Herniated Disc, Back Injury [2011]

Herniated Disc, Back Injury 2011

ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF ARBITRATOR DECISION

____________________ Case #
Employee/Petitioner
____________________
Employer/Respondent

On 6/17/2011, 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 0.10% 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 )
)SS.
COUNTY OF COOK

ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION

____________________ Case#__________
Employee/Petitioner

v Consolidated cases: _______

____________________
Employer/Respondent

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 March 3, 2011 and March 10, 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.

DISPUTED ISSUES

A._____ Was Respondent operating under and subject to the Illinois Worker’ Compensation or Occupational Disease 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.__x___ What was the date of the accident?
E.__x___ 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
Downstate offices: Collinsville 618/346/3450 Peoria 309/671/3019 Rockford 815/987/7292 Springfield 217/785/7084

FINDINGS

On 7/15/09, 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 $4,351.33; the average weekly wage was $312.35.

On the date of the accident, Petitioner was 37 years of age, single with 3 dependent children.

Petitioner has 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.

ORDER

Temporary Total Disability

Respondent shall pay Petitioner temporary total disability benefits of $309.33/week for 9 3/7 weeks, commencing 8/3/2009 through 10/7/2007, as provided in Section 8(b) of the Act.

Respondent shall pay Petitioner temporary total disability benefits that have accrued from 8/3/2009 through 10/7/2009, 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.

Medical benefits

Respondent shall pay reasonable and necessary medical services of $8,881.00, as provided in section 8(a) of the Act.

Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $2,446.00 to and $6,435.00 to as provided in Sections 8(a) and 8.2 of the Act.

Respondent shall pay reasonable and necessary medical services of $8,881.00, as provided in section 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 $309.33/week for 62.5 weeks, because the injuries sustained caused the 12.5% loss of the person as a while, 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.

________________________________ 6-12-11
Signature of Arbitrator Date

IC ArbDec p2
State of Illinois )
)SS.
County of Cook )
)
Petitioner, )
)
v ) Case No.
)
)
Respondent, )
STATEMENT OF FACTS

The Petitioner was employed by the Respondent, ;, (hereinafter referred to as “the Respondent”) as a temporary employee. The Petitioner testified that he worked for the Respondent at “ “ in Wheeling, Illinois and had worked at this location for approximately four months starting in March 2009. The Petitioner testified that on July 15, 2009 he was working for the Respondent at and that his job duties that day were to pack boxes with aluminum trays and then to load the boxes onto skids. The Petitioner testified that he was lifting one such box of trays and went to place the box on a skid when he felt a sharp pain in his lower back. The Petitioner testified that he informed his co-worker, , and then notified his supervisor, , of this injury. The Petitioner testified that told the Petitioner that the Petitioner could fill out an accident report, but that he would be fired. The Petitioner testified that he did not fill out an accident report because he was afraid he would be fired. The Petitioner testified that he continued to work despite the pain in his lower back and did not seek medical attention at that time due to his lack of money and his fear of being fired.
The Petitioner testified that on July 20, 2009 he injured his left thumb as a result of a work injury that is the subject of . The Petitioner testified that he reported this injury on July 20, 2009 and was fired by the Respondent on July 21, 2009. The Petitioner testified that he continued to experience pain in the lower back.
The Petitioner testified that on August 3, 2009 he sought medical treatment at . The Petitioner reported that he injured his back at work while lifting boxes weighing approximately 60 pounds and complained of pain in his lower back with radiating into his right buttock. (Pet. Ex. #2, pp.21) A course of physical therapy for the Petitioner’s low back was recommended and the Petitioner was placed off work. (Pet. Ex. #2, pp. 24)
The Petitioner testified that the physical therapy he received did not alleviate his pain. The Petitioner was referred to for an MRI of his lumbar spine that was performed on August 24, 2009. (Pet. Ex. #3, pp.4) The MRI revealed a 3-4mm disc herniation at L4-5 and a 4-5mm disc herniation at L5-S1. (Pet. Ex. #2, pp. 5)
The Petitioner testified that he was seen at on August 25, 2009 and complained of continued pain in his lower back. On that date, the Petitioner was release to light duty work, however, the Petitioner had been fired by the Respondent on July 21, 2009 and his light duty restrictions were not accommodated by the Respondent. (Pet. Ex. #2, pp.19) The Petitioner testified that he continued to receive physical therapy until October 7, 2009, at which time he was released by the doctors at . (Pet. Ex. #2, pp.16)
The Petitioner testified that the physical therapy he received did not help the pain in his low back, however, the Petitioner testified that he still experiences pain in his low back. The Respondent did not present any witnesses at trial.

