STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
Petitioner,
vs.
Respondent.
DECISION AND OPINION ON REVIEW
This case comes before the Commission on Respondent’s timely review of the Section 19(b) Decision of Arbitration finding that Petitioner sustained an accidental injury on June 21, 2010, arising out of and in the course of his employment, that Petitioner established a causal connection between that injury and his right knee meniscal condition of ill-being, that Petitioner is entitled to $412.27 in reasonable and necessary medical expenses, pursuant to the fee schedule, that Petitioner is entitled to prospective treatment in the form of right knee arthroscopic surgery, as recommended by Dr. , and that Respondent is not liable for penalties or fees.
The issues on review are accident, causal connection, medical expenses, and prospective care.
After considering the entire record, and for the reasons set forth below, the Commission corrects the spelling of Petitioner’s first name from “ .” to “ .” and otherwise affirms the Decision of the Arbitrator. The Commission remands this case to the Arbitrator for additional proceedings for a determination of a further amount of temporary total disability benefits or of compensation for permanent disability, if any, pursuant to Thomas v. Industrial Commission, 78 Ill.2d 327, N.E.2d 1322, 35 Ill.Dec. 794 (1980).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Commission finds:
1. Petitioner is a 60-year-old street operation laborer. His duties include collecting garbage, removing tile and cleaning lots. T.7.
2. On June 21, 2010, Petitioner was working “in the 28th ward” as a “garbage man behind [a] garbage truck.” T.7. While Petitioner was removing debris from the ground, he “stepped in a hole and twisted [his right] knee.” T.8. Petitioner testified he experienced an immediate onset of right knee pain but was able to finish his workday. T.8. At the end of the day, he notified the ward superintendent, of his accident.
3. Respondent stipulated to having received timely notice of the accident. T.8. Arb Exh 1.
4. Petitioner testified he did not seek treatment on June 21, 2010, because he “thought it would be all right.” The following day, his right knee was painful and swollen. He “reported to the ward superintendent that [he] needed an accident report and blue card filled out.” Petitioner explained that a “blue card is given to you to go seek medical treatment from MercyWorks.” T.9.
5. Petitioner testified he went to on June 22, 2010, and underwent an examination and X-rays. The doctor on duty provided him with a knee brace and released him to light duty with “limited walking.” T.9-10.
6. As the Arbitrator noted, Petitioner failed to offer any treatment records from . Petitioner did, however, offer itemized bills from reflecting he underwent knee X-rays and was given an “open patena knee support” on June 22, 2010, and underwent additional care on June 29, 2010, July 7, 2010, and July 13, 2010. PX 1.
7. Petitioner testified he resumed working after his initial visit to . Respondent did not accommodate his restrictions. According to Petitioner, Respondent’s procedure is to “put you back to work at a normal job.” T.10. Petitioner did not claim any temporary total disability benefits. Arb Exh 1.
8. Petitioner testified he returned to on June 29, 2010, and July 7, 2010, because his right knee pain persisted. At both of these visits, the doctor continued the previous restriction of “limited walking.” T.10. On July 7, 2010, the doctor prescribed an MRI. T.11.
9. On July 9, 2010, Petitioner underwent a right knee MRI without contrast. The MRI report is in evidence. It reflects that Petitioner “twisted right knee.” The MRI demonstrated a complex tear of the medial meniscus posterior horn, myxoid degeneration of the lateral meniscus, patellofemoral and medial compartment chondromalacia, a “small focus of edema like marrow signal within the posterior aspect of the lateral femoral condyle which may present focal contusion versus early subchondral cyst formation,” and an anterior cruciate ligament sprain “without frank anatomic disruption.” PX 1.
10. Petitioner testified he returned to on July 13, 2010, for the purpose of reviewing the MRI results. T.11. The doctor at continued the previous restriction of “limited walking” and referred Petitioner to Dr. , an orthopedic surgeon associated with . T. 11.
11. Petitioner saw Dr. on July 21, 2010, and complained of right knee “catching, locking and pain.” Petitioner completed and signed forms entitled “Medical History” and “Work Related Injury.” On the “Medical History” form, Petitioner indicated he had been referred by due to a work-related right knee injury of June 21, 2010. Petitioner described his injury as follows: “working in alley step in pothole twisted my knee.” On the second form, Petitioner set forth essentially the same description of his accident and denied any prior right knee injuries or conditions. Petitioner described his current work restrictions as: “minimum walking, climbing.”
