BEFORETHEILLINOISWORKERS’ COMPENSATION COMMISSION
Timely Petition for Review having been filed by the Petitioner here in and notice given to all parties, the Commission, after considering the issues of causal connection, temporary total disability and permanent disability and being advise dof the facts and law, modifies the Decision of the Arbitrator as stated below and other wise affirms and adopts the Decision of the Arbitrator, which is attached here to and made apar there of.
The Commission finds that the Petitioner is entitled to temporary total disability up to and including the date, this matter was tried before the Arbitrator.
The Petitioner was released from medical care for this injury by Dr. S after a functional capacity evaluation found Petitioner at maximum medical improvement. Dr. S released the Petitioner to return to work at light duty on August17,2009.(Petitioner Exhibit 4, Petitioner Exhibit 5)
Per the Petitioner’stestimony, this work restriction was permanent. As a truck driver, he would be unable to return to that job with those restrictions.((TranscriptPgs.19-21)
The Respondent continued to pay Petitioner temporary total disability payments until November15, 2012. On the date of the Arbitration hearing the Petitioner waived his right to recovery under§8(d)(I) and elected recovery under §8(d)(2
Page 2 13WCC1004
Therefore, Petitioner is entitled to temporary total disability payments up until he declared that he was waiving his rights under §8(d) (1) and §8(f).
IT IS THEREFORE ORDERED BY THE COMMISSION that Respondent pay to Petitioner the sum of $636.43 per week for a period of208 6/7 weeks, that being the period of temporary total incapacity for work under §8(b) of the Act.
IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay to Petitioner the sum of$572.78 per week for a period of 125 weeks, as provided in §8(d)(2) of the Act, for the reason that the injuries sustained caused the loss of use to the person as a whole to the extent of25%.
IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay to Petitioner interest under §19(n) of the Act, if any.
IT IS FURTHER ORDERED BY THE COMMISSION that Respondent shall have credit for all amounts paid, if any, to or on behalf of Petitioner on account of said accidental injury.
Bond for the removal of this cause to the Circuit Court by Respondent is hereby fixed at the sum of $72,300.00. The party commencing the proceedings for review in the Circuit Court shall file with the Commission a Notice of Intent to File for Review in Circuit Court.
DATED: November 25, 2013 _____________________________
Charles J. DeVriendt
Micheal J. Brennan
049 Ruth W. White
ILLINOIS WORKERS’ COMPENSATION COMMISSION NOTICE OF ARBITRATOR DECISION
Wxxxxxx, PATRICK Case#
On 2/6/2013, 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 0.11% 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
162 W GRAND AVE, SUITE 1810
0238 WOLF & WOLFE LTD
25 E WASHINGTON ST, SUITE 700
CHICAGO, IL 60602
Injured Workers’ Benefit Fund (§4(d))
Rate Adjustment Fund (§8(g))
Second Injury Fund (§8(e)l8)
None of the above
STATE OF ILLINOIS
COUNTY OF COOK )
ILLINOIS WORKERS’ COMPENSATION COMMUSSION ARBITRATION DECISION
Employee/Petitioner CASE # _______________
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 Brandon J. Zanotti, Arbitrator of the Commission, in the city of Chicago, on November 15, 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.
A. Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?
B. Was there an employee-employer relationship?
C. 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. 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. 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. What temporary benefits are in dispute?
TPD Maintenance TTD
L. What is the nature and extent of the injury?
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
ICArbDec 2110 100 W. Randolph Street #8-200 Chicago, IL 60601 3/218/4-6611 Toll-free 866/352-3033 Website: www.iwcc.il.gov Downstate offices: Collinsville 6!81346-3450 Peoria 3091671-3019 Rockford 8/51987-7292 Springfield 2171785-7084
On 10/31/2008, 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 not causally related to the accident to the extent that he has sustained subsequent significant injuries unrelated to the accident at issue.
In the year preceding the injury, Petitioner earned $49,640.24; the average weekly wage was $954.64.
On the date of accident, Petitioner was 65 years of age, married with 0 dependent children.
