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Custodian Hand/Arm Injury

June 25, 2015

ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION

 

 

lY’tM\!JLE’Nlii; ;2 tltl A

Employee/Petitioner

Case#1Q\IJQQ39i8il

 

 

 

.MlM JAf41T8titiAL 8Efiil’/1Qiiiii

Employer/Respondent

 

 

 

 

 

On 8/3l/20 12, 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 0.14% 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 a decrease in this award, interest shall not accrue.

 

A copy of this decision is mailed to the following parties:

 

xxxxx

 

STATE OF ILLINOIS

 

 

COUNTY OF COOK

 

 

0Injured Workers’ Benefit Fund (§4(d))
0Rate Adjustment Fund (§8(g))
0Second Injury Fund (§8(e)l8)
[SJ None of the above

 

 

ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION

 

AAAa Tamule,Nici..

Employee/Petitioner

v.

AQM elaMiterial Serti&es

Employer/Respondent

 

Case # 18 WC 38i8i •

Consolidated cases: ==:

 

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 liiJriaM QreAiD, Arbitrator of the Commission, in the city of Chicago, on 3/12/2012. After reviewing all of the evidence presented, the Arbitrator hereby makes findings on the disputed issues checked below, and attaches those findings to this document.

 

DISPUTED ISSUES

A. 0 Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?

A.D Was there an employee-employer relationship?

B.[SJ Did an accident occur that arose out of and in the course of Petitioner’s employment by Respondent?

C.0 What was the date of the accident?

D.[SJ Was timely notice of the accident given to Respondent?

E.[SJ Is Petitioner’s current condition of ill-being causally related to the injury?

F.0 What were Petitioner’s earnings?

G.0 What was Petitioner’s age at the time of the accident?

I.D What was Petitioner’s marital status at the time of the accident?

J.[SJ 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. [SJ What temporary benefits are in dispute?

DTPD DMaintenance k2] TTD

L. [SJ What is the nature and extent of the injury?

A.0 Should penalties or fees be imposed upon Respondent?

B.0 Is Respondent due any credit?

0. O other

 

ICArbDec 2110 I 00 W. Randolph Street #8-200 Chicago, IL 60601 3121814-6611Toll-free 8661352-3033Web site: www. iwcc.i/.gov Downstate offices: Collinsville 6181346-3450 Peoria 309167/-30/9 Rockford 8151987-7292 Springfield 2171785-7084

 

FINDINGS

 

On 6/30/2010, 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 causally related to the accident.

In the year preceding the injury, Petitioner earned $30,309.76; the average weekly wage was $582.88.

On the date of accident, Petitioner was 50 years of age, single with 0 dependent children.

Petitioner has received all reasonable and necessary medical services.

Respondent has not paid all appropriate charges for all reasonable and necessary medical services.

Respondent shall be given a credit of $0.00 for TTD, $0.00 for TPD, $0.00 tor maintenance, and $0.00 for other benefits, for a total credit of $0.00.

Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.

 

 

ORDER

 

Temporary Total Disability

Respondent shall pay Petitioner temporary total disability benefits of $388.59/week for 8-4/7 weeks, commencing 5/13/2011 through 7/11/2011, as provided in Section 8(b) of the Act.

Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 5/13/2011
through 7/11/2011, and shall pay the remainder of the award, if any, in weekly payments.

Respondent shall be given a credit of $0.00 for temporary total disability benefits that have been paid.

 

Medical benefits

Respondent shall pay an amount equal to the sum of the following charges: $4,359.64 from l.llili81il Wealth SeFrise, $1,204.00 from et!ettPe!u: OAFie eaies, and $10,918.00 from llli11eis Ml!leelilie Pc4eaiesl Oefilter, because such charges were tor reasonable and necessary medical services, pursuant to Section 8(a) and subject to Section 8.2 of the Act.

Respondent shall be given a credit of $0.00 for medical benefits that have been paid, and Respondent shall hold petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit, as provided in Section 8(j) of the Act.

