Todd Schroader and Mary Massa Win Lifetime Benefits For Garbage Truck Driver

Becker, Schroader & Chapman, P.C. is proud to announce that Todd Schroader and Mary Massa won an appeal victory on behalf of Gary Walliser, which overturned an arbitrator's decision and awarded lifetime benefits to Gary. The case began on December 20, 2011 when Gary injured his shoulder and back lifting a sleeper sofa into a garbage truck. Todd Schroader filed Gary's workers' compensation claim and won approval for medical treatment, including a shoulder surgery and a lumbar fusion. On February 27, 2013, Gary was released from care with a light duty restriction, including a 20 lb. lifting restriction, which the employer was unable to accommodate.

Todd immediately instructed Gary to start a self-directed job search. This is an important first step in establishing a foundation for seeking a permanent total disability award, which would entitle a claimant to two-thirds of their average weekly wage in weekly payments for life. Due to recent cuts in the law, it is the only lifetime benefit available to an injured worker.

Gary followed the plan and worked very hard to find a job within his restrictions. For three years, Gary cooperated with the vocational expert hired by the employer, but was unable to find a suitable job. During this entire time, Todd was able to keep Gary's weekly checks coming on a timely basis. Todd also deposed the vocational expert and obtained numerous admissions regarding Gary's full, valid effort to find a job, essentially turning the employer's expert into his own. After three years and over 2,000 job searches, Todd felt confident that they had enough evidence to show that there was no stable job market for Gary. Todd set the case for arbitration.

Todd and Gary had prepared the case so that the employer could not argue against a permanent total disability award. Instead, the employer argued for more time to find Gary a job.

Unfortunately, the only person who thought Gary was employable was the arbitrator, who ignored the vocational expert's testimony and the employer's concessions, and found that Gary should be awarded a wage differential based on an $8.00 per hour job. But there was no evidence that the $8.00 an hour job existed - nor could it, as that job pays less than the state minimum wage. As a sign of these anti-worker times, the arbitrator went out of her way to rule against Gary. Her finding meant a loss of approximately $200,000 to age 67 and then all benefits would cease, costing Gary $32,000 a year for the rest of his life. The decision was devastating.

Todd did not give up. He appealed the case to the Illinois Workers' Compensation Commission, a three commissioner panel who can review arbitrator decisions. Mary Massa wrote the appeal brief, painstakingly detailing the fact-intensive history of the case. Mary also researched and wrote the legal argument, setting forth the standard that should have been applied by the arbitrator. Todd travelled to Chicago and argued the case to the commission.

On September 29, 2017, close to six years after the case started, the Commission issued its order, finding that "Petitioner has proven that he is entitled to a permanent total disability award under the 'odd-lot' theory by showing a diligent and unsuccessful job search for three years, even with the assistance of a vocational counselor."

"We feel vindicated," says Todd. "Gary followed our plan every step of the way and all we wanted was what the law says he was entitled to. That's it. And we weren't going to take "no" for an answer."

Gary is thrilled and relieved. "I've worked my whole life. I didn't want to get injured, no one does. But it happened. I tried very hard to find another job. There just wasn't one. Todd and his great staff helped me understand the process and was there for me every step of the way. He never gave up. I'll never forget what he's done for me and my family."

Todd Schroader has been representing injured workers of all trades throughout central and southern Illinois for the last 20 years.

Mary Massa has been practicing law for 30 years and started her career as an appellate clerk in the 5th District Court of Appeals, which hears appeals from Southern Illinois. Mary is responsible for all of the firm's workers' compensation appeals, along with handling all general practice and probate matters for the firm's clients.