ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
On 8/13/2014, 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 0.05% 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:
STATE OF ILLINOIS )
COUNTRY OF COOK )
Injured Workers’ Benefit Fund (x4 (d))
Rate Adjusted Fund (x8 (g))
Second Injury Fund (x8(e) 18)
None of the above
ILLINOIS WORKER’S COMPENSATION COMMISSION
v. 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, Arbitrator of the Commission, in the city of Chicago, on 6/4/2014. 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.
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. 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. Were the medical services that were provided to Petitioner reasonable and necessary?
K. Has Respondent paid all appropriate charges for all reasonable and necessary medical services?
L. Is Petitioner entitled to any prospective medical care?
M. What temporary benefits are in dispute?
TPD Maintenance TTD
N. Should penalties or fees be imposed upon Respondent?
O. Is Respondent due any credit?
P. Other ____________
On the date of accident, 2/1/2012, 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 arouse out of and in the course of employment.
Timely notice of this accident was given to Respondent.
Petitioner’s current condition of ill-being regarding his lumbar spine, hip and knee are causally related to the accident.
In the year preceding the injury, Petitioner earned $6.675.00; the average weekly wage was $983.97.
On the date of accident, Petitioner was 53 years of age, married with 3 dependent children.
Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $18,554.86 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 for other benefits, for a total credit of $18,554.86.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $655.98/week for 110 weeks, commencing 2/1/2012 through 8/20/2012 and 11/12/2012 through 6/4/2014, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 2/1/2012 through 8/20/2012 and 11/12/2012 through 6/4/2014, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall be given a credit of $18,554.86 for temporary total disability benefits that have been paid.
Respondent shall pay reasonable and necessary medical services of $10,252.28, as provided in Section 8(a) of the Act.
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $2,613.96 to , $6,833.62 to , and $804.40 to , as provided in Sections 8(a) and 8.2 of the Act.
Respondent shall pay reasonable and necessary medical services of $10,252.28, as provided in Sections 8(a) and 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.
Prospective Medical Care
Respondent shall authorize and pay for a series of lumbar epidural steroid injections as recommended 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 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 decrease in this award, interest shall not accrue.
Signature of Arbitrator Date
This matter was presented for a hearing pursuant to Sec. 19(b) of the act before Arbitrator on June 4, 2014. Both parties were represented by counsel and have entered into several stipulations that are contained as Arbitrator’s Exhibit No. 1 (“AX1”) for the trial record.
Petitioner was 53 year old at the time of the accident which occurred on February 1, 2012. Petitioner testified in court with the aid of Spanish interpreter, . The Petitioner worked for the Respondent for approximately 5 or 8 years performing demolition and construction of buildings. On February 1, 2012, Petitioner was gluing down paper on the roof of a building when the paper became unglued and the Petitioner slipped. The Petitioner fell approximately 10-12 feet and landed on his left side on the ground below. The ground was comprised of snow-covered dirt. The Petitioner testified that he felt pain all along the left side of his body from his waist and back down to his foot. The Petitioner’s accident was properly reported and the Petitioner was transported to Hospital in a company van. Accident and notice are not in dispute. (Arb. Ex.#1)
The Petitioner was admitted into the hospital at Hospital on February 1, 2012 and was diagnosed with a left acetabular hip fracture after x-rays and a CT scan were taken. (Pet. Ex. #2) The Petitioner remained in the hospital until February 3, 2012, at which time he was transferred via ambulance to Medical Center. (Id.)
On February 7, 2012 the Petitioner had surgery performed on his left hip at consisting of an open reduction and internal fixation of the posterior wall acetabular. (Pet. Ex. #3) The Petitioner was released from on February 9, 2012. (Id.) The Petitioner was unable to work during this time.
On February 14, 2012 the Petitioner reported to and complained of increased hip pain after feeling a “pop” in the joint over the weekend. (Id.) On February 15, 2012 the Petitioner followed up with Dr. out of at which time the Petitioner continued to complain of pain in his left hp. (Id.) The Petitioner followed up with Dr. again on February 29, 2012 and complained of increasing pain in his left groin and left knee and physical therapy was recommended along with the use of crutches. (Id.) The Petitioner continued to follow up with Dr. on March 4, 2012, March 28, 2012 and April 18, 2012, and was continued off work during all times while continuing to complain of pain. (Id.) The Petitioner testified that he did receive TTD benefits during this time.
