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Hotel Case Redacted

December 19, 2014

ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION

 

 

Case#

AH

Employee/Petitioner

 

 

PH Hotel

Employer/Respondent

 

 

On 1/30/2015, 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 a decrease in this award, interest shall not accrue.

 

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

 

STATE OF ILLINOIS )

” Injured Workers’ Benefit Fund (§4(d))

” Rate Adjustment Fund (§8(g))

” Second Injury Fluid (§8(e)18)

” None of the above

)SS.

COUNTRY OF COOK )

 

 

 

 

 

ILLINOIS WORKERS’ COMPENSATION COMMISSION

ARBITRATION DECISION

 

 

 

AH                                                                               Case#

Employee/Petitioner                                                   Consolidated cases:

v.

PH Hotel                                

Employee/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 Deborah L. Simpson, Arbitrator of the Commission, in the city of Chicago, on December 19, 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.

 

DISPUTED ISSUES

  • Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?
  • Was there an employee-employer relationship?
  • Did an accident occur that arose out of and in the course of Petitioner’s employment by Respondent?
  • What was the date of the accident?
  • Was timely notice of the accident given to Respondent?
  • Is Petitioner’s current condition of ill-being causally related to the injury?
  • What were Petitioner’s earnings?
  • What was Petitioner’s age at the time of the accident?
  • What was Petitioner’s marital status at the time of the accident?
  • 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?
  • What temporary benefits are in dispute?
    • TPD Maintenance TTD
  • What is the nature and extent of the injury?
  • Should penalties or fees be imposed upon Respondent?
  • Is Respondent due any credit?

Other__________

 

 

 


ICArbDec 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611 Toll free 866/352-3033 Web site: www.iwcc.il.gov Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084

 

FINDINGS

On 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 causally 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 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 for 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

Respondent shall pay Petitioner permanent partial disability benefits of $660.00/week for 75 weeks, because the injuries sustained caused the 15% loss of the person as a whole, as provided in Section 8(d)2 of the Act for injuries sustained to the Petitioner’s shoulder.

Respondent shall pay Petitioner permanent partial disability benefits of $660.00/week for 25 weeks, because the injuries sustained caused the 5% loss of the person as a whole, as provided in Section 8(d)2 of the Act

Respondent shall pay the outstanding medical bills from Physical Therapy for the reasonable and necessary medical treatment provided to Petitioner after the surgery pursuant to the fee schedule as provided in Section 8(a) of the Act.

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 this award, interest shall not accrue.

 

BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION

 

 

                                                                        )

AH                                                                   )

            Petitioner,                                          )

                                                                        )

            Vs.                                                       )          

                                                                        )

PH                                                                   )

Respondent                                                   )

                                                                        )

 

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

 

This matter was previously tried on a 19(b)/8(a) petition before Arbitrator RP on June 24, 2011 and was subsequently appealed to the 1WCC, a final decision being issued on August 23, 2012. In that decision it was found that the Petitioner sustained a compensable accident on February 4, 2010, his condition of ill-being was causally related to that accident, medical bills and TTD benefits were owed, and the Petitioner was entitled to prospective medical care in the form of an arthroscopic left shoulder surgery. The Petitioner produced a copy of this final decision and the Statement of Facts is hereby incorporated into this decision. (Pet. Ex. #1)

 

The parties agree that on February 4, 2010, the Petitioner and the Respondent were operating under the Illinois Worker’s Compensation or Occupational Diseases Act and that their relationship was one of employee and employer and that on that date the Petitioner sustained accidental injuries that arose out of and in the course of the employment. They further agree that the Petitioner provided notice of the accident within the time limits stated in the Act.

 

At issue in this hearing is as follows: (1) is the Petitioner’s current condition of ill being causally connected to the injury; (2) Is the Respondent liable for the unpaid medical bills for AT+. Physical Therapy; and (3) what is the nature and extent of the injury.

