STATE OF ILLINOIS )
COUNTY OF COOK ) X Affirm and adopt | Injured Workers’ Benefit Fund (§4(d))
Affirm with changes | Rate Adjustment Fund (§8(g))
Reverse | Second Injury Fund (§8(e)18)
| PTD/Fatal denied
Modify | X None of the above
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION AND OPINION ON REVIEW
Timely Petition under §19(b) having been filed by the Respondent herein and notice given to all parties, the Commission, after considering the issues of temporary total disability, medical expenses, penalties and fees and being advised of the facts and law, affirms and adopts the Decision of the Arbitrator, which is attached hereto and made a part hereof. The Commission further remands this case to the Arbitrator for further proceedings for a determination of a further amount of temporary total compensation or of compensation of permanent disability, if any, pursuant to Thomas v. Industrial Commission, 78 Ill.2d 327, 399 N.E.2d 1322.35 Ill. Dec. 794 (1980).
IT IS THEREFORE ORDERED BY THE COMMISSION that the Decision of the Arbitrator filed March 3, 2011 is hereby affirmed and adopted.
IT IS FURTHER ORDERED BY THE COMMISSION that this case be remanded to the Arbitrator for further proceedings consistent with the Decision, but only after the latter of expiration of the time for filing a written request for Summons to the Circuit Court has expired without the filing of such a written request, or after the time of completion of any judicial proceedings, if such a written request has been filed.
IT IS FURTHER ORDERED BY THE COMMMISSION that Respondent pay 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 the 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 $46,000.00. The probable cost of the record to be filed as return to Summons is the sum of $35.00, payable to the Illinois Workers’ Compensation Commission in the form of cash, check or money order therefore and deposited with the Office of the Secretary of the Commission.
Dated: Oct. 17, 2011
ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
____________________ Case # _________________
On 3/3/2011, 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 0.17% 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 ) � Injured Workers’ Benefit Fund (§4(d))
� Rate Adjustment Fund (§8(g))
� Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
____________________ Case # _________________
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 Commission, in the city of Chicago, on 1/19/2011. 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. 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. Is Petitioner entitled to any prospective medical care?
L. x What temporary benefits are in dispute?
__TPD __Maintenance __TTD
M. X Should penalties or fees be imposed upon Respondent?
N. Is respondent due any credit?
O. Other _____
On the date of accident, 11/7/2008, 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 $40,768.00; the average weekly wage was $784.00.
On the date of the accident, Petitioner was 48 years of age, single with 0 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 $28,522.62 for TTD, $0.00 for TPD, $0.00 for maintenance, and 11,878.40 for other benefits, for a total credit of $40,401.02.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
Respondent shall pay Petitioner temporary total disability of $522.66/week for 98 weeks, commencing 12/4/2008 to 4/1/010 through 6/1/2010 to 12/19/2010, as provided in Section 8(b) of the Act.
Respondent shall be given a credit of $28,522.62 for temporary total disability benefits that have been paid.
Respondent shall pay reasonable and necessary medical services of $3,253.00, as provided in Sections 8(a) and 8.2 of the Act.
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.
Respondent shall be given credit for $11,878.40 for PPD Advances paid.
If 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 award, interest shall not accrue.
Statement of Arbitrator Decision
STATEMENT OF FACTS
Petitioner works as a welder/fitter for a construction company. He maintains his residency in the State of Nebraska. His company does construction jobs in several different states. Respondent did work as a fabricator of steel and an erection company. Petitioner’s work primarily consisted of rod welding. However, his job required other duties including lifting and carrying. Petitioner is required to travel to different construction jobs that he is assigned to work.
On November 7, 2008, Petitioner was working at a construction site for Respondent in the State of Illinois when he had to lift a bucket of “bull-pins.” Petitioner testified the pins were line steel spikes and the bucket weighed between 50 to 100 pounds. As he lifted the bucket, he felt a pain in his midsection. Petitioner testified that he initially continued working assuming that the pain would abate. When the pain in his midsection did not go away Petitioner reported to _____________ Hospital on November 19, 2008 and was diagnosed with an umbilical hernia. (Pet. Ex. #1)
Petitioner returned to the state of Nebraska for follow up care and was referred by a friend to a general surgeon, Dr. ____________. Petitioner first saw Dr. ___________ on December 15, 2008. (Pet. Ex. #2) Dr. ____________ indicated that petitioner required a light duty work restriction of 25 pounds lifting maximum and recommended surgery to repair the Petitioner’s hernia. (Id.) On January 2, 2009, Dr. __________ performed surgery to repair his hernia. Dr. __________ kept Petitioner in an off-work status following surgery. Petitioner started to experience excruciating pain in his midsection following surgery. As result, Dr. __________ referred Petitioner to Dr. __________ for further evaluation.
