ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF19(b) DECISION OF ARBITRATOR
On 7/8/2014, 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 0.06% 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 )
)SS ___ Injured Worker Benefit Fund (4(d))
COUNTY OF MCHENRY) ___ Rate Adjustment Fund (8(g))___ Second Injury Fund (8(c)18)___ None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
____________________ Consolidated Cases: NONE .
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 Woodstock, on May 9, 2014. 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. x Is Petitioner entitled to any prospective medical care?
L. x What temporary benefits are in dispute? TPD Maintenance TID
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
ICArbDecJ9(b) 2/10 /00 W.Randolph Street #8-200 Chicago. IL 60601 312/8/4-66/1 Toll-free 866/352-3033 Web site: wwwiwcc.il.gov Downstate offices: Collinsville 6/8/346-3450 Peoria 309/671-3019 Rockford 8/5/987-7292 Springfield 2/7/785-7084
On the date of accident, October 25, 2012, 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 $24,305.42; the average weekly wage was $467.41.
On the date of accident, Petitioner was 49 years of age, married with no dependent children.
Petitioner has received all reasonable and necessary medical services.
Respondent has in part paid all reasonable and necessary charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $ 2,047.52 for TID, $ 0.00 for TPD, $ 0.00 for maintenance, and $ 0.00 for other benefits, for a total credit of $ 2,047.52.
Respondent is entitled to a credit of $ 0.00 under Section 8(j) of the Act, and under Section 8(a) of the Act.
Respondent shall pay to Petitioner temporary total disability benefits of $311.60/week for 69-1/7 weeks, commencing January 10, 2013 through May 9, 2014, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner temporary total disability benefits that have accrued from October 25, 2012 through May 9, 2014, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall pay to Petitioner the cost of reasonable and necessary medical services, pursuant to the Medical Fee schedule, in the amount of $128,961.42, as provided in Section 8(a) and 8.2 of the Act.
Respondent is ordered to provide and pay for the physical therapy and continued rehabilitative care as prescribed by Dr. Theodore Fisher.
In 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 this award, interest shall not accrue.
F. Is Petitioner’s current condition of ill-being causally related to the injury?
Petitioner works for Respondent as a CNC lathe operator. His job duties included loading and unloading metal parts out of machines. The metal parts can weigh 50 pounds. On October 25, 2012, Petitioner was pulling a piece of metal out of a machine when the piece fell. Petitioner attempted to grab or catch the piece and stop it from falling with his arm. As he did so, he experienced severe pain in his right shoulder and neck.
Following this episode, Petitioner continued working the remainder of his shift.
The next day, he reported to work and notified his supervisor of the accident Respondent then sent him to Occupational Health where he was provided pain medication, prescribed light duty and was referred to an orthopedic surgeon.
Following this visit, Petitioner worked light duty for Respondent. He then returned to Occupational Health on October 29, 2012 and was prescribed a right shoulder MRI. During this visit, Petitioner complained of tingling in his right fingers. The MRI was performed on October 30, 2012 and revealed likely bursitis and edema. Following the MRI, Petitioner remained under the care of this clinic through November 29, 2012.
Petitioner then sought treatment with Dr. a pain specialist. Petitioner first saw Dr. on December 4, 2012, as the pain in his right shoulder and neck did not subside. Dr. prescribed physical therapy for Petitioner’s preexisting lower back condition along with pain medication. (Px5)
Petitioner then sought treatment with Dr. an orthopedic surgeon. This was on referral from Occupational Health. Dr. diagnosed a rotator cuff strain but felt the symptoms may have a secondary source from his cervical spine. Dr. performed a subacromial injection to the right shoulder and prescribed physical therapy and light duty work.
Petitioner continued working light duty and underwent several therapy sessions from January 7, 2013 through January 11, 2013. (Px4)
On January 10, 2013, Respondent laid Petitioner off from work. Petitioner also saw Dr. on January 10, 2013 who recommended he follow up with an orthopedic surgeon for his shoulder and neck conditions.
Petitioner then saw Dr. on January 6, 2013, who prescribed a cervical MRI. This MRI was performed on January 18, 2013 and revealed a disc protrusion at C6-C7 with central canal stenosis. Petitioner then returned to see Dr. on January 28, 2013, who prescribed additional pain medication.
Petitioner then saw Dr. on February 25, 2013. This examination was at the request of Respondent. Dr. Levin was of the opinion that Petitioner sustained an injury to his right shoulder and required a review of the right shoulder MRI to finalize his opinion.
Petitioner then saw Dr. February 28, 2013, who considered an epidural steroid injection to the shoulder. Dr. advised Petitioner to continue treatment with his orthopedic surgeon.
Dr. then authored an addendum to his first report on March 5, 2013, repeating his opinion that a right shoulder sprain was sustained but no neck injury. Dr. further was of the opinion that Petitioner had reached maximum medical improvement and could return to full duty work.
Petitioner then saw Dr. on March 28, 2013 with complaints of increased neck pain. Dr. noted the right shoulder pain was stable but the neck pain had increased. Dr. noted that approval of his prior prescription for physical therapy was not given by Respondent. Dr. instructed Petitioner to follow up with his orthopedic surgeon.
Petitioner then saw Dr. on April 4, 2013. Dr. Nixon prescribed a cervical MRI. On May 1, 2013, Dr. diagnosed a herniated cervical disc and prescribed an evaluation with a spine specialist.
