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Laborer Case Redacted

June 25, 2015

ILLINOIS WORKERS’ COMPENSATION COMMISSION

NOTICE OF ARBITRATOR DECISION

On 1/22/2015, 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 )

)SS.

COUNtY OF COOK )

 

ILLINOIS WORKERS’ COMPENSATION COMMISSION

ARBITRATION DECISION

 

AM Case#

Employee/Petitioner Consolidated cases:

v.

AS

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 JH Arbitrator of the Commission, in the city of Chicago, on October 14, 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

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? Has Respondent paid all appropriate charges for all reasonable and necessary medical services?

K What temporary benefits are in dispute?

TPD Maintenance TTD

  1. What is the nature and extent of the injury?
  2. Should penalties or fees be imposed upon Respondent?
  3. Is Respondent due any credit?
  4. 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 6/23/2009, 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 $13,838.24; the average weekly wage was $266.12.

On the date of accident, Petitioner was 55 years of age, married 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 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

Medical benefits

  • Respondent shall pay reasonable and necessary medical services of $134,132.19, 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.

Temporary Total Disability

  • Respondent shall pay Petitioner temporary total disability benefits of $237.67/week for 84 5/7 weeks, commencing 6/29/2009 through 2/9/2011, as provided in Section 8(b) of the Act.
  • Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 6/29/2009 through 2/9/2011, 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.

 

Permanent Total Disability

  • Respondent shall pay Petitioner permanent and total disability benefits of $461.78/week for life, commencing 2110/2011, as provided in Section 8(f) of the Act.
  • Commencing on the second July 15th after the entry of this award, Petitioner may become eligible for cost-of-living adjustments, paid by the Rate Adjustment Fund, as provided in Section 8(g) 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.

 

 

STATE OF ILLINOIS )

) ss.

COUNTY OF COOK )

BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION

AM

Petitioner,

  1. Case No.:

AS

Respondent.

ADDENDUM TO ARBITRATION DECISION
Background

On October 14, 2014, this matter proceeded to hearing before Arbitrator JH in the City of Chicago, County of Cook. The issues in dispute between the parties are causal connection, reasonableness and necessity of medical services, medical bills, temporary total disability (TTD) and the nature and extent of Petitioner’s injury. (Arb.1).

The parties stipulated that the body parts/injuries at issue are only for Petitioner’s low back/lumbar spine. (Arb. 1).

Findings of Fact

The Petitioner, a 60-year-old Hispanic male, worked for the Respondent as a laborer for approximately 12 years. His job duties included sweeping, packing, and stacking pallets on top of each other.

On June 23, 2009, the Petitioner was involved in an undisputed accident while attempting to lift a box. Petitioner testified that the box weighed approximately 180 pounds. As the Petitioner lifted the box, he felt a “crack” in his middle and lower back. The Petitioner notified Respondent, and continued working with the assistance of three other workers for the remainder of his shift,

On June 29, 2009, the Petitioner sought medical care at Medical Center where his complaints of pain in his mid to lower back were noted. (Pet. Ex. #2.) Petitioner denied radicular symptoms. The Petitioner was diagnosed with a lumber strain, placed on light duty, and recommended physical therapy. (Id.)

 

On July 8, 2009, the Petitioner followed up at where his lumbar pain complaints were noted. Petitioner also reported that he was completely off of work because Respondent could not accommodate his light duty restrictions. (Id.)

From July 1, 2009, through July 13, 2009, the Petitioner participated in physical therapy at Concentra. (Id.)

On July 14, 2009, the Petitioner sought treatment with Dr. LC GVH (Pet. Ex. #3.) medical records reflect Petitioner’s complaints of pain in his thoracic and lumbar spine. (Id.) Physical therapy was recommended and the Petitioner was taken off of work. (Id.) The Petitioner was also referred for x-rays of his skull to ensure clearance for an MRI. The Petitioner began physical therapy at on the same date. (Id.)

On July 23, 2009, a skull x-ray performed at MRI cleared the Petitioner for an,• MRI. (Id.)

On July 30, 2009, the Petitioner followed up at where his continued complaints of pain in his lower back were noted. (Id.) Physical therapy and no-work restrictions were continued. (Id.)

