STATE OF ILLINOIS )
)SS
COUNTY OF WILL )
x Affirm and adopt (no changes)
Injured Workers’ Benefit Fund (§4(d))
Affirm with changes
Rate Adjustment Fund (§8(g))
Reverse – Choose Reason
Second Injury Fund (§8(e)18)
PTD/Fatal denied
Modify – Choose direction
x None of the above
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
Petitioner
Vs. NO: 10 WC 01948
Respondent
DECISION AND OPINION ON REVIEW
Timely Petition for Review under §19(b) having been filed by the Respondent herein and notice given to all parties, the Commission, after considering the issues of causal connection, temporary total disability, evidentiary rulings regarding leading questions and being advised of the facts of law, affirms and adopts the Decision of the Arbitrator, which is attached hereto and made a part hereof. The Commission further remands this case to the Arbitrator for further proceedings for a determination of a further amount of temporary total compensation or of compensation for permanent disability, if any, pursuant to Thomas v. Industrial Commission, 78 Ill.2d 327, 399 N.E.2d 1322, 35 Ill.Dec. 794 (1980).
IT IS FURTHER ORDERED BY THE COMISSION that the Decision of the Arbitrator filed March 4, 2011, is hereby affirmed and adopted.
IT IS FURTHER ORDERED BY THE COMMISSION that this case be remanded to the Arbitrator for further proceedings consistent with this Decision, but only after the latter of expiration of the time for filing a written request for Summons to the Circuit Court has expired without the filing of such a written request, or after the time of completion of any judicial proceedings, if such a written request has been filed.
IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay to Petitioner interest under §19(n) of the Act, if any.
IT IS FURHTER ORDERED BY THE COMMISSION that Respondent shall have credit for all amounts paid, if any, to or on behalf of Petitioner on account of said accident injury.
Bond for the removal of this cause to the Circuit Count is hereby fixed at the sum of $5,300.00. The probable cost of the record to be filed as return to Summons is the sum of $35.00, payable to the Illinois Workers’ Compensation Commission in the form of cash, check or money order therefor and deposited with the Office of the Secretary of the Commission.
Dated: MAR. 16, 2012
DRD/wj
O-03/13/12
68
ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
____________________ Case # _________________
Employee/Petitioner
____________________
Employer/Respondent
On 3/4/2011, 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 0.17% 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:
1067 ANKIN LAW OFFICE
162 W GRAND AVE. SUITE 1810
CHICAGO, IL 60654
STATE OF ILLINOIS )
)SS
COUNTY OF WILL )
Injured Workers’ Benefit Fund (§4(d))
Rate Adjustment Fund (§8(g))
Second Injury Fund (§8(e)18)
x None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)
____________________ Case # _________________
Employee/Petitioner
v. Consolidated cases:_____
____________________
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 Commission, in the city of Joliet, on February 14, 2011. 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.
Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?
B.
Was there an employee-employer relationship?
C.
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 causally 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 x TTD
M.
Should penalties or fees be imposed upon Respondent?
N.
Is respondent due any credit?
O.
Other _____
FINDINGS
On the date of the accident, 10/9/09, 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 $29,196.96; the average weekly wage was $516.48.
On the date of the accident, Petitioner was 35 years of age, married with 1 dependent children.
Respondent has not paid all reasonable and necessary medical services.
Respondent shall be given a credit of $5,668.88 for TTD, $0.00 for TPD, $0.00 for other benefits, for a total credit of $5,668.88.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Credit
Respondent shall be given a credit of $5,668.88 for TTD, $0.00 for TPD, $0.00 for other benefits, for a total credit of $5,668.88.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $374.32/week for 29 weeks, commencing 3/31/2010 through 7/23/2010, 8/20/2010 through 9/21/2010, and 12/22/2010 through 2/14/2011, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner temporary total disability benefits accrued from 3/31/2010 through 7/23/2010, 8/20/2010 through 9/21/2010, and 12/22/2010 through 2/14/2011, and shall pay remainder of the award, if any, in weekly payments.
