ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
___xxxxx____________ Case# 4iii!Ct!di¥”
Employee/Petitioner
________xxxxxxx___
Employer/Respondent
On 7/ll/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 0.14% 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:
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Secretary Illinois Workers’ Comp Comisslon
STATE OF ILLINOIS
COUNTY OF KANE
D Injured Workers’ 13enetit Fund (§4(d))
D Rate Adjustment Fund (§8(g))
D Second Injury Fund (§8(e)l8)
cg.. ] None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)
________________
Employee/Petitioner
v.
________________
Employer/Respondent Case #..:tf!;’WC J Ill I
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 II Arbitrator of the Commission, in the city of Geneva, Illinois, on May 14, 2012. 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. D Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational
Diseases Act?
A. D Was there an employee-employer relationship?
A. D Did an accident occur that arose out of and in the course ofPetitioner’s employment by Respondent?
B. D What was the date of the accident?
C. D Was timely notice of the accident given to Respondent?
D. D Is Petitioner’s current condition of ill-being causally related to the injury?
E. DWhat were Petitioner’s earnings?
F. DWhat was Petitioner’s age at the time of the accident?
A. DWhat was Petitioner’s marital status at the time. of the accident?
B. DWere 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. DIs Petitioner entitled to any prospective medical car ?
L. cg] What temporary benefits are in dispute?
0 TPD 0 Maintenance [2J TTD
A. cg] Should penalties or fees be imposed upon Respondent?
B. DIs Respondent due any credit?
0. D Other
!CArbDecl9(b) 2110 I 00 W. Randolph Street #8-200 Chicago, 1L 60601 3121814-66/1 Toll-free 8661352-3033 Web site: www. iwcc.il.gov Downstate offices: Collinsville 6/81346-3450 Peoria 3091671-3019 Rockford 8151987-7292 Springfield 2171785-7084
FINDINGS
On the date of accident, November 2, 2011, 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 $30,515.50; the average weekly wage was $586.82.
On the date of accident, Petitioner was 38 years of age, single 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 $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 temporary total disability benefits of$391.21/week for 24-6/7 weeks, commencing 11/18/2011 through 5/9/2011, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 11/18/2011 through 5/9/2011, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall pay to Petitioner penalties of $1,945.09, as provided in Section 16 of the Act; $4,862.74, as provided in Section 19(k) of the Act; and $5,220.00, as provided in Section 19(1) of the Act.
Pursuant to stipulation, respondent shall pay all related medical bills directly to the respective providers.
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 a decrease in this award, interest shall not accrue.
ICArbDecl9(b)
JUL 112012
Attachment to Arbitrator Decision
(11 we 44301)
STATEMENT OF FACTS
Petitioner is a thirty-eight year (38) old mental health worker who had been employed by .:.kR int 9twwl9pAiioMtal ‘itdn • for one and one-half years. On November 2, 2011, Petitioner was bathing a patient when she slipped and fell on a wet, soapy floor. Petitioner reported the injury to her supervisor, b’ 7 f ·rj, and was sent to Sts IHospital. Accident and notice are not in dispute.
Petitioner presented to 95 1112 Hospital where x-rays of the lumbar spine, right wrist, and right foot were unremarkable. Petitioner was released that day. Records show Petitioner returned to S1 f BEl Hospital Occupational Health on November 4, 2011. At that time she was diagnosed with a lumbar sprain and right ankle sprain, provided pain medication, prescribed a cane and directed to wear an air cast. Petitioner was released to light duty work with a five pound lifting restriction and limitations on bending, stooping and twisting. (PX 2)
Petitioner testified that she returned to light duty with Respondent. Petitioner indicated that her light duty job duties consisted of lifting grooming kits that weighed anywhere from tive to ten pounds. Petitioner testified that she worked a few days but same aggravated her pain.
Petitioner followed up with 8# tUff Occupational Health on November 8, 2011 and November 9, 2011. On November 9, 2011 an MRI of the lumbar spine was recommended. Same was carried out on November 14, 2011 showing mild degenerative changes in the lumbar spine predominately involving the facet joints. (PX 2) Petitioner continued to work light duty at that time.
Petitioner followed up with 8& I• Occupational Health on November 15, 2011 at which time physical therapy was recommended and Petitioner was continued on light duty work. Petitioner continued working light duty at that time.