On August 26, 2009, the Petitioner consulted with Dr. KK. The doctor recommended an MRI of Petitioner’s lower back. No-work restrictions were continued, and Petitioner was referred to neurosurgeon, Dr. MM (Id.)

On August 31, 3009, the Petitioner was examined by Dr. AD at Respondent’s request pursuant to Section 12 of the Act. Dr. D noted a mechanism of injury consistent with the Petitioner’s trial testimony. (Rsp. Ex. #2.) Petitioner complained of pain to his lower back. (Id.) Dr. D opined that the Petitioner sustained a lumbar sprain and recommended physical therapy. (Id.)

On September 1, 2009, the Petitioner underwent a lumbar MRI that revealed:

At the T12-L1, and L1-2 levels, there are 3 to 4 mm subligamentous posterior disc herniations elevating the posterior longitudinal ligaments and indenting the thecal sac, without significant spinal stenosis or significant neuroforaminal narrowing.

At the L3-4 level, there is a 2-3 mm posterior disc herniation with a small annular tear indenting the thecal sac, without spinal stenosis or significant neuroforaminal narrowing.

At the L5-S1 level, there is a 3 to 4 mm broad based posterior disc herniation indenting the thecal sac, without significant spinal stenosis or significant neuroforaminal narrowing. (Pet. Ex. #3 &

On September 10, 2009, the Petitioner saw Dr. MM who noted Petitioner’s complaints of low back pain radiating into his buttocks with tingling in his legs. (Pet. Ex. #5.)

 

Dr. M diagnosed Petitioner with back pain accompanied by radiculopithy. The doctor recommended a series of epidural steroid injections (ESI’s) along with a thoracic spine MR1. (Id.) The Petitioner ‘s off-work status was continued. (Id.)

On September 11, 2009, an MRI of the Petitioner’s thoracic spine was unremarkable. (Pet. Ex. #4.)

The Petitioner continued physical therapy and work conditioning during this time at (Pet. Ex. #3.)

On January 12, 2010, Dr. M noted that the Petitioner’s exam remained unchanged. The doctor continued to recommend a series of ESI’s. (Pet. Ex. #5.)

The Petitioner had ESI’S performed on January 14, 2010 and January 28, 2010. (Pet. Ex. #4 and #5.) The Petitioner testified that the injections helped his pain for a brief period of time.

On March 1, 2010, the Petitioner participated in a second Section 12 exam with Dr. D the request of the Respondent. (Rsp. Ex. #3.) The Petitioner reported that he had two ESI’s with only five to six days of pain relief. (Id.) Dr. D opined that the Petitioner was neurologically intact, was at maximum medical improvement, and could return to work full duty. (Id.)

On March 18, 2010, the Petitioner followed up with Dr. M who noted a partial response to. the two ESI’s. (Pet. Ex. #5.) An additional ESI was recommended along with a course of work conditioning and an eventual FCE. (Id.) The Petitioner was released with light duty restrictions. (Id.) The Petitioner testified that he continued to be off-work as light duty work %as not made available to him.

The Petitioner had his third ESI performed on March 24, 2010. (Pet. Ex. #4 and #5.)

On April 8, 2010, Dr. M consulted with Petitioner at which time, work conditioning was recommended. Petitioner’s light duty work restrictions were continued. (Pet. Ex. #5)

The Petitioner underwent a course of work conditioning at following this appointment. (Pet. Ex. #3)

On April 22, 2010, the Petitioner again saw Dr. M (Pet. Ex. #5) Dr. M noted continued low back pain and a positive straight leg test. (Id.) Dr. M recommended a discogram for the Petitioner’s lumbar spine. (Id.)

On May 20, 2010, a discogram was performed, revealing the Petitioner’s pain generator at L4-L5 with contribution from the L5-S1 level. (Pet. Ex. #4) A post-discogram CT scan was performed the same day showing evidence of abnormal nucleogram at L3-L4, L4-L5, as well as evidence of a grade IV tear at L3-L4 and L4-L5. (Id.)

 

On June 3, 2010, Dr. M noted Petitioner’s continued complaints of low back pain. The doctor discussed the possibility of surgery with the Petitioner. (Pet. Ex. #5.) Prior to recommending surgery, Dr. M recommended an updated MRI and an EMGINCV of the right lower extremity. (Id.) Petitioner was continued on light duty. (Id.)

