude that Petitioner’s carpal tunnel syndrome was work related. Also significant in the claim was that Petitioner’s expert admitted on cross examination, that just because a person may experience the symptoms of her condition while working, it does not necessarily mean that the work activity caused or condition. The Arbitrator found that Petitioner failed to prove that her carpal tunnel syndrome related to her work and the Commission affirmed the decision.

10. James R. Muthart v. Stallion Transport, Ryerson Inc. et al. 06 WC 19086

Petitioner worked for his employer as a truck driver and sustained an injury to his right shoulder when throwing chains to fasten a load for a delivery. Petitioner’s employer did not have workers’ compensation insurance at the time of the injury. At the time of the injury, Petitioner was picking up a customer’s load to transport to another facility owned by the same customer in Milwaukee Wisconsin. Petitioner often made deliveries between the customer’s Chicago and Milwaukee locations. Petitioner’s attorney named the customer as a Respondent in the claim on account of the fact that his actual employer did not carry workers’ compensation insurance. He argued that the customer was an employer in that it exercised control of Petitioner. Through the testimony of various witness, the Arbitrator found that an employer-employee relationship did not exist between the customer and Petitioner. The testimony of the witnesses showed that Petitioner’s employer alone controlled the means and manner of his work.

11. James Hopkins vs. Chicago O’Hare International Airport, 04 WC 13602

Petitioner alleged that he sustained an injury to his right shoulder. During arbitration, the petitioner testified that he was in the passenger seat of a work truck while Mr. Smith, a co-worker, drove to a job site on the grounds of O’Hare. The petitioner testified that while the in route the vehicle slowed down and the passenger door opened up. Petitioner stated that he lost his balance and fell from the vehicle onto his right shoulder. Respondent introduced Mr. Smith’s testimony who testified that the petitioner actually jumped from the moving vehicle after he and the petitioner argued over a radio station that was playing. The respondent also introduced the testimony of Mr. Rayburn, who stated that Mr. Smith called him immediately over a CB radio and told him that the petitioner just jumped from his truck. The respondent further introduced two incident reports from Mr. Smith and Mr. Rayburn that corroborated their testimony. Accordingly compensation was denied, and the Commission affirmed the decision on review.

12. Jeffery Howard v. Ryerson Tull, 07 WC 45906

In September of 2007, petitioner alleged that he sustained an injury to his left shoulder after he fell off of a flat bed and landed on concrete. The petitioner was diagnosed with a tear in his left shoulder, was taken off of work, and proceeded with arthroscopic surgery and rehabilitation. During this time the respondent paid temporary total disability (TTD). The petitioner returned to work in July of 2008. During arbitration, the petitioner requested TTD benefits be paid from 9/27/08 to 12/16/08. The arbitrator denied TTD benefits after the respondent introduced evidence that the treating physician placed the petitioner on maximum medical improvement on September 25, 2009, subsequently cutting off TTD benefits. Petitioner also requested future maintenance benefits and vocational rehabilitation. The respondent introduced evidence that the petitioner signed a voluntary layoff agreement and voluntarily terminated his employment with his employer. The respondent further offered evidence that the petitioner voluntarily and knowingly signed the agreement with the help of his lawyer. Thus, the arbitrator found that the petitioner was not entitled to any additional benefits.

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