ILLINOIS WORKERS’ COMPENSATION COMMISSION
NOTICE OF 19(b) DECISION OF ARBITRATOR
Case # _____________
Employee/Petitioner
Employer/Respondent
On 3/31/2011, 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
162 W GRAND AVE SUITE 1810
CHICAGO, IL 60654
STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF DUPAGE ) Second Injury Fund (§8©18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)/8(a)
Employee/Petitioner Case #
v. Consolidated cases: none
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 Wheaton, on January 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.
DISPUTED ISSUES
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. Is Petitioner entitled to any prospective medical care?
L. What temporary benefits are in dispute?
TPD Maintenance TTD
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
O. Other ________
______________________________________________________________________________
ICArbDec19(b) 2 10 100 W. Randolph Street 8-200 Chicago, Il 60601 342/814-6611 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
[UNREADABLE TEXT] Naperville, 09 WC 37322
FINDINGS
On the date of accident, January 19, 2011, 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 $46,028.84; the average weekly wage was $885.17.
On the date of accident, Petitioner was 44 years of age, single with 2 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. (See Request for Hearing form, Arb.Ex.#1)
ORDER
Respondent shall pay Petitioner temporary total disability benefits of $590.11 per week for 43-3/7 weeks, commencing August 31, 2009 through June 30, 2010, as provided in Section 8(b) of the Act. Respondent is entitled to a credit for any amounts paid in this regard on account of this injury.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from June 25, 2009 through January 19, 2011, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall pay reasonable and necessary medical services of $4,294.95, as provided in Sections 8(a) and 8.2 of the Act.
Respondent shall be given a credit of $1,819.23 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. (See Arb.Ex#1).
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.
_______________________________________ 3/28/11
Signature of Arbitrator Date
ICArbDec19(b) 2
STATEMENT OF FACTS:
Petitioner, a 44 year old assistant service manager, testified that on June 25, 2009 he pulled a car into the wash rack, got out and slipped and fell to the ground. Following the incident, Petitioner noted that he felt immediate pain in his right hip and on the right side of his back. He noted that he had previously had minor back pain in the past, but not like the sharp pain he felt following the incident to [blank] and continued working. There is no dispute as to accident or notice. (See Arb.Ex.#1).
Petitioner testified that he did not seek treatment on the date of the incident. He indicated that he thought the pain would go away, and that he wanted to wait and see what happened. Petitioner noted that he subsequently went to Florida on vacation for a week with his two daughters sometime in July of 2009 during which time he still had pain in his right hip and lower back. He stated he has family in Florida and that he and family members went to Disney World for half a day. He indicated that he rented an electric scooter while at Disney World in order t keep up with his children. Petitioner noted that he thought he was going to be hurting and that they were going to be there longer. He indicated that he has two (2) active daughters, ages 4 and 1-1/2, and that one of the girls is autistic.
Petitioner testified that following his trip he returned to full duty work, working more than 40 hours a week. One cross examination, he testified that he was in tremendous pain as he worked. He indicated that his duties upon his return included writing customers up, moving cars around and washing cars. On re-direct, Petitioner noted that he was able to sit in a chair upon his return and he was able to attend to customers that were brought to him. On re-cross, Petitioner indicated that the running was split up between himself and the service manager and that he did not take cars into the car wash as much and did not bring cars in for oil changes after his return. Instead, he claimed that he did most of the writing up of customers, which had been part of his many job duties before the accident as well.
Petitioner noted that he eventually sought treatment at [blank] Medical Center on July 20, 2009. The “Emergency Department Triage Assessment” recorded on that date that Petitioner “[f]ell @ 6/30/09. Still c/o pain. Did not see any doctor then.” (PX2). Another handwritten history on that date noted that Petitioner “[f]ell backwards at work on 6/30/09 & struck lower back on metal pole that was horizontal on floor. Had had pain across lower back since[.] Getting worse. Radiates to b[oth] hips R > L. [No] weakness. [No] numbness. [No] incontinence” (PX2). Once again, despite the conflicting date of accident noted in this record, accident is not n dispute. (Arb.Ex.#1). X-rays of the lumbar spine revealed no fractures and only a small osteophyte off L4. (PX2). In an [blank] “Employee Status Report” prepared following this visit, it was noted that Petitioner had been diagnosed with work related “low back pain” and that he could return to work with restrictions of maximum lifting/carrying of 25 pounds and maximum pushing/pulling of 50 pounds. (PX2). Petitioner was also to follow up in 2 to 3 days. (PX2). Petitioner testified that he was also prescribed pain pills at this time. However, he noted that he did not take the medication in question because he does not like taking same, given that he had friends that were addicted.