On July 9, 2009, Petitioner saw Dr. __________. Petitioner provided that although he was doing better, he still had pain. The doctor ordered him off work until at least September 2009. (Pet. Ex. #2) Records submitted show Petitioner participated in physical therapy in August and September 2009. (Pet. Ex. #4) Petitioner testified that he experience pain in the abdominal area during the therapy sessions.
Petitioner returned to Dr. __________ on September 18, 2009. The doctor noted Petitioner pain was better, but not completely resolved. He indicated Petitioner had a slight occurrence of the hernia. He felt Petitioner appeared to be developing fullness in his umbilicus. The doctor noted that since the hernia was repaired with Alloderm rather than plastic mesh, this might be laxity and not a true occurrence. He indicated a CT scan would be necessary to check this out. The doctor opted to observe Petitioner before ordering same. (Pet. Ex. #3)
On October 29, 2009 Petitioner was seen by Respondent’s IME doctor, Dr. __________. At that time, Dr. __________ noted that Petitioner suffered an abdominal wall umbilical hernia. The doctor noted that there was a known causal relationship between lifting and such a hernia. However, the doctor opined that the complaints of moderately severe pain were inconsistent with the reasonably demonstrable objective clinical findings. The doctor believed that Petitioner was possibly de-conditioned, but there was no evidence to indicate that he was not able to work. Dr. __________ was also concerned about behavioral issues restricting Petitioner but felt it would be wise to proceed with a CT scan. He noted that if the CT scan was unremarkable, then Petitioner could return to work without restrictions. (Resp. Ex. #1)
Petitioner saw Dr. __________ I follow up on November 20, 2009. At that appointment, Dr. __________ notes indicate a recurrence of Petitioner’s hernia. The doctor remarked that he was not surprised, “…because we couldn’t use a proper prosthesis (used Alloderm) when I removed it before…” He also remarked that he does not feel Petitioner was capable of returning to construction work and instead would be better suited with a desk-type job. He recommended further surgery using a lightweight mesh. (Pet. Ex. #3)
Petition saw Dr. __________ in follow up on December 18, 2009. The doctor noted that Petitioner had a significant abdominal wall problem. He felt that it would be in Petitioner’s best interest to only perform work involving mild to moderate lifting procedures. (Pet. Ex. #2)
On January 13, 2010, Dr. __________ wrote that Petitioner had another recurrence of his hernia that will require surgical repair. He also indicated that Petitioner was experiencing post-injury depression. (Pet. Ex. #3)
On April 5, 2010, Respondent’s IME physician, Dr. _________ issued an addendum report. The doctor reviewed additional medical records. Dr. __________ indicated he expects Petitioner to be able to accomplish “…any and all activities for which he [was] adequately motivated, adequately trained, and adequately physically conditioner.” (Resp. Ex. #2) Petitioner testified he attempted to get authorization for the surgery recommended by Dr. __________ but the surgery was denied.
On May 29, 2010, Dr. __________ reiterated his recommendation that Petitioner would require another hernia repair surgery. He also opined that Petitioner could not work construction and would likely not be able to work in construction as his livelihood in the future. (Pet. Ex. #5)
On July 22, 2010, Petitioner underwent another CT scan of his abdomen on July 22, 2010. Dr. __________ office note of August 6, 2010 indicates that the CT scan confirms a recurrence of Petitioner’s hernia. He continued to indicate that surgery was required to alleviate Petitioner’s hernia condition. (Pet. Ex. #3) He also indicates that even if Petitioner has the hernia repaired through surgery, he will most likely not be able to return to heavy lifting type work. (Id.)
On September 14, 2010, Dr. __________ authored a report indicating he had opportunity to review the CAT scan. Following the review of the scan, the doctor opined that there were no findings that would provide a physiologic or anatomic explanation for the complaints of chronic abdominal pain. (Resp. Ex. #3)
On September 21, 2010, Petitioner underwent surgery at __________ University Medical Center to repair his recurrent hernia. (Pet. Ex. #3) Following surgery, Petitioner saw Dr. __________ on October 13, 2010 and November 24, 2010. At his November 24, 2010 office visit, Dr. __________ indicates Petitioner had a great functional result with no evidence of a recurrence. The doctor indicated Petitioner probably never will be pain free due to multiple operations and the build-up of scar tissues. He felt Petitioner requires vocational retraining to a job with a very minimal 10lb lifting restriction.
