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The People of the State of Illinois v. Jim Oshana

February 9, 2012

THE PEOPLE OF THE STATE OF ILLINOIS
PLAINTIFF-APPELLEE,
v.
JIM OSHANA,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 09-CF-1166 Honorable Timothy Q. Sheldon, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion.

Justice Hutchinson specially concurred, with opinion.

OPINION

¶ 1 On August 5, 2010, the trial court found the defendant, Jim Oshana, guilty of two counts of workers' compensation fraud (820 ILCS 305/25.5(a) (West 2006)). He was sentenced to 24 months' probation, fined, and ordered to pay restitution in the amount of $22,594.61 to Gallagher Bassett, the administrator of workers' compensation benefits for the defendant's employer, to reimburse it for the costs of investigating the defendant's workers' compensation claim and its attorney fees. The defendant appeals, arguing that the statute is unconstitutionally vague, that there was insufficient evidence to convict him, and that Gallagher Bassett is not entitled to restitution for certain expenses. We affirm as modified in part and reverse in part.

¶ 2 BACKGROUND

¶ 3 The defendant began working for Plote Construction, Inc., in February 2006. On October 12, 2006, the defendant missed his footing as he was climbing out the back of a truck trailer he had been washing out and he fell to the ground, injuring his right arm and shoulder. He reported the injury to Plote's safety director, left work, and went to the emergency room at Alexian Brothers Medical Center. Staff there took X-rays of his shoulder. He was told not to go back to work and advised to see a specialist at Sherman Clinic. Plote's safety director contacted Gallagher Bassett that same day to report the defendant's injury.

¶ 4 On October 16, 2006, the defendant visited Sherman Clinic, where he was given medication, restrictions on his physical activities, and an order to stay off work. Around this time, Pamela Hathaway, a senior claims representative for Gallagher Bassett, contacted a private investigation company named Infomax to perform surveillance on the defendant.

¶ 5 The defendant saw an orthopedic surgeon, Dr. Sarmed Elias, on October 19, 2006. The defendant reported that his level of pain from his shoulder was 9 on a scale from 1 (the least pain) to 10. Dr. Elias had an MRI taken of the defendant's shoulder and told him to remain off work for two weeks.

¶ 6 On October 25, 2006, Infomax employee Wayne Otto conducted surveillance of the defendant's home, beginning at about 6 a.m. At about 3 p.m., Otto observed (and videotaped) the defendant returning home. The defendant carried groceries from the car to the house using his right hand and also pulled garbage cans out to the curb. On October 31, 2006, Otto again conducted surveillance on the defendant and followed him as he drove from his home to a construction site at Benito Juarez High School in Chicago. Once there, the defendant put on a hard hat and appeared to be involved in overseeing various contractors, doing tasks such as carrying blueprints and multiple cups of coffee without any signs of disability. The defendant worked an entire day there.

¶ 7 On November 2, 2006, Otto again followed the defendant to the high school, where the defendant again wore a hard hat. Otto described the defendant's movements as "uninhibited." Otto lost sight of the defendant about noon. The defendant saw Dr. Elias that same day. The defendant filled out an Oswestry (intake) form on which he reported that his level of pain was between a 9 and a 10. Dr. Elias used the Oswestry forms his patients gave him to calculate their levels of disability. On November 2, 2006, Dr. Elias computed that the defendant was 70% disabled because of his neck. (At trial, Dr. Elias explained that there was an overlap between shoulder symptoms and the neck.) Dr. Elias reviewed the defendant's MRI with him, opining that the defendant had suffered a staggered complete tear of the right shoulder rotator cuff tendon. Dr. Elias recommended that the defendant undergo a carpal tunnel release and an epidural injection for herniated disks in his lower back, and he made a note that the defendant's rotator cuff would need repair. Dr. Elias gave the defendant medication and ordered him to stay off work for another two weeks.

¶ 8 The next day, November 3, Hathaway conducted a telephone interview with the defendant covering various topics. Early in the interview, Hathaway asked the defendant whether he had graduated from high school. The defendant replied that he did not graduate and then said, "I do have a diploma high school background, but a different country." Hathaway then asked the defendant to tell her about the October 12 accident and he did so. After that, the following exchange occurred:

"Q. [Hathaway]: And I'm going to go back to your employer. You work for Plote and you work. So you're full-time, correct?