Petitioner subsequently visited Dr. [blank] on July 27, 2009 and attended physical therapy at [blank] through September 9, 2009. (PX3). X-rays of the right hip performed on August 2, 2009 noted postural alterations, a minor degree of hip dysplasia bilaterally, resulting in early degenerative changes of the right hip, as well as a “well defined radiolucency in the left superior femoral neck” which was interpreted as “…most consistent with a synovial herniation pit and may not be of any clinical significance.” (PX3).
In a “P.E. Evaluation” dated August 3, 2009, it was noted that Petitioner “[s]lipped at work and landed on his tailbone. He said his low back turned black and blue. He says he feels much better in low back, but now both hips remain sore. R[ight] groin feels the most sore. L[eft] thigh has some numbness.” (PX3). Petitioner testified that therapy helped with pain in his back, but not I his hip.
On August 28, 2009 Dr. [blank] ordered an MRI of the right hip. (PX3). An MRI of the right hip performed that day, August 28, 2009, was interpreted as follows: “Sizable right hip joint effusion is probably due to synovitis either from trauma or inflammatory process. The [sic] there are findings of avascular necrosis in both femoral heads, right more extensive than left with some suggestion of mild collapse of the femoral head. On the right, there is extensive subchondral sclerosis over the superior and superomedial aspect of the femoral head. The area of involvement is in the anteromedial aspect of the left femoral head. No significant periarticular soft tissue abnormality detected.” (PX3).
Petitioner testified that continued working through August 31, 2009 when he visited Dr. [blank]. In a report dated September 2, 2009, Dr. [blank] noted an exam date of August 31, 2009 and a chief complaint of “Right Hip Pain x months.” (PX4). At the time of his exam, Dr. [blank] recorded the following history: “44 YOM Presents with Right Hip pain. Patient states this is a work related injury. Patient states he fell months ago at work in the office, stating he had wet boots on. States the pain went away after a few weeks. Fell again June 30, [20]09, pain has not gone away since then. States that he has been having pain not only in the hip, but his back and left leg… Therapy has helped resolve the back and leg pain, but right hip pain continues… Pain is constant. Patient states he does not like to take pain medications so he has been taking Advil as needed. He has since stopped working because of the amount of walking and getting in and out of car all day. Was told by Dr. [blank] he could do like [sic] duty, but there is none available where he works. Past history – no previous injury to hip prior to the first fall.” (PX4). Following his exam, and review of the record, including the MRI, Dr. [blank]’s diagnosis was right hip avascular necrosis of the femoral head. (PX4). Dr. [blank] noted that given that “[t]he avascular changes include a collapse of the head and loss of the normal spherical congruity of the femoral head” that “there is no salvage procedure available.” (PX4). Dr. [blank] noted that Petitioner was not a candidate for an arthroscopy, and that they discussed potential conservative treatment in the form of a cortisone injection or else a total hip arthroplasty. (PX4). Dr. [blank] related that Petitioner wanted to proceed with the surgery. (PX4). Dr. [blank] also stated that “[a]ny trauma is a known etiology for avascular necrosis of the femoral head. It is possible that he disrupted in the medial circumflex artery producing the avascular changes. Therefore, he will be kept off work and we will plan to do a total hip arthroplasty.” (PX4).
Petitioner was not seen again by Dr. [blank] until June 10, 2010. On that date, Dr. [blank] noted that Petitioner had not been seen since August 31, 2009 and that he had relocated to Oklahoma. Once again, Dr [blank] noted that “[a]ny trauma is a known etiology for avascular necrosis of the femoral head. It is possible that he disrupted in the medial circumflex artery producing the avascular changes. The repetitive stress could have also affected the blood supply and exacerbated the AVN and also possibly produced the problem. Therefore, he will be kept on light work and will plan to d a total hip arthroplasty.” (PX4).
