ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
On 8/17/2012, 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 of0.14% 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:
STATE OF ILLINOIS
COUNTY OF DUPl:GE
D Injured Workers’ Benefit Fund (§4(d))
D Rate Adjustment Fund (§8(g))
Second Injury Fund (§8(e)I8)
None of the above
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 Wheaton and Joliet, on 12/7/2011 and 4/20/2012. After reviewing all ofthe evidence presented, the Arbitrator hereby makes findings on the disputed issues checked below, and attaches those findings to this document.
A. 0 Was Respondent operating under and subject to the Illinois Workers’ Compensation or Occupational Diseases Act?
B. D Was there an employee-employer relationship?
C. D Did an accident occur that arose out of and in the course of Petitioner’s employment by Respondent?
D. 0 What was the date of the accident?
E. 0 Was timely notice ofthe accident given to Respondent?
F. Is Petitioner’s current condition of ill-being causally related to the injury?
G. D What were Petit-ioner’s earnings?
H. 0 What was Petitioner’s age at the time of the accident?
I. D 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. Is Petitioner entitled to any prospective medical care?
L. What temporary benefits are in dispute?
0 TPD 0 Maintenance cg) TTD
M. D Should penalties or fees be imposed upon Respondent?
N. D Is Respondent due any credit?
0. D Other
ICArbDec19(b) 2110 100 W Randolph Street 118-200 Chicago, IL 60601 3121814-6611Toll-free 8661352-3033Web site: www.iwcc.il.gov Downstate offices: Collinsville 618/346-3450 Peoria 3091671-3019 Rocliford 8151987-7292 Springfield 2171785-7084
On the date of accident, 9/24/2009, 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 $41 ,600.00; the average weekly wage was $800.00.
On the date of accident, Petitioner was 35 years of age, married with 6 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 $0.00 for TTD, $0.00 for 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 8G) ofthe Act.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $533.33/week for 3 3n weeks, commencing March 5, 2010 through March 28, 2010, as provided in Section 8(b) ofthe Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from March 5, 2010 through March 28, 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$1,379.00, as provided in Section 8(a) of the Act.
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $1,379.00 toprovided in Sections 8(a) and 8.2 of the Act. Respondent has further stipulated that Respondent will pay all reasonable and necessary medical bills through August 26, 2010.
Respondent shall pay reasonable and necessary medical services of$1,379.00, as provided in Sections 8(a) and
0.1of 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 8G) of the Act.
Prospective Medical Treatment: This case is one of medical judgment not legal interpretations.
The Petitioner is awarded the lumbar fusion surgery as recommended bn his records with assistance belong with all reasonably related pre and post medical treatment.
His records indicate that thewas to be decompression, stabilization with instrumentation & grafting. The medical opinion· adopted in this case over that of respondent’s witness testified change in job effort, use of English but no intervening acts.
In no instance shall this award be a bar to subsequent hearing and detennination 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 ineither no change or a decrease in this award, interest shall not acc7
AUG 17 2012
STATEMENT OF FACTS
Petitioner testified via an interpreter in these legal proceedings the injury on September 24th, 2009 was the result of lifting heavy boxes. Initially, his company sent him to a company clinic for treatment. The Petitioner subsequently chose his own treating physician XXXX
Starting on October 2, 2009, the Petitioner was taken off of work for his lumbar injury and he started a course of chiropractic care for same. An MRI was ordered of his lumbar spine on October 5, 2009 which showed disc herniations at L4-L5 and L5-Sl. The Petitioner was referred to an orthopedic spine specialist
Dr. first saw the Petitioner on October 30, 2009. (Pet. Ex. #2) jIfH subsequently saw the Petitioner multiple times in follow up. The medical records show that initial treatment plan for the Petitioner’s work injury involves conservative based treatment for the Petitioner’s lumbar spine injury. After attempting conservative based care for three to four months, on February 8, 2010 recommended a lumbar fusion surgery for the Petitioner as conservative care did not alleviate the Petitioner’s symptoms in his lumbar spine. The Petitioner has undergone all standard conservative based treatment measures including diagnostic testing, physical therapy, chiropractic care, and injections. (Pet. Ex. #2) The Petitioner now asserts requires lumbar spine surgery as recommended bill.