On June 10, 2013, Petitioner saw Dr. an orthopedic surgeon. Dr. diagnosed a C6-C7 right paracentral herniated nucleus pulposus, right arm radiculopathy in the C7 nerve root distribution and C4-C5 central herniated nucleus pulposus. Dr. prescribed physical therapy and a course of cervical epidural steroid injections. Dr. also prescribed that Petitioner remain off work. Petitioner commenced physical therapy on June 18, 2013 and underwent two cervical epidural steroid injections with Dr. the first on June 25, 2013 and the second on July 16, 2013. Petitioner testified these injections failed to alleviate his neck symptoms.
Petitioner then returned to see Dr. on July 22, 2013. Dr. prescribed a C6-C7 cervical discectomy and due to the failure of conservative medical care. Petitioner underwent this surgery with Dr. on August 27,2013.
Post surgery, Petitioner has been visiting Dr. on a monthly basis, who has continued to prescribe that he remain off work. On February 28, 2014, physical therapy was prescribed along with a neck CT scan. Respondent has refused to authorize such testing and treatment.
Petitioner testified he wishes to complete his physical therapy as prescribed by Dr. Petitioner further testified he a history of low back pain that started in 2005. Petitioner testified he had previously treated with Dr. for that condition and was diagnosed with degenerative disc disease. Petitioner testified he had no physical problems performing his job prior to October 25, 2012. He acknowledged he received a written warning from Respondent for excessive absenteeism with a notice of suspension dated October 18, 2012. He also had declared bankruptcy previously and had deductions from his paycheck for back child support payments.
Ms. testified on behalf of Respondent. Ms. is Respondent’s human resources supervisor. Ms. testified that attendance warnings were sent to Petitioner for excessive absenteeism and that he was suspended for one day of work on October 24, 2012. Ms testified Petitioner reported a work injury to her on October 26, 2012, for which he was sent to Respondent’s clinic. Ms. also testified to company policy of physical and drug test screenings. Petitioner passed his physical and she received no complaints of his work during that time.
Mr. testified on behalf of Respondent. Mr. is a field investigator hired to perform surveillance of Petitioner. Mr. testified he performed surveillance on June 2, 2013 and recorded a video on DVD. The video reflects Petitioner carrying a grill with a woman and loading it into the back of his pick-up truck. The video also shows him speaking with two women for approximately 7 minutes, then later moving the grill off the truck. A video taken on May 29, 2013 revealed Petitioner running some personal errands to a grocery store and pawn shop. Mr. testified he prepared written reports of his activities for Respondent but did not bring them to court. The reports contained a summary of his surveillance. He did not review the reports prior to his testimony and last saw them shortly after they were drafted. Mr. testified he observed Petitioner on other occasions but did recall if additional video was taken or what those dates were.
Petitioner in rebuttal testified he was picking up his grill from his sister-in-law in order to pawn it. Petitioner testified he had pawned his computer, television and other items for money.
Based upon the above, the Arbitrator finds the right shoulder condition as described above to be causally related to this accidental injury. Based further upon the above, the Arbitrator also finds the neck condition as described above to be causally related to this accidental injury. Based further upon the above, the Arbitrator also finds the lower back condition as described above to be not causally related to this accidental injury.
The Arbitrator further finds the opinions of causation by Dr. are more credible than those of Dr. Dr. testified by evidence deposition that the underlying reason his opinion to the neck and cervical area was that Petitioner did not have such symptoms prior to his work accident and they became symptomatic directly following. Dr. testified Petitioner had a constellation of complaints following his work injury consistent with a disc herniation and the radicular right arm symptoms are consistent with this type of injury.
Dr. testified by evidence deposition that the neck injury was not related due to a lack of physical complaints Petitioner directly following the injury. Dr. testified to a positive Spurling’s test, right arm numbness and tingling, cervical tenderness and diminished grip strength, conditions that can be associated with spinal stenosis. The Arbitrator notes with interest right finger tingling was noted on November 1, 2012 at Occupational Health. Dr. testified the work injury was a competent mechanism of injury for a cervical condition. Dr. testified that if Petitioner complained of pain in his neck or associated symptoms, then his opinion concerning causation would change.
The surveillance video testimony is deemed to be less than reliable based on Mr. testimony. The testimony that a report exists that was not produced or reviewed prior to trial makes his testimony more difficult to believe.
J. Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent paid all appropriate
charges/or all reasonable and necessary medical services?
Petitioner incurred charges from the following medical providers after this accidental injury that she introduced into evidence:
These charges total $128,961.42.
See findings of this Arbitrator in “F” above. Based upon said findings, the Arbitrator further finds the above medical charges to represent reasonable and necessary medical care and treatment designed to cure to relieve the conditions of ill-being caused by this accidental injury.
K. Is Petitioner entitled to any prospective medical care?
See findings of this Arbitrator in “F” above.
Based upon the findings of Dr. Respondent is ordered to authorize and pay for physical therapy and additional visits to Dr. including all further treatment that may result or stem from such treatment.
L. What temporary benefits are in dispute?
See findings of this Arbitrator in “F” above.
Based upon the testimony and medical evidence presented, the Arbitrator finds that as a result of this accidental Petitioner is entitled to receive temporary total disability benefits from Respondent commencing January 2013 through May 9, 2014.
Petitioner was working light duty as a result of this accidental injury when he was part of a large layoff on January 10, 2013. No light duty accommodations were made at that time and he has yet to be released to return to work by his treating physicians.