APRIL CASE SUMMARIES

05/14/2021 7:19 AM | Judy Pfeiffer (Administrator)

I.        ARISING OUT OF EMPLOYMENT

Nicole Weston v. State of Illinois, Department of Children and Family Services, 17 WC 08811, 21 IWCC 0070 (February 18, 2021)

Respondent hired Petitioner on January 30, 2017.  She was required to attend an orientation program that ended on March 1, 2017.  Petitioner testified that she was directed to park in the lot in front of the building or a second parking lot close to Respondent’s building.  On the date of the accident, Petitioner was wearing rain boots with decorative shoelaces.  At lunchtime, she left the Respondent’s building to go to her car to get her lunch.   While doing so, her shoelace got caught in the sidewalk causing her to fall and injure her right knee. 

The Arbitrator denied the case based on accident.  He held that the evidence submitted did not establish that the Respondent owned, maintained, or controlled the sidewalk where Petitioner fell.  Further, he explained that even if she could prove “in the course of” of component, Petitioner failed to prove her accident “arose out of” her employment because the risk of getting her shoelace caught in the sidewalk is not a risk incidental to her employment.  Because Arbitrator found no accident, he denied all other benefits.  The Commission affirmed and adopted the Arbitrator’s decision.

II.                  ACCIDENTAL INJURY

Jocelyn Cahill v. City of Chicago, 15 WC 11742, 21 IWCC 0057 (February 8, 2021)  

Petitioner worked for Respondent as a 911 operator and first responder for 15 years.  Her duties included receiving emergency calls and documenting information on a computer, which required repetitive typing and the use of a touch screen.  Petitioner testified she did not have an ergonomic keyboard and had a faulty mouse at her work station. 

Petitioner developed bilateral carpal tunnel syndrome.  She began treatment with Dr. Blair Rhode.  Dr. Rhode considered her work station, number of calls received, and preexisting risk factors.  He opined that Petitioner’s diagnosis was causally related to her job duties.  Dr. Rhode acknowledged a debate in the medical community with respect to repetitive typing causing carpal tunnel, but explained that Petitioner’s work with Respondent was “high exposure” which would create a causal relationship between her job duties and diagnosis.

Respondent arranged an Independent Medical Examination with Dr. John Fernandez.  Dr. Fernandez reviewed medical records, a job description, and a “job video” of her work station.  Based on this information, he opined that her bilateral carpal tunnel was not causally related to her job duties.  He opined that her duties did not include flexion of the hands or physical gripping or grasping necessary to cause carpal tunnel syndrome. 

The Arbitrator found Dr. Fernandez to be more credible.  The Arbitrator denied the case based on accident.  On appeal, the Commission reversed, finding Petitioner sustained a compensable accident.  The Commission explained that Dr. Fernandez’s opinion did not consider the frequency or force required for Petitioner’s job duties, which Dr. Rhode considered in his opinion.  Lastly, the Commission explained that the Respondent takes it employees as it finds them and even if Petitioner had some risk factors that contributed to her diagnosis, her job duties were a cause in her diagnosis and condition of ill-being and a finding of accident and causation was proper.

McWilliams v. Rockford Mass Transit District, 12 WC 22502, 21 IWCC 0064 (February 17, 2021)

Petitioner filed a repetitive trauma claim for bilateral carpal tunnel syndrome to his hands and wrists allegedly resulting from his duties as a bus driver.  Petitioner testified that he worked as a bus driver for the Respondent for 20 years.  In this capacity, he used his hands and wrists extensively by operating the steering wheel, opening and closing the door with handles and levers, and using levers and gauges to adjust ramps and signs.  Petitioner also testified there were often vibrations from the roads and potholes.  Petitioner produced a video of his job duties, which was admitted into evidence at trial.

Petitioner presented to his treating physician in January of 2012.  At that time, there was mention that he had a known history of bilateral carpal tunnel syndrome.  However, he had not actively treated for several years.  His physician diagnosed probable bilateral progressive carpal tunnel syndrome.  Petitioner presented to another specialist, Dr. Brian Bear, who agreed with the diagnosis of work related bilateral carpal tunnel syndrome and performed bilateral carpal tunnel releases.

Respondent arranged an Independent Medical Examination with Dr. Bryan Neal.  Dr. Neal attended a demonstration of Petitioner’s job duties of a bus driver, reviewed his medical records, and reviewed the video produced by Petitioner.  He opined that his bilateral carpal tunnel diagnosis was not causally related to his job duties. 