On June 3, 2010, An MRI of the Petitioner’s lumbar spine on June 3, revealed:

At the L3-L4, L4-L5 and LS-SI levels 3-4 mm, 2-3 mm, and 3-4 mm disc protrusions/herniations respectively indented the theca/ sac without significant spinal stenosis, nor significant neuroforaminal narrowing. (Pet. Ex. #4.)

The Petitioner was continued on light duty restrictions at his July 22, 2010 appointment with Dr. M (Pet. Ex. #5) An EMG performed on July 22, 2010 was essentially normal. (Id.)

On September 2, 2010, the Petitioner followed up with Dr. M who noted Petitioner to be stable but still complaining of paraspinal pain. (Id.) Dr. M recommended an SI joint injection in an effort to alleviate Petitioner’s pain. The doctor also ordered an FCE. (Id.)

On October 21, 2010, Dr. M noted that the FCE and SI joint injections had not been approved. (Id.)

On October 21, 2010, the Petitioner consulted with Dr. S of the at Petitioner’s request, pursuant to Section 12 of the Act. (Pet. Ex. #7.) Dr. S noted Petitioner’s complaints of low back pain at a 6/10 and a burning sensation in the bottom of his feet. The Petitioner indicated that sitting and standing make his symptoms worse while bed rest improves his pain complaints. The doctor performed a neurologic exam and reviewed: Dr. D IME’s from 8/31/09 and 3/1/10; Dr. M records from 1/4/10, 1/26/10, 1/28/10, the 9/1/09 lumbar MRI as well as other various records including physical therapy and chiropractic notes. The doctor noted that Petitioner’s low back pain complaints were consistent with the mechanism of injury. (Id.) It was Dr. S opinion that the Petitioner’s condition had become chronic as a result of a permanent exacerbation of pre-existing lumbosacral spondylosis. (Id.) Dr. S did not recommend surgery that a fusion was likely to worsen Petitioner’s back condition given the fact that Petitioner has multi level disease as opposed to disease at one or two disc levels. Dr. S recommended an FCE to determine permanent restrictions and releaser the Petitioner with a lifting restriction of 20 pounds, no repetitive bending or twisting, and alternating standing and sitting every 30 to 45 minutes. (Id.)

On November 22, 2000; the Petitioner had an FCE performed at Physical Therapy that was deemed to be valid. The FCE determined that the Petitioner is capable of working in the light strength category with a maximum lifting restriction of 20 pounds and a maximum carrying restriction of 10 pounds. (Pet. Ex. #5.)

On January 12, 2011, The Petitioner followed up with Dr. M at which time SI injections were again recommended. (Id.) The doctor noted that Petitioner’s physical exam remained unchanged. The Petitioner was released again with light duty restrictions. (Id.)

 

The Petitioner had SI joint injections performed by Dr. M on January 21, 2011, and February 4, 2011. (Id.)

On February 9, 2011, Petitioner reported to Dr. M that the epidural injections had helped his back while the SI injections had not provided any significant relief. Dr. M told Petitioner he had two options: surgery or declare MMI. (Id.)

The Petitioner testified that he does not wish to have the surgery. He testified that he is fearful the surgery may produce a negative outcome such that he might not be able to walk again.

The Petitioner was released from Dr. M care with permanent restrictions consistent with his FCE.

The Petitioner testified that he is. sixty (60) years old. He completed school through the 6th grade in his native Mexico. He has been in the United States for thirty-five (35) years and has worked in general labor positions the entire time. The Petitioner was approved for Social Security Disability (SSD) benefits in March, 2011 and he continues to receive those benefits as of the date of trial.

Petitioner testified that his back continues to cause him pain, and that he is unable to walk more than 5-6 blocks, or for more than 15 minutes at a time. Petitioner also testified that he has not looked for work or applied to any positions since the date of accident.

The Petitioner has had nurses come to his home from Medicare that have shown him stretches to perform in order to help him cope with his continued back pain. The Petitioner continues to follow up with his primary care doctor, Dr. M who prescribes him medication for his back pain. The Petitioner testified that prior to this work injury he never had any, problems with his back, nor had he ever sought medical care for a back injury. The Petitioner has not received any TTD benefits from the Respondent and still has outstanding medical bills as of the date of trial.