Dr. Maday recorded the following history:
“[Petitioner] is a 60-year-old laborer who injured his right knee on 6/21/10. At that time, he was walking in an alley, stepped in a pothole and twisted his knee. This occurred at work. He continued to try to work, however, he complained of increased pain and swelling and was seen at . He has since then been working on a home exercise program including range of motion. He has also taken anti-inflammatory medication and did not notice any significant improvement in his symptoms. He has continued to work but avoids squatting, kneeling, twisting, turning, climbing, lifting, and carrying.”
On examination of Petitioner’s right knee, Dr. noted “an approximately 20 cc effusion,” a “positive flexion McMurray’s,” and 2 to 3+ medial joint line tenderness.
Dr. Maday interpreted Petitioner’s MRI as demonstrating a “complex tear of the posterior horn of the medial meniscus.”
Dr. addressed causation as follows:
“[Petitioner’s] history of a twisting injury, his examination concerning joint line tenderness and a positive flexion McMurray’s, and his MRI including complex tear of the posterior horn of the medial meniscus as well as a contusion are consistent with an acute injury to the meniscus.”
Because Petitioner was “complaining of catching and locking despite medication and home exercise program,” Dr. recommended “arthroscopic surgery to address meniscal pathology.” Dr. allowed Petitioner to continue working with no squatting, kneeling, twisting or turning.” A statement at the very end of Dr. note reflects that he faxed his findings to “MW.” The Commission finds it reasonable to infer that stands for PX 2.
Petitioner testified Dr. told him he had a knee problem that required “immediate surgery.” T.12. Petitioner testified he informed his supervisors of the doctor’s surgical recommendation. T.12.
1. Also on July 21, 2010, , Respondent’s workers’ compensation director, sent Petitioner a denial letter stating: “you are not entitled to workers’ compensation benefits based on our investigation.” The letter contains no additional details concerning Respondent’s investigation. RX 3.
2. Petitioner testified he has worn a brace on his right knee since the accident. He wears this brace every day. T. 13. As of the November 18, 2010, hearing, he was wearing a different brace than the one he received at . Petitioner testified the brace provided by “wasn’t strong enough.” Petitioner complained to this to one of the doctors at and the doctor suggested he buy a brace on his own. Petitioner then did so. Petitioner did not believe he would be able to perform his job for Respondent if he did not wear the brace he purchased. T. 14.
3. Petitioner testified he would undergo the prescribed knee surgery right away if the Arbitrator awarded the surgery. T. 14.
4. The following exchange then took place:
“Q. Mr. , you said before you were [a] laborer to [Respondent] for 29 years. Have you every filed an injury report? Have you ever had any type of surgical procedure on this knee before?
A. No, sir.” T.15.
1. Under cross-examination, Petitioner acknowledged having brought other workers’ compensation claims in the past. When asked whether he had in fact brought eighteen such claims, Petitioner answered, “Yes, sir. I guess I don’t have an exact count.” To Petitioner’s knowledge, these claims were no longer pending.
Petitioner described his June 21, 2010, injury as follows: “I was moving debris to load it to the back of the truck. As I picked the debris up and turned, I stepped into a hole and twisted my knee.” T. 16. The following exchange then occurred:
“Q. The location, do you recall the exact location where it happened?
A. Not exactly.
Q. If the records indicated it was on 4200 West Carol Avenue, is that correct?
A. I guess, I’m assuming so. I have to go look at the s records. I have to look at the worksheet for that particular day.
Q. You did say, as far as location is concerned, you said you reported this to your supervisor?
A. Yes, I did.
Q. If the supervisor filled out a report that said you filled this out on June 22nd, that this occurred at 4200 West Carol, do you have any reason to dispute that?
