ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION
M P E Employer/Respondent
On 2/9/2015, 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 0.06% 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
DEREK S LAX
162 W GRAND AVE SUITE 1810
CHICAGO, IL 60654
2461 NYHAN BAMBRICK KINZIE & LOWRY
WILLIAM A LOWRY ESQ
20 N CLARK ST SUITE 1000
CHICAGO, IL 60602
STATE OF ILLINOIS )
COUNTY OF COOK )
ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION
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 February 5, 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.
X TPD X Maintenance X TTD
ICArbDec 2/10 100W. Randolph Street #8-200 Chicago, II. 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
On June 1, 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 $64,017.20; the average weekly wage was $1,231.20.
On the date of accident, Petitioner was 56 years of age, single with 0 dependent children.
Petitioner has received all reasonable and necessary medical services.
Respondent has, in part, paid all appropriate charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $72,224.24 for TTD, $0 for TPD, $6,565.84 for maintenance, and
$5,863.48 for other benefits, for a total credit of $84,653,08. The Parties agreed that all TTD and maintenance has been paid through July 8, 2012.
Respondent is entitled to a credit of $0 under Section 8(j) of the Act.
Respondent shall pay Petitioner reasonable and necessary medical services of $3,528.43, as provided in Sections 8(a) and 8.2 of the Act for the bills awarded below.
Respondent shall pay Petitioner permanent partial disability benefits, commencing 9/7/2012, of $800.00/week for the duration of the disability, because the injuries sustained caused a loss of earnings, as provided in Section 8(d) 1 of the Act.
Respondent shall pay to Petitioner penalties of $0, as provided in Section 16 of the Act; of $0, as provided in Section 19(k) of the Act; and of $0, as provided in Section 19(1) of the Act.
Respondent shall pay Petitioner all compensation that has accrued from 6/1/2010 through 2/5/2014, and shall pay the remainder of the award, if any, in weekly benefits.
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.
___________________________ February 9, 2015
Signature of Arbitrator Date
FINDINGS OF FACT
Petitioner was employed by Respondent as a painter for 14 years. He did industrial, commercial and intricate painting. He worked outside with a helmet and safety harness, sometimes at heights between 80 and 200 feet in the air. He worked on the X, the Y and Z, along with interior and detail work. The majority of Petitioner’s work was at heights and required overhead reaching and ladder climbing. He would carry 60 to 70 pounds up several flights of stairs and carry two 5-gallon buckets of heavy industrial grade paint at a time. He would also operate boom lifts. Previously, Petitioner had done commercial painting, such as bridges, overpasses and water towers, and also some residential painting.
On June 1, 2010, Petitioner was injured while driving a boom lift back to the loading dock at the job site after finishing a painting assignment. Petitioner was holding the joystick inside the basket and the wheels locked up, causing Petitioner to lunge forward and backwards inside the basket. He injured his right shoulder and neck. Petitioner reported the injury to his foreman, who was leaving for the day at that time. Petitioner set an appointment with HC for the next day, through his group coverage (HMOI).
The first medical treatment was at FHC on June 2, 2010. Petitioner was seen by Treating Physician FHC and the history was of neck and shoulder pain for 3 months. The pain was said to be bilateral neck pain, with extension to the back of the neck and the right shoulder. The patient was said to be a painter with repetitive painting motions and using a “cherry picker”. X-rays of the cervical spine and right shoulder were ordered. Flexeril and Naproxen were ordered and petitioner was taken off work June 2, 2010, to return to work on June 4, 2010. The cervical spine x-ray showed multilevel disc space narrowing with a congenital fusion of C4/5 and moderate to severe endplate sclerosis and osteophyte formation at C3/4 and C5/6, with mild to moderate changes at C6/7. The clinical indication was said to be “Neck pain x 5 months, no known trauma.” The right shoulder x-ray showed degenerative findings and findings consistent with a rotator cuff abnormality.
Petitioner was seen by a NP on June 4, 2010 for neck and right shoulder pain. The neck pain was said to have begun in February and the right shoulder pain was said to have begun on Friday after a jerking motion.
Petitioner had not started taking his medications. Petitioner was given limited duty work restrictions. (ResEx. 1)
Respondent could not accommodate restricted duty for Petitioner. An accident report was prepared by Petitioner’s supervisor and was submitted to the Operations Manager, AK KS. Petitioner gave a recorded statement to BJ at CCMSI. Respondent began paying TTD.