At the request of Respondent’s counsel, Petitioner’s treating medical records were reviewed by Dr. [blank]. In a report dated January 25, 2010, Dr. [blank] noted that Petitioner did not receive medical treatment after his accident for approximately one month. (RX1). Dr. [blank] also indicated that radiographic findings were consistent with avascular necrosis (AVN) in both hips, although it was somewhat more advanced on the right side. (RX1). In view of this finding, Dr. [blank] was of the opinion that Petitioner’s AVN “… was only present prior to his accident of June 30 [sic], 2009. In view of the nature of the accident (primarily a lower back injury) and bilateral nature of the avascular necrosis, it is my opinion that the condition of abnormality of his hips was unrelated to his fall at work on June 30 [sic], 2009.” (RX1).
On April 8, 2010 Petitioner was seen by Dr. [blank] at the request of Respondent for purposes of a §12 examination. In his report on that date, Dr. [blank] noted that he reviewed Petitioner’s treating records as well as the report of Dr. [blank]. (RX2). Dr. [blank] indicated that MRI of the right hip dated August 28, 2009 revealed no significant edema and that “…bone edema would suggest presence of an acute injury. Also, there was no evidence of acute fracture, which could have suggested a recent traumatic injury.” (RX2). As a result, Dr. [blank] stated that he concurred with Dr. [blank] “…that the combination of pre-existing avascular necrosis, no evidence of acute changes in the femoral head, such as bony edema or a fracture, and the nature of his fall, which was primarily on his back, would support the thesis that the patient’s fall at work on June 30 [sic], 2009, is unrelated to the abnormality of his hips.” (RX2).
In a report dated July 27, 2010, and addressed to Petitioner’s counsel, Dr. [blank] noted that he had reviewed the reports of Drs. [blank] and [blank]. (RX4). Once again, Dr. [blank] noted that Petitioner was suffering from avascular necrosis of the right femoral head and that the current diagnosis was causally related to the June 25, 2009 work injury. (PX4). More to the point, Dr. [blank] stated that “[i]t is my opinion that the acute findings that the doctors are overlooking is the effusion within the hip joint. That is a finding representative of an acute injury. Secondly, there is a more extensive nature of the avascular necrosis on the right side than the left side in conjunction with the fact that the MRI was done months later where any bony edema could have already dissipated by that point in time. However, the joint effusion that maintains itself, still is representative of the acute injury and the fact that there is a causal connection. According to the patient, he did state at Emergency Room that he had a right hip problem. If he did have a right hip problem, then that would be an exacerbation of the preexisting avascular necrosis with an extension of the avascular necrosis producing a loss of bony homeostasis that is exemplified by the effusion within the hip with the subsequent problems that he is experiencing. To that end, the necessity of his total hip arthroplasty is correlative to the patient’s falls where he did have the acute onset of pain and problems. I am not aware of any other history of problems that the patient was having in his hips prior to the accident date nor in the medical records that have been provided to me. Therefore, the large effusion in the hip on the MRI in conjunction with the history of the injury represents the fact that the avascular necrosis condition was exacerbated in all probability by a loss of the blood supply with subluxation of the hip that extended the avascular area producing the problems that he is experiencing.” (PX4).
At the request of Respondent’s counsel, Petitioner’s treating records were reviewed by Dr. [blank]. In a report dated December 13, 2010, Dr. [blank] noted that “[i]f the patient had sustained an injury to the right hip joint significant enough to cause transient hip subluxation or subchondral femoral head fracture, it is likely that he would have been temporarily unable to ambulate and may have sought medical attention on a more urgent basis. Thus, the mechanism of injury and subsequent course did not seem consistent with significant acute intra-articular hip trauma.” (RX3). Dr. [blank] went on to state that “[x]-ray studies performed less than one month after the injury demonstrated grade 3 avascular necrosis changes in the right femoral head… Possible etiologies [of AVN] including both nontraumatic and traumatic: however, the natural progression of avascular necrosis is such that it is highly unlikely that grade 3 radiograph changes would be noted so soon after the initial insult. Again, I feel that if the injury on June 30 [sic], 2009, had resulted in hip injury significant enough to cause fracture and/or deformation of the femoral head, the patient would have demonstrated a more severe level of acute disability.” (RX3).