Petitioner has received all reasonable and necessary medical services.
Respondent has paid all appropriate charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $132,369.52 for TTD, $0 for TPD, $0 for maintenance, and $17,952.74 for medical benefits, for a total credit of $150,322.26.
Respondent is entitled to a credit of $0 under Section 8(j) of the Act. (See above for credit matters).
Respondent shall pay Petitioner temporary total disability (TID) benefits of $636.43/week for 39 4/7 weeks commencing 11/14/2008 through 08/17/2009, as provided in Section 8(b) of the Act
Respondent shall pay Petitioner permanent partial disability (PPD) benefits of $572.78/week for 125 weeks, because the injuries sustained caused the 25% loss of use to the person as a whole, as provided in Section 8(d)2 of the Act
Respondent shall be given a credit of $132,369.52 for TTD benefits that have been paid. This credit is against both the TTD award and the PPD award granted in this matter.
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.
STATEMENTOFINTERESTRATE: IftheCommissionreviewsthisaward,interestattheratesetforthontheNotice of DecisionofArbitratorshallaccruefromthedatelistedbelowtothedaybeforethedateofpayment;however, ifanemployee’sappealresultsineithernochangeoradecreaseinthisaward,interestshallnotaccrue
Signature of Arbitrator Date
STATE OF ILLINOIS
)SS. CASE # _______________
COUNTY OF COOK )
ILLINOIS WORKERS’ COMPENSATION COMMUSSION ARBITRATION DECISION
Employee/Petitioner CASE # _______________
Consolidated cases: ______
MEMORANDUM OF DECISION OF ARBITRATOR
FINDINGS OF FACT
Petitioner, Patrick Wt, resided in Arkansas during the time of hearing, and testified via deposition. (See Petitioner’s Exhibit (PX) 11). At trial, Petitioner, through counsel, waived
right of recovery under Section 8(d)1 of the Illinois Workers’ Compensation Act, 820 ILCS 305/1 et seq. (hereafter the “Act”), and elected recovery under Section 8(d)2 of the Act. See Gallianetti v. Industrial Comm ‘n, 315 Ill. App. 3d 721, 734 N.E.2d 482 (3d Dist. 2000).
Petitioner testified that he currently resides in Glenwood, Arkansas. He was employed as a truck driver for Respondent, PeopLease Corp. As part of Petitioner’s job duties, he had to lift tarps that weighed up to 100 pounds. (PX 11, pp. 6-8).
On October 31, 2011, Petitioner could not secure a load because one of the straps would not stay tight. He climbed up on top of the trailer to tighten the strap. While on top of the load, the strap snapped, causing him to jump back and fall off the back of his truck. He landed on his right shoulder first, and then his neck and his head hit the ground. (PX 11, pp. 8-9). Petitioner was in Daisy, Virginia when the accident occurred, but sought medical attention upon returning to Arkansas. (PX 11, p. 11).
Petitioner went to St. Joseph’s Mercy Business Health (hereafter “St. Joseph’s”) on November 14, 2008. (PX 11, p. 11). He reported that he did not initially feel any discomfort, but noticed increasing pain in his right posterior cervical spine, shoulder, and right lateral upper back. Petitioner’s right shoulder x-rays did not reveal any abnormalities. His assessment at that time was a right shoulder strain and right cervical strain. He was prescribed pain medication and returned to work with restrictions. (PX 9). Petitioner testified that Respondent could not accommodate these work restrictions. (PX 11, p. 12). Petitioner testified that he has not been employed in any capacity since August 2009. (PX 11, p. 30).
Petitioner returned to St. Joseph’s on November 21, 2008, where the assessment was bilateral shoulder strain, right shoulder strain, and thoracic strain (unimproved). (PX 9).
On December 1, 2008, Petitioner returned to St. Joseph’s and was taken off work completely since he was not improving. (PX 9; PX 11, p. 13). X-rays of his cervical and thoracic spine revealed degenerative disc disease at C5-C6, but otherwise were normal studies. (PX 9). He began a course of physical therapy on December 5, 2008, and had some improvement from the therapy. (PX 9; PX 11, pp. 13-14}. However, he testified that he continued to have pain during this time. (PX 11, p. 14).