The Petitioner had a course of physical therapy performed from July 2, 2012 through July 25, 2012 at . (Pet. Ex. #5) On July 25, 2012, Dr. ordered a functional capacity evaluation (FCE), which was performed at on August 7, 2012. RX #2. Petitioner underwent an FCE at that was determined to be invalid. (Rsp. Ex. #2) The Petitioner testified that he “failed” this examination due to pain in his hip and low back.
The FCE therapist, , concluded that petitioner demonstrated inconsistent performance due to sub-maximum effort and was capable of greater functional abilities than he showed during the evaluation. Id. With respect to lifting, petitioner was able to lift up to 40 pounds from the floor to his waist, 30 pounds from twelve inches to waist, 30 pounds to shoulder height, and 30 pounds above his shoulder. Id. Mr. noted petitioner self terminated the lifting activities despite no objective clinical findings to support his claim of pain. Id. Mr. also noted that with stair and ladder climbing petitioner would ascend and descend stairs with weight bearing on his left leg, which was inconsistent with petitioner’s diagnosis. Id. Mr. concluded that petitioner’s complaints of pain in the various tests performed were unreliable given the absence of a change in petitioner’s heart rate while performing the test. Id.
Petitioner returned to Dr. on August 20, 2012. PX #4, P. 2. Dr. noted petitioner’s chief complaints included a left acetabular fracture along with left knee, hip and back pain. His notes document that he reviewed the results of the FCF and noted the inconsistencies and petitioner’s lack of effort during the evaluation. Id. Dr. discharged petitioner with a fully duty release without restrictions and asked him to follow up in five months. Id.
Petitioner next sought treatment on October 25, 2012 when he was seen for a second FCE . Petitioner testified he was sent to for the second FCE at the request of his attorney. This FCE was determined to be “valid” and placed the Petitioner at the “Light to Medium” physical demand level. (Id.) According to the report, the Petitioner’s previous position as a “laborer” with the Respondent is considered a “Heavy” physical demand level occupation. (Id.) The evaluator noted in his records that petitioner did not have a referral from a physician to conduct the evaluation. PX #6. In contrast to the first FCE, the therapist, concluded that petitioner’s evaluation was reliable and documented restrictions. Id. With respect to the lifting tests, petitioner claimed to be unable to lift more than 25.8 pounds over his shoulder because of neck pain; more than 28 pounds from thirty inches to eighteen inches because of pain in his left hip and bilateral knees; and lifting 18 inches to the floor because of left hip and knee pain. Id. During the push testing, his activity due to complaints to left hip and shoulder pain, and during the carrying testing he complained of leg cramps. Id. Following the second FCE, Petitioner returned to Dr. on November 12, 2012 where he complained of left hip and groin pain. PX #4. Dr. reviewed the second FCE and noted that it concluded petitioner could work at the medium duty level. Id. Dr. ordered an MRI and a CT scan and placed petitioner under light duty restrictions. Id. Petitioner underwent a CT scan on November 20, 2012 that showed near anatomical alignment of the left acetabular column, and an MRI on November 23, 2012 that showed evidence of moderate gluteal, piriformis and obturator muscle atrophy. Id. Petitioner returned to Dr. Stover on December 20, 2012. Dr. noted “I am uncertain as to why he has his continuing pain and weakness and ordered additional 6 weeks of therapy.” Id.
The Petitioner followed up with Dr. on November 12, 2012. (Pet. Ex. #4) The Petitioner continued to complain of pain in his left hip and left groin. (Id.) Dr. recommended a CT scan of the left hip and released the Petitioner to light duty work. (Id.) A CT scan performed at Hospital on November 20, 2012 revealed an unremarkable left hip and MRI of the left hip on November 23, 2012 was essentially unremarkable. (Id.)
The Petitioner followed up with Dr. on December 17, 2012 and continued to complain of diffuse pain in his hip along with weakness. (Id.) The Petitioner was still ambulating with the assistance of a cane and had a noticeable limp. (Id.) Dr. recommended physical therapy. (Id.) The Petitioner had a course of physical therapy performed at from December 27, 2012 through February 6, 2012. (Pet. Ex. #5) The initial physical therapy intake from December 27, 2012 indicates that the Petitioner had continued hip pain and weakness in his legs. (Id.)