Respondent shall be given a credit of $5,668.88 for temporary total disability benefits that have been paid.
Medical Benefits
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $109.00 to __________, as provided in Sections 8(a) and 8.2 of the Act.
Future Medical Services
Respondent shall authorize and pay for the Petitioner’s left elbow surgery as recommended by Dr. Burra on December 22, 2010.
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 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 no change or a decrease in award, interest shall not accrue.
__________________________ ___________
Signature of Arbitrator Date
STATEMENT OF FACTS
The Petitioner testified that he worked for the Respondent as a “palletizer” for four years. The Petitioner testified that his job as a “palletizer” consisted of stacking boxes of product on pallets upwards of 575 times per day. The Petitioner testified that in October of 2009 he began experiencing pain in his left elbow and forearm but continued to work. Accident and notice are not in dispute.
The Petitioner testified that his left elbow pain intensified over the next few months and on January 7, 2010 the Petitioner reported to __________ Hospital Emergency Room. On January 7, 2010 the Petitioner complained of pain in his left elbow and wrist that had been ongoing for the past three months and the Petitioner was diagnosed with left medial epicondylitis and left wrist pain. (Pet. Ex. #1) The Petitioner was referred to physical therapy and was given light duty work restrictions on that day. (Id.) The Petitioner testified that he had physical therapy from January 11, 2010 through July 22, 1010 at __________.
The Petitioner testified that he sought follow up care at __________ Hospital with Dr. __________ on January 13, 2010 and January 20, 2010. Dr. __________ continued the Petitioner’s diagnosis of left medial epicondylitis and left wrist pain and kept the Petitioner’s light duty work restrictions in place. (Pet. Ex. #1) At that time, the Petitioner complained of continued pain in his left elbow and wrist. Dr. __________ opined that the Petitioner would likely benefit from a cortisone injection to his left elbow and referred the Petitioner to Dr. __________, an orthopedic physician with __________. (Id.)
The Petitioner testified that he saw Dr. __________ on February 9, 2010. At that time the Petitioner complained of pain in his left elbow, left wrist and left thumb. (Pet. Ex. #2) The Petitioner was again diagnosed with left medial epicondylitis and hand sprains and was given a ten pound lifting restriction and a splint to wear. (Id.) On March 22, 2010 the Petitioner was seen for an independent medical evaluation by Dr. __________. Dr. __________ diagnosed the Petitioner as having a left thumb sprain, opined that the Petitioner had not yet reached maximum medical improvement and stated that the Petitioner was capable of full-duty work. (Rsp. Ex. #1)
On March 23, 2010 the Petitioner had an injection to his left thumb performed by Dr. __________. (Pet. Ex. #2) Dr. __________ released the Petitioner again to work light duty. (Id.) The Petitioner testified that he was fired by the Respondent on March 31, 2010. On April 20, 2010 the Petitioner again saw Dr. __________, at which time the Petitioner again complained of pain in his elbow and left thumb. Dr. __________ ordered further physical therapy for the Petitioner’s left elbow and released the Petitioner to light duty work. (Id.) The Petitioner sought follow-up care with Dr. __________ on May 28, 2010 at which time the Petitioner reported that his left hand and wrist were doing better, but that he still had pain in his left elbow. Dr. __________ gave the Petitioner an injection to his elbow and continued the Petitioner’s light duty work restrictions. (Id.) The Petitioner testified that during these months he was continuing to received physical therapy. The Petitioner testified that he sought follow up care with Dr. __________ on June 25, 2010. At that time the Petitioner complained of pain in his left thumb/wrist and his left forearm. (Id.) The Petitioner testified that he was continued on his light duty restrictions.