 

STATEMENT OF FACTS

 

The Petitioner did not receive medical care between the first trial and the IWCC’s final decision due to a lack of authorization except for follow up appointments on August 2, 2011 with Dr. MH for NW his cervical spine condition, August 4, 2011 with Dr. MS at NW for his left shoulder condition and October 12, 2011 with Dr. NA for his concussion and closed head injury. (PX #3 and #5)

 

On November 27, 2012 the Petitioner had the surgery performed on his left shoulder that was awarded in the previous trial. (PX. #3) The procedure consisted of a biceps tenotomy, subacromial decompression and a capsular release. (Id.) Following surgery the Petitioner had a course of physical therapy performed at Physical Therapy from December 6, 2012 through April 1, 2013. (PX. #4).

 

The Petitioner followed up with Dr. S on December 18, 2012, January 22, 2013, January 29, 2013 and February 12, 2013, at which times he was continued on physical therapy and kept off work. (PX #3)

 

On March 19, 2013 the Petitioner followed up with Dr. S. He was referred for work conditioning at this time and continued off work. (Id.) The Petitioner had a course of work conditioning performed at Physical Therapy from April 1, 2013 through April 28, 2013. (PX. #4)

 

On April 23, 2013 the Petitioner followed up with Dr. S, Dr. S recommended that the Petitioner finish his work conditioning and attempt to return to work, full duty, in two weeks. (PX #3)

 

The Petitioner testified that he did return to work, and that he received benefits while he was in an off work status throughout his treatment.

 

On September 10, 2013 the Petitioner saw Dr. S At that time it was noted that the Petitioner was back at work full duty but was still having some residual stiffness. (PX #3) Dr. S recommended additional physical therapy and pain medication. (Id.) The Petitioner had additional physical therapy at /WI Physical Therapy from October 10, 201.3 through December 18, 2013. (PX #4)

 

On November 21, 2013 the Petitioner saw Dr. S for one final visit. (PX #3) Dr. S noted that the Petitioner continued to have occasional pain in the left shoulder and lacks a full range of motion. (Id.) Dr. S recommended ibuprofen as necessary and home stretching. He released the Petitioner from care at that time. (Id.)

 

The Petitioner testified that prior to February 4, 2010 he never had any issues with his left shoulder, cervical spine, or head. The Petitioner testified that he still has pain in his left shoulder and neck; he also gets bouts of headaches and dizziness, which he never had before the accident. According to the Petitioner his neck still makes noise when he turns it. With respect to his shoulder the Petitioner states that he cannot reach overhead with his left arm, he cannot move his shoulder completely and cannot “roll” his shoulder. He continues to perform his home exercises for his shoulder and takes ibuprofen for his continued pain. He continues to see his primary care physician for headaches and dizziness, on the advice of his doctor he takes Advil which helps with the headaches and dizziness.

 

CONCLUSIONS OF LAW

 

The burden is upon the party seeking an award to prove by a preponderance of the credible evidence the elements of his claim. Peoria County Nursing Home v. Industrial

 

Comm ‘n, 115 111.2d 524, 505 N.E.2d 1026 (1987). This includes the nature and extent of the petitioner’s injury.

Longstanding Illinois law mandates a claimant must show that the injury is due to a cause connected to the employment to establish it arose out of employment. Elliot v. Industrial Commission, 153 Ill. App. 3d 238, 242 (1987).

The burden of proof is on a claimant to establish the elements of his right to compensation, and unless the evidence considered in its entirety supports a finding that the injury resulted from a cause connected with the employment, there is no right to recover. Board of Trustees v. Industrial Commission, 44 Ill. 2d 214 (1969).

 

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

The Arbitrator has carefully reviewed and considered all medical evidence along with all testimony. The Arbitrator concludes that Petitioner has proven by a preponderance of the credible evidence that his current left shoulder, head and neck conditions are causally related to his work injury as set forth more fully below.