In addition, Dr. [blank] noted that “[t]he MRI scan performed on August 28, 2009 (two months after the initial injury) re-demonstrated grade 3 avascular necrosis changes of the right femoral head. Additionally, grade 2 changes were noted in the contralateral left hip. Avascular necrosis is known to occur bilaterally in 50% of cases and it seems more likely than not, that in this patient’s circumstance avascular necrosis occurred by nontraumatic causes as it seems highly unlikely that the mechanism of injury on June 30 [sic], 2009, caused significant enough trauma to both hips to result in bilateral avascular necrosis. With regard to additional findings commonly seen in avascular necrosis both intraarticular effusions
And proximal femoral bone marrow edema patterns are extremely common (effusion being seen approximately 90% of the time with stage 3 avascular necrosis). Thus, the finding of an intraarticular effusion does not directly indicate presence of recent trauma. Furthermore, bone contusion edema patterns on MRI. MRIs typically take several months to fully resolve (70% of the time, edema pattern can persist for months after the injury) and thus the absence of bone edema in the right proximal femur would likely speak against presence of recent trauma.” (RX3).
Finally, Dr, [blank] indicated that he was in agreement with the opinions of Dr. [blank] and Dr. [blank] “…specifically given the nature of accident (primarily related to the lower back rather than the hip joints) advanced radiographic stages of avascular necrosis demonstrated on the imaging studies very shortly after the incident, [and] bilateral nature of the disease[,] it is my opinion that because the disease was such at [sic] an advanced level in a very short time period, after the injury the patient would have become symptomatic having [sic] the injury occurred or not.” (RX3).
Petitioner testified that he currently lives in Oklahoma and that he has not worked since September of 2009. He also noted that he has received any treatment for his right hip since that time, despite continuing pain, given that he has no insurance and has no way to pay for it. He indicated that he would have the hip replacement that was recommended by Dr. [blank] if it were awarded. Petitioner stated that he has no problem with his left hip. He also indicated that he has a cane, which he uses for walking long distances. Petitioner testified that before the incident he was very active, engaging in such activities as motorcycle riding, dirt biking, sky diving, and martial arts. However, he noted that he now has problems participating in those types of activities and has not been able to do so since the accident.
WITH RESPECT TO ISSUE (F), IS THE PETITIONER’S PRESENT CONDITION OF ILL-BEING CAUSALLY RELATED TO THE INJURY, THE ARBITRATOR FINDS AS FOLLOWS:
In the present case, the evidence shows that Petitioner did not seek treatment until July 20, 2009, or more than three (3) weeks after the undisputed accident on June 25, 2009. Petitioner testified that the pain gradually worsened from the date of injury until his first treatment. He also noted that he continued to work more than 40 hours a week during this period, except for a week in July when he went to Florida on a family vacation. However, there is no evidence to suggest that anything he did during this preplanned trip, including a half day excursion in Disney World, where he rented an utilized a motorized scooter to get around, caused of exacerbated his symptoms. Petitioner noted that he was in tremendous pain while he worked following his return from his trip, but that his duties were apparently modified somewhat to allow him to primarily sit in a chair and write up customers and not do so much running around.
When he eventually did seek treatment on July 20, 2009, by visiting the [blank] emergency room, he complained of lower back pain with pain radiating to both hips, the right greater than the left. (PX2). He was diagnosed with lower back pain and released with restrictions of maximum lifting/carrying of 25 pounds and maximum pushing/pulling of 50 pounds. (PX2).
Petitioner subsequently visited Dr. [blank] on July 27, 2009. X-rays of the right hip performed on August 2, 2009 noted postural alterations, a minor degree of hip dysplasia bilaterally, resulting in early degenerative changes of the right hip, as well as a “well defined radiolucency in the left superior femoral neck” which was interpreted as “… most consistent with a synovial herniation pit and may not be of any clinical significance.” (PX3). Thereafter, Petitioner attended physical therapy at [blank] through September 9, 2009. (PX3). Petitioner testified that therapy helped his back, but not his hip.