The Petitioner followed up with Dr. on February 18, 2013. (Pet. Ex. #4) On that visit the Petitioner continued to complain of pain and also indicated again that he had lower back pain. (Id.) Dr. states that he was unsure of the pain generator as the Petitioner’s CT and MRI of his left hip were within normal limits. (Id.) Dr. Stover states that he was unsure if the back was the cause of the pain and referred the Petitioner to one of his spine-specialist partner. (Id.) Dr. Stover also indicated that the Petitioner was released to light duty in the past but that his employer has not been able to provide him with work. (Id.)
On February 20, 2013 the Petitioner saw Dr. , a spine specialist. (Id.) The Petitioner reported the history of his accident and that he has been experiencing low back pain since the accident along with occasional numbness and tingling into the legs. (Id.) X-rays were taken of the Petitioner’s lumbar spines that were unremarkable. (Id.) Dr. Patel recommended an MRI of the Petitioner’s lumbar spine. (Id.) An MRI of the lumbar spine performed on February 22, 2013 revealed a disk bulge at L4-5 with mild central canal stenosis and mild bilateral medical neural foraminal narrowing and a mild diffuse disk bulge at L5-S1. (Pet. Ex. #4)
On March 13, 2013 the Petitioner followed up with Dr. (Id.) Dr. Patel diagnosed the Petitioner with degenerative disk disease with foraminal stenosis. (Id.) Dr. recommended a left sided transforaminal epidural steroid injection at the L5- S1 segment along with physical therapy. (Id.) The Petitioner was taken off work completely at that time. (Id.) The Petitioner had physical therapy performed at from March 15, 2013 through April 16, 2013. (Pet. Ex. #5)
The Petitioner followed up with Dr. on April 17, 2013 at which time it was noted that physical therapy was not helping the Petitioner’s pain complaints. (Pet. Ex. #4) Dr. recommended continued physical therapy and continued the Petitioner off work (Id.)
The Petitioner followed up with Dr. on October 16, 2013. (Id.) Dr. noted that the Petitioner had not had additional treatment due to a lack of insurance approval. (Id.) Dr. states in his report that the Petitioner has continued low back pain symptoms with radiation of pain in to the buttocks bilaterally consistent with diskogenic pain and that the Petitioner is currently on disability. (Id.) Dr. addresses causation in stating:
“I do not believe that the injury he had would have caused the degeneration, but it does seem based on the chronology of his symptoms and the nature of injury, the description of his symptom pattern today, his exam findings on repeat examination that his ongoing back pain symptoms are related to the fall that he sustained, resulting in both the fracture of left side leg as well as the low back pain that he is experiencing.” (Id.)
The Petitioner was continued off work and injections were recommended. (Id.)
On October 28, 2013 the Petitioner followed up with Dr. . (Id.) Dr. states that the Petitioner continues to have pain in his hip and lower back. (Id.) Dr. also recommends that the Petitioner undergo a lumbar epidural steroid injection in an attempt to alleviate his pain and then a hip injection if the back injection does not alleviate his pain. (Id.) Dr. addresses causation in stating: “I do believe that it is indicated [back injection] and I believe that it is related to his work injury because it began following his accident.” (Id.)
The Petitioner saw Dr. on January 15, 2013. (Id.) Dr. again stated the importance of having an epidural steroid injection. (Id.) Dr. Patel also reiterated his belief that the back pain was caused by the fall at work. (Id.)
The Petition testified that he has not had the injection as recommended by Dr. and Dr. but would have it performed immediately if the Arbitrator were to award it to him. He further testified that he has not received TTD benefits August 20, 2012 and continues to receive medical bills in the mail. The Petitioner presented and walked in the courtroom with the assistance of a cane as prescribed by Dr. . He testified that he does not use the cane all the time, but does use it the vast majority of the day. The Petitioner denied any previous injuries to his lower back and denied any lower back symptoms prior to the undisputed February 1, 2012 work related accident. The Petitioner testified that he has had low back pain since the date of accident. He testified that he has not returned to work since the accident, that the Respondent did not accommodate any of his light duty restrictions and that he has not looked for work due to his receiving Social Security Disability at present. The Petitioner presently continues to take Lyrica and Ibuprofen in an attempt to alleviate his pain.