The Arbitrator found that Petitioner did not sustain his burden of proving that a repetitive trauma accident caused his bilateral carpal tunnel syndrome.  The Arbitrator found Dr. Neal’s opinion more persuasive concluding that he had a better understanding of Petitioner’s work duties. 

On review, the Commission reversed.  The Commission found Dr. Bear more persuasive because he reviewed Petitioner’s job description and his opinion was supported by other physicians.  The Commission also relied heavily on Greater Peoria Mass Transit District, which had a similar fact pattern to the instant case and found that carpal tunnel syndrome can be aggravated by the occupational duties of a bus driver.  Based on this, the Commission found that Petitioner sustained an accident that arose out of and in the course of his employment and his condition was causally related to the accident.  The Commission awarded TTD benefits, medical bills, and permanency.

III.     CAUSAL RELATIONSHIP

Regina Damm v. State of Illinois / Chester Mental Health Center, 18 WC 6363, 21 IWCC 0050 (February 3, 2021)

Petitioner worked a security therapy aide for the Respondent.  On the date of the accident, Petitioner tried to prevent a patient from leaving his room.  The patient attacked Petitioner when she tried to stop him from leaving the room.  Petitioner testified that she injured her head, neck, back, and left elbow in the accident. 

She began extensive treatment for her back and neck.  Petitioner testified that prior to the accident she had been treating for her neck and back, requiring chronic pain medications and multiple cervical MRIs.  She testified that after the accident, her symptoms worsened and changed.  Her treating physician recommended a cervical disc replacement surgery. 

The Respondent arranged an Independent Medical Examination with Dr. Chabot.  Dr. Chabot opined that her neck and back conditions were preexisting and not causally related to the work accident. 

The Arbitrator found that Petitioner’s neck and back injuries were causally related to her work accident and awarded medical bills, TTD, and prospective treatment as recommended by her treating physicians.  The Arbitrator found that although she had preexisting conditions, she was working full duty for the Respondent until the date of injury and there had been no prior surgical recommendations. 

The Commission affirmed the Arbitrator’s finding of causation to her back, but reversed the finding to her neck, holding that she did not prove her neck was causally related to the work accident.  The Commission reasoned that her prior treatment was so severe she had a cervical MRI two months before her work accident.  Further, they did not find any evidence in the record to support Petitioner’s testimony that her symptoms changed following the accident.  Since they did not find causation to the neck, they also reversed the reward for prospective medical for her neck and remanded to determine TTD owed and a permanency award. 

Cherry Bell v. Automotive Club of Southern CA, 17 WC 2772, 21 IWCC 0059 (February 9, 2021)

Petitioner worked for the Respondent as an insurance agent, selling home and auto policies.  She created policies that would then be submitted to a superior for review.  Petitioner testified that she began to have difficulty at work, feeling that she did not have adequate training, felt bullied, and the work environment was hostile.  She testified that her superior purposefully deleted her work to get her in trouble and sabotage her success.  She began treatment for emotional trauma and was diagnosed with anxiety and depression.

At trial, Petitioner testified that she did not have any other stressors at home.  However, she did have a pending civil lawsuit against a contractor for unsatisfactory home repairs.  Petitioner had also been hospitalized for suspected carbon monoxide poisoning. 

Respondent called several witnesses to rebut Petitioner’s testimony.  Her superior denied Petitioner’s allegations of deleting her work and testified it was not possible for her to do so.  They also submitted several emails from Petitioner to Respondent.

The Arbitrator found that Petitioner did not prove that she sustained an accident that arose out of and in the course and scope of her employment.  He explained that Petitioner failed to prove her mental disorder arose from a situation of a greater dimension than day to day emotional strain and tension that all employees face, as required by Pathfinder.  He did not find any evidence of deleted emails or bullying by Respondent and no proof of sudden and severe work-related emotional shock traceable to a definite time and place to justify benefits.  Based on this, he denied accident.  The Commission affirmed the Arbitrator’s decision in its entirety.

David Duffin v. City of Chicago, 16 WC 17014 & 17 WC 873, 21 IWCC 0001 (January 4, 2021)

Petitioner worked as a hoisting engineer for Respondent.  He sustained two separate work injuries to his neck while working.  The first injury was on April 13, 2016 while operating a backhoe.  The second injury was on December 15, 2016 while lifting a propane tank. 

Prior to April 13, 2016, Petitioner had undergone a lumbar fusion, but returned to full duty work for Respondent.   Petitioner never received treatment to his neck prior to April 13, 2016.  After these accidents, he was diagnosed with several cervical herniations.  He received injections.  Ultimately, the physician recommended that he under a cervical fusion and an FCE.