On November 18, 2011, Petitioner sought a second opinion with Dr. rdi ·?at llilllllllii… P¥[I. Petitioner presented with chief complaints of neck, back, right ankle and right foot symptoms. At that visit, Dr. FI2 diagnosed Petitioner was a cervical sprain, lumbar sprain and a right ankle sprain. The doctor recommended physical therapy and took Petitioner off work. Petitioner underwent a course of physical therapy from November 18,2011 to February 6, 2012 at Ss t’ IIBll…..(PX 3)
Petitioner sought follow up care from Dr. F on November 21,2011, at which time Petitioner was again placed off work. Petitioner saw Dr. again on December 8, 2011. Due to Petitioner’s continued complaints of neck pain, Dr. 5 I t recommended a cervical MRI to rule out disc involvement and of the right foot. Petitioner was again taken off work. (PX 3)
On January 12,2012, Dr. noted the cervical MRI showed disc protrusions/herniations at C5-C6 and C6-C7. The right foot MRI showed mild halux valgus, joint effusion of the 1st digit and soft tissue swellin around the 51 metatarsal head. Dr. faa noted that Petitioner was slowly progressing in physical therapy and referred her to a pain specialist. Petitioner was again continued off work. (PX 3)
On January 13, 2012, Petitioner was seen by Dr. /milt I hhta at I I5I I dis 1 ‘iii1 for a pain management consultation.Dr. I Jdiagnosed Petitioner with a cervical sprain with radiation, a lumbar sprain, and a right ankle sprain. Dr. recommended an epidural steroid injection for Petitioner’s cervical spine and continued Petitioner off work. Dr. felt Petitioner’s condition and symptoms were consistent with the reported mechanism of injury. (PX 4)
On January 24, 2012, Petitioner had a cervical epidural steroid injection performed…-1•llllil••-• H dlI IIp. On February 1, 2012, Petitioner followed up with Dr. U ·at which time it was noted that she continued to have severe neck pain. Dr. thllta referred Petitioner for a surgical consultation and continued Petitioner otT work. (PX 4)
On February D, 2012, Petitioner saw Dr. It§L at tfillL for a surgical consultation. Dr. 1· g’ opined that Petitioner was not a surgical candidate and recommended two to four weeks of work conditioning. Dr. WJ, continued Petitioner ofT work. (PX 4)
On February 15, 2012, Petitioner followed up with Dr. at which time Dr. ij n noted that Petitioner had plateaued with physical therapy and continued Petitioner off work until she is cleared by the specialists. (PX 3) Petitioner underwent work conditioning t U · · · ·0 from February 22, 2012 through March 9, 2012. (PX 4)
On March 14, 2012, Petitioner followed up with Dr. ••• At that visit, Dr.••• advised Petitioner to continue her work conditioning. (PX 4)
On March 26, 2012, Petitioner returned to Dr. The doctor re-reviewed the MRI reports and performed an examination. The doctor noted Petitioner had positive Waddell findings. Dr. I § diagnosed cervical muscular strain and lumbar muscular strain. He felt Petitioner was at MMI and returned her to work without restrictions. (PX 4)
On April18, 2012 Dr. l’ !prescribed a lumbar epidural steroid injection due to Petitioner’s continued lumbar pain complaints and continued Petitioner off work. The lumbar epidural steroid injection was carried out on April 24, 2012. (PX 4)
Petitioner again saw Dr. on May 2, 2012, at which time she was released back to work with a 15 pound lifting restriction. (PX 4) Petitioner testified that she returned to work on May 9, 2012 in a light duty capacity and that she was working light duty as of the date of trial.
Petitioner testified that she never received any temporary total disability checks while she was off work and continues to receive medical bills that have not been paid by Respondent.
Respondent called Ms. hi !IQ t’ 3 to testify at trial. Ms. t [ { g testified that she is the direct supervisor of Petitioner and is aware of the work injury. Ms. % ‘{ t testified that she is the person who determines what light duty an injured worker can perform after reviewing their medical restrictions set forth by the physician.Specifically addressing Petitioner’s restrictions, she testified that she had Petitioner filling grooming kits and folding laundry, activities which would have been within her restrictions.Included in the grooming kits were toothpaste, toothbrushes, deodorant, combs and other grooming items. Ms. 46 •P indicated that she was aware that -Petitioner worked light duty from November 8, 2011 through November 14, 2011.She further indicated that Respondent received documentation on November 18, 2011 authorizing Petitioner off work. Thereafter, she did not receive doctors’ orders indicating Petitioner was capable of light duty work until May 9, 2012.
