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Lower Back Injury

June 25, 2015

ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION

____________________ Case # _________________
Employee/Petitioner

____________________
Employer/Respondent

On 1/9/2012, 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:
1067 ANKIN LAW OFFICE, LLC
162 W GRAND AVE.
CHICAGO, IL 60654
STATE OF ILLINOIS )

)

COUNTY OF COOK )

Injured Workers’ Benefit Fund (§4(d))

Rate Adjustment Fund (§8(g))

Second Injury Fund (§8(e)18)

x None of the above

ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION

____________________ Case # _________________
Employee/Petitioner

v. Consolidated cases:_____
____________________
Employer/Respondent

An Application for Adjustment of Claim was filed in this matter, and a Notice of Hearing was mailed to each party. The matter was heard by the Honorable ______________ Arbitrator of the Commission, in the city of Chicago, on September 20, 2011. After reviewing all of the evidence presented, the Arbitrator hereby makes findings on the disputed issues, 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. x Did an accident occur that arose out of and in the course of Petitioner’s employment by Respondent?
D. What was the date of the accident?
E. Was timely notice of the accident given to Respondent?
F. x Is Petitioner’s present condition of ill-being causally related to the injury?
G. What were Petitioner’s earnings?
H. What was Petitioner’s age at the time of the accident?
I. What was Petitioner’s marital status at the time of the accident?
J. x Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent paid all appropriate charges for all reasonable and necessary medical services?
K. x What temporary benefits are in dispute?
TPD Maintenance X TTD
L. x What is the nature and the extent of the injury?
M. Should penalties or fees be imposed upon Respondent?
N. Is respondent due any credit?
O. Other _____

FINDINGS

On 6/15/2007, 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 $17,752.80; the average weekly wage was $341.40.
On the date of the accident, Petitioner was 30 years of age, married with 2 dependent children.
Petitioner has received all reasonable and necessary medical services.
Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $565.22 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 for other benefits, for a total credit of $565.22.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.

ORDER

Temporary Total Disability

Respondent shall pay Petitioner temporary total disability benefits of $251.32/week for 3 weeks, commencing 6/19/2007 through 7/9/2007 as provided in Section 8(b) of the Act.

Medical Benefits

Respondent shall pay reasonable and necessary medical services of $1,077.00, as provided in Sections 8(a) and 8.2 of the Act.

Permanent Partial Disability: Right Ring Finger

Respondent shall pay Petitioner permanent partial disability benefits of $251.32/week for 1.35 weeks, because the injuries sustained caused the 5% loss of use of the right ring finger, as provided in Section 8(e) of the Act.

Permanent Partial Disability: Person as a whole

Respondent shall pay Petitioner permanent partial disability benefits of $251.32/week for 10 weeks, because the injuries sustained caused the 2% loss of the person as a whole, as provided in Section 8(d)2 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 award, interest shall not accrue.

Signature of Arbitrator Date

STATEMENT OF FACTS

The Petitioner worked for the Respondent as a security guard. The Petitioner testified that as part of his job duties as a security guard for the Respondent, he would escort nurses and other hospital staff to their cars when their shift ended. The Petitioner testified that on June 15, 2007 he was working the second shift for the Respondent that lasted from 3:00 pm to 11:30 pm. The Petitioner testified the he swiped out around 11:30 pm on that night as his shift ended. Approximately five or ten minutes later the Petitioner was asked by two nurses to escort them to their vehicles. The Petitioner testified that despite having just clocked out for the night, the Petitioner was required by the Respondent to continue his job duties while he was on the Respondent’s premises. The Petitioner offered unrebutted testimony that this was a policy of the Respondent and that he was educated as to this policy by his supervisor.

The Petitioner testified that while on his way back to the building from escorting the nurses to their vehicles a car pulled up and four men jumped out of the car. The Petitioner testified that these four men attacked him, beating him about the face and the upper/lower body. The Petitioner testified that a woman then got out of the vehicle, walked over to him, slapped him in the face and said, “Remember me?” The Petitioner testified that he recognized the woman as a previous psychiatric patient that had been released one or two weeks prior to this incident.