 

Permanent Partial Disability: Schedule injury

Respondent shall pay Petitioner permanent partial disability benefits of $349.73/week for 41 weeks, because the injuries sustained caused the 20% loss of the Left Hand, as provided in Section 8(e)9 ofthe Act.

 

Permanent Partial Disability: Schedule injury

Respondent shall pay Petitioner permanent partial disability benefits of $349.73/week tor 41 weeks, because the injuries sustained caused the 20% loss of the Right Hand, as provided in Section 8(e)9 of the Act.

RULES REGARDING APPEALS Unless a party tiles 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 reviews 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 ne or a decrease in this award, interest shall not accrue.

 

 

 

__________________________

 

Signature of Arbitrator

August 30,2012

Date

 

 

 

ICArbDec p. 2AUG 31 2012

 

STATEMENT OF FACTS

 

The Petitioner works for the Respondent as a custodian. The Petitioner has worked tor the Respondent for eleven years. The Petitioner testified that as a custodian she has been assigned to an office building for the past nine years. The Petitioner testified that her job duties include wiping down approximately 179 desk and telephones, lifting and emptying trash and re­ lining approximately 179 waste baskets, unlocking and locking 49 offices and cleaning them, and vacuuming approximately 50,000 square feet (two floors) on a daily basis. The Petitioner also testified that she is also required to clean two kitchens and is required to dust baseboards and window blinds as needed. The Petitioner works eight hours per day, five days per week.

The Petitioner testified that she began experiencing pain in both of her hands and wrists approximately five years ago.The Petitioner sought medical treatment with l!Tnion IIealtli Scr o icc on September 11, 2009 and complained of pain in both of her hands. (Resp. Ex. #3) She was tentatively diagnosed with bilateral carpal tunnel syndrome and continued working.

The Petitioner followed up with UftiiR IIiJiilhh Sendee on October 23, 2009 and was prescribed braces to wear. The Petitioner continued working. The Petitioner followed up with .wMeft Ikalth SCI :ice on February 19, 2010 and she was again diagnosed with bilateral carpal tunnel syndrome. Further, the Petitioner’s use of splints was continued and she was referred to an orthopedic physician.(Pet. Ex. #2)The Petitioner followed up with Dr. .Rebut Biliml& at Union Health er vice on May 12, 2010, at which time she was again diagnosed with bilateral carpal tunnel syndrome. (/d.)

On June 30, 2010, the Petitioner testified, she reported to Ms. QF.tJutta HillIF, her supervisor, that she was having pain in both of her hands and having difficulty performing her trash collecting duties. The Petitioner testified that she reported this to Ms. MiliCi on that day because she realized while working that her carpal tunnel syndrome and hand/wrist pain were related to her job duties with the Respondent.

The Petitioner followed up with Dr. Ed cowd Abmhmn at I:Jnien Il!!ttltk itt•di8 on July 21, 2010. At that visit the Petitioner again complained of pain, numbness and tingling in both of her hands and wrists and was given an injection to the right wrist. (Pet. Ex. #2) An EMG was also recommended. On August 17, 2010 an EMG was performed that revealed mild bilateral carpal tunnel syndrome. (/d.) The Petitioner followed up with Dr. A\nallam on September 29, 2010 at which time treatment options including surgery were discussed. The Petitioner continued working during this time.

On October 5, 2010, the Petitioner saw Dr. Hucemd Fteedbetg of SabadsMt Orthopedics for a second opinion. Dr. P’reeebet g; took a detailed history from the Petitioner including a detailed description of the Petitioner’s job duties. (Pet. Ex. #5) The Petitioner was diagnosed with bilateral carpal tunnel syndrome and surgery was recommended. (/d.) The Petitioner continued working full duty at that time.

On January 12, 2011, the Petitioner followed up with Dr. Bilinski sat miorr Hcalt+t itPviee, at which time the Petitioner reported that her carpal tunnel symptoms were worsening. (Pet. Ex. #2) On January 13, 2011, the Petitioner followed up with Dr. ftccdbag at which time Dr. of’rcedbct’§’ again recommended surgery. (Pet. Ex. #5) Dr. Frceehe g testified by way of evidence deposition that he believes that the Petitioner’s work duties for the Respondent have caused her bilateral carpal tunnel syndrome. (/d.)