The Petitioner was seen for a second independent medical evaluation by Dr. __________ on July 9, 2010. (Rsp. Ex. #2) The Petitioner complained of pain in his left forearm and left elbow. On July 23, 2010 the Petitioner sought follow-up care with Dr. __________. Dr. __________ noted that the Petitioner complained of some pain around the left elbow and the base of the left thumb/wrist. Dr. __________ released the Petitioner to a course of full duty work with instructions to come back in one month. (Pet. Ex. #2)
The Petitioner testified that he again saw Dr. __________ on August 20, 2010 at which time the Petitioner complained that the pain had returned. Dr. __________ states in his notes that the Petitioner has failed conservative treatment, an MRI was recommended for the left elbow and an injection given to the left thumb/wrist area. The Petitioner was also given light duty restrictions. (Id.)
The Petitioner testified that on August 24, 2010 he sought treatment with Dr. __________ of __________. Dr. __________ impression was that of medical epicondylitis as well as possible DeQuervain tenosynovitis. (Pet. Ex. #3). Dr. __________ concurred with Dr. __________ that an MRI was necessary. (Id.) The Petitioner testified that he had an MRI of left elbow taken on August 30, 2010 at __________. The MRI revealed mild tendinopathy of the common extensor and common flexor tendon origins. (Id.)
The Petitioner testified that on September 7, 2010 he sought follow-up care with Dr. __________ and was given an injection to his left elbow. The Petitioner was again given light duty work restrictions. (Id.) On September 21, 2010 the Petitioner saw Dr. __________, at which time Dr. __________ notes that the Petitioner received an injection to his left elbow and is currently asymptomatic and is therefore capable of full duty work. (Pet. Ex. #2) The Petitioner testified that he again saw Dr. __________ on October 5, 2010. Dr. __________ notes that the Petitioner has had relief of his left elbow pain since the last injection. (Pet. Ex. #3) Dr. __________ further notes that the Petitioner is to return to the office if his symptoms return for a possible surgical consultation. (Id.)
On October 18, 2010 the Petitioner saw Dr. __________ for a third independent medical evaluation. Dr. __________ notes that the Petitioner is not having any current pain complaints in his left arm and is capable of regular duty work. (Rsp. Ex. #3)
The Petitioner testified that the pain in his elbow subsequently returned and that he saw Dr. __________ on December 22, 2010. Dr. __________ notes that the Petitioner is now a candidate for a left elbow debridement and drilling of the medical epicondyle with reattachment of the flexor pronator mass. (Pet. Ex. #3) Further, Dr. __________ gave the Petitioner work restrictions on that day pending surgery. (Id.)
The Petitioner testified that the pain he is currently experiencing is the same pain that he was experiencing when he first sought medical treatment in January 2010. The Petitioner testified that he has looked for jobs since being fired on March 31, 2010, but has been unsuccessful. He testified that he makes and sells piñatas to his neighbors in order to have any sort of income. He testified that the piñatas are made out of paper and cardboard and their creation does not require a lot of grasping. The Petitioner testified that he makes these when the weather is warm. With regard to further medical treatment, the Petitioner testified that if given the opportunity, he would have the surgery recommended by Dr. __________ immediately.
CONCLUSIONS OF LAW
F. WITH REGARD TO ITEM (F), WHETHER PETITIONER’S CURRENT CONDITION OF ILL-BEING IS CAUSALLY RELATED TO THE PETITIONER’S WORK INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:
The Arbitrator finds that the Petitioner’s present condition of ill-being is causally related to his undisputed work injury. The Petitioner testified that he first began noticing pain in his left arm on October of 2009. When the pain became more than he could bear, the Petitioner sought medical treatment on January 7, 2010. Since January 7, 2010 the Petitioner has had the same pain complaints, but simply to different degrees. The Petitioner has treated consistently for an injury to his left elbow, left wrist, and left hand. Again, accident is not in dispute.
The Respondent relies on the medical note of Dr. __________ dated June 25, 2010. (Pet. Ex. #2) In that note, Dr. __________ states that the Petitioner has pain in the right forearm. (Id.) When looked at in the context of the other medical records it appears that Dr. __________ was mistaken in his notes. The prior office visit note and the subsequent office visit note that the Petitioner had pain his left forearm and elbow, not his right. Further, the Petitioner testified that he never complained of pain in his right arm.