On December 29, 2008, cervical and thoracic MRIs were ordered, and those were performed on January 7, 2009. (PX 11, pp. 14-15}. Petitioner testified that the MRIs showed degenerative disc disease, including disc distension and mild loss of disc height at multiple levels. (PX 11, p. 15). The cervical MRI showed mild spinal stenosis with bilateral neural foraminal narrowing at C5-C6 and mild to moderate spinal stenosis with bilateral neural foraminal narrowing at C6-C7, which was most pronounced in the right paracentral location.
The thoracic MRI showed mild degenerative disc disease within the thoracic spine including disc
desiccation and mild loss of disc height at multiple levels. (PX 7).
Petitioner testified that he continued to follow up with St. Joseph’s on January 9, 2009, January 26, 2009 and February 2, 2009. (PX 11, p. 15). X-rays of the right scapula taken on January 9, 2009 were normal. (PX 9). He was returned to work with restrictions on this date. (PX 9). On February 2, 2009, he was referred to a neurosurgeon and physical therapy was discontinued. (PX 9; PX 11, p. 16).
Petitioner testified that he was sent for an examination pursuant to Section 12 of the Act with Dr. Scott Schlesinger on March 13, 2009. (PX 11, p. 16). Dr. Schlesinger believed the treatment and pain complaints were related to the accident. (PX 6; PX 11, p. 16). Dr. Schlesinger ordered a lumbar MRI and recommended epidural steroid injections (ESIs). (PX 6).
On March 31, 2009, Petitioner underwent a lumber spine MRI. The MRI showed compression of the superior endplate ofL2 or L3, which was chronic in nature with no bony edema associated, and a mild bulging disc at the L1-2level. No disc herniation, canal stenosis or other significant lumbar pathology was seen. (PX 7).
On May 4, 2009, Petitioner began seeing Dr. Brent Sprinkle at Arkansas Specialty Spine Center. (PX 11, p. 17). X-rays of the spine were reviewed, which showed diffuse degenerative changes, mild curvature, and multiple old subclinical compression fractures with wedging, and some endplate changes consistent with subclinical osteoporotic fractures. The cervical, thoracic and lumbar spine MRIs showed diffuse degenerative changes as well. Dr. Sprinkle’s impression was an aggravation of pre-existing degenerative changes. (PX 5).
Petitioner testified that he received three ESIs from Dr. Sprinkle on May 20, 2009, June 23, 2009 and July 13, 2009, respectively. (PX 8; PX 11, pp. 17-19). Dr. Sprinkle also ordered a CT scan of Petitioner’s head, which was performed on June 13, 2009. (PX 11, p. 18).
Petitioner also received a course of physical therapy at Levi Hospital, which ran from July 6, 2009 through August 12, 2009. (PX 7; PX 11, p. 18). During his initial evaluation for therapy, he stated that his pain began in October 31, 2008, when he was working as a truck driver transporting containers. He reported falling on his right side. Petitioner reported that pain began several days following the accident. The pain in his back got so severe that he could not move his arms. He was discharged from physical therapy on August 12, 2011. Petitioner was discharged prior to meeting all of his goals, due to increased pain in upper back and cervical area. He had improved his lower body strength. (PX 7).
Petitioner testified that on July 30, 2009, Dr. Sparkle told him that he was not a surgical candidate, and further ordered a functional capacity evaluation (FCE). (PX 11, p. 19). Dr. Sprinkle told him there was very little that could be done medically for him at that point. (PX 11,
p. 19). Dr. Sprinkle noted that two other physicians had also recommended that Petitioner not undergo surgery. (PX 5). At that time, Dr. Sprinkle’s impression was cervical degenerative disc disease (pre-existing), thoracic degenerative disc disease (pre-existing), lumbar degenerative disc disease (pre-existing), cervical strain, thoracic strain, and lumbar strain. Dr. Sprinkle went on to state:
7. I think he is at maximum medical improvement from a conservative treatment standpoint for [his] strain events.
8. I think his imaging findings are consistent with pre-existing degenerative phenomena. His work injury may have aggravated that. Therefore, I think there is a 0% impairment rating.
