ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION
____________________ Case #
On 8/9/2010, an arbitration decision on this case was filed with the Illinois Worker’s Compensation Commission in Chicago, a copy of which is enclosed.
If the Commission reviews this award, interest of 0.19% 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
ILLINOIS WORKERS’ COMPENSATION COMMISSION
v 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 , Arbitrator of the Commission, in the city of Chicago, on June 29, 2010. 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.
A._____ Was Respondent operating under and subject to the Illinois Worker’ Compensation or Occupational Disease 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 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.__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 extend of the injury?
M._____ Should penalties or fees be imposed upon Respondent?
N._____ Is Respondent due any credit?
O._____ Other ___________________
CarbDec 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
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On December 23, 2008, 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 $61,620.00; the average weekly wage was $1,185.00.
On the date of the accident, Petitioner was 62 years of age, married with 0 dependent children.
Petitioner has not 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, $0.00for 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.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $790.00/week for 18 &5/7’s weeks, commencing 12/24/2008 through 5/3/2009, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 12/23/2008 through 6/29/2010, 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.
Respondent shall pay reasonable and necessary medical services of $4747.60, as provided in section 8(a) of the Act.
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $720.00 to , $1,190.00 to $123.60 to , and $2,714.00 to 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.
Permanent Partial Disability: Person as a whole
Respondent shall pay Petitioner permanent partial disability benefits of $664.72/week for 25 weeks, because the injuries sustained caused the 5% 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 10 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.
Signature of Arbitrator Date
IC ArbDec p2
FINDINGS OF FACTS
The Petitioner is a semi truck driver for the Respondent. On December 23, 2008 the Petitioner testified that he was given a job assignment that is different than most other job assignments he receives. It was different in that it was a job that required him to unload his truck and he usually is only required to drive his truck. On that day he was assigned to make a delivery to a residential location on the North side of Chicago. He was required to unload heavy material including boxes and furniture. He testified that this took approximately three hours and he felt a twinge in his back while unloading the truck. He continued working and drove his truck to a Sara Lee factory, which was his next assigned stop on his route.
When the Petitioner arrived at the was a snow storm that was happening. He attempted to back his truck up to the loading dock at but his truck got stuck in the snow. The Petitioner got out of his truck and entered an office adjacent to the loading dock. A employee advised him that shovels were available and the Petitioner grabbed a shovel and walked back to his truck. The Petitioner testified that he had to shovel in the areas around the wheels of his truck in order to get his truck dislodged so he could back the truck up all the way to the loading dock. The Petitioner testified that the snow continued as his truck was loaded for about an hour. By the time his truck was fully loaded the wheels on his truck needed shoveling again to dislodge the truck from the snow. The petitioner again shoveled around the wheels of his truck to dislodge it. The Petitioner felt increased back pain while shoveling snow at . The Petitioner continued his work shift and went home at the end of the day.
The Petitioner was off work on December 24, 2008 and December 25, 2008. On December 26, 2008 the Petitioner reported to Dr. The Petitioner filled out a document titled “Accidental Injury Report” in the waiting room at Dr. office on that day. (Pet. Ex. #3). The Petitioner provided a description of his work injury on that document (See Pet. Ex. #3) that is consistent with his trial testimony.
The Petitioner testified that on December 24, 2008, he woke up to the sound of crews working in his neighborhood. The Petitioner testified that he woke up with significant pain in his back, but managed to get out of bed to check on the noise coming from the work crews. The Petitioner walked out to the front of his house and saw that a sewer grate was clogged with snow and ice. He testified that he was prepared to assist in getting the sewer unclogged so water did not back up in his neighborhood. He grabbed a shovel and attempted to assist in unclogging the sewer but could not because of the pain in his back.
The Petitioner followed up with Dr. on December 29, 2008 and December 31, 2008. At his December 31, 2008 appointment Dr. provided the Petitioner with a prescription for a lumbar MRI. On January 2, 2009, the Petitioner followed up with his family doctor, Dr. (Pet. Ex. #2). Dr. agreed with Dr. recommendation for the lumbar MRI and also prescribed physical therapy and pain medications. The Petitioner began physical therapy on January 2, 2009 at that continued through the middle of April 2009. On January 3, 2009 the Petitioner had the lumbar MRI that was prescribed. The MRI does show worsening of preexisting degenerative disc disease and the associated stenosis that is affecting the nerve roots at the L2-L3 level in the Petitioner’s lumbar spine. (Pet. Ex. #2). The Petitioner followed up with Dr. on multiple occasions until he was released to full duty work starting May 4, 2009 at his May 1, 2009 appointment with Dr.____. The medical records show that the Petitioner followed up with Dr. on at least three occasions following his full duty release.
