ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
Case#
Employee/Petitioner
Employer/Respondent
On 12/2/2011, an arbitration decision on this case was filed with the Illinois Workers’ Compensation Commission in Chicago, a copy of which is enclosed.
If the Commission reviews this award, interest of 0.07% shall accrue from the date listed above to the day before the date of payment; however, if an employee’s appeal results in either no change or decrease in this award, interest shall not accrue.
A copy of this decision is mailed to the following parties:
1067 ANKIN LAW OFFICE LLC
162 W GRAND AVE SUITE 1810
CHICAGO, IL 60654
STATE OF ILLINOIS )
)SS.
COUNTY OF COOK )
ILLINOIS WORKER’S COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)
Employee/Petitioner
v.
Employer/Respondent
An Application for Adjustment of Claim was filed in this matter, and a Notice of Hearing was mailed to each party, The matter was heard by the Honorable , Arbitrator of the Commission, in the cit of Chicago, IL. on 6/24/2011. After reviewing all of the evidence presented, the Arbitrator hereby makes finding on the disputed issues checked below, and attaches those finding to this document.
DISPUTED ISSUES
A. Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?
B. Was there an employee-employer relationship?
C.x Did an accident occur that arose out of and in the course of Petitioner’s employment by Respondent?
D. What was the date of the accident?
E. Was timely notice of the accident given to Respondent?
F.x Is Petitioner’s current condition of ill-being casually related to the injury?
G. What were Petitioner’s earnings?
H. What was Petitioner’s age at the time of the accident?
I. What was Petitioner’s marital status at the time of the accident?
J.x Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent
Paid all appropriate charges for all reasonable and necessary medical services?
K.x Is Petitioner entitled to any prospective medical care?
L.x What temporary benefits are in dispute?
TPD Maintenance TTD
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
O. Other __________
_________________________________________________________________________________________
ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611 Toll-free 866/352-3033 Web site: www.rwcc.il.gov
Downstate offices: Collinsville 618/346-3450 Peoria 309/671=3019 Rockford 815/987-7292 Springfield 217/785-7084
FINDINGS
On the date of accident, 2/4/2010, Respondent was operating under and subject to the provisions of the Act.
On this date, an employee-employer relationship did exist between Petitioner and Respondent.
On this date, Petitioner did sustain an accident that arose out of and in the course of employment.
Timely notice of this accident was given to Respondent.
Petitioner’s current condition of ill-being is casually related to the accident.
In the year preceding the injury, Petitioner earned $57,200.00’ the average weekly wage was $1,100.00.
On the date of accident Petitioner was 51 years of age, married with 2 children.
Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $39,906.13 for TTD, $0 for TPD, $0 for maintenance, and $0 for other benefits, for a total credit of $39,906.13.
Respondent is entitled to a credit of $0 under Section 8(j) of the Act.
ORDER
Respondent shall pay Petitioner temporary total disability benefits of $733.33/week for 72 weeks, commending 2/5/2010 through 6/24/2011, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 2/4/2010 through 6/24/2011, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall pay reasonable and necessary medical services not to exceed $27,327.00, as provided in Sections 8(a) and 8.2 of the Act.
Respondent shall authorize and pay the reasonable related costs of the left should surgery prescribed by Dr.
In no instance shall this award be a bar to subsequent hearing and determination of an additional amount of medical benefits or compensation for a temporary or permanent disability, if any.
RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission.
STATEMENT OF INTEREST RATE If the commission review this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee’s appeal results in either no change or a decrease in this award, interest shall not accrue.
Nov. 30, 2011
Date
ICArbDec19(b)
Page 1
This claim was tried before Arb. Peterson pursuant to sec. 19(b) of the Act on June 24, 201. Arb. Peterson was replaced and the undersigned was assigned to write the decision, without objection. Smith v. Freeman, 232 Ill2d 218, 2009 Ill.LEXIS 178 (2009).