Respondent arranged an IME with Dr. Daniel Troy.  Dr. Troy did not review any prior records or Petitioner’s prior FCE.  He agreed that Petitioner did not have any cervical complaints prior to this injury.  He also agreed that a fusion was reasonable and necessary treatment.  However, he opined that Petitioner’s condition was degenerative and not causally related to the work accidents.

The Arbitrator found that Petitioner’s condition of ill-being was causally related to the work injuries.  He reasoned that the chain of events proved causation since Petitioner was asymptomatic and working full duty prior to these accidents.  Further, all doctors agreed he did not treat for his neck prior to these injuries.  Based on this, the Arbitrator awarded prospective medical, medical bills, TTD benefits, and penalties.  The Commission affirmed. 

Paula Apeles v. Graphics Packaging, 14 WC 27826, 21 IWCC 0026 (January 15, 2021)

Petitioner worked for Respondent as a machine operator.  One day, she tripped and fell over a box injuring her left elbow, shoulder, and hip.  She later complained of pain to her neck and back.  Respondent disputed causation to her neck and back. 

Prior to this injury, Petitioner had a cervical discectomy and fusion.  When she first began treatment for this accident, she did not mention neck or back pain complaints.  Petitioner testified she did not mention the pain to her neck and back because she thought it would go away.  Petitioner had a post-op appointment with her doctor who performed her fusion and did not mention a work injury. 

The Arbitrator found that Petitioner failed to prove that her current condition of ill-being to her neck and back was causally related to her work injury.  He found it significant that Petitioner did not mention injuries to her neck and back after the accident or to her prior doctor.  Further, the medical records did not prove any aggravation to her prior injuries.  The Commission affirmed.

IV.     EMPLOYEE IMPROPER CONDUCT 

Antonio Reid v. City of Chicago, 14 WC 34954, 21 IWCC 0067 (February 18, 2021)

Petitioner works for Respondent as a construction laborer.  He was driving a vehicle issued by the Respondent when he was hit by an 18-wheeler truck.  Petitioner injured his right thumb, neck, back, and right shoulder. 

Petitioner took a drug test on the date of the accident.  He tested positive for marijuana.  Petitioner testified that he was “exposed to marijuana” two weeks prior to the accident and was not impaired on the date of the accident.  Respondent admitted a single page drug test at trial, but submitted no evidence rebutting Petitioner’s testimony regarding impairment.

At trial, the Arbitrator found that the Petitioner sustained an accident that arose out of and in the course and scope of his employment and awarded medical bills and a permanency award.  The Arbitrator held that although Section 11 of the Act creates a rebuttable presumption that an employee’s injury is not compensable if there is a positive drug test, no presumption arises by mere evidence of consumption of cannabis without evidence of impairment due to consumption of an illicit substance.  As Petitioner testified he was not impaired and Respondent did not rebut at trial, the Arbitrator found he was not impaired and the presumption did not apply to the instant case. 

The Commission affirmed the finding of accident and causation, but modified the decision regarding the medical bill award.  The Commission agreed with the Arbitrator’s analysis and further added that the police officer only issued a ticket for the semi-truck driver that struck Petitioner and did not issue Petitioner a citation on the date of the accident, further supporting he was not impaired.  As such, there was no proof of impairment to trigger the Section 11 intoxication presumption.  

V.      CALCULATION OF PREINJURY WAGES

Jeffrey Turner v. State of Illinois / Choate Mental Health Center, 18 WC 24533, 21 IWCC 0079 (February 26, 2021)

Petitioner worked for Respondent as a mental health tech II.  Petitioner testified that on the date of the accident, he parked in a lot several feet away from Respondent’s building that was maintained by Respondent.  After parking his vehicle, Petitioner turned to walk into Respondent’s building and slipped and fell on ice injuring his mouth, chin, and teeth. 

Regarding his wages, Petitioner testified that he normally worked 37.5 hours per week and also worked overtime every week.  He testified that overtime from the Respondent was both voluntary and mandatory.  He testified that most of his overtime was mandatory.

Respondent’s timekeeper testified at trial.  She testified that 90% of Petitioner’s overtime was voluntary.  She also testified that his overtime was not consistent and was not the exact same overtime every day. 

The Arbitrator found accident and awarded medical bills, TTD benefits, and a permanency award.  In calculating wages, the Arbitrator held that Petitioner established that he consistently worked a number of overtime hours each week and because he worked overtime every week in the 52 weeks prior to his injury, the Arbitrator included his overtime wages in his AWW calculations.  