Petitioner underwent a Cervical MRI on June 18, 2010. The study showed the congenital fusion at C4/5, with a large herniated disc at C3/4 causing severe spinal cord compression and mild degenerative changes at C5/6. A Right Shoulder MRI showed osteoarthritic changes of the AC joint, with a small tear in the rotator cuff, (PetEx. 12)
Petitioner began treatment with Specialist 1 for his right shoulder and with Specialist 2 for his neck on referrals from Hammond Clinic, Specialist 2 recommended an ACDF procedure, due to the severity of the disc herniation. Specialist 2 took Petitioner off work completely. Specialist 1 treated the shoulder nonoperatively and restricted Petitioner to limited duty work regarding the shoulder only. (PetExs. 12, 22 & 23)
Petitioner saw Second Opinion Doctor, on August 24, 2010, for a second opinion regarding neck surgery. The history charted by Dr. C was of almost 3 months of neck pain radiating to the right arm, due to an accident at work on June 2, 2010. The Patient Information Sheet filled out by Petitioner gave an accident date of June 1, 2010. The accident was said to have involved a violent shaking of a boom lift. Dr. C concurred with the surgery recommendation, due to the risk of catastrophic neurological injury if surgery was not performed. Petitioner was to remain off work. (PetEx. 14)
Petitioner had conservative care regarding his shoulder with Specialist 1, pending the proposed neck surgery.
Petitioner was seen by Respondent’s Doctor for an IME at the request of Respondent on September 4, 2010. Respondent’s Doctor thought that the treatment that Petitioner had was reasonable and necessary and that the proposed neck surgery was warranted, but was not related to the accident of June 1, 2010. The right shoulder condition was causally related to the accident of June 1, 2010. Petitioner’s cervical spine condition was chronic and the accident resulted in a transient aggravation of neck pain, with an eventual return to baseline. (ResEx. 2)
Petitioner was seen by Respondent Doctor 2 for an IME at the request of Respondent on October 27, 2010. Respondent Doctor 2 evaluated Petitioner’s right shoulder. Respondent Doctor 2 thought that the shoulder condition was causally related, in part, to the injury of June 1, 2010. The recommended surgery was appropriate. Petitioner should be on light duty work restrictions. (PetEx. 20)
Dr. C authored a report, of December 22, 2010, responding to Respondent’s Doctor report. Dr. C thought that the accident caused or aggravated the very large C3/4 disc herniation, leading to the need for expedited surgery. Petitioner followed up with Dr. C.
Respondent’s Doctor authored a supplemental report, of February 3, 2011, addressing Dr. C’s of December 22, 2010., Respondent’s Doctor maintained his no causal connection opinion and was supportive of the proposed fusion procedure, should the patient so elect. The neck surgery should be done prior to any shoulder surgery.
Petitioner’s attorney sent Petitioner for an IME with Independent Doctor on February 4, 2011. Independent Doctor examined Petitioner and reviewed the MRI scan. Independent Doctor thought that the jolting accident while operating the boom on June 1, 2010 caused the cervical disc herniation at C3/4, more likely than not. The mechanism of injury could have caused both the cervical and shoulder pathology. The cervical surgery should be done first and it is related to the accident. (PetEx. 15)
On June 24, 2011, Petitioner was advised that his employment with Respondent was terminated, due to restructuring at the job.
Petitioner chose to have the cervical surgery done through his group insurance, so he went back to Specialist 2. Specialist 2 ordered a new MRI of the C-spine and surgery was performed on June 28, 2011. The procedure included an anterior cervical discectomy and fusion at C3/4 with instrumentation and an iliac crest bone graft. Specialist 2 cleared Petitioner for shoulder surgery on August 8, 2011. (PetEx. 23)
On September 14, 2011, Specialist 1 performed surgery on Petitioner’s right shoulder. The procedure was a right shoulder arthroscopy with extensive synovectomy, debridement of a type I flap lesion, subacromial decompression and rotator cuff repair. (PetEx. 22) Petitioner underwent therapy as recommended by Specialist 2 and Specialist 1.
Employee Metropolitan Pier & Exposition
Petitioner was seen by Independent Doctor 2 for an IME, on April 16, 2012, at the request of Respondent. Dr. C thought that Petitioner’s shoulder related treatment was reasonable, necessary and related to the injuries and recommended 3 to 4 weeks additional therapy and then an FCE. Dr. C did not know whether Petitioner would be able to return to his pre-injury job duties. (PetEx. 16)
On May 15, 2012, Petitioner underwent an FCE at Accelerated Rehab. The test was considered valid and classified Petitioner’s abilities to be within the medium-heavy physical demand level, including floor to waist lifting of 60 pounds. Petitioner had limitations regarding frequent overhead lifting. (ResEx. 5)
Specialist 1 released Petitioner to return to work per the FCE, with restrictions on climbing ladders and additional restrictions relative to the cervical spine condition, effective June 5, 2012. Specialist 2 released Petitioner to go back to work with limitations on returning to work as a painter due to limited cervical extension, effective June 18, 2012.