At Respondent’s request, Petitioner underwent an independent evaluation with Dr. __________ on November 2, 2010. Dr. __________ opined that Petitioner had no psychiatric diagnosis and that he was not restricted from any psychiatric standpoint from working. (Resp. Ex. #4)
Petitioner testified that on December 20, 2010 he returned to welding-based work in Wisconsin for a company called _______________. Petitioner testified that he was forced to work against doctors’ recommendations out of financial necessity only. At the time of the hearing, Petitioner stated that he felt sore in the abdomen. He raided his pain at 5/10 on average.
F. WITH REGARD TO ITEM (F), WHETHER THE PETITIONER’S CURRENT CONDITION OF ILL-BEING IS CAUSALLY RELATED TO WORK INJURY, THE ARBITRATOR FINDS THE FOLLOWING:
It is undisputed that Petitioner sustained a hernia injury working for Respondent on November 7, 2008. Petitioner has no known history of medical treatment to his abdominal area prior to November 7, 2008. Since that time, Petitioner’s medical records document consistent medical treatment for his work related hernia injury. Petitioner has required three surgeries to date to repair his work related hernia injury. As of the date of trial, Petitioner continues to have pain at the hernia site. Petitioner’s medical records document that his medical treatment for the hernia is directly related to his November 7, 2008 work injury. The Arbitrator is not persuaded by the opinions of Respondent’s IME physician, Dr. __________. Instead, the Arbitrator relies on the opinions of Petitioner’s treating physicians. The Arbitrator specifically finds that Petitioner’s present condition of ill-being is causally related to his November 7, 2008 work injury with Respondent.
The Arbitrator notes that Petitioner reported complaints of depression to his treating doctors. Complaints of depression were also noted in examination by Dr. __________. No records of treatment for depression were presented by Petitioner. Respondent did secure an opinion by Dr. __________ who opined that Petitioner had no psychiatric diagnosis. He was not restricted from any psychiatric standpoint from working.
Based on this, the Arbitrator finds that Petitioner has failed to prove that he suffered any psychological or psychiatric injury. The Arbitrator adopts the opinions of Dr. __________.
J. WITH REGARD TO ITEM (J), WHETHER THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER WERE REASONABLE AND NECESSARY AND WHETHER THE RESPONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR FINDS THE FOLLOWING:
Having found the requisite causal relationship, the Arbitrator finds that Petitioner’s medical treatment for his November 7, 2008 work injury was necessary and reasonable. Petitioner has no known history of medical treatment for hernia prior to his November 7, 2008 work injury and has required consistent medical treatment since that time. Petitioner has required three hernia repair surgeries, physical therapy, diagnostic testing, follow up doctor visits, pain medication, as well as other medical care for his November 7, 008 work injury. All of his treatment was required to adequately address Petitioner’s medical needs associated with his hernia injury. Accordingly the Arbitrator specifically finds that all of Petitioner’s medical treatment for his November 7, 2008 hernia injury to date to be reasonable and necessary. It appears from the evidence submitted that all medical expenses have been pain with the exception of a $3,188.00 balance due to Dr. __________ and a $65.00 balance due to Dr. __________. Having found that all medical treatment was reasonable and necessary, the Arbitrator finds that Respondent is responsible for said balances. Same are to be paid consistent with the fee schedule under Section 8(a) and 8.2 of the Act.
L. WITH REGARD TO ITEM (L), WHAT TTD BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Arbitrator finds Petitioner entitled to TTD benefits from December 4, 2008 to April 1, 2010 and June 1, 2010 to December 19, 2010, representing 98 weeks of TTD benefits. Petitioner’s medical records and testimony show that Petitioner was unable to work during those time periods due to his November 7, 2008 work injury. Accordingly, the Arbitrator awards 98 weeks of TTD benefits to Petitioner.
M. WITH REGARD TO ITEM (M), SHOULD PENALTIES AND FEES BE AWARDED AGAINST THE RESPONDENT, THE ARBITRATOR FINDS THE FOLLOWING:
The Arbitrator finds that Respondent’s reliance on the opinions asserted by Dr. __________ was not unreasonable. As such, Petitioner’s request for penalties is denied.
N. WITH REGARD TO ITEM (N), WHETHER THE RESPONDENT IS DUE ANY CREDIT, THE ARBITRATOR FINDS THE FOLLOWING:
Respondent is entitled to a credit for past TTD paid and past permanency advanced paid.