Car hauler claims he was released to work too soon

Kelly Holleran Feb. 26, 2009, 4:41am

Timothy McNary has filed suit against a St. Clair County man, alleging the man released him to return to work as a car hauler even though he was not physically able to do so.

Because McNary was not able to return to work, he lost medical treatment and benefits and has been unable to find a job, according to the complaint filed Feb. 23 in St. Clair County Circuit Court.

McNary received an injury that prevented him from working on Feb. 25, 2008, after he fell from the top of a rig while attempting to maneuver on the rig's upper deck, the suit states.

Throughout his treatment for the injury, McNary claims he was required to undergo testing and evaluations, including a functional capacity evaluation performed by Kurt Muskopf, the St. Clair County man being sued, to determine his ability to perform his job and to return to work.

During the functional capacity evaluation, McNary was told to walk on a wooden two-by-four board on the floor, according to the complaint.

When McNary was unable to perform the task because of instability and balance problems, Muskopf lined a row of chairs next to the board for McNary to hold onto as he walked across the board, the suit states.

Because McNary was able to walk across the board with the support of the chairs, Muskopf cleared him to return to his work as a car hauler, McNary claims.

"Defendant was fully aware that the testing conditions did not remotely or accurately depict the car hauler's job duties but nonetheless reported the plaintiff was so qualified," the suit states.

However, McNary alleges Muskopf cleared him to return to work because of a financial relationship between ProRehab, Muskopf's employer, and Timothy McNary's employer.

"In a clear attempt to continue in the lucrative financial arrangement with plaintiff's employer, Muskopf and ProRehab engaged in the aforesaid behavior despite plaintiff's protests," the suit states.

Since the incident, McNary has attempted to find another job, but has been unable to find a comparable one because of his "impaired and untreated" physical conditions, according to the complaint.

He fears his job search will either result in no employment opportunities or that of a lesser paying job.

Because of the incident, co-plaintiff Sharon McNary, Timothy's wife, claims she has been deprived of her husband's support and services.

In the five-count suit, the McNarys are seeking sums in excess of $50,000, compensatory damages in excess of $200,000 and exemplary damages in excess of $150,000, plus costs and other relief the court deems just.

They are represented by Brian M. Wendler and Thomas G. Maag of Wendler Law in Edwardsville.

St. Clair County Circuit Court case number: 09-L-0092.

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