A union truck driver working for PepsiCo injured his back while delivering two liter bottles of Pepsi products to a grocery store. After multiple doctor appointments and various treatments he still has had daily pain since the injury and uses Ibuprofen as needed, as well as a heating bag after work. At an Illinois Workers’ Compensation Commission hearing Scott Goldstein of Ankin Law in Chicago helped the injured man receive a $30,520 award for permanent partial disability as he suffered the permanent partial loss of use of 7.5% of his person.
The 41 year old father of two had worked for PepsiCo for approximately 15 years when on October 4, 2018 he was at a grocery store building a 2-liter display. He was lifting Pepsi products, turning and putting them onto a separate pallet when he hurt his back. He reported the incident to his supervisor and was sent to Physicians Immediate Care on October 8, 2018. At that visit, he reported low back pain that developed gradually while he was performing repetitive lifting and bending while transferring 2-liters bottles of soda. He noticed a burning and tightening sensation in the lower back that worsened throughout the day and he had sharp pain the following morning. The pain radiated to the sides of his lower back but not into the lower extremities. A physical examination revealed reduced flexion, normal extension, and tenderness while X-rays showed mild disc space narrowing at L5-S1 with early anterior lipping and osteophyte formation at L5. He was diagnosed with a low back strain, and he was released with a 15 pound restriction.
Read the full Arbitrator Decision Below:
Below is a key excerpt from the Arbitrator Decision:
The truck driver (hereinafter referred to as “Petitioner”) testified that he continues to experience low back symptoms which began after his October 4, 2018 work injury. Petitioner testified that he continues to have pain and tightness in his lumbar spine. He testified that he uses Ibuprofen as needed and a heating pad after work. Both Drs. Z and S noted that Petitioner had a herniated disc but opined he was not experiencing symptoms from that disc herniation. Dr. Z opined that Petitioner sustained an aggravation of a preexisting lumbar spine condition which was temporarily exacerbated by the October 4, 2018 work incident while Dr. S opined that Petitioner’s current complaints are unrelated to his work injury of October 4, 2018. Based upon Petitioner’s testimony, he has not returned to the same physical condition he was at prior to his October 4, 2018 work injury. The testimony of the employee, if not impeached or rebutted, is sufficient to support an award. Phoell Manufacturing Co., Industrial Comm’n, 54 III.2d 119, 295 N.E.2d 469 (1973); Sahara Coal Co. v. Industrial Comm’n, 66 I11.2d. 353,362 N.E.2d 343 (1977).
The Arbitrator notes that both Drs. Z and S acknowledge that Petitioner continues to report symptoms but neither of them identify the cause of those symptoms, other than saying they are not work related. The Arbitrator further notes that neither Dr. Z or Dr. S identify the nature of Petitioner’s preinjury physical condition and when, if ever, Petitioner returned to his previous condition. The weight to give an opinion that a work injury only temporarily exacerbated a preexisting condition should be based upon the identification of the prior physical condition and a comparison to the individual’s current physical condition because, otherwise, the opinion is based upon nothing more than guess, surmise or conjecture. It is axiomatic that the weight accorded an expert opinion is measured by the facts supporting it and the reasons given for it; an expert opinion cannot be based on guess, surmise or conjecture. Wilfert v. Retirement Board, 318 Ill. App.3d 514-15 (1st Dist. 2000).