The Petitioner testified that the police were called immediately following the incident and a police report was filed. The Petitioner testified that immediately following the assault he felt pain in his lower back, face and right hand. The Petitioner reported the injury to the Director of Public Safety, __________, and was taken to the emergency room via wheelchair because he was unable to walk. In the emergency room the Petitioner was given an ice pack and prescribed pain medication. (Pet. Ex. #2) Further, x-rays were taken of the Petitioner’s right hand which revealed no fracture. (Id.) The Petitioner sought follow-up care on June 19, 2007 at __________ Hospital. (Id.) At that visit, the Petitioner was diagnosed with lower back pain and a right wrist/hand injury. The Petitioner was taken off work. (Id.) The Petitioner returned to _________ Hospital on June 22, 2007 at which time the Petitioner has swelling in his right hand, pain in his lower back and was again taken off work. (Id.) On June 28, 2007 the Petitioner returned to __________ Hospital and physical therapy was recommended. The Petitioner was again taken off work. (Id.)

On July 3, 2007 the Petitioner saw Dr. __________ at __________. (Pet. Ex. #3) Dr. __________ noted that the Petitioner was injured when he was attacked at work and documented that the Petitioner had pain in his lower back and right hand. (Id.) The Petitioner was diagnosed with a lumbar sprain and a sprain of the right hand. The Petitioner testified that he was continued off work. The Petitioner testified that he had physical therapy with Dr. __________ from July 3, 2007 to July 20, 2007. The Petition again saw Dr. __________ on July 9, 2007, at which time he released Petitioner to light-duty work. (Id.) The Petitioner testified that he was forced to return to light duty work at that time or he would have been fired. The Petitioner testified that Mr. __________, the Respondent’s Director of Public Safety, informed me that he would be terminated if he did not return to work.

The Petitioner testified that he still has pain in his lower back as of the date of trial. The Petitioner testified that he had no prior history of pain in his lower back or right hand. The Petitioner testified that he is currently working for another company as a security guard.

The Respondent did not call any witnesses to testify at trial.

CONCLUSION OF LAW

C. WITH REGARD TO ITEM (C), WHETHER THE PETITIONER WAS INJURED IN AN ACCIDENT THAT AROSE OUT OF AND IN THE COURSE OF HIS EMPLOYMENT WITH THE RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:

The Arbitrator finds that the Petitioner was injured in an accident that arose out of and in the course of his employment by the Respondent. Evidence presented at trial indicates that the Petitioner worked the second shift from 3:00 pm to 11:30 pm for the Respondent on June 15, 2007. The Petitioner clocked out following his shift and was then asked to escort two nurses to their vehicles. The Petitioner testified that as a security officer, the Respondent has a policy in place that requires him to continue his job while he is on hospital grounds whether or not he is clocked in to work. The Petitioner testified that he escorted the two nurses to their automobile approximately five to ten minutes after clocking out. Upon returning to the building the Petitioner was attacked by four men at the behest of an ex-psychiatric patient. The Petitioner testified that the woman had been a patient at the hospital one or two weeks prior.

At the arbitration hearing, Petitioner character the nurses that he escorted that night as “elderly ladies.” Yet, in the intake form at __________ he wrote: “a few young nurses” asked him to make sure that they got to their cars and while standing on the corner making sure these nurses got to their cars, he was assaulted. (Pet. Ex. #2)

The Illinois Supreme Court has held in cases regarding altercations at work that “…fights arising out of disputes concerning the employer’s work are risks incidental to the employment and resulting injuries are compensable.” Franklin v. Indus. Comm’n., 211 Ill. 2d 272, 279-280 (Ill. 2004). The Court further explained in Franklin that “an injury arises out of employment if it results from a risk that originates in, or is incidental to the employment.” Franklin, 211 2d. at 279. The Arbitrator finds the Petitioner’s testimony to be most credible. The Petitioner established that he was not the aggressor in the assault and the fact that the woman was a previous patient lends credence to the fact that this assault had its origin in the Petitioner’s work for the Respondent. The Petitioner worked for the Respondent as a security office. It is incumbent in that position that the Petitioner would be placed in situations and altercations such as this. For these reasons, the Arbitrator finds that the Petitioner was injured in an accident that arose out of and in the course of his employment by the Respondent.