Petitioner testified that he tried to paint some rooms at his sister’s house in June of 2012 and experienced pain.
Respondent submitted a surveillance video of Petitioner from June 2, 2012. It shows Petitioner driving a van, closing the liftgate on the van (above shoulder height), going to Menards and carrying paint supplies. Petitioner is seen carrying parts of a ladder, paint supplies and tools into a house near 119th Place and Michigan Avenue. Later, Petitioner is seen unloading the van, which seems to be a clean (not cluttered) passenger van, indicating that Petitioner did not regularly use the van for painting jobs. (ResEx. 6)
Dr. C authored an addendum report of July 10, 2012. He reviewed the surveillance video and the FCE, along with updated medical records. Dr. C thought that Petitioner could likely perform more than 90% plus of the duties of his job, but it would not be reasonable to expect the patient to do so on a day in and day out basis without significant difficulty. Restrictions per the FCE and limited use of ladders would be reasonable. Petitioner was to be considered at MMI as of the June 5, 2012 visit with Specialist 1. (ResEx. 3)
Petitioner was told by his business agent that there were no light duty jobs available for union painters. Petitioner began a job search and obtained employment at ERAV, where he worked from July 8, 2012 through October 17, 2012. Petitioner quit this job because he was being asked to perform physical activities beyond his restrictions and was concerned regarding inhaling fumes. Petitioner was making $10.00 per hour at this job.
The scale rate for Petitioner at the time of trial was $40.00 per hour, per Petitioner’s testimony and that of the Business Representative. R testified that there were no jobs available for painters with restrictions. Petitioner’s restrictions would prevent him from working as a painter. (PetEx. 21)
Petitioner was last seen by Specialist 2 on November 12, 2012. Ongoing neck pain was noted and further therapy was recommended. Petitioner chose not to pursue more therapy.
Petitioner got a new job at Staff Source, a temp agency in H. He currently makes $10.00 per hour as a shipping and receiving order picker for auto parts.
Petitioner testified that he had previously hurt his back and neck before, but had never lost time from work and there had never been any prior recommendation for neck surgery. The prior injuries included an incident
involving carrying a ladder at work and an incident where Petitioner lifted a small dog over his head in February of 2009.
AK KS, the former Director of Operations at Navy Pier, testified at the request of Petitioner. Mr. K worked for more than 20 years at the job. K remembered Petitioner as a good worker. He recalled that Petitioner had an injury, but was not certain that the date was June 1, 2010. K did not recall a painter with permanent restrictions being returned to work at the Pier.
AK KS, CRC, testified at the request of Petitioner. She conducted two interviews with Petitioner. Petitioner had an 11th grade education and had twice been unsuccessful in obtaining a GED. Petitioner had trade skills related to painting and prior experience as a machine operator. Petitioner was enthusiastic about looking for work. Given Petitioner’s age, education, work experience and restrictions, the jobs that Petitioner obtained on his own were appropriate. Ms. S was not hired to, perform vocational services for Petitioner because he was already gainfully employed. (PetExs. 2 & 3)
Respondent retained DM, MS, CRC, LCPC, to prepare a Comprehensive Vocational Assessment. A transferable skills analysis and labor market survey was done, including an analysis of wages for available positions. It does not appear that a personal interview with Petitioner took place. It does not appear that Petitioner’s lack of a high school education and lack of a GED was considered. Mr. Minnich did not think that vocational services were needed for Petitioner, based upon his National Tea analysis. (ResEx. 13) Mr. Minnich did not think that Petitioner’s current employment was close to Petitioner’s maximum vocational potential. Mr. Minnich reported that experienced potential wages in Petitioner’s profile could range from $31.47 to $46.66 per hour. (ResEx. 15)
Petitioner submitted the Evidence Depositions of Specialist 1 and Specialist 2. (PetExs. 22 A-C & 23 A-D)
Respondent submitted the Evidence Depositions of Respondent’s Doctor and Independent Doctor 2. (ResExs. 2 & 3)
At trial, the Parties stipulated that TTD was claimed for the time period of June 2, 2010 through June 18, 2012, representing 106 and 2/7 weeks. Petitioner claimed Maintenance from June 19, 2012 through July 8, 2012, representing 2 and 3/7 weeks. The Parties agreed that all TTD and Maintenance had been paid through July 8, 2012.