On March 11, 2011, at the request of the Respondent and pursuant to Section 12 of the Act, Petitioner saw Dr. UbOH :6/)%kk.1’for examination. (Resp. Ex. #I) Dr. J;Vyst !!lri.agreed that the Petitioner has bilateral carpal tunnel syndrome and that surgery is warranted if she believes her symptoms require further treatment. Yet, Dr. \Wysubi.was of the opinion that the bilateral carpal tunnel syndrome was not caused by her work for the Respondent. (!d.)

The Petitioner followed up with Dr. A rMM18 on May 4, 2011, and the Petitioner was scheduled for bilateral carpal tunnel release surgeries. (Pet. Ex. #2) On May 13, 2011, the Petitioner had bilateral carpal tunnel release surgeries performed by Dr. ,o,emhsn at elillin&is l’l4aa!!Ri’i Medical Center.(Pet. Ex. #2 and Pet. Ex. #4)The Petitioner was taken off work following the surgery. (Pet. Ex. #2) The Petitioner followed up with Dr. Abraham Ml May 26, 2011 and was continued off work. (!d.) The Petitioner again followed up with Dr.whbtali HFon June 23, 2011 and was released to return to full-duty work on July 11, 2011. (Jd.) The Petitioner again followed up with Dr. firA£Mn on July 20, 2011 and was released from care. (!d.) The Petitioner testified that she did not receive temporary total disability benefits for the time she was otT work following the surgeries. The Petitioner testified that she still has numbness in both hands and pain that she describes as “pinching” and “pulling” in both of her hands and that she takes over-the-counter pain medication. The Petitioner testified that she continues to receive medical bills in the mail.

The Respondent called Ms. 8dliiS! et Millet to testify at arbitration. Ms. M!illil testified that she works for the Respondent and has been the Petitioner’s supervisor for eight years. Ms. testified that on or about June 30, 2010, Petitioner advised her that her wrists hurt and that she had difficulty emptying the garbage. On cross-examination, Ms. Millet testified that during such June 30, 2010 conversation, Petitioner told her that the pain in her hands/wrists was caused by her job duties. On redirect examination, Ms. Miller revised her testimony and stated that although Petitioner did tell her on June 30, 2010 that her hands/wrist hurt her, Petitioner did not relate such symptoms to her work activities. Ms. Uillir -tid not complete an accident report at that time.

Ms. MiHef. testified that other employees have reported physical complaints to her but that she does not always fill out an accident report. Ms. r testified that she did not believe Petitioner claimed a work accident, and therefore did not complete an accident report. Petitioner did not ask to complete one either. Ms. Mill• corroborated the Petitioner’s testimony with regard to the description, the frequency and the duration of Petitioner’s work activities.

On December 1, 2010, a job analysis was completed that listed the tasks required, the weights and force required (such as 5.3 to 7.35 pounds of force required to push the garbage cart) and the hours scheduled. The heaviest weight was noted to be the large garbage can, which, if full, may weigh fifteen pounds.

The Arbitrator notes that on June 30, 2010, Petitioner had a conversation with Ms. liiHir when she had difficulty emptying the garbage and experienced wrist pain.

 

 

 

 

CONCLUSIONS OF LAW

 

C. WITH REGARD TO ITEM (C), DID AN ACCIDENT OCCUR THAT AROSE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT BY THE RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that Petitioner sustained an accident that arose out of and in the course of the Petitioner’s employment by the Respondent. It is undisputed that the Petitioner’s job duties include wiping down approximately 179 desk and telephones, lifting and emptying trash and re-lining approximately 179 waste baskets, unlocking and locking 49 offices and cleaning them, and vacuuming approximately 50,000 square feet or two floors on a daily basis. The Petitioner is also required to clean two kitchens and is required to dust baseboards and window blinds as needed. The Petitioner works eight hours per day, five days per week for the Respondent. Dr. f..le\o M€4. FreetH ‘[email protected] testified in his evidence deposition that it is the Petitioner’s vacuuming duties and desk cleaning activities that have resulted in the Petitioner’s bilateral carpal tunnel syndrome. (Pet. Ex. #5) These activities are part of the Petitioner’s undisputed job duties and therefore her accident arose out of and in the course of her employment by the Respondent.