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 Petitioner was injured in an accident that arose out of an in the course of the Petitioner’s employment by the Respondent. The Petitioner testified that he was working for the Respondent at in Wheeling, Illinois on July 15, 2009. On that day the Petitioner’s job duties included placing aluminum trays into boxes and lifting and placing these full boxes on skids. It was while lifting these boxes that the Petitioner experienced a sharp pain in his lower back. The Petitioner testified that after reporting his injury to his supervisor, , he continued working due to the fact that he was afraid he would lose his job.
When the Petitioner first sought medical treatment at , he reported the same mechanism of injury. In the Petitioner’s August 3, 2009 medical note from there is a short narrative that states that the Petitioner was lifting boxes that weighed 60 pounds and stacking them on top of each other at work when he felt pain in his lower back. (Pet. Ex. #2, pp.21) The Petitioner’s medical records from where the Petitioner had his August 24, 2009 MRI, also lists the history of his pain as occurring on July 15, 2009 while lifting and loading boxes and placing them onto skids at work. (Pet. Ex. #3, pp.3) The Petitioner’s medical records and the Petitioner’s trial testimony are in congruence. Further, the Respondent offered no testimony or medical evidence at trial rebutting the Petitioner’s testimony and medical evidence.
The Petitioner sustained an injury in an accident that arose out of an in the course of his employment by the Respondent.
E. IN REGARD TO THE ITEM (E), WAS TIMELY NOTICE OF THE ACCIDENT GIVEN TO THE RESPONDENT, the ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

Timely notice of the Petitioner’s July 15, 2009 work injury was given to the Respondent. The Petitioner testified that after being injured on July 15, 2009 he reported the injury to his supervisor, . The Petitioner further testified that informed the Petitioner that he would be fired if a formal report was ever filled out. The Petitioner’s testimony at trial was most credible. The fact that the Petitioner sustained another work injury on July 20, 2009 that was reported and the Petitioner was fired the next day lends credence to the fact that this conversation took place on July 15, 2009. The Respondent produced no evidence at trial to rebut the Petitioner’s credible testimony. The Petitioner provided timely notice of this July 15, 2009 work injury to the Respondent.

F. IN REGARD TO ISSUE (F), WHETHER THE PETITIONER’S CURRENT CONDITION OF ILL-BEING 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 July 15, 2009 work injury. The Petitioner has sought consistent medical treatment for this injury. Further, when the Petitioner reported to on August 3, 2009 he reported the fact that he had injured his lower back at work while lifting and stacking boxes. (Pet. Ex. #2, pp.21) The Petitioner has had the same complaints since his July 15, 2009 work injury, namely pain in his lower back. The Petitioner testified that he had never had any pain in his lower back prior to July 15, 2009. Further, the Petitioner’s MRI of August 24, 2009 shows objective evidence of the injury to the Petitioner’s lumbar spine, as it reveals two herniated discs. The Respondent produced no evidence at trial to suggest a mechanism of injury other than the July 15, 2009 work injury. The Petitioner testified credibly at trial and introduced supporting medical evidence. The Petitioner’s current condition of ill-being is causally related to this July 15, 2009 work injury with the Respondent.

J. IN REGARD TO ITEM (J), WERE THE MEDICAL SERVICES PROVIDED TO THE PETITIONER REASONABLE AND NECESSARY, AND HAS THE RESPONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The medical services provided to the Petitioner have been both reasonable and necessary and the Respondent has not paid all appropriate medical changes. As a result of the Petitioner’s July 15, 2009 work-related injury to his lumbar spine, the Petitioner required medical treatment and physical therapy in an attempt to achieve maximum medical improvement. Physical therapy for two herniated lumbar discs constitutes reasonable and necessary treatment.
The Respondent has not paid all appropriate medical charges. The Petitioner produced evidence at trial that demonstrates that the Respondent has not paid all of the medical charges from and for the Petitioner’s reasonable and necessary course of treatment. (See generally Pet. Ex. #1) The Petitioner’s is awarded the charges for this medical treatment with and to be paid pursuant to the Illinois Medical Fee Schedule or charged amount, whichever is lower.

K. IN REGARD TO ITEM (K), WHAT TEMPORARY TOTAL DISABILITY BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Petitioner is entitled to temporary total disability benefits from August 3, 2009 through October 7, 2009. The Petitioner has presented credible testimony and supporting medical documentation to that demonstrate that the Petitioner was medically unable to work from August 3, 2009 through October 7, 2009 due to the injury he sustained on July 15, 2009. A work status slip from dated August 3, 2009 place the Petitioner off of work. (Pet. Ex. #2, pp.24) Further, on August 25, 2009 the Petitioner was released to work in a light duty capacity, however, due to the fact that he was terminated from employment by the Respondent on July 21, 2009, the Petitioner’s light duty restrictions were not accommodated (Pet. Ex. #2, pp. 40) It was not until October 7, 2009 that the Petitioner was finally released back to work in a full-duty capacity. (Pet. Ex. #2, pp. 38)
The Request for Hearing form submitted by the parties at arbitration demonstrates that the Petitioner had an agreed upon average weekly wage of $312.35, thereby placing the Petitioner at the minimum temporary total disability rate of $309.33 due to his agreed upon three dependents. The Petitioner is awarded temporary total disability benefits from August 3, 2009 through October 7, 2009, a period of 9 3/7 weeks to be paid at a rate of $309.33 per week.
As the Petitioner has two claims that were arbitrated on March 3, 20111 and March 10, 2011, an award in for temporary total disability benefits would be set against this award to avoid a duplicate award.

L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT OF THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The Petitioner was injured to the extent of 12.5% loss to the Man as a Whole. As a result of this work injury the Petitioner sustained two herniated discs in his lumbar spine. These injuries required the Petitioner to undergo a period of physical therapy in an attempt to achieve maximum medical improvement. The Petitioner underwent a conservative course of treatment. The Petitioner credibly testified at trial that he still experiences pain in his lower back . The Petitioner is awarded 12.5% loss to the Man as a Whole.

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