On August 28, 2009 Dr. [blank] ordered an MRI of the right hip which noted that “[s]izable right hip joint effusion is probably due to synovitis either from trauma or inflammatory process. The [sic] there are findings of avascular necrosis in both femoral heads, right more extensive that left with some suggestion of mild collapse of the femoral head. On the right, there is extensive subchondral sclerosis over the superior and superomedial aspect of the femoral head. The area of involvement is in the anteromedial aspect of the left femoral head. No significant periarticular soft tissue abnormality detected.” (PX3).
Petitioner continued to work through August 31, 2009 when he was seen by Dr. [blank]. Following his exam, and review of the record, including the MRI, Dr. [blank]’s diagnosis was right hip avascular necrosis of the femoral head. (PX4). Dr. [blank] noted that given that “[t]he avascular changes include a collapse of the head and loss of the normal spherical congruity of the femoral head” that “there is no salvage procedure available.” (PX4). Dr. [blank] also stated that “[a]ny trauma is a known etiology for avascular necrosis of the femoral head. It is possible that he disrupted in the medial circumflex artery producing the avascular changes. Therefore, he will be kept off work and we will plan to do a total hip arthroplasty.” (PX4).
Petitioner was not seen again by Dr. [blank] until June 10, 2010. On that date, Dr. [blank] noted that Petitioner had not been seen since August 31, 2009 and that he had relocated to Oklahoma. Once again, Dr. [blank] noted that “[a]ny trauma is a known etiology for avascular necrosis of the femoral head. It is possible that he disrupted in the medial circumflex artery producing the avascular changes. The repetitive stress could have also affected the blood supply and exacerbated the AVN and also possibly produced the problem. Therefore, he will be kept on light work and will plan to do a total hip arthroplasty.” (PX4).
Respondent retained no less than two (2) physicians to conduct record reviews and another to physically examine Petitioner and render an opinion. Dr. [blank] was the first to review the medical records at the request of Respondent’s attorney. In a report dated January 25, 2010, Dr. [blank] noted radiographic findings which were consistent with avascular necrosis in both hips, although it was somewhat more advanced on the right side, and indicated that he was of the opinion that Petitioner’s avascular necrosis “… was only present prior to his accident of June 30 [sic], 2009. In view of the nature of the accident (primarily a lower back injury) and bilateral nature of the avascular necrosis, it is my opinion that the condition of abnormality of his hips was unrelated to his fall at work on June 30 [sic], 2009.” (RX1). Reading the above quote in context, it would appear that Dr. [blank] may have meant to say that the AVN was “already” present prior to the accident, and not that it was “only” present at that time.
On April 8, 2010, Petitioner was seen by Dr. [blank] at the request of Respondent for purposes of a §12 examination. In his report on that date, Dr. [blank] indicated that the August 28, 2009 MRI of the right hip had revealed no significant edema and that “… bone edema would suggest presence of an acute injury. Also, there was no evidence of acute fracture, which could have suggested a recent traumatic injury.” (RX2). As a result, Dr. [blank] stated that he concurred with Dr. [blank] “… that the combination of pre-existing avascular necrosis, no evidence of acute changes in the femoral head, such as bony edema or a fracture, and the nature of his fall, which was primarily on his back, would support the thesis that the patient’s fall at work on June 30 [sic], 2009, is unrelated to the abnormality of his hips.” (RX2).
Finally, Dr. [blank] reviewed the medical records at the request of Respondent’s counsel. In a report dated December 13, 2010, Dr. [blank] noted that “… the mechanism of injury and subsequent course did not seem consistent with significant acute intra-articular hip trauma… “ and that “… if the injury on June 30 [sic], 2009, had resulted I hip injury significant enough to cause fracture and/or deformation of the femoral head, the patient would have demonstrated a more severe level of acute disability.” (RX3). In addition, Dr. [blank] noted that “[t]he MRI scan performed on August 28, 2009 (two months after the initial injury) re-demonstrated grade 3 avascular necrosis changes of the right femoral head. Additionally, grade 2 changes were noted in the contralateral left hip. Avascular necrosis is know to occur bilaterally in 50% of cases and it seems more likely than not, that in this patient’s circumstance avascular necrosis occurred by nontraumatic causes as it seems highly unlikely that the mechanism of injury on June 30 [sic], 2009, caused significant enough trauma to both hips to result in bilateral avascular necrosis. With regard to additional findings commonly seen in avascular necrosis both intraarticular effusions and proximal femoral bone marrow edema patterns are extremely common (effusion being seen approximately 90% of the time with stage 3 avascular necrosis). Thus, the finding of an intraarticular effusion does not directly indicate presence of recent trauma. Furthermore, bone contusion/edema patterns on MRI, MRIs typically take several months to fully resolve (70% of the time, edema pattern can persist for months after the injury) and this the absence of bone edema in the right proximal femur would likely speak against presence of recent trauma.” (RX3).