A. [the defendant]: Correct.

Q. Alright [sic]. And you work the night shift. Now do you work for anyone else?

A. No.

Q. No other employers. Are you an independent contractor for anybody?

A. No ma'am.

Q. And do you own your own business?

A. No ma'am."

¶ 9 On November 8, 2006, the owner of Infomax, Dean Gluth, conducted surveillance on the defendant. Gluth observed that the defendant was carrying a beverage cup in his right hand as he left his house. Gluth followed the defendant as he drove to a different construction site at the 68th Street Pumping Station. Gluth videotaped the defendant using both hands as he used his cell phone, gave directions, took pictures of the site, and carried and rolled and unrolled blueprints throughout the day. The defendant also picked up some temporary fencing and moved it.

¶ 10 The next day, November 9, Otto followed the defendant to the 68th Street work site again. When he arrived, the defendant began tightening the orange plastic fencing around the site, using both arms without any apparent restriction. Otto watched the defendant "pull with force to straighten one of the poles [holding the fencing] back up from the ground." According to Otto's trial testimony, the defendant pulled "in a stretched manner," using both arms equally, rather than using leverage to move the pole. The defendant also performed a number of other tasks throughout the day in which he used both arms. This was the last date when Infomax conducted surveillance on the defendant. Infomax prepared a report on the surveillance dated November 15, 2006, and sent it to Gallagher Bassett. Gluth later compiled all of the videotapes of the defendant onto one tape, which was entered into evidence at trial.

¶ 11 At trial, Wassim Kmeid, the owner of a land development and construction company called Beritus, Inc., testified that during the winter of 2006 he was working on two construction sites, Benito Juarez High School and the 68th Street Pumping Station. Kmeid subcontracted the supervision of the subcontractors at the two sites to Sunset Construction. The defendant was the person with whom Kmeid dealt at Sunset, and the defendant submitted time sheets for his work to Kmeid. The defendant worked a total of 27 days between October 24 and November 30, 2006, for which Kmeid paid Sunset $5,180.

¶ 12 The defendant filed an application for workers' compensation benefits on November 14, 2006. In it, the defendant stated that, as a result of his fall on October 12, he had sustained "[s]evere injuries" to his back, neck, and shoulder. On November 16, the defendant saw Dr. Elias. The defendant reported that his shoulder pain was level nine and his neck pain was level eight. Based on these responses Dr. Elias calculated that the defendant was 98% disabled because of his lower back and 84% disabled because of his neck. Based on his examination of the defendant, Dr. Elias believed that the defendant could not work. The defendant saw Dr. Elias again on November 30, 2006. At that point, the defendant reported that he was "in bed most of the time," that he had to "crawl to the toilet," and that he could walk only with the help of a cane or crutches. Despite this description and Dr. Elias's belief that the defendant needed surgery to repair his rotator cuff tear as soon as possible, Dr. Elias released the defendant to light-duty work on November 30. Plote's safety director, William Ryan, testified that it was Plote's policy to require a "full release," not a light-duty release or a release with restrictions, in order to allow an injured employee to return to work. Thus, the defendant could not return to work for Plote. Dr. Elias saw the defendant on January 4, 2007, at which time the defendant showed some improvement in his level of pain but still was not cleared to return to work.

¶ 13 On January 5, 2007, the defendant filed a petition under section 19(b) of the Workers' Compensation Act (Act) (820 ILCS 305/19(b) (West 2006)) in which he sought temporary total disability (TTD) benefits for his injury. In a motion accompanying that petition, the defendant stated that he had been "disabled from work from 10/12/06 until [the] present" but had not yet received any benefit payments, and he sought to have penalties imposed on Plote and Gallagher Bassett for unreasonably withholding payment. In February 2007, Gallagher Bassett issued the defendant a check for $7,000 as an advance on TTD. Hathaway testified that, by the time the payment was made, she knew that the defendant had been working somewhere other than Plote. Nevertheless, the decision was made to go ahead and make the payment, and the defendant's injury was categorized as a compensable injury in Gallagher Bassett's records.

ΒΆ 14 On April 27, 2007, at the request of Gallagher Bassett, the defendant was seen by Dr. David Zoellick, an orthopedic surgeon. The defendant reported that any motion of his right arm caused pain, there was a "burning sensation radiating down his right arm," and he could not raise his right arm. The defendant said that he was driving with only his left hand. The defendant stated that he had not had any neck or back pain before the accident and that he had not been further injured since the accident. Dr. Zoellick examined the defendant and reviewed the medical records from Dr. Elias. Dr. Zoellick diagnosed the defendant as having intrasubstance changes in his rotator cuff and a subchrondal cyst in the lateral aspect of the humeral head. Dr. Zoellick told Gallagher Bassett that the defendant could possibly return to work in six to eight weeks. After his examination of the defendant, however, Dr. Zoellick was given the videotape of the defendant to watch. Viewing the tape changed Dr. Zoellick's opinion of the severity of the defendant's ...


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