A. No, sir.
Q. Now, when you were picking up this debris, where were you, as far as an alley or a street?
A. Alley.
Q. Do you recall which way the alley ran, north, south, east, or west?
A. No, sir.
Q. How far into the alley were you?
A. About midway.
Q. What were you doing in the alley? Why did you go into that alley?
A. I was working behind the garbage truck dumping garbage.
Q. You were actually dumping garbage?
A. Yes, sir.
Q. When you say you were picking up debris, is that different from dumping garbage?
A. Well, people don’t exactly put their garbage into the garbage containers. It is on the ground. We don’t allow it to lay on the ground or the commissioner doesn’t If it is on the ground, we have to pick it up.”
T. 17-18. Petitioner went on to testify he had emptied a garbage can prior to picking up debris from the ground. T. 18. Petitioner described the pothole he stepped in as “probably” one foot wide. Petitioner had “no idea” how deep the pothole was. Petitioner explained he was turning when he stepped in to the pothole. T. 19. As Petitioner’s right foot went into the pothole, he twisted his right knee. He admitted he did not know “how far [his foot] went in there.” Petitioner denied falling to the ground. T. 19. Petitioner acknowledged stepping up out of the pothole after twisting his knee but did not recall how far he had to step up. T. 20. Petitioner then stated, “As I turned and got out of the pothole, I twisted my knee through the garbage in the truck and grabbed my knee.” T.20. When the Petitioner grabbed his knee, his foot was “in the air.” T. 21. Petitioner was wearing rubber-soled, steel-toed safety shoes at the time of the accident. T. 21.
The following exchange then took place:
“Q. You testified that you spoke to that day at the end of the day, is that correct?
A. Yes, I did.
Q. Mr. then filled out a supervisor’s statement, and he stated that you told him that you were pulling a cart to the truck when you stepped in the pothole?
A. No.
Q. You weren’t.?
A. No. I told him I was picking up debris and I turned to throw debris in the truck and I twisted my knee.”
T.21-22. Petitioner acknowledged receiving denial letter. T.22.
Respondent’s counsel then asked Petitioner to look at a map of Carol Avenue. Counsel marked this map as RX 2. Petitioner acknowledged that carol Avenue runs east and west. T. 23. Petitioner also clarified that his injury had to have occurred in an alley behind residential buildings because Respondent “doesn’t service commercial buildings.” T. 24. Respondent’s counsel then showed Petitioner a Google aerial map marked as RX 3. Petitioner
made a mark on RX 3 to indicate the presence of residences along an alley north of Carol Avenue. Petitioner agreed that these residences would be served by an alley. T. 27.
Petitioner’s counsel then stated that “the parties are stipulating that an accident occurred [in] the 28th ward somewhere along West Carol Avenue in Chicago, Illinois.” After Respondent’s counsel clarified Respondent was not so stipulating, Petitioner’s counsel stated this was the “first he knew” of any dispute concerning the location of the accident and he would thus “need to have Mr. come in and say where the accident occurred.” T. 29. According to the transcript, which the parties authenticated, Petitioner’s counsel went on to say he was in possession of photographs. T. 29. Based on statements that appear later in the transcript (see below), however, the Commission believes it was in fact Respondent’s counsel who wanted to admit the photographs.
Respectful counsel then resumed questioning Petitioner. Petitioner admitted that, if he were shown a photograph of the alley, he could not say that was the alley where his injury occurred. T. 30. Respondent’s counsel reserved the right to recall Petitioner.
On redirect, Petitioner testified that none of his previous worker’s compensation claims involved his right knee.
1. In addition to the bills and records and bill, Petitioner offered into evidence the Section 8(a) Petition and Petition for Penalties he filed on August 23, 2010 and the Section 8(a) Petition, 19(b) Petition and Petition for Penalties he filed on September 24, 2010. PX 3. Petitioner’s counsel stated on the record that Respondent “never answered” these Petitions. T. 34. Respondent’s counsel raised no objection to PX 3. T. 34. The Section 19(b) Petition reflects that Petitioner injured his right knee on June 21, 2010, when he “stepped in a pothole and twisted his knee.” Dr. ‘s July 21, 2010 note and bill are attached as exhibits to the Petitions.
2. The authenticated transcript reflects that, after petitioner’s counsel rested, Respondent’s counsel stated: “As I said, I have someone to lay a foundation for the photographs.” Respondent’s counsel went on to identify this witness as T. 35. After further discussion, the parties agreed to bifurcate the case. T. 35.