The Respondent produced an IME report from Dr. dated February 13, 2013. (Rsp. Ex. #1) Dr. took a history from the Petitioner and noted that he complained of pain in his left hip and lower back with radiation into his legs. (Id.) Dr. Mash opined that the Petitioner was at MMI for his hip condition and that he has permanent restrictions are delineated in his from at the Light to Medium Demand level. (Id.) Dr. further stated that the Petitioner “has good objective findings to support his subjective complaints.” (Id.)
IN SUPPORT OF THE ARBITRATOR’S DECISION RELATING TO (F), IS
PETITIONER’S CURRENT CONDITION OF ILL-BEING RELATED TO
THE INJURY, THE ARBITRATOR MAKES THE FOLLOWING CONCLUSIONS OF LAW:
The accident is not at issue. Petitioner was 53 year old at the time of the accident and has worked for the Respondent for approximately 5 or 6 years performing demolition and construction of buildings. Petitioner was gluing down paper on the roof of a building when the paper became unglued and the Petitioner slipped. The Petitioner fell approximately 10-12 feet and landed on his left side on the ground below. The ground was comprised of snow-covered dirt. The Petitioner testified that he felt pain all along the left side of his body from his waist and back down to his foot. The Petitioner’s accident was properly reported, medical records document and left acetabular hip fracture. The Petitioner remained in the hospital until February 3, 2012, at which time he was transferred via ambulance to Medical Center. (Id.) where he had surgery performed on his left hip at Medical Center (hereinafter ) consisting of an open reduction and internal fixation of the posterior wall acetabular. (Pet. Ex. #3) The Petitioner was released from Loyola February 9, 2012. (Id.) The Petitioner was unable to work during this time, underwent extensive physical therapy.
Petitioner continue complain of pain in his left hip and during physical therapy also had complains of pain in his back (Id.) Petitioner claims that he the lumbar spine/back pain stems from his work accident and the Respondent argues that the back issues are not causally related to the accident. The Arbitrator finds that the back pain is casually related to the work accident for the following reasons:
The Arbitrator finds that the Petitioner has reached MMI regarding his hip and knee condition. The Arbitrator finds the Petitioner’s cervical spine issues are casually connected to the work accident. This finding is based in part upon Dr. opinion, the mode, mechanism and type of initial injury and an assessment of the Petitioner’s credibility. The invalid FCE findings from the first FCE based on heart rate are not persuasive to the Arbitrator in light of the second valid FCE and the causal connection opinions from Medical doctors.
IN SUPPORT OF THE ARBITRATOR’S DECISION RELATING TO (J) HAS
RESPONDENT PAID ALL APPROPRIATE CHARGES FOR ALL REASONABLE AND
NECESSARY MEDICAL SERVICES, THE ARBITRATOR MAKES THE FOLLOWING
CONCLUSIONS OF LAW:
Petition claims entitlement to payment for medical bills from (a) in the amount of $2,613.96 relating to the second FCE, which was conducted on October 25, 2012; (b) in the amount of $6,833.62 for treatment provided from December 27, 2012 to April 16, 2013; and (c) in the amount of $804.70 for treatment provided from February 10 to February 27, 2012 and April 18, 2012.
With respect to the bill, the Arbitrator finds Respondent liable for the payment of this bill. This bill relates to the second FCE. Arguably, this second FCE was not medically authorized and was based on a referral of Petitioner’s counsel. However, the second FCE became necessary when the first FCE was found to be invalid. The therapist found Petitioner’s efforts, including his back complains to be inconsistent. Arguably, Petitioner physical pain and limitations were caused in part by his work accident. Petitioner complained of shoulder, neck and bilateral knee pain. Petitioner testified in court that he complained of lower back pain. The FCE report does not document back pain complaints.