Petitioner testified he had been working for Respondent for 25 years as of Feb. 4, 2010. That day he was pulling a room service cart into an elevator, after pressing the ‘down’ button. But the door closed, striking him in the head. He fell down to the floor and the corner of the elevator door him in his back and shoulder. Petitioner testified he lost consciousness. He estimated he was unconscious for four to five minutes. Security saw him, as well as a co-employee and his supervisor. When he came to, he had pain in his back and was dizzy and his eyes were red. He reported the injury to security and went to Stroger Hospital.
Petitioner was admitted to Hospital on Feb. 4, 2010 and discharged Feb. 6. 2010. Various hospital records reflect a history consistent with Petitioner’s testimony. The discharge summary indicates Petitioner was a diabetic with blunt head trauma and loss of consciousness after a work elevator closed on his hand and neck around 9:15 that night. Petitioner reported he lost consciousness for about three minutes. He complained of right sided head pain, tenderness to palpation over C4 through 6, T 4 through 6 and in the lumbar region as well as the left shoulder and right hip. Flexion of the right hip was limited by pain. Lab tests were significant for a glucose level of 432. Diagnostic imaging of the left shoulder, pelvis, right hip, spine and hip were negative except that a CT of the right hip a questionable posterior ace tabular fracture. An MRI of the right hip was negative. Metformin was prescribed for Petitioner’s diabetes, although already had the medication at home. Norco was also prescribed. While in the hospital, Petitioner underwent some physical (PT). At the therapist’s first visit on Feb. 5, 2010, he noted Petitioner saw Dr. on Feb. 10, 2010. He also complained of numbness in the left arm. He walked with a limp due to right hip pain. Dr. prescribed an NSAID and Neurontin and told Petitioner to follow up in two weeks. He also completed a form showing Petitioner was off work from Feb. 4, 2010 through Feb. 10, 2011 and could offer no definitive date for his return to work. PX2.
Petitioner saw Dr. on Feb. 16, 2010. He noted Petitioner sustained injuries to the head and left shoulder when an elevator door fell on him at work on Feb. 4, 2010. Dr. found a positive Spurling’s test on the left, restricted cervical spine range of motion, especially with side bending rotation, and left greater than right cervical, upper trapezius, thoracic, deltoid, biceps and triceps tenderness. Range of motion of the left shoulder was restricted and Petitioner had pain with left elbow flexion and forearm rotation. The doctor ordered MRIs of the cervical spine and left shoulder, prescribed medication and took Petitioner off work. He also opined Petitioner’s condition was related to his accident. The left shoulder MRI done Feb. 24, 2010 showed an anterior labral tear and a small longitudinal split tear of the biceps tendon. The cervical MRI the same day showed small disc bulges At C5/6 and C6/7 and a small disc protrusion at C¾ without significant neural encroachment. When he saw Petitioner on March 2, 2010, Dr. noted his complaints of dizziness and headaches and found a palpable mass which he thought was related to the hematoma in the occipital region on the right. He reviewed the MRIs. He prescribed PT and referred Petitioner to a neurologist for his headaches, keeping him off work. He thought Petitioner may need epidural steroid injections (ESI) and shoulder surgery in the future. Petitioner saw Dr. , a neurologist, on March 8, 2010 at Dr. referral. Dr. noted Petitioner’s history of diabetes, but also that he had no history of increased blood pressure. Dr. found pain in the left bicipital groove and minimal pain at the left deltoid. Vibratory sensation was somewhat diminished in the left arm in a diffuse global and nonspecific fashion. Pinprick was diminished in the left arm distal to the left shoulder, proximal to the left wrist, and again nonspecific. Petitioner had headache as a residual of striking his head along with neck pain, obvious dizziness which appeared to be recurring off and on and memory problems which were not particularly surprising after a concussion a month earlier. Dr. thought Petitioner needed more PT and prescribed amitriptyline for his headaches and sleep problems. When Petitioner returned to Dr. on March 16, 200, his primary problem was his left shoulder. He had almost full cervical spine range of motion and the Spurling’s test was negative. There was anterior left shoulder tenderness, increased laxity with AP glides in the left shoulder, pain, reduced range of motion, and motor strength of 4/5. Dr. recommended more cervical spine PT, a surgical evaluation for the let shoulder and no work. In his report of April 20, 2010, Dr. opined Petitioner’s left shoulder labral tear was post-traumatic and related to his work accident. A hand-written note indicated surgery had been denied. Nonetheless, as of May 18, 2010, Dr. continued to believe Petitioner was a surgical candidate for his left shoulder and glenoid labrum. He kept Petitioner off work. PX3.