3. At the continued hearing, held on December 2, 2010, neither party called any witness to testify. Respondent offered into evidence a print-out of Petitioner’s previously filed workers’ compensation claims. The print-out lists eighteen such claims, all of which were brought against Respondant. The print-out does not reflect the nature of any of the underlying injuries. The print-out reflects that seventeen of the previous claims were settled. The outcome of the eighteenth, and oldest, claim is not stated. That claim is merely described as “old docket.” RX 1.
Respondent also offered July 21, 2010, denial letter into evidence as RX 4. Reservation withdrew the maps that had been marked as RX 2 and RX 3 at the first hearing. T. 12/2/10 at 6.
Petitioner did not offer any rebuttal evidence. T. 12/2/10 at 7.
1. The Arbitrator relied on Petitioner’s testimony and the history set forth in Dr. July 21, 2010, note in finding that Petitioner sustained an accident on June 21, 2010, arising out of an in the course of his employment. The Arbitrator viewed the twisting mechanism, the immediate onset of symptoms, Petitioner’s “desire to seek medical care the next day” and the MRI findings as “convincing and persuasive evidence of a meniscal injury.” The Arbitrator did not find causation as to “the contusion on the posterior aspect of the lateral femoral condyle” because Petitioner “did not testify that he struck his knee or fell down.” The Arbitrator declined to award the bill and awarded only Dr. bill in the amount of $412.27. The Arbitrator also awarded prospective care in the form of arthroscopic surgery recommended by Dr. . The Arbitrator declined to award penalties and fees
On review, Respondent argues that Petitioner failed to meet his burden of proof on the issue of accident. Respondent correctly points out that Petitioner did not know the exact location of his accident, did not know the depth of the pothole he stepped into, did not offer any photographs of the accident scene, and did not offer any treatment records from
The Commission acknowledges that it is the claimant, and not the employer, who bears the burden of proving a compensable injury. The Commission also acknowledges that, as a result of Petitioner’s failure to offer the records, the transcript contains no information concerning the manner in which Petitioner described his accident to his first medical provider. Nevertheless, the Commission finds sufficient evidence in the record to support the Arbitrator’s findings and award of benefits. Although the Arbitrator did not specifically comment on Petitioner’s credibility, he clearly relied on Petitioner’s testimony in finding accident, despite the missing records and the existence of multiple prior claims. The Commission also relies on that testimony. While Petitioner was unable to state the address of his accident, he knew he was injured in an alley in his assigned ward and he transmitted sufficient information to his ward supervisor to allow that individual to state an accident location in a report that Respondent possessed but ultimately decided not to offer into evidence. It is the ward supervisor who supplied the “blue card” that allowed Petitioner to seek care at . Petitioner was similarly imprecise concerning the depth of the pothole but that imprecision is explainable. Petitioner was turning when he stepped into the pothole and continued working afterward. It is not as if he fell to the ground and waited by the pothole for an ambulance to arrive. The Commission also notes that Petitioner attributed his injury to stepping in a pothole while “working in an alley” when he saw Dr. on July 21, 2010. PX 2. Dr. to whom Petitioner was referred by found Petitioner’s “history of a twisting injury” sufficiently reliable to form the basis of his causation opinion the fact Petitioner previously pursued a number of workers’ compensation claims against Respondent is not particularly surprising, given his twenty-nine years of employment and the physical nature of his duties. The existence of such claims is not a valid basis for denying the instant claim particularly since there is no evidence any of the previous claims involved the right knee.
Respondent’s Statement of Exceptions is limited to the issue of accident. Based on the foregoing analysis, the Commission affirms the Arbitrator’s findings as to accident and also affirms the Arbitrator’s award of medical expenses and prospective surgery.
IT IS THEREFORE ORDERED BY THE COMMISSION that Respondent pay to Petitioner the sum of $412.27 for medical expenses under 8(a) of the Act pursuant to the medical fee schedule.
IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay the reasonable and necessary cost for arthroscopic surgery to Petitioner’s right knee to address the meniscal injury.
IT IS FURTHER ORDERED BY THE COMMISSION that this case is 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 requests 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.
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: Sep 22 2011 _____________________________
_____________________________
MCM:bjg
0-7/17/2011
49
