CHICAGO (LN) — The appellate court reversed the circuit court’s grant of summary judgment in favor of Fishel and her firm, Brill & Fishel, P.C., in a legal malpractice case brought by Ricky Stewart. The court held that reasonable jurors could draw different inferences regarding whether Fishel’s handling of Stewart’s workers’ compensation claim proximately caused him to lose benefits exceeding $0.43 million.
Stewart, a former Jewel Food Stores employee, sued Fishel after an arbitrator denied his workers’ compensation claim for a herniated cervical disc sustained in a June 2017 warehouse fall. Stewart alleged Fishel’s negligence caused him to lose more than $0.43 million in benefits.
The appellate court found that Fishel failed to obtain or introduce a favorable independent medical examiner’s report, did not present evidence that Stewart’s injury arose out of his employment, and failed to secure emergency room records from his initial hospital visit.
Fishel knew Stewart underwent an independent medical examination by Dr. Stanford Tack but never obtained his report or deposed him. At her deposition, Fishel admitted she had “no idea what Dr. Tac[k] said” and did not subpoena the report because she believed doctors “don’t typically respond to [her] subpoenas” in workers’ compensation cases.
Dr. Tack’s affidavit stated his opinions would have been favorable to Stewart, confirming his fall caused a herniated disc and exacerbating preexisting lumbar spondylosis. The arbitrator in the underlying case found no causal connection between the fall and Stewart’s injuries, partly because no medical expert testified to causation.
The court noted that Dr. Tack’s testimony would have been unrebutted and would have explained that Stewart’s varying descriptions of how he fell were irrelevant to the medical causation of his injuries.
Fishel also failed to develop evidence or legal arguments that Stewart’s injury arose out of his employment. Stewart testified he stood up from and sat down in his chair 200 to 300 times per shift, a fact Fishel did not investigate. The arbitrator found Stewart’s injury resulted from a “neutral risk” because he missed his chair while sitting, a risk he was not exposed to to a greater degree than the general public.
Fishel presented no legal authority to counter the arbitrator’s neutral risk finding, despite available case law supporting a quantitative exposure argument. She had presented a proposed finding that the injury arose out of employment based on the video, but cited no legal authority and did not address the risk categories.
The court also found factual disputes regarding Fishel’s handling of surveillance video of Stewart’s fall. Fishel claimed she was “dumbfounded” when Jewel’s counsel played the video at the arbitration hearing, but Stewart testified he had informed her cameras existed area.
Additionally, the court found record evidence that Fishel promised to appeal the arbitrator’s decision to the Workers’ Compensation Commission. In a September 2018 email, Fishel wrote, “I will file the review for you and I will send you the filed copy,” before stating she would not handle the review herself.
The circuit court had granted summary judgment, finding Stewart could not establish proximate cause because he would have lost the underlying case regardless of Fishel’s actions. The appellate court reversed, holding that reasonable jurors could draw different inferences from the undisputed facts regarding whether Fishel’s negligence caused Stewart to lose his workers’ compensation benefits.
Fishel did not immediately return a request for comment.
The panel included Presiding Justice Van Tine and Justices McBride and D.B. Walker.