The Respondent produced no medical evidence at trial to demonstrate a mechanism for injury other than the undisputed work injury. The Respondent attempts to rely on the fact that the Petitioner makes piñatas to insinuate that making piñatas is the source of the Petitioner’s pain. However, the Petitioner testified that these are made of cardboard and their creation does not require any grasping or any activity that aggravates his symptoms. Further, the Petitioner testified that he only makes them when the weather is warm. The Petitioner was not making his piñatas when his pain increased and he received a recommendation for surgery from Dr. __________ in December 2010. The Petitioner’s present condition of ill-being is causally related to the Petitioner’s undisputed work injury.
The Respondent argues that the Petitioner did not have an ongoing injury due to his being fired on March 31, 2010. This is simply incorrect. The Petitioner treated consistently for this injury. The only times the Petitioner was released to full duty work were after injections to his elbow. The Petitioner testified at trial that these injections provide him with temporary relief, not permanent relief. The Petitioner’s medical records documenting consistent treatment since January 7, 2010 combined with the Petitioner’s credible testimony demonstrate that the Petitioner’s present condition of ill-being is causally related to his undisputed work injury.
J. WITH REGARD TO ITEM (J), WERE THE MEDICAL SERVICES PROVIDED PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Arbitrator finds that the medical services provided to the Petitioner were reasonable and necessary and the Respondent is liable for these charges. As a result of the Petitioner’s undisputed work injury the Petitioner received a conservative course of treatment. The Petitioner was diagnosed with left medial epicondylitis and possible left DeQuervain’s syndrome. The Petitioner’s underwent a course of physical therapy, had injections, diagnostic testing, and office visits with doctors. This is a reasonable and necessary course of treatment in light of the Petitioner’s diagnoses and continued pain complaints. As such, the Respondent is responsible for the payment of associated medical bills.
K. WITH REGARD TO ITEM (K), WHETHER THE PETITIONER IS ENTITLED TO ANY PROSPECTIVE MEDICAL CARE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner is entitled to the left elbow surgery as recommended by Dr. __________ in the Petitioner’s December 22, 2010 medical note from __________. The Petitioner has exhausted his conservative course of treatment and has not achieved maximum medical improvement. According to the Petitioner’s treating orthopedic doctor, Dr. __________, the next step in the Petitioners treatment would be surgery. Again, months of physical therapy and numerous injections have not alleviated the Petitioner’s symptoms permanently. The Petitioner has shown that his present condition of ill-being is causally related to his work injury and further that this surgery is the next step in his treatment. The surgery and accompanying medical treatment are awarded to the Petitioner.
L. WITH REGARD TO ITEM (L), WHAT TTD BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:
The Petitioner is entitled to temporary total disability benefits from March 31, 2010, to July 23, 2010, August 20, 2010 to September 21, 2010, and from December 22, 2010 to February 14, 2011, a period of 29 weeks. The Petitioner testified that when he began his medical treatment on January 7, 2010 he was given light duty work restrictions was accommodated by the Respondent. The Petitioner was fired from his job on March 31, 2010. The Petitioner continued to have work restrictions until July 23, 2010 when he was released to work full duty on a trial basis by Dr. __________. (Pet. Ex. #2) When the Petitioner followed up with Dr. __________ on August 20, 2010 he was again given work restrictions that were not accommodated by the Respondent. These restrictions continued until the Petitioner was again released to full duty work on September 21, 2010 by Dr. __________. When the Petitioner’s pattern of symptoms returned he was again given work restrictions on December 22, 2010 by Dr. __________ that were not accommodated. (Pet. Ex. #3) The Petitioner is therefore entitled to 29 weeks of TTD, less the Respondents credit of $5,668.88 for temporary total disability benefits already pain.