The Petitioner testified that he had previously had minor medical treatment for his back prior to his work injury; however, he testified that any prior treatment was minimal and any symptoms had completely resolved long before his December 23, 2008 work injury. The most recent indication of any treatment to his back prior to the work injury is an April 28, 2008 MRI that the Respondent referenced at trial. That MRI was performed approximately eight months prior to his work injury. The Petitioner testified that the pain that he experienced from his work injury was more significant than any symptom he had ever previously felt. At the time of trial the Petitioner testified that he still experiences pain in the back.
The Respondent’s first witness was testified for the Respondent that he had a conversation with the Petitioner where the Petitioner indicated that his injury was not from work. He testified that he could not recall when the conversation happened.
The Respondent’s second witness was who works in human resources for the Respondent. She provided testimony for the Respondent that the Petitioner injured himself performing a non-work related activity.
CONCLUSIONS OF LAW
C. WITH REGARD TO ISSUE (C) DID AN ACCIDENT OCCUR THAT AROSE OUT OF AND IN THE COURSE OF PETITIONER’S EMPLOYMENT BY RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF THE LAW:
The Arbitrator finds that an accident did occur on December 23, 2008 that arose out of and in the course of the Petitioner’s employment with the Respondent. The Petitioner provided credible testimony at trial to support this conclusion, and the Petitioner’s medical records document his work injury. One medical record December 31, 2008 is inconsistent with the history given on all the other medical reports and the initial “Accidental Injury Report” of December 26, 2008, but the Arbitrator does not find this lone report sufficient to outweigh all of the other reports concerning accident history. Accordingly, the Arbitrator finds that the Petitioner did sustain an accident that arose out of and in the course of his employment by the Respondent.
F. WITH REGARD TO THE ITEM (F), WHETHER PETITIONER’S CURRENT CONDITION OF ILL-BEING IS CAUSALLY RELATED TO THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner’s current condition of ill being is causally related to his work injury. The Petitioner injured his lower back on December 23, 2008 at work. The Petitioner required significant medical treatment including diagnostic tests, multiple doctor visits and physical therapy to achieve maximum medical improvement The Petitioner testified that he still has pain in his back as of the date of trial. The Petitioner was pain free before his work injury and was working full duty. Accordingly, his current condition of ill being is causally related to his December 23, 2008 work injury.
J. WITH REGARD TO ITEM (J), WERE THE MEDICAL SERVICES PROVIDED PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner’s medical services were reasonable and necessary and the Respondent has not paid the appropriate corresponding medical bills. The Petitioner underwent conservative based medical treatment for his December 23, 2008 work injury that included doctor visits, diagnostic testing, and physical therapy. This treatment was necessary for the Petitioner to achieve maximum medical improvement. Accordingly, the Arbitrator concludes that the Petitioner’s medical treatment was reasonable and necessary and the Arbitrator awards the Petitioner payment of all outstanding medical bills pursuant to the Illinois Fee Schedule.
K. WITH REGARD TO ITEM (K), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner was unable to work from December 24, 2008 until May 3, 2009 due to his December 23, 3008 work injury and is awarded 18&5/7’s weeks of TTD benefits to compensate him for his lost time. The Petitioner has medical documentation (Pet. Ex #2, Pet. Ex #3) indicating his inability to work for this time period. Accordingly, the Arbitrator awards the Petitioner 18&5/7’s weeks of TTD benefits.
L. IN REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT OF PETITIONER’S INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner is injured to the nature and extent of 5% loss of use of a person as a whole. The Petitioner injured his lumbar spine on December 23, 2008 at work. His January 3, 2009 lumbar MRI finds significant changes in his lumbar spine. The Petitioner required approximately three and a half months of physical therapy, multiple doctor visits, and pain medication in order to achieve maximum medical improvement. He now complains of occasional pain to his back. The Arbitrator awards the Petitioner 5% loss of use of a person as a whole due to the Petitioner’s lumbar spine injury.