Arbitrator discounts the findings of the first FCE and questions the heart-rate monitoring methodology. The second FCE was necessary and reasonable. It appears that the basis of the invalidity findings are Petitioner’s subjective complains, including complains of back pain. All physicians, including Dr. have found that objective findings of back problems supports Petitioner’s subjective complain. Whether the back pain is caused by work accident or by arthritis, Petitioner’s back pain complains should not have invalidated the first FCE. The findings regarding heart rate are also not immensely persuasive. In light of the second valid FCE that supports Petition’s position that he is limited to medium to light duty work, the Arbitrator finds that the second FCE was necessary and is compelling. The Arbitrator awards this bill.
With respect to the bill, the Arbitrator finds the Respondent liable for payment of this bill, because it was for treatment that has been found to be related to his work accident. With respect to the University bill in the amount of $804.70, the Arbitrator finds that Respondent is responsible for the payment of this bill pursuant to the negotiated rate, if applicable, or the lesser of the amount owed under the Fee Schedule or the actual charge. Payment of this bill should be made to the Petitioner and he will be responsible to pay the provider.
IN SUPPORT OF THE ARBITRATOR’S DECISION RELATING TO (K) IS
PETITIONER ENTITLED TO ANY PROSPECTIVE MEDICAL CARE, THE
ARBITRATOR MAKES THE FOLLOWING CONCLUSIONS OF LAW:
Petitioner is seeking approval for further treatment related to complaints of lower back pain. Specifically, he would like to undergo a lumbar injections recommended by Dr. Patel and Dr. The accident is not at dispute. Petitioner fell 10-12 feet off the roof he slipped during roof installation. He was hospitalized, suffered a fracture of his left acetabular and was hospitalized, underwent an open reduction and internal fixation. He subsequently underwent physical therapy.
Dr. and Dr. recommend lumbar injections to relieve Petitioner’s back pain. Dr. initially could not determine the Petitioner’s continued pain generator. He then referred the Petitioner to Dr. l in the belief that the Petitioner’s back was causing all of his pain. Dr. l saw the Petitioner and opined, after diagnostic testing, that the Petitioner’s low back is indeed causing him his pain and recommended lumbar epidural steroid injections. Dr. agrees with this assessment. The Petitioner testified that he has had these injections performed and that he would have them performed immediately if awarded. There is no medical evidence contraindicating the reasonableness and necessity of these injections.
Based on the finding regarding causal connection and the validity of the second FCE, the Arbitrator finds that Petitioner is entitled to prospective medical care recommended by Dr. in the form of lumbar injections. Based on Petitioner’s injuries and the course of treatment, this is a reasonable course of medical treatment and has a basis in the credible medical opinion of his treating physician.
IN SUPPORT OF THE ARBITRATOR’S DECISION RELATING TO (L) WHAT
AMOUNT OF COMPENSATION IS DUE FOR TEMPORARY TOTAL DISABILITY
BENEFITS, THE ARBITRATOR MAKES THE FOLLOWING CONCLUSIONS OF
The Petitioner is awarded TTD benefits from February 1, 2012 to August 20, 2012 and from November 12, 2012 to June 4, 2014. The Petitioner was taken off work following his undisputed work accident on February 1, 2012. His medical records document that he was continued off work until August 20, 2012. On that date Dr. Stover released the Petitioner to full duty work following an invalid FCE dated August 7, 2012. (Pet. Ex. #4) Thereafter the Petitioner had another FCE performed on October 25, 2012. (Pet. Ex. #6) This FCE was determined to be valid and placed the Petitioner at the Light to Medium demand level. (Id.) The Petitioner’s job title of laborer is in the Heavy demand level. (Id.) The Petitioner was returned to work with these restrictions on November 11, 2012 and his employer would not accommodate those restrictions. The Respondent’s IME doctor also notes, along with the Petitioner’s testimony, that the Respondent has not taken the Petitioner back to light duty work and that he continues to have these light duty restrictions. (Rsp. Ex. #1) Since that date the Petitioner has been released to work pursuant to the FCE or has been in an off work status per his physicians. The Arbitrator awards the Petitioner TTD benefits from February 1, 2012 to August 20, 2012 and from November 12, 2012 to June 4, 2014. The Respondent shall receive the stipulated credit of $18,554.86 for TTD benefits already paid.
Arbitrator, Ketki Steffen Date