The date of injury in a repetitive trauma case is the date on which the injury manifests itself. That is, the date on which the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person. Durand v. Indus. Comm’n., 224 Ill.2d 53, 67 (2006). The Illinois Supreme Court held that “to deny an employee benefits for a work-related injury that is not the result of a sudden mishap penalizes an employee who faithfully performs job duties despite bodily discomfort and damage.” (!d. at 66) The Petitioner testified that on June 30, 2010, she was having difficulty taking trash out and noticed an increase in her bilateral hand and wrist pain. The Petitioner testified that on that day she realized that her job duties were the reason that her hands were hurting. Under Illinois law, June 30, 2010 is the date of the Petitioner’s accident in this case as it is the date on which the Petitioner realized that her job duties were the cause of her bilateral hand pain.

 

 

E. WITH REGARD TO ITEM (E), WAS TIMELY NOTICE OF THE ACCIDENT PROVIDED TO THE RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that timely notice of the accident was provided to the Respondent. The Petitioner testified that she reported the accident to her supervisor, Ms. 08B’Hia Millet, on June 30, 2010.As the date of accident has been found to be June 30, 2010, the Petitioner provided notice on the day of accident. Ms. -Banata Miller testified that she remembers the Petitioner reporting to her on that day that she was having pain in both of her hands. On cross-examination, Ms. r testified that the Petitioner informed her that the pain in her hands/wrists was from her job duties, but then quickly revised such statement on re-direct examination. No written accident report was completed. Ms. testified that that employees report physical complaints to her, but that she does not always complete an accident report. The Arbitrator finds that Petitioner’s testimony is more credible that Ms. iillallidi testimony.

 

 

F .WITH REGARD TO ITEM (F), IS THE PETITIONER’S CURRENT CONDITION OF ILL-BEING CAUSALLY REALTED TO THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that Petitioner’s current condition of ill-being is causally related to the work injury. The Petitioner has worked for the Respondent for eleven years, the past nine of which have been at her present location. The Petitioner’s job duties include wiping down approximately 179 desk and telephones, emptying and re-lining approximately 179 waste baskets, unlocking and locking 49 offices and cleaning them, and vacuuming approximately 50,000 square feet (two floors) on a daily basis. The Petitioner is also required to clean two kitchens and is required to dust baseboards and window blinds as needed. The Petitioner works eight hours per day, five days per week. The Petitioner testified that the pain in her hands began approximately five years ago and that she first sought medical treatment in September of 2009. The Petitioner’s job duties are repetitive in nature.

Dr. MewtMel FtecellsCI , a board-certified orthopedic surgeon, testified by way of an evidence deposition. (Pet. Ex. #5) Based on his treatment of the Petitioner and his review of diagnostic testing and the Petitioner’s job duties, Dr. Frccellss opined that the Petitioner’s condition is causally related to her work for the Respondent. (!d. at ll-12) Dr. liAiJ’ uspeg explained that the repetitive vacuuming and cleaning of the desks has caused the Petitioner’s condition.(ld. at 21-22) Dr. I*reetiet! conceded that his chart notes retlect that Petitioner exhibited negative Tinel’s and Phalen’s compression tests on the left and explained that such figures must be the result of a clerical error. (!d. at 17) Dr.,[email protected]!t opined that forceful and repetitive use is a known etiology for carpal tunnel syndrome. (!d. at 11) He also testified that the kinds of movements that also cause carpal tunnel syndrome are those that involve more of a volar tlexion maneuver because that brings about a tightening down on the canal. (!d. at 29) Dr. Iatrntibet 8 admitted that he has not reviewed any prior medical records. (!d. at 27)

The Respondent relies on the medical opinion of Dr. Reus!M nryouhi, who also testified by way of evidence deposition. (Resp. Ex. #1) Although Dr. Wpcela specializes in the hand, wrist and elbow, the Arbitrator notes that Dr. J};’y seem is not a board-certified orthopedic surgeon. (!d. at 5) Dr. Wyo uhiereviewed a job analysis provided by the Respondent, reviewed medical records and conducted an examination of the Petitioner and opined that the Petitioner’s condition was not causally related to her work for the Respondent.