Finally, Dr. [blank] indicated that he was in agreement with the opinions of Dr. [blank] and Dr. [blank] “… specifically given the nature of accident (primarily related to the lower back rather than the hip joints) advanced radiographic stages of avascular necrosis demonstrated on the imaging studies very shortly after the incident, [and] bilateral nature of the disease[,] it is my opinion that the avascular necrosis of the patient’s right hip is a pre-existing non-work related condition. Furthermore, I do not believe that the injury resulted in advancement/progression of the disease. It is my opinion that because the disease was such at [sic] an advanced level in a very short time period, after the injury the patient would have become symptomatic having [sic] the injury occurred or not.” (RX3).
In a report dated July 27, 2010, Dr. [blank] noted that he had reviewed the reports of Drs. [blank] and (RX4). Once again, Dr. [blank] noted that Petitioner was suffering from avascular necrosis of the right femoral head and that the current diagnosis was causally related to the June 25, 2009 work injury. (PX4). More to the point, Dr. [blank] stated that “[i]t is my opinion that the acute findings that the doctors are overlooking is the effusion within the hip joint. That is a finding representative of an acute injury. Secondly, there is a more extensive nature of the avascular necrosis on the right side than the left side in conjunction with the fact that the MRI was done months later where any bony edema could have already dissipated by that point in time. However, the joint effusion that maintains itself, still is representative of the acute injury and the fact that there is a causal connection. According to the patient, he did stat at [bank] Emergency Room that he had a right hip problem. If he did have a right hip problem, then that would be an exacerbation of the preexisting avascular necrosis with an extension of the avascular necrosis producing a loss of bony homeostasis that is exemplified by the effusion within the hip with the subsequent problems that he is experiencing. To that end, the necessity of his total hip arthroplasty is correlative to the patient’s falls where he did have the acute onset of pain and problems. I am not aware of any other history of problems that the patient was having in his hips prior to the accident date nor in the medical records that have been provided to me. Therefore, the large effusion in the hip on the MRI in conjunction with the history of the injury represents the fact that the avascular necrosis condition was exacerbated in all probability by a loss of the blood supply with subluxation of the hip that extended the avascular area producing the problems that he is experiencing.” (PX4).
Based on the above, it would appear that Petitioner’s condition of bilateral avascular necrosis pre-existed the accident in question. However, it also appears that Petitioner was asymptomatic during the period leading up to the undisputed work accident on June 25, 2009, in so far as he had not previously sought treatment for his hips let alone been prescribed surgery for same. The question then is not so much whether the accident or any trauma associated therewith caused the avascular necrosis – since it does appear that it did – but rather whether the accident accelerated or exacerbated Petitioner’s underlying condition so as to find this matter compensable.
It has long been recognized that, in preexisting condition cases, recovery will depend on the employee’s ability to show that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee’s current condition of ill-being can be said to have been causally-connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition. Sisbro, Inc. v. Industrial Commission, 207 Ill. 2d 193, 204-206. 797 N.E.2d 665, [blank], 278 Ill.Dec. 70,[blank](2203); citing Caterpillar Tractor Co. v. Industrial Commission, 92 Ill. 2d 30, 36-37.65 Ill. Dec. 6, 440 N.E.2d 861 (1982); Caradco Window & Door v. Industrial Comm’n, 86 Ill. 2d 92, 99, 56 Ill. Dec. 1, 427 N.E.2d 81 (1981); Azzarelli Construction Co. v. Industrial Comm’n, 84 Ill. 2d 262, 266, 49 Ill. Dec. 702, 418 N.E.2d 722 (1981); Fitrro v. Industrial Comm’n, 377 Ill. 532, 537, 37 N.E.2d 161 (1941).