The Arbitrator had an opportunity to observe the Petitioner during his testimony and thought him to be an open, straightforward and honest person.

The Petitioner called Ms. KS to testify. Ms. S is a certified vocational counselor who works with. She has a Master of Science in Rehabilitation degree from the University and has been a certified Rehabilitation Counselor since 2009. Ms. S testified that she met with the Petitioner personally for the purpose of a vocational consultation and that she reviewed the Petitioner’s medical records in conjunction with the one-on-one interview with the Petitioner. Ms. opined that the Petitioner is permanently and totally disabled. (Pet. Ex. #8.) She based her opinion on the Petitioner’s age, education, language, prior work history, transferrable skills and physical capabilities. (Id.) According to Ms. S a 60 year old Spanish speaking male with a permanent 20 pound lifting restriction, falls into the “unskilled sedentary” work group. Ms. S further testified that approximately 1% of the jobs in the entire country fall into such category. (Id.)

 

Ms. S reviewed a Labor Market Survey introduced by the Respondent at trial. (Rsp. Ex. #6.) After reviewing the survey, Ms. S opined the Labor Market Survey to be invalid because of the failure to consider the Petitioner’s physical limitations and permanent restrictions.

Dr. MM testified by way of evidence deposition. (Pet. Ex. #9.) Dr. M testified that the Petitioner had an asymptomatic, pre-existing degenerative condition in his lumbar spine that was aggravated and accelerated beyond its normal progression by the Petitioner’s work accident. (Id. at 33.) Dr. M further opined that the mechanism of injury, the contemporaneous nature of the complaints, onset of symptoms, physical examinations, diagnostic testing and response to treatment were all consistent with Petitioner’s work injury. (Id. at 33-34.) Dr. M disagreed with Dr. B diagnosis of Petitioner’s back as a muscle sprain. (Id. at 35.) Dr. M disagreed with Dr: B diagnosis of a muscle sprain because he failed to consider Petitioner’s radicular pain complaints. Dr. M testified that radicular complaints are inconsistent with a muscular sprain. (Id. at 36.) Dr. M further opined that the Petitioner’s 5 to 6 day positive response to ESI’s is further evidence of radiculopathy and a disc injury. (Id. at 37-38.) In Dr. M opinion all of the Petitioner’s medical care has been reasonable, necessary and causally related to his undisputed work accident. (Id. at 34.)

Dr. SS testified by way of evidence deposition. (Pet. Ex. #10.) Dr. S testified that he reviewed the post discogram CT dated May 20, 2010 showing annular tears at L2-3, L3-4, and L4-5 and Petitioner’s June 3, 2010, lumbar MRI film. The doctor testified that the MRI showed multilevel disc degeneration and dehydration. Dr. S diagnosed Petitioner with lumbosacral spondylosis and lumbar strain.. In Dr. S opinion Petitioner’s work injury caused a permanent exacerbation of Petitioner’s pre-existing lumbar spondylosis. (Id. at 15.) He based this opinion on the fact that the Petitioner had no previous history of back problems, had a mechanism of injury consistent with his complaint, and did not improve within 6 months. (Id. at 15-16.) Dr. S opined that the Petitioner was capable of work pursuant to his valid FCE. (Id. at 17-18.) He further opined that the Petitioner’s medical care has been reasonable, necessary and causally related to his work accident. (Id. at 17.)

Dr. AB testified by way of evidence deposition. (Rsp. Ex. #8.) Dr. B testified that it is possible that the Petitioner aggravated his underlying pre-existing condition, but he did not believe that that would account for all of the Petitioner’s complaints. (Id. at 19.) Dr. B testified that Petitioner’s permanent restrictions are unwarranted as he does not have a distinct injury. (Id. at 20.) With respeeto SI joint pain, Dr. B testified pain in the SI joint, 99.99% of the time, is related to low back pain. (Id. at 18.) Dr. B unaware of any previous injury to the Petitioner’s low back. (Id. at 23) He opined that a patient who has temporary relief from an ESI would benefit from additional injections, not to exceed three in a six month period. (Id. at 26.) He further opined that when a patient has radiating pain in the buttocks or thighs, it is commonly due td a discogenic cause. (Id. at 27-28.)