F. WITH REGARD TO ITEM (F), WHETHER PETITIONER’S CURRENT CONDITION OF ILL-BEING IS CAUSALLY RELATED TO THE PETITIONER’S WORK INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:

The Arbitrator finds that the Petitioner’s current condition of ill-being is causally related to his work injury of June 15, 2007. The Petitioner’s medical records establish that the Petitioner received a continuous course of treatment directly after the undisputed work injury of June 15, 2007. The Petitioner had the same pain complaints, namely pain in the lower back and right hand, and the Petitioner’s diagnoses were all consistent. Further, the Petitioner’s credible testimony established that the Petitioner had prior history of lower back pain or right hand pain prior to the work injury. Finally, the Petitioner testified at trial to still having pain as a result of this assault. The Respondent produced no medical evidence or testimony contradicting the Petitioner’s testimony and no evidence suggesting a mechanism for injury other than the undisputed work injury of June 15, 2007. The Arbitrator finds that the Petitioner’s current condition of ill-being is causally related to the Petitioner’s undisputed June 15, 2007 work injury.

J. WITH REGARD TO ITEM (J), WHETHER THE MEDICAL SERVICES PROVIDED TO THE PETITIONER WERE REASONABLE AND NECESSARY AND WHETHER THE RESPONDENT HAS PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Arbitrator finds that the medical services provided to the Petitioner as a result of the Petitioner’s work injury were reasonable and necessary and the Respondent has not paid all appropriate charges. As a direct result of the Petitioner’s undisputed June 15, 2007 work injury the Petitioner sustained a severe lower back strain and a sprain of his hand. The Petitioner required emergency room care, doctor visits, pain medication, diagnostic testing, and physical therapy as a result. The treatment that the Petitioner received constitutes a course of conservative medical treatment. Further, the Arbitrator finds that the Petitioner was required by his job to stop his treatment prior to completion based upon the Petitioner’s credible testimony. Finally, the Arbitrator finds that the Petitioner proved that the Respondent has not paid all of his medical bills to date. (Pet. Ex. #1) The Arbitrator awards the Petitioner his medical bill from ___________ Hospital in the amount of $1,077.00 pursuant to the Illinois Medical Fee Schedule.

K. WITH REGARD TO ITEM (K), WHAT BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:

The Arbitrator finds that the Petitioner is entitled to TTD benefits from June 19, 2007 through July 9, 2007, a period of 3 weeks. The Petitioner presented medical records and testimony establishing that the Petitioner was taken off work during that time period. (See Generally: Pet. Ex. #2 and #3) Further, the parties stipulated to the Petitioner’s average weekly wage of $341.40 and the fact that the Petitioner was married with two dependents at the time of the accident. This yields a TTD rate at the minimum of $251.32. Therefore, the Arbitrator awards the Petitioner TTD benefits in the amount of $718.05, less the Respondent’s credit of $565.22 for TTD benefits already paid.

L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT OF THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW:

The Arbitrator finds that the Petitioner was injured to the extent of 2% loss of use of his Person as a Whole and 5% loss of use of his Right Ring Finger. As a direct result of the Petitioner’s undisputed June 15, 2007 work injury, the Petitioner sustained a sprain of his lower back, contusions to his face and a train and contusion of his right hand. Specifically, with regard to the hand, Dr. __________ diagnosed him with a right, medial-sided, 4th MP joint tenderness with swelling and painful flexion. The Petitioner received conservative treatment in the form of physical therapy and pain medication. Further, the Petitioner testified that as of the date of trial he continues to have stiffness in his lower back. He takes Ibuprofen twice a day for the pain – it helps him to get out of bed in the morning.
Petitioner testified that he has no problem with his right hand.
Petitioner has not treated for these injuries in four years.