Petitioner was examined by Dr. at Respondent’s request on June 4, 2010. He also reviewed the records of Petitioner’s treatment at Hospital and with Dr. . On exam, Dr. found a positive Spurling test on the left. There was tender in the left trapezial area and mildly tender at the AC joint and in the region of the longhead of the biceps. There was full passive range of motion on the left shoulder without guarding. Impingement testing was minimally positive. Yergason and Speed testing were mildly positive. Petitioner had paresthesias, mostly along the radial aspect of the left forearm. Dr. opined Petitioner’s current condition was related to his Feb. 4, 2010 accident. However, he thought most of Petitioner’s symptoms, including his left shoulder symptoms, were related to a left cervical radiculopathy, based on the history and examination. He noted the Spurling testing reproduced all Petitioner’s symptoms. He did not believe the left shoulder MRI of Feb. 24, 2010 showed more than some mild changes of the anterior labrum which were not consistent with a tear of the labrum but could be a labral hiatus. Dr. recommended against left shoulder surgery. He suggested a
- Cervical ESI and an injection to the tendon sheath of the biceps tendon for its diagnostic value. He also recommended a Medrol Dosepak. Although he did not know all of Petitioner’s duties, he thought he could work with restrictions of no lifting over 20 lbs., no pushing or pulling over 40 lbs. and no overhead use of his left arm or repetitive rotation of his neck. RXI.
- On June 24, 2010, Petitioner saw Dr. at The doctor recorded a history of Petitioner’s injury of Feb. 4, 2010. Based on his exam and review of the diagnostic tests, Dr. impressions were cervical, cervical degenerative disc disease, cervical radiculopathy, left should pain, biceps teat and glenoid labrum tear, left Dr. thought Petitioner’s current condition was symptomatic because of his on the job injury. He thought the accident exacerbated Petitioner underlying degenerative disc problems and maybe caused a protrusion at C 3/4 He also thought the MRI showed a labral tear and some biceps pathology. He recommended evaluation by a shoulder specialist, Dr. , also at He allowed Petitioner to continue working light duty. The referral to Dr. was not approved by workers’ compensation insurer, according to Dr. note of July 29, 2010. He tool Petitioner off work for four weeks. At his Aug. 26, 2010 exam, Dr. noted he could not reproduce any of the cervical nerve root tension signs Dr. described in his report. Dr. would not recommend neck surgery but continued to recommend a left shoulder evaluation by Dr. . He continued to keep Petitioner off work. PX4.
- Petitioner saw Dr. on Oct 7, 2010. The doctor took a history of Petitioner’s injury, noting his medications. He also noted Petitioner had relatively uncontrolled diabetes with blood sugars frequently being in the 200’s and 300’s. On exam, Dr. found no atrophy on winging of the shoulder blades. There was some limitation of neck flexion, extension and rotation but the Spurling’s maneuver was negative bilaterally. The Neer and Hawkins’ impingement signs on the left were positive. There was some tenderness in the bicipital groove and a positive Speed’s test. Dr. thought the left shoulder MRI showed a longitudinal split tear of the biceps tendon in the bicipital groove without subluxation of the tendon. There was a suggestion of an anterior labral tear. The doctor thought there was an element of subacromial bursitis as well as positive biceps provocative signs. He recommended PT for dedicated shoulder exercises including rotator cuff strengthening, range of motiona nd other modalities. He did not think an injection was a good idea because of Petitioner’s diabetes. He thought Petitioner might be a candidate for a subacromial decompression combined with a biceps tenotomy or biceps tenodesis. At his exam on Nov. 2, 2010, Dr. noted Petitioner’s left shoulder symptoms were progressively worsening. He concluded conservative therapy had failed and recommended surgery. PX5.