Dr. lHs oulil opined that since the Petitioner was not performing heavy, repetitive gripping or lifting activities, her bilateral carpal tunnel syndrome is not causally related to her work. The Arbitrator notes that the job description reviewed by Dr. ‘,i,*y soski did not contain any numbers that indicated how many times the job duties were performed on a daily basis. (!d. at 21-22)

The Respondent also produced a medical record indicating that the Petitioner was diagnosed with “non-insulin dependent diabetes mellitus”. (Resp. Ex. #2) However, the Petitioner testified that she does not have diabetes and the medical record produced was from April 7, 2001, which pre-dates the Petitioner’s bilateral hand pain by at least six years. Further, the Petitioner testified that she smoked occasionally prior to surgery, but not over one pack per three days.

An accidental injury need not be the sole causative factor, or even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being. Rock Road Construction Co. v. Indus. Comm’n., 37 Ill.2d 123, 127 (1967); Tower Automotive v. Illinois Workers’ Comp. Comm’n., 943 N.E.2d 153, 407 Ill. App.3d 427, 347 Ill. Dec. 863 (1st Dist. 20 11)

 

 

J. WITH REGARD TO ITEM (J), WERE THE MEDICAL SERVICES PROVIDED TOTHE PETITIONER REASONABLE AND NECESSARY AND HAS THE RESPONDENTPAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that the medical services provided to the Petitioner were both reasonable and necessary and that Respondent has not paid all appropriate charges. As a result of the Petitioner’s work-related injury, the Petitioner was diagnosed with bilateral carpal tunnel syndrome. Both Dr. Freeaeeflg and Dr. cA:h•MiftM agreed that surgery was reasonable and necessary based on the Petitioner’s failure of conservative management and objective medical findings. Further, Respondent’s own Section 12 physician, Dr. li\k} sulti, stated in his deposition that if the Petitioner continued to be symptomatic she would require surgery. (Resp. Ex. #1, p. 26) Accordingly, the Petitioner’s treatment was both reasonable and necessary. The Respondent has not paid all appropriate charges. The Petitioner testified that she still receives medical bills in the mail and the Petitioner produced outstanding medical bills at trial. (See Pet. Ex. # 1) Accordingly, the Petitioner is awarded the outstanding medical bills contained in Petitioner’s Exhibit #1, to be adjudicated pursuant to the Illinois Medical Fee Schedule.

 

 

K. WITH REGARD TO ITEM (K), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that Petitioner is entitled to TTD benefits from May 13, 2011 through July 11, 2011, a period of 8-4/7 weeks. The Petitioner was taken otf work following surgery and remained off work until being released to full-duty work by Dr. A8iiduun. Petitioner testified that she returned to full-duty work on July 12, 2011. Accordingly, the Petitioner is awarded 8-4/7 weeks ofTTD benefits for her time off work from May 13, 2011 to July 11, 2011.

 

 

L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT OF THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator concludes that, as a result of the repetitive trauma injury of June 30, 2010, Petitioner sustained a permanent loss of use of her left and right hands to the extent of 20% thereof. The Arbitrator has found that Petitioner’s performance of her job duties contributed to the development of her bilateral carpal tunnel syndrome. When conservative measure did not alleviate the Petitioner’s symptoms, she chose to undergo the necessary surgery. The Petitioner testified that she continues to have pain in both hands and wrists and takes over-the-counter pain medication even as of the date of trial. Accordingly, the Petitioner is awarded 20% loss of use of the right hand and 20% loss of use of the left hand as a result of this work injury.