It is axiomatic that employers take their employees as they find them. Baggett, 201 Ill. 2d at 199. “When workers’ physical structures, diseased or not, give way under stress of their usual tasks, the law views it as an accident arising out of and in the course of employment.” General Electric Co. v. Industrial Comm’n, 89 Ill. 2d 432, 434, 60 Ill. Dec. 629, 433 N.E.2d 671 (1982). Thus, even though an employee has a preexisting condition which may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as it can be shown that the employment was also a causative factor. Caterpillar Tractor Co. v. Industrial Comm’n, 92 Ill. 2d at 36; Williams v. Industrial Comm’n, 85 Ill. 2d 117, 122, 51 Ill. Dec. 685, 431 N.E.2d 193 (1981); County of Cook v. Industrial Comm’n, 69 Ill. 2d 10, 18 12 Ill. Dec. 716, 370 N.E.2d 520 (1977); Town of Cicero v. Industrial Comm’n, 404 Ill. 487, 89 N.E.2d 354 (1949) (It is a well-settled rule that where an employee, in the performance of his duties and as a result thereof, is suddenly disabled, an accidental injury is sustained even though the result would not have obtained had the employee been in normal health). Accidental injury need not be the sole causative factor, or even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being. Rock Road Construction Co. v. Industrial Comm’n, 37 Ill. 2d 123, 127, 227 N.E.2d 65 (1967).
Based on the above, and the record taken as a whole, the Arbitrator finds that the undisputed accidental injury in question on June 25, 2009 was a causative factor in Petitioner’s resulting condition of ill-being relating to both his low back and right hip. As stated previously, Petitioner was asymptomatic and had never had problems with either hip prior to the injury. And while he did not seek treatment for more than three (3) weeks, he credibly testified that he continued to experience pain in his low back and hips throughout this time. There is no evidence that he suffered any other injury between the date of accident and his first date of treatment on July 20, 2009. More to the point, there is no evidence to show that his preplanned trip to Florida, and 1/2 day excursion to Disney World, brought on his current complaints. Indeed, Petitioner testified that he rented a motorized scooter in the park in order to keep up with his children.
Furthermore, the Arbitrator relies on the opinion of Dr. [blank] who noted that “[i]f [Petitioner] did have a right hip problem [at the time of his visit to [blank] Emergency Room], then that would be an exacerbation of the preexisting avascular necrosis with an extension of the avascular necrosis producing a loss of bony homeostasis that is exemplified by the effusion within the hip with the subsequent problems that he is experiencing. To that end, the necessity of his total hip arthroplasty is correlative to the patient’s falls where he did have the acute onset of pain and problems. I am not aware of any other history of problems that the patient was having in his hips prior to the accident date nor in the medical records that have been provided to me. Therefore, the large effusion in the hip on the MRI in conjunction with the history of the injury represents the fact that the avascular necrosis condition was exacerbated in all probability by a loss of the blood supply with subluxation of the hip that extended the avascular area producing the problems that he is experiencing.” (PX4).
Along these lines, the Arbitrator discounts the opinions of Respondent’s §12 physicians who, with the exception of Dr. [blank] appear to focus solely on the question of whether any traumatic injury on th date in question could have caused Petitioner’s avascular necrosis, and not whether it might had aggravated and/or accelerated said condition. Dr. [blank] for his pat, noted that he did not “… believe that the injury resulted in advancement/progression of the disease …”, theorizing that “… because the disease was such at [sic] an advanced level in a very short time period, after the injury the patient would have become symptomatic having [sic] the injury occurred or not.” (RX3). Once again, the Arbitrator chooses to rely on the opinion of treating physician Dr. [blank] to the extent that the accident exacerbated Petitioner’s preexisting condition of avascular necrosis, necessitating treatment for the first time and ultimately resulting in a recommendation for surgery.
Therefore, based on the above, and the record taken as a whole, the Arbitrator finds that a causal relationship exists between Petitioner’s current condition of ill-being and the accident on June 25, 2009.