Petitioner testified that he had no issues with his head, cervical spine and left shoulder prior to the accident on February 4, 2010. A causal connection was found to exist at the hearing pursuant to Section 19b based upon the medical records and the opinions of doctors CA and H as well as the Section 12 examiner Dr. C in June of 2010. Petitioner testified that he has not had any additional injuries since the accident on February 4, 2010.

No evidence was produced to rebut the Petitioner’s testimony and medical records or to suggest any other mechanism of injury. Accordingly, the Arbitrator finds that the Petitioner’s current condition of ill-being is causally related to the work accident.

 

Is the Respondent liable for the unpaid medical bills of Physical Therapy?

The Arbitrator awards the Petitioner’s medical bill from Physical Therapy contained in Petitioner’s Exhibit #1. The Petitioner underwent reasonable and necessary care associated with the surgical procedure that was awarded in the previous trial. Accordingly, this treatment has already been found to be reasonable and necessary. Further, the Petitioner produced a medical bill from Physical Therapy that the Respondent has not satisfied. That bill is hereby awarded pursuant to the Illinois Medical Fee Schedule.

 

What is the nature and extent of the injury?

The Arbitrator adopts by reference all prior findings and conclusions into this Section without restating them herein. This claim arose before September 1, 2011; therefore the 5 factors for determining Permanent Partial Disability do not need to be applied here. 820 ILCS 305/8.1b(b).

With respect to the Petitioner’s left shoulder, the Petitioner sustained a longitudinal split of the biceps tendon and adhesive capsulitis as a result of his work injury that required injections and eventual surgery. The Petitioner denied any issues with his left shoulder prior to February 4, 2010. The Petitioner’s medical records document consistent complaints of pain. The Petitioner testified that currently he cannot move his shoulder completely, he cannot “roll” it, and he cannot reach overhead with his left arm. Reaching below shoulder level is okay. He takes over the counter Advil for the pain. He has not had any treatment for the shoulder since he was discharged by Dr. S and does not have any future appointments with him. Accordingly, the Arbitrator finds that the Petitioner was injured to the nature and extent of 15 % loss to the Person as a Whole.

The Arbitrator finds that with Respect to the Petitioner’s head and cervical spine injuries that the Petitioner was injured to the nature and extent of 5% loss to the Person as a Whole.

The Petitioner’s head injuries required the care of Dr. NA a neurologist. Dr. A documented complaints of headaches, dizziness, hearing loss and abnormal vision. These complaints were confirmed by neurologic testing performed on April 15, 2010. (PX #5) The Petitioner testified that he continues to have headaches and dizziness as of the date of trial and that his primary care physician has instructed him to take over the counter Advil for these symptoms. According to the Petitioner the Advil does help with the dizziness as well as the headaches.

Concerning the Petitioner’s cervical spine, an MRI performed on February 24, 2010 revealed disc bulges at C5-6 and C6-7 and a disc protrusion at C3-4. (PX #3) The Petitioner treated conservatively with physical therapy and pain medication until being released for the cervical spine by Dr. MH on March 2, 2011.

The Arbitrator finds that the Petitioner’s head and cervical injuries have resulted in a 5% loss to the Person as a Whole.

 

ORDER OF THE ARBITRATOR

Petitioner is found to have suffered a permanent injury pursuant to Section 8(d) (2) of the Act. Respondent shall pay Petitioner permanent partial disability benefits of $660.00/week for 100 weeks, because the injuries sustained caused the 15% loss of the man as a whole for the injury to the left shoulder and a 5% loss of the man as a whole for the head and neck injury, as provided in Section 8(d)(2) of the Act.

 

Respondent shall pay the outstanding medical bills from Physical Therapy for the reasonable and necessary medical treatment provided to Petitioner after the surgery pursuant to the fee schedule as provided in Section 8(a) of the Act.

 

 

 

________________________________                    ____________

Signature of Arbitrator                                                               Date