In particular, PX 1 provides expert opinion regarding the diagnosis, treatment, causation and the future treatment requested. Inter Alia it includes his chart notes later in PX2 that Dr. a spine surgeon from sought approval low back stabilization with instrumentation and grafting provided by assistance by Dr. x Contrawise, in his opinion in the Respondent section 12 examiner from, asserts the medical opinion that at age 35 the Petitioner is not a candidate for a two level fusion. This is not an attorney-law matter but a medical one.
The Arbitrator notes the medical record in detail while studying the testimony of the forthright and articulate witness from the Respondent who has known the worker for 9 years in this specialty shop so to speak focused and assertive testimony was that the Petitioner was a good employee up until the work injury and then after the injury his performance suffered. The words and demeanor of the general manager portrayed a sense of betrayal by this long term employee to the employer’s efforts to do all possible to reintegrate him into the workforce after the injury under s opinions at first. on re direct examination posited the workers effort level changed while calling it insubordination. In detail, the worker brought soft drinks into unauthorized areas, talked more to co workers, did not wear a hair net at all times and generally worked much slower (after the back injury). See page 71 of transcript. Moreover, after he was returned to work with directives from the owner making sure this worker did not lift over 20 pounds, this worker gave a lack of effort. The worker and supervisor differed at times whether he did lift more than 20 pounds.
J. WITH REGARD TO ITEM (J), HAS THE PETITIONER’S MEDICAL TREATMENT BEEN REASONABLE AND NECESSARY AND liAS THE RE PONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
As a matter of law and as a matter of material fact this Petitioner’s medical treatment has been reasonable and necessary.
The Petitioner has undergone a conservative based course of medical care consisting of diagnostic testing, doctors visits, physical therapy, chiropractic care, and injections. This constitutes a course of reasonable medical care in light or’ the Petitioner’s objecti:’Ve medical condition in his lumbar spine and clinical opinion of his spine surgeon. As such, the Petitioner’s medical care has been both reasonable and necessary. Petitioner has produced ‘medical bills that the Respondent has not satisfied. These medical bills are therefore awarded to the Petitioner under section 8a and 8.2 along with all the regulations adopted there under.
K. WITH REGARD TO ITEM (K), IS THE PETITIONER ENTITLED TO PROSPECTIVE MEDICAL TREATMENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner is entitled to prospective medical care in the form of a lumbar fusion surgery and associated medical care as recommended by x. The later clinical notes along with his medical opinioqs in Px 1 defme his surgical recommendation ordered herein.
Dr. SJ has attempted a course of conservative based medical care that has not alleviated the Petitioner’s symptoms. This is so despite the Petitioner’s ability to perform light duties and ostensibly certain full duty tasks of his pre injury work description.
Sections of . ‘s records and specifically in his narrative report, the Petitioner’s symptoms continue to be disabling and that he has failed conservative based medical care. (Pet. Ex. # 1) As a result, a lumbar fusion surgery.
Accordingly, the Arbitrator awards as a matter of law under 8a to the Petitioner the lumbar fusion surgery and assocJated medical care as recommended b)tl
L. WITH REGARD TO ITEM (L), IS THE PETffiONER ENTITLED TO TTD BENEFITS, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Petitioner is awarded TTD benefits from March 5, 2010 to March 28, 2010, a period of 3 and 3/7 weeks. The Petitioner’s medical records show that he was in an off work status per Drduring that time period. Dr. records show that the Petitioner was treatingfurhls r.:;:bar injury at that time by medical advice and other means. The Respondent did not pay TTD benefits for those weeks. Accordingly, the Arbitrator finds that the Petitioner is entitled to TID benefits from March 5, 2010 through March 28, 2010, a period of 3 and 3/7 weeks. However, if its established that said amount or parts are paid, then credit is given.
Any advance of PPD is also credited against the Award herein or for future indemnity payments awarded, if any.