 

CONCLUSIONS OF LAW

  1. Whether the Petitioner’s Current Condition of Ill-Being is Causally Related to the Work Accident.

The Arbitrator finds that the Petitioner’s current condition of ill-being is causally related to the Petitioner’s undisputed June 23, 2009, work injury.

Dr. MM testified that the Petitioner had a pre-existing degenerative lumbar spine condition that was silent and asyniptomatic prior to his work accident. (Pet. Ex. #9 at 33.) Dr. further testified that the Petitioner’s work accident caused the petitioner’s pre-existing condition to become “symptomatic by aggravation precipitation and/or acceleration beyond the natural progression of the disease.” (Id.)

Dr. SS opined as to a causal connection between the Petitioner’s current condition and the work injury. (Pet. Ex. #10 at 15.) Dr. S testified that the Petitioner sustained a permanent aggravation of his pre-existing spondylosis. (Id.)

Dr. AB opined in his Section 12 reports that the Petitioner sustained a lumbar sprain and could have returned to work as of 2009. (Resp. Ex. #2, #3, and #4.) Dr. B based this opinion partly upon the MRI reports that he reviewed however, he did not review the actual films in arriving at his opinion. (Resp. Ex. #8 at 26-27.) Dr. B arrived at this opinion despite documentation that the Petitioner complained of radiating pain which he testified is typically of a discogenic cause.. (Id. at 27-28.)

Dr. M also testified that a lumbar sprain does not cause radiation. (Pet. Ex. #9 at 38.)

Based on the credible, medical evidence contained in the record, the Arbitrator finds that the Petitioner has sustained his burden with respect to causal connection.

  1. Whether the Medical Services were Reasonable and Necessary and Whether Respondent has Paid all Appropriate Charges.

Having previously found causation, the Arbitrator finds that the Petitioner’s medical care was causally related to his undisputed work accident. Dr. M and Dr. S both testified that the medical treatment provided to the Petitioner was reasonable and necessary. The Petitioner’s treatment consisted of diagnostic testing, doctor’s visits, pain medication, ESIs, SI injections, physical therapy, work conditioning and a FCE.

With regard to the ESIs, the Arbitrator notes Dr. B testimony in which he agreed that up to three ESIs within a 6 month period is reasonable. (Resp. Ex. #8 at 26.) Dr. B further testified that ESIs can be diagnostic with respect to identifying the location of the pain generator. (Id. at 24) The Respondent relies on the UR report of March 26, 2010,„in disputing these injections. (Rsp. Ex. #7.) The Arbitrator agrees with Dr. M, Dr. S and Dr.B in finding that these injections were reasonable and necessary.

 

With regard to the SI injections, Dr. B testified that 99.9% of the time pain in the SI joint is due to low back pain. (Id. at 18.) Dr. M testified that the SI injections. were performed in a diagnostic capacity. (Pet. Ex. #9 at 54.) Based upon the medical opinions in this case the Arbitrator finds that the SI joint injections were reasonable and necessary and were performed due to the, low back pain.

The Respondent introduced UR reports to dispute physical therapy. (Resp. Ex. #7 generally.) The Arbitrator finds that due to the Petitioner’s significant, consistent pain complaints, a conservative course of physical therapy was reasonable and necessary. The Arbitrator chooses to accept the opinions of Dr. M and Dr. S in so finding.

Concerning the discogram performed by Dr. M the Arbitrator finds that it was reasonable and necessary. Dr. M testified that a discogram helped to determine exactly where the pain generator was in the Petitioner’s spine. (Pet. Ex. #9 at 22-23.) The discogram confirmed the Petitioner’s complaints were related to the L4-L5 and L5-S1 levels, which is consistent with other objective medical evidence. (Id.) No medical testimony refuting this test was entered into evidence.

Concerning the FCE that was performed, the Arbitrator finds that the FCE was reasonable and necessary in helping to determine the Petitioner’s functional abilities. In a case where permanent restrictions are assessed, an FCE is an accepted standard in quantifying those restrictions.

Based on the above findings, the Arbitrator finds that the Petitioner’s medical care was reasonable and necessary in aiding the Petitioner in achieving maximum medical improvement.

The Arbitrator further finds that the Respondent has not paid all appropriate charges and awards the Petitioner’s medical bills contained in Petitioner’s Exhibit #1.