Petitioner continued to see Dr. every month. The doctor continued to refill Petitioner’s medication prescriptions and keep him off work. He concurred in Dr. recommendation for surgery. PX4.
Dr. wrote a second report on Jan. 13, 2011 after reviewing records of Hospital relating to Petitioner’s admission there. He noted Petitioner’s blood glucose level of 432 on Feb. 4, 2010. Dr. wrote that this level indicates marked hyperglycemia. “With such a high elevation of his glucose, a patient would frequently be dehydrated and additionally would likely have symptoms consistent with dehydration, such as orthostatic hypotension, fatigue, blurred vision, possible dizziness and confusion.” Dr. thought such a glucose level could have been the causal factor in Petitioner’s fall. RX2.
Petitioner testified he would like to undergo the surgery. He also testified that he has been able to control his diabetes. He has never fainted or been dizzy at work due to his diabetes. On cross-examination, Petitioner testified he has been on medication for his diabetes for about four years. He checks his blood sugar twice a day. He agreed he would have checked his blood sugar twice on Feb. 4, 2010. If the Hospital records showed a blood glucose level of 32, that was regular for him and didn’t make him dizzy. Petitioner is treating with Dr. . for his diabetes. The doctor always tells him to lower his blood glucose level. Petitioner did not understand the term ‘orthostatic hypotension.’ Petitioner testified his current complaints are mainly to his left shoulder and his head. He is still treating with Dr. . On re-direct examination, Petitioner testified he ate between 4:15 and 5:15 PM before he went to work.
PX1 is comprised of Petitioner’s medical bills. He claimed: $1,618.00.
; $1,692.00, Dr. ; $24,107.00, $27,327.00 total.
The Arbitrator concludes:
- Petitioner sustained a compensable accident on Feb. 4, 2010 when he was struck by a closing elevator door as he was pulling a room service cart into the elevator. This is based on his testimony which was supported by all the medical records. There is no evidence to the contrary.
- Petitioner’s current condition is casually connected to the accident of Feb. 4, 2010. This is based on all the treating medical records showing the immediate and Dr. expressly opined causal connection. So did Dr. , in his first report of June 4, 2010. Nearly a year after the accident, Dr. suggested for the first time that Petitioner’s elevated blood glucose level could have been the causal factor in his fall. There is no other evidence to support this theory and it was not noted by Hospital personnel as a possible factor. In fact, the hospital records of Feb. 5, 2010, note Petitioner was dizzy because he had not eaten in anticipation of undergoing an MRI.
- Petitioner was temporarily totally disabled commencing Feb. 5, 2010, the day after his accident when he was in the hospital, through June 24, 2010, the date of trial, a period of 72 weeks. He was off work at the authorization of his treating doctors, Dr. and Dr.
- Petitioner is entitled to reimbursement for his outstanding medical bills documented in PX1 in the amounts allowed by sec. 8.2 of the Act and not to exceed $27,327.00. His medical treatment has been reasonable and necessary within the meaning of sec. 8(a) of the Act. The treatment has also been causally connected to his work accident as a result of which he sustained injuries to his head, neck, left shoulder and right hip. There is no evidence to the contrary.
- Petitioner is entitled to undergo the left shoulder surgery prescribed by Dr. . This is based on the MRI showing he had a split tear of the biceps tendon and the possibility of an anterior labral tear. It is also based on Dr. inability to reproduce the Spurling’s sign relied on by Dr. as one of the bases for his focus on the cervical spine. Dr. also documented a positive Spurling’s test in his early treatment of Petitioner, but it had nearly resolved by March 16, 2010, and Dr. himself was focusing on the left shoulder as a source of Petitioner’s symptoms. No other doctor found a positive Spurling’s maneuver. The extensive PT suggested by Dr. had failed, as had other conservative measure, while Petitioner’s left shoulder condition worsened. The preponderance of the evidence in the form of the opinions of two treating doctors at a highly respected medical institution, Dr. and , not to mention Dr. , support left shoulder surgery.