9. He can return to work per his FCE, although any restrictions identified in the FCE, in my opinion, are more heavily related to his pre-existing.
10. I will see him back on an as needed basis. (PX 5).
Petitioner underwent a FCE on August 14, 2009. (PX 11, p. 20). The exam was considered valid and put Petitioner at a Light Physical Demand level per US Department of Labor guidelines. (PX 4). Petitioner initially testified he did not review the FCE results with Dr. S then later testified that in “some respect” he reviewed the FCE with Dr. Sprinkle. (PX 11, p. 20). Per the FCE, Petitioner had permanent restrictions of lifting no more than fifteen pounds (occasional lifting of up to 30 pounds), reaching with five pounds, and walking. (PX 4;PX 11, pp. 20-21). He testified that he was released at maximum medical improvement (MMI) at that time. (PX 11,p. 21).
On August 17, 2009, Dr. S gave restrictions of occasionally lifting up to 30 pounds, with the ability to frequently walk and carry up to 15 pounds and reach with 5 pounds. (PX 5).
opinions were based upon the release provided by the doctor, because he had not had any conversations with Petitioner, had not reviewed his deposition transcript, had not investigated jobs in Arkansas, and did not know Petitioner’s current physical condition.
CONCLUSIONS OF LAW
Issue (F): Is Petitioner’s current condition of ill-being causally related to the injury?
Petitioner’s current condition of ill-being is not causally related to his workplace injury to the extent he has sustained subsequent significant injuries unrelated to the accident at issue. In support of said finding, it is undisputed by the parties that Petitioner suffered a stroke in January 2011, an injury to his back in January 2011, a fall in Spring 2011 where he “cracked” his skull, suffered from rheumatoid arthritis prior to working for Respondent, and had pre-existing degenerative back problems prior to working for Respondent. Petitioner has also testified that his stroke has caused him balance issues. These balance issues have also contributed to his current condition of ill-being. The Arbitrator finds that the stroke and subsequent falls have significantly contributed to his current condition of ill-being and said events are not causally related to his workplace accident.
Petitioner’s condition on July 30, 2009, the date he was put at MMI by Dr. S, and on August 1, 2009, when Dr. S formally reported Petitioner’s restrictions based on the FCE, was causally related to his workplace accident. As such, any award in this matter will be based upon Petitioner’s condition as of August 17, 2009.
Issue (K): What temporary benefits are in dispute? (TTD); and
Issue (N): Is Respondent due any credit?
The evidence establishes that Petitioner was temporarily and totally disabled from November 14, 2008 until August 17, 2009, and he shall be awarded temporary total disability (TTD) benefits for this period.
Section 8(b) of the Act, which governs TTD awards, provides that weekly compensation shall be paid “as long as the total temporary incapacity lasts.” Gallianetti v. Industrial Comm ‘n, 315 Ill. App. 3d at 732. The touchstone for determining whether a claimant is entitled to TTD benefits is whether the claimant’s condition has stabilized to the extent that he is able to reenter the work force. Interstate Scaffolding, Inc. v. Ill. Worker’s Comp. Comm ‘n, 236 Ill.2d 132, 148, 923 N.E.2d 266 (2010).
Petitioner was initially given work restrictions on November 14, 2008, which Respondent could not accommodate. While Dr. S placed Petitioner at MMI on July 30, 2009, Dr. S also stated that Petitioner could return to work per his FCE restrictions. The FCE did not take place until August 14, 2009, just over two weeks later. Dr. S then reviewed the FCE, and formally reported his restrictions for Petitioner on August 17, 2009, based on the FCE. (PX 5). Accordingly, the appropriate last date for TTD benefits would thus be August 17, 2009, when it was confirmed by Petitioner’s treating physician that Petitioner’s condition had
stabilized and the work restrictions for his re-entering of the workforce were established by Dr. S.