The Commission affirmed the Arbitrator’s holding but reversed the inclusion of overtime wages in the AWW calculation.  It explained that it relied on the Appellate Court’s holding in Airborne Express, which required a set number of overtime hours per week in order to be included.  Since overtime was not set and Petitioner sporadically volunteered for overtime, it was not consistent and mandatory and is therefore excluded in AWW calculations. 

VI.     TEMPORARY TOTAL DISABILITY BENEFITS

Patrick Sanko v. Aldridge Electric, Inc., 17 WC 004978, 21 IWCC 0010 (January 8, 2021)

Petitioner injured his right foot on November 9, 2016 while working for the Respondent.  While treating for his injury, he was placed on light duty work.  Petitioner testified that while on light duty, he would work one to two days per week, but would still be paid for a full 40 hour work week.  He worked light duty through April of 2017.  He then remained off through the date of trial in 2019.

There was conflicting testimony in the record regarding Petitioner’s return to work.  Petitioner testified that his supervisor told him to stop working and to “go get workers’ compensation” in April of 2017.  His supervisor testified that he offered Petitioner light duty work, but Petitioner refused.  The supervisor testified Petitioner was then terminated.

The Arbitrator found Petitioner’s testimony more credible than the supervisor’s testimony and awarded TTD benefits through the date of trial.  The Arbitrator held that since Petitioner’s condition had not yet stabilized because he was still treating and the Respondent never contacted him to return to work, he was still entitled to TTD benefits.  The Commission affirmed and adopted the Arbitrator’s decision. 

Daniel McAleer v. Exxon Mobil, 11 WC 1305, 21 IWCC 0009 (January 8, 2021)

The case proceeded to trial on two separate occasions.  In the first trial, the Arbitrator found Petitioner’s right shoulder, arm, and hand injuries were causally connected to the work related accident, but did not find that the neck, back, left arm, and wrist conditions were causally related.  The instant trial was to determine ongoing causation to Petitioner’s right shoulder, TTD benefits, and nature and extent. 

Following the first trial, Petitioner continued to treat for his right arm and unrelated neck injuries.  He underwent two shoulder surgeries and pain management for his neck.  Petitioner completed a FCE after his first shoulder surgery, which placed him at the medium-heavy category of no lifting over 20 pounds.  He never completed another FCE after his second shoulder surgery.  Petitioner testified he had not returned to work in his pre-injury capacity. 

The Arbitrator found causation and awarded TTD benefits through May 1, 2017, the date of trial.  On review, the Commission modified the TTD benefit award.  They found the MMI date to be October 20, 2016, the last date of treatment with his pain management doctor.  The Commission reasoned that the FCE was no longer valid and the last visit from the pain management doctor was the MMI date even if most of the treatment was for the non-related neck treatment.  The rest of the decision was affirmed.             

Editor’s Note – this case is currently on appeal to the Circuit Court of Cook County 2021L050062.

VII.     COMPUTATION OF AWARDS

Claudio Marchese v. City of Chicago, 11 WC 020577, 21 IWCC 0049 (February 2, 2021)

Petitioner is a 56 year old foreman lineman for Respondent.  On June 18, 2010, he injured his neck and shoulders after prying off a lid to a 200 pound manhole cover.  He treated conservatively and was released to full duty on August 4, 2010.  He worked full duty with the Respondent until his retirement on January 31, 2011.  Subsequently, he experienced more pain and underwent surgeries to his shoulder and neck.  Petitioner currently works for a union hall and has been released from treatment. 

The Arbitrator found that Petitioner’s current condition of ill-being regarding his shoulder and neck was causally connected to the work related accident.  However, the Arbitrator denied TTD benefits reasoning that Petitioner voluntarily removed himself from the workforce and was not entitled to receive TTD benefits.

On appeal, the Commission held that Petitioner was entitled to receive TTD benefits.  It reasoned that this case was similar to the facts in Land & Lakes where the Court held that Petitioner did not retire by choice, but was forced to retire prematurely because he was no longer able to physically perform his job for Respondent.  Similarly here, there is no evidence in the record that Petitioner chose not to work even though he could have returned to work.  The Commission held that Petitioner’s choice to retire was not voluntary.  Accordingly, Petitioner was entitled to receive TTD benefits through his full duty release after his shoulder and neck surgeries, which occurred after he retired. 

VIII.    PERMANENT DISABILITY BENEFITS

IX.       MEDICAL & REHABILITATION  BENEFITS

X.        BENEFIT PAYMENT PROCEUDRES

XI.      HEARING LEVEL PROCEDURES

XII.     EVIDENCE

XIII.     INJURED WORKERS’ BENEFIT FUND


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