CONCLUSIONS OF LAW
The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set forth below. Petitioner’s testimony is found to be credible. Petitioner liked his job as a union painter for Respondent and he was good at his job, per the testimony of Mr. Kelly. Unfortunately, the sequelae of the injury prevents Petitioner from returning to his former trade.
WITH RESPECT TO ISSUE (C), DID AN ACCIDENT OCCUR THAT AROSE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT BY THE RESPONDENT, THE ARBITRATOR FINDS AS FOLLOWS:
While the histories given by Petitioner to the initial medical providers are inconsistent as to the exact mechanics of the accident and as to the date of the accident, the Arbitrator does not find the inconsistencies to be fatal to Petitioner’s claim after consideration of all of the evidence. Petitioner testified that he reported the injury to his
Employee Metropolitan Pier & Exposition
foreman on the date of occurrence. An accident report was filled out and was given to the Director of Operations, Kelly. Kelly testified that he recalled that Petitioner had an injury working at the Pier, but could not recall the date. Petitioner also gave a recorded statement to Respondent’s TPA. The accident report and the recorded statement were not submitted into evidence.
The Arbitrator observed Petitioner’s credible testimony and demeanor and finds that Petitioner did sustain accidental injuries, arising out of and in the course of his employment by Respondent on June 1, 2010 when the boom lift that he was operating malfunctioned, causing Petitioner’s right shoulder and cervical spine to be injured.
WITH RESPECT TO ISSUE IS THE PETITIONER’S PRESENT CONDITION OF ILL-BEING CAUSALLY RELATED TO THE INJURY, THE ARBITRATOR FINDS AS FOLLOWS:
The Arbitrator finds that Petitioner’s current condition of ill-being with respect to his right shoulder and neck are causally related to the injury.
Petitioner was able to perform his heavy and strenuous work for Respondent before the event of June 1, 2010. Petitioner did testify to prior incidents of neck pain, but there was no surgical recommendation before June 1, 2010 and the only evidence of prior treatment for the cervical spine was from February of 2009 when Petitioner was seen at Hammond Clinic for a pulled neck muscle after lifting a dog over his head a week before. Moist heat and Tylenol was prescribed and the patient was to return as necessary.
The x-ray and MRI findings show degenerative changes, which would be consistent with Petitioner’s age and occupation.
The testimony of Specialist 1 (shoulder) and Specialist 2 (neck) on the issue of causal connection is credible, persuasive and best comports with the evidence.
Dr. Cole testified that there was a causal connection between the accident of June 1, 2010 and Petitioner’s right shoulder condition. Respondent Doctor 2 though that the shoulder was causally related, in part, to the injury.
Dr. Chang and Independent Doctor thought that the cervical spine condition was causally related to the injury, with the pathology being consistent with the described mechanism of injury. Independent Doctor thought that the mechanism of injury could have caused both the shoulder and the cervical spine pathology.
Respondent’s Doctor thought that the right shoulder condition was causally related to the accident, but the cervical spine condition was chronic and the accident resulted in a transient aggravation of neck pain, with an eventual return to baseline. Respondent’s Doctor opinion regarding the cervical spine condition is not persuasive and does not comport with the Record. Petitioner testified that he had prior incidents of neck and back pain (as would be expected for an experienced painter). Only one incident of prior medical treatment for the neck was submitted (a single visit with no follow up). Petitioner was working his regular duties before the accident and he never was able to return to work for Respondent as a painter after the accident. The Record does not show that Petitioner’s cervical spine condition returned to “baseline” after the accident, as Respondent’s Doctor suggests.
Employee Metropolitan Pier & Exposition
WITH RESPECT TO ISSUE (J), WERE THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGES FOR ALL REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR FINDS AS FOLLOWS:
The medical treatment that Petitioner had regarding his right shoulder and cervical spine is found to be reasonable and necessary. Petitioner’s bills exhibit was PetEx. 4.
The bill from Midwest Spine Center had a zero balance and it appeared that payments were made by Respondent’s TPA. No award is made for this bill.
The bill from Hammond Clinic appears to show that three dates of service for cervicalgia have not been paid (4/4/2011, $95.00; 4/15/2011, $1,875.00; and 5/2/2011, $95.00). These bills, totaling $2,065.00 are awarded.
The bill from Accelerated Rehab in the amount of $1,111.43 is awarded.
Franciscan Physicians Hospital bill is $352.00 for C-spine x-rays on 1/6/2012. This bill is awarded.
The bill from St. Margaret Mercy has a zero balance and is not awarded.
The Respondent is directed to hold Petitioner harmless for group payments by Aetna ($431,46) and Blue Cross Blue Shield of Illinois ($26,780.70), as submitted in Petitioner’s Exhibit 4.