Further, the issues of vocational rehabilitation and maintenance were not raised by either party, and these issues are hereby considered waived. See Porfanis v. Industrial Comm ‘n,230 Ill. App. 3d 657, 595 N.E.2d 158 (1st Dist. 1992).
In sum, Petitioner is entitled to TTD benefits from November 14, 2008 until August 17, 2009, representing a period of39 417 weeks. It was stipulated that Respondent paid $132,369.52 in TTD benefits, to which it should be allowed credit. (See Arbitrator’s Exhibit 1). Respondent is entitled to a credit for $132,369.52 against both the TTD award and the permanency award (see infra) in this matter. See Gallianetti v. Industrial Comm ‘n, 315 Ill. App. 3d at 734 (stating that overpayment of TTD benefits can be credited against a claimant’s PPD award).
Issue (L): What is the nature and extent of the injury?
As stated, supra, Petitioner has waived recovery under Section 8(d) 1 of the Act and has elected to proceed for recovery under Section 8(d)2 of the Act.
Dr. Sprinkle opined that Petitioner sustained a back strain that may have aggravated a pre-existing condition. Petitioner has attempted to put forward evidence that his earning capacity was diminished by the accident at issue. While his restrictions from the FCE performed on August 14, 2009, and affirmed by Dr. Sprinkle on August 17, 2009, would limit his ability to return to his former job, Petitioner presented no credible evidence showing what type of work he could have performed as of the date of the hearing.
The testimony of Mr. Steffan is given little weight. Mr. Steffan never spoke with Petitioner or read Petitioner’s deposition transcript. Furthermore, Mr. Steffan admitted that he was unfamiliar with the job market in rural Arkansas, where Petitioner resides.
Mr. Steffan based the majority of his opinions on the FCE and Dr. Sprinkle’s final note, when he concluded that Petitioner’s earning capacity would be limited by this accident. This opinion lacked the knowledge required to determine a person’s employability, since Mr. Steffan was unaware of the labor market in the area where Petitioner resided or how other health issues affected Petitioner’s employability. Furthermore, he had no insight into Petitioner’s present condition and could not identify when other health problems changed Petitioner’s employability. These issues in turn prevented Mr. Steffan from giving any convincing opinion regarding Petitioner’s employability as of the hearing date, which makes his testimony carry little if no relevance to the issue of Petitioner’s earning capacity on the hearing date.
Petitioner’s treating physician, Dr. Sparkle stated that, “I think his imaging findings are consistent with pre-existing degenerative phenomena. His work injury may have aggravated that. Therefore, I think there is a 0% impairment rating.” (PX 5). (emphasis added).
Additionally, the July 30, 2009 office note clarified the fact that Petitioner reached “maximum medical improvement from a conservative treatment standpoint for his strain
events.” (PX (emphasis added). This sentence adds even more support to the fact that Dr.
Sprinkle believed Petitioner to have suffered only strains as a result of his workplace injury.
As such, the evidence shows that Petitioner suffered multi-level back and bilateral shoulder strains as a result of his fall. Petitioner failed to prove that his earning capacity was diminished as a result of this accident, as of the date of hearing. Based upon all the aforementioned evidence, Petitioner is not entitled to an enhanced permanent partial disability (PPD) award based on diminished earnings capacity, since he has failed to present sufficient evidence showing a loss of earning capacity that was causally related to the work accident.
As such, the Arbitrator bases his findings on the nature and extent of Petitioner’s injuries upon the credible evidence in the record, specifically, the opinion of Dr. Sprinkle that Petitioner suffered a bilateral shoulder strain and 3-level back strain with resulting physical therapy and injections as a result of the injury, and had a 0% impairment for such injury, as well as all other relevant factors, including the permanent FCE restrictions. Therefore, Petitioner has suffered the 25% loss of use to the person as a whole pursuant to Section 8(d)2 of the Act based on his October 31, 2008 injury. Accordingly, Respondent owes Petitioner PPD benefits based on the same, and Respondent shall be entitled to a credit against the PPD award, as discussed supra.