  1. Whether the Petitioner is Entitled to TTD, Maintenance, or PTD Benefits.

The Petitioner is entitled to TTD benefits from June 29, 2009, to February 9, 2011, a period of 84 5/7 weeks, payable at the minimum rate of $220.00 per week. The Arbitrator further finds that the Petitioner is entitled to PTD benefits from February 10, 2011 through the date of trial.

With regard to TTD, the Petitioner’s initial medical records from indicate that he was placed on light duty restrictions on June 29, 2009, and that the Respondent was unable to accommodate those restrictions. (Pet. Ex. #2.) Despite having an undisputed work accident, the Respondent did not start TTD benefits at that time. The Respondent has provided no basis for the non-payment of benefits at that time. The Petitioner’s medical records from that date forward indicate that the Petitioner was either lrovided off work notes, or provided light duty restrictions that the Respondent did not accommodate. The Petitioner credibly testified that the Respondent was unable to accommodate light duty, and the Petitioner’s medical records support this fact. The medical note from July 9, 2009 indicates that “[p]atient has not been working because light duty is not available.” (Pet. Ex. #2) Accordingly, the Arbitrator finds that

 

the Petitioner is entitled to TTD benefits from June 29, 2009 through February 9, 2011, the date he was released by Dr. M maximum medical improvement with permanent work restrictions. (Pet. Ex. #5.)

Concerning the Petitioner’s right to PTD benefits, please see the analysis in “Nature and Extent.” Infra.

  1. What is the Nature & Extent of the Injury?

The Arbitrator finds that as a result of the Petitioner’s undisputed June 23, 2009 work injury the Petitioner is permanently and totally disabled.

The Arbitrator places significant weight on the valid FCE performed on November 22, 2010, in determining the level of permanency caused by the Petitioner’s injury. (Id.) The FCE determined that Petitioner is capable of assuming a position in the light strength category with a maximum lifting capacity of 20 lbs., and a maximum carrying capacity of 10 lbs. The FCE determined that in order for Petitioner to successfully return to work in the light strength category the following job restrictions must be met:

  • No standing for more than 15 minutes continuously.
  • No walking for more than 0.3 mile continuously.
  • No pushing more than 80 lbs.
  • No crouching.
  • No stooping.
  • No crawling on hands and feet. (Id.)

The Arbitrator notes that the Petitioner is 60 years of age, does not speak English, has a 6th grade education (from schooling in Mexico) and has worked solely as a laborer during his 35 years in the United States. The Petitioner has been receiving SSD benefits since March 2011.

The Petitioner’s vocational expert, Ms. KS testified that the Petitioner is permanently and totally disabled. (Pet. Ex. #8.) She based her opinion on the Petitioner’s age, education, language, prior work history, transferrable skills and physical capabilities. (Id.) According to Ms. S, a 60 year old Spanish speaking male with a permanent 20 pound lifting restriction, falls into the “unskilled sedentary” work group. Ms. S further testified that approximately 1% of the jobs in the entire country fall into such category. (Id.)

Ms. S reviewed a Labor Market Survey introduced by the Respondent at trial. (Rsp. Ex. #6.) After reviewing the Labor Market Survey, Ms. S opined the Labor Market Survey to be invalid because of the failure to consider the Petitioner’s physical limitations and permanent restrictions.

 

The Arbitrator notes that Respondents labor market survey suggests that Petitioner is capable of obtaining work as:

  • a housekeeper
  • laundry feeder/ironer
  • janitor
  • pizza assembler
  • dishwasher/steward.

After reviewing the labor market survey, the Arbitrator agrees with Ms. S that based upon the job leads contained, it does not appear that the Petitioner would in fact qualify for any of the positions in light of his permanent restrictions. As such, the Arbitrator affords little weight to the Respondent’s vocational opinion and labor market survey.

Based upon the totality of the Petitioner’s current physical condition (age, education, work history, skills, etc.) the Arbitrator finds that the Petitioner has proven by the preponderance of credible evidence that he is permanently and totally disabled. The Arbitrator therefore awards Permanent Total Disability benefits in the amount of $461.78 (50% of State Average Weekly Wage as of the date of accident) per week from February 10, 2011, and ongoing for the rest of Petitioner’s life.