The award of medical expenses herein is to be in accordance with §§ 8(a) and 8.2 of the Act.
WITH RESPECT TO ISSUE (1C)1 WHAT AMOUNT OF COMPENSATION IS DUE FOR TEMPORARY TOTAL DISABILITY, TEMPORARY PARTIAL DISABILITY AND/OR MAINTENANCE, THE ARBITRATOR FINDS AS FOLLOWS:
At trial, the Parties stipulated that the period of TTD was June 2, 2010 through June 18, 2012, representing 1062/7 weeks and the Maintenance period was June 19, 2012 through July 8, 2012, representing 2-3/7 weeks. Further, the Parties agreed that all TTD and Maintenance benefits had been paid. The Parties further agreed that $72,224.24 in TTD benefits, $6,565.84 in Maintenance benefits (a total of $78,790.08) and $5,863.48 in other benefits had been paid. (ArbEx. 2)
108-5/7 weeks of compensation benefits amounts to $89,224.81, but the Parties stipulated that all TTD and Maintenance has been paid. The Arbitrator finds that the issues of TTD and Maintenance were resolved by the stipulation of the Parties.
Temporary Partial Disability was not in issue, so no award for TPD is made.
WITH RESPECT TO ISSUE (L), WHAT IS THE NATURE AND EXTENT OF THE INJURY, THE ARBITRATOR FINDS AS FOLLOWS:
Petitioner claims that he is entitled to an award pursuant to § 8(d)1 of the Act. § 8(d)1 provides that if the employee becomes partially incapacitated from pursuing his usual and customary line of employment as a result
Employee Metropolitan Pier & Exposition
of his injuries, he is entitled to benefits of 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment after the accident. To be successful in a claim under §8(d)1, Petitioner must prove a partial incapacity that prevents him from pursuing his usual and customary line of employment and an impairment of earnings. Gallianetti v. Industrial Commission, 315 Ill. App. 3d 721 (2000).
Based upon the medical records and medical expert testimony, the testimony of Petitioner, Messrs. Kelly and Rinehart and Ms. Stafseth, the Arbitrator finds that Petitioner’s injuries prevent him from returning to work as a union painter. Thus, Petitioner has proved that he is partially incapacitated from pursuing his usual and customary line of employment.
Petitioner was able to obtain employment with ERA Valdevia on July 8, 2012 as a yard attendant and later obtained a job at Staff Source as an order picker at a parts warehouse, on his own. He currently makes $10.00 per hour. Union scale for a painter is $40.00 per hour. The Arbitrator finds the testimony and opinions of AK Kari Stafseth on the appropriateness of this employment for Petitioner to be credible and persuasive The report of DM is found to be not persuasive because it does not appear to consider that Petitioner does not have a GED or a high school diploma and many of the transferable occupations are supervisory and Petitioner had no supervisory experience. Clearly, Petitioner would need extensive vocational assistance to be placed in a job making more money than he currently is and these services were not made available to him. Ms. Stafseth’s opinion that Petitioner is currently performing gainful employment in a position that is commensurate with his level of skills and education most comport with the evidence adduced. Petitioner was proud of his skills and accomplishments as a painter and the Arbitrator believes that he would have returned to work in this skilled position if he was capable of doing so. Thus, the Arbitrator finds that Petitioner has proved a permanent impairment of earnings.
Ms. Stafseth’s first report is dated September 7, 2012 and this is the date that the Arbitrator finds that Petitioner’s permanent impairment of earnings begins. There is no expert opinion to support such an award prior to this date. Petitioner’s medical and vocational conditions are stabilized as of the date of Ms. Stafseth’s opinion. Petitioner’s current wage is $10.00 per hour ($400.00 per week). A union painter makes $40.00 per hour ($1,600.00 per week). Thus, the diminution in earnings is $1,200.00 per week and the 8(d)1 rate is $800.00 per week.
Accordingly, the Arbitrator finds that Petitioner is entitled to have and receive from Respondent the amount of $800.00 per week, beginning September 7, 2012, for the duration of his disability.
WITH RESPECT TO ISSUE (M), SHOULD PENALTIES OR FEES BE IMPOSED UPON THE RESPONDENT, THE ARBITRATOR FINDS AS FOLLOWS:
Given the inconsistent histories given by Petitioner, the medical opinion of Respondent’s Doctor and the vocational opinion of DM, the Arbitrator does not find that Respondent acted in bad faith in its disputes in this claim and does not find an unreasonable or vexatious delay in payment of benefits to have occurred. Accordingly, Petitioner’s claim for Penalties and Attorney Fees is denied.