WITH RESPECT TO ISSUE (J), WERE THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGES FOR ALL REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR FINDS AS FOLLOWS:
The parties submitted into evidence a two-page agreed stipulation outlining the amounts of medical expense, broken down by dates of service and provider, that would be due an owing pursuant to §8(a) and the fee schedule provisions of §8.2 of the Act in the event this matter were found to be compensable, with Respondent maintaining its objection to liability and/or reasonableness and necessity for said expenses. (Arb.Ex.#2).
Based on the Arbitrator’s determination as to causation (issue “F”, supra), as well as the parties’ stipulation as to the fee schedule amounts (Arb.Ex#2), the Arbitrator finds that Petitioner is entitled to reasonable and necessary medical expense in the amount of $4,294.95 pursuant to §8(a) and §8.2 of the Act.
WITH RESPECT TO ISSUE (K), IS PETITIONER ENTITLED TO ANY PROSPECTIVE MEDICAL CARE, THE ARBITRATOR FINDS AS FOLLOWS:
The Arbitrator finds that as a result of the June 25, 2009 work injury Petitioner requires the right hip arthroplasty as recommended by Dr. [blank]. As previously noted, Petitioner was asymptomatic prior to his June 25, 2009 work injury. In fact, Petitioner testified that prior to this work injury he led a very active life and that since the accident he has continued to experience pain to his right hip. While Petitioner may have had pre-existing avascular necrosis, it was not until the incident on June 25, 2009 that he sought any treatment much less that any surgery was recommended. Indeed, had Petitioner not suffered the work injury in question, it is entirely possible that he would not have needed the surgery being prescribed, at least at this time, given that an arthroplasty is only being recommended for the right hip, the one involved in this injury, despite diagnostic evidence of avascular necrosis in both hips.
Therefore, based on the above, and the record taken as a whole, the Arbitrator finds that Petitioner is entitled to prospective medical care and treatment in the form of the right hip arthroplasty prescribed by Dr. [blank], and that Respondent is hereby liable for the reasonable and necessary costs associated therewith pursuant to §8(a) and the fee schedule provisions of §8.2 of the Act.
WITH RESPECT TO ISSUE (L), WHAT AMOUNT OF COMPENSATION IS DUE FOR TEMPORARY TOTAL DISABILITY, THE ARBITRATOR FINDS AS FOLLOWS:
Petitioner testified that he continued to work up through the date of his examination by Dr. [blank] on August 31, 2009. Petitioner also testified that Dr. [blank] took him off work at that time and recommended a total right hip arthroplasty.
In his September 2, 2009 report, Dr. [blank] recorded that Petitioner “… has stopped working because of the amount of walking and getting in and out of cars all day. Was told by Dr. [blank] he could do like [sic] duty, but there is none available where he works.” (PX4). Following his exam, and review of the record, Dr. [blank] diagnosed right hip avascular necrosis of the femoral head and noted that “… he [Petitioner] will be kept off work and we will plan to do a total hip arthroplasty.” (PX4).
Petitioner testified that he subsequently moved to Oklahoma in June of 2010 and that he has not treated or worked since September of 2009. He noted that he has continued to experience pain in his right hip since that time, but that he has no insurance in order to seek treatment.
Petitioner did see Dr. [blank] again on June 10, 2010. In a report dated June 30, 2010, Dr. [blank] noted that Petitioner “[s]tates nothing has changed since his last visit [on August 31, 2009] except that his Rt knee is ‘killing him’. Still ambulating with aid of a cane. Not taking any medications. Not working. Here to discuss his surgery.” (PX4). Dr. [blank] diagnosed right hip avascular necrosis of the femoral head and noted that “… he will be kept on light duty and we will plan to d a total hip arthroplasty.” (PX4).
Petitioner provided no testimony or other evidence with respect to the availability of light duty work, either with Respondent or elsewhere, following this light duty release.
Therefore, based on the above, and the record taken as a whole, the Arbitrator finds that Petitioner was temporarily totally disable from August 31, 2009 through June 30, 2010, or the date of Dr. [blank]’s latest report wherein he opined that Petitioner was capable of light duty work, for a period of 43-3/7 weeks.