Respondent stipulated to the medical charges contained in Arbitrator’s Exhibit #1 and agreed that those charges would be paid.
WITH REGARD TO ISSUE (L), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR FINDS THE FOLLOWING:
Medical records indicate Petitioner was in tially placed off work on November 18, 2011 by Dr. N1 I 1 li1. Petitioner continued to be in an off work status until being released back to light duty work effective May 9, 20 12 by Dr. Respondent produced no evidence at trial indicating that Petitioner was able to work in any capacity during that time period. Respondent’s argument that they were willing to accommodate any light duty restrictions during this time period carries no legal significance as Petitioner was temporarily totally disabled during that time period. Furthermore, the Arbitrator specifically notes that Respondent did not send Petitioner for an IME nor did Respondent secure any medical report disputing Petitioner’s inability to work during this time.
Based on the above, the Arbitrator finds that Petitjoner was, temporarily and totally disabled from November 18, 2011 to May 9, 2011, a period of 24-6/7 weeks.
WITH REGARD TO ISSUE (M), SHOULD PENALTIES AND FEES BE IMPOSED UPON THE RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
Section 19(1) penalty is in the nature of a late fee. Assessment of the penalty is mandatory if the payment is late, for whatever reason, and the employer or its carrier cannot show an adequate justification for the delay.Mechanical Devices v. Indust. Comm’n, 344 Ill. App. 3d 752, 763 (41 Dist. 2003)The test for determining whether the employer. or its carrier had adequate justification for delaying payment is that of objective reasonableness. D.J 11asonry Co. v. Indust. Comm’n. 295 Ill. App. 3d 924, 935 (151 Dist. 1998). Additionally, where the overwhelming weight of medical testimony is in favor of compensation, the employer’s refusal to pay can be deemed unreasonable. (!d.) Respondent has not paid TTD or medical benefits in this case. Respondent does not dispute that Petitioner sustained a compensable workers’ compensation injury on November 2, 2011. Petitioner made a good faith effort to work light duty following this undisputed accident. When Petitioner was taken off work, Respondent simply refused to pay benet1ts without justification. For this reason, Petitioner is entitled to penalties under Section 19(1) of the Act, or $30.00 per day for a period of 174 days.
The Arbitrator further finds that Respondent’s failure to tender TTD beneflts in this case has been unreasonable and vexatious. Subsequent to the undisputed accident, Petitioner began treating at ·I3 e Occupational Health. During the course of treatment she was released to light duty work which Respondent accommodated. Petitioner made a good faith effort to work light duty but continued to experience symptoms.
On November 18, 2011, Petitioner sought a second opinion with Dr. At that time, the doctor recommended physical therapy and took Petitioner off work. Petitioner continued treating with Dr. $,e.
She also came under the care of Dr. who continued Petitioner’s off work status. It was not until Petitioner saw Dr. r( on May 2, 2012 was she released back to work with a 15 pound lifting restriction. Petiioner ultimately returned to restricted work on May 9, 2012.
Respondent contends that light duty work was available during the period in question. However, as stated earlier Respondent’s argument that they were willing to accommodate any light duty restrictions during this time period carries no legal signiflcance as Petitioner was temporarily totally disabled during that time period. Respondent’s own witness, Ms. x testified Respondent received documentation on November 18, 2011 authorizing Petitioner off work. Thereafter, she did not receive doctors’ orders indicating Petitioner was capable of light duty work until May 9, 2012. Respondent did not avail themselves of a Section 12 examination nor did they secure medical documentation to dispute Petitioner’s inability to work.
Respondent has shown no justification for their refusal to pay benefits in this case.
Accordingly, the Arbitrator finds that Respondent’s conduct in its refusal to tender TTD payments is unreasonable, vexatious and is contemplated under Section 19(k) of the Act.
Based on all the above, the Arbitrator finds Petitioner is entitled to additional compensation under Section 19(1) in the amount of $5,220.00 ($30.00 x 174 days); $4,862.74 (24-6/7wks x $391.21 x .5) under Section 19(k); and attorney fees in the amount of$1,945.09 (24-6/7 wks x 391.21 x .2) under Section 16 of the Act.
