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Workers’ Compensation FLASHPOINTS December 2018

December 14, 2018Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

We close out the year with two Rule 23 orders from the Workers’ Compensation Commission Division of the Illinois Appellate Court. The first concerned a fall on an employer’s premises due to a hazardous condition and the appropriate analysis to determine compensability. The second was an occupational diseases claim in which the Commission resolved conflicting medical evidence.

Commission’s Finding That Petitioner Failed To Prove Accidental Injury Was Against Manifest Weight of Evidence

In Crowder v. Illinois Workers’ Compensation Commission, 2018 IL App (4th) 180037WC-U, the Workers’ Compensation Commission Division of the Illinois Appellate Court in a Rule 23 order determined that a petitioner’s fall at work arose out of and in the course of the employment. The petitioner worked as an administrative zoning secretary for the City of Springfield. The building where she worked had two entrances. The east side entrance was used primarily by employees and could be accessed only by swiping a badge. The public was permitted entrance, but that required that the door be opened for them. The west side entrance was the main entrance and used by employees and the public.

On February 14, 2014, during her morning break, the petitioner and a coworker planned to exit the building and walk one block north to purchase coffee at a Starbucks. It was snowing, and video surveillance documented the presence of snow, someone shoveling the walkway of the building, and later a dusting of the walkway with snow. The petitioner exited the building through the main door — the west entrance. The video showed the petitioner falling at 9:11 a.m. on the walkway. This walkway connected the west entrance and the main sidewalk. It split at a fountain, continued around the fountain, and connected with the main sidewalk. She fell as she proceeded around the fountain.

The arbitrator issued a decision denying the claim on the basis the petitioner failed to prove her injury “arose out of and in the course of” her employment. 2018 IL App (4th) 180037WC-U at ¶9. The arbitrator found the petitioner was injured as a result of a personal risk to which she was not exposed to any greater degree than the general public. The decision to purchase coffee at Starbucks was voluntary and exposed the petitioner to a risk separate from her job responsibilities. The Commission in a two-one decision affirmed. The circuit court confirmed that decision.

The appellate court reversed. The court’s opinion points out that a risk analysis is unnecessary if the injury occurred on an employer’s premises due to an unsafe or hazardous condition. The fact that the walkway was also used by the general public was immaterial to the issue of compensability because the injury was caused by a hazardous condition on the employer’s premises. If the employer allowed both its employees and members of the general public to use the west entrance and contemplated that its employees would enter and exit the building through this west entrance and use the accompanying walkway, a hazardous condition on the walkway that caused a claimant’s injury would be compensable, regardless of whether the employer restricted or dictated its employees’ use of the entrance. This hazardous condition of the employer’s premises rendered the risk of injury incidental to employment without the petitioner having to prove that she was exposed to a risk of that hazard to a greater extent than members of the general public. Archer Daniels Midland v. Industrial Commission, 91 Ill.2d 210, 437 N.E.2d 609, 62 Ill.Dec. 921 (1990).

The court pointed out the key factors guiding its decision: (1) the petitioner’s injury occurred on the employer’s premises; and (2) the injury was due to or caused by a dangerous condition or defect on the employer’s premises. “No consideration is given as to whether claimant’s risk was any greater than that of the general public.” Crowder, supra, 2018 IL App (4th) 180037WC-U at ¶17. The court also made clear that this was not a case of personal comfort. Here the petitioner was running a personal errand.

Commission’s Finding That Petitioner Failed To Prove He Suffered From Occupational Disease Was Not Against Manifest Weight of Evidence

The Workers’ Compensation Commission Division of the Illinois Appellate Court found the Commission’s decision was not against the manifest weight of the evidence in Bledsoe v. Illinois Workers’ Compensation Commission, 2018 IL App (5th) 180012WC-U. The claimant was a coal miner for 35 years. His last day of exposure in a coal mine was November 14, 2010. He eventually retired in February 2011 and had not worked since his last day in the mine. He developed shortness of breath five or six years prior to his last date of employment.

Past medical history revealed a chest X-ray from March 2000 was normal. There was a diagnosis of asthma. He complained of mild breathing problems and chest pains in 2002 and was diagnosed with mild hypertension and cardiovascular disease. In 2004, he was treated for cardiovascular occlusion by cardiac catheterization and stents. In June 2006 he was diagnosed with chronic obstructive pulmonary disease (COPD). He decided to retire in February 2011 due to a blood disorder and an ulcer.

A chest X-ray taken on February 26, 2011, at a VA clinic was interpreted as negative for coal workers’ pneumoconiosis (CWP). Treatment notes from the VA for March 8, 2011, established clear lungs. Dr. Henry K. Smith, a board-certified radiologist and National Institute for Occupational Safety and Health (NIOSH) B-reader, interpreted a chest X-ray taken on March 8, 2011, as positive for CWP with profusion 1/0 and P/S opacities in all lung zones.

The petitioner filed his application for adjustment of claim on April 12, 2011, alleging a February 28, 2011, date of accident.

Records from the VA for August 12, 2011, documented a sore throat and coughing black-yellow sputum at night. The petitioner reported shortness of breath and a history of coal mining. The lungs were clear to auscultation. Records for August 23, 2011, revealed no shortness of breath or cough. The lungs were equal bilaterally with fair air entry and no crackles or rhonchi. Records for April 4, 2012, showed no shortness of breath, cough, or phlegm. The lungs were equal with no crackles or rhonchi. Similar findings were recorded on December 5, 2012.

On January 30, 2012, Dr. Michael Alexander, a board-certified radiologist and B-reader interpreted the March 8, 2011, chest X-ray as positive for CWP, profusion 1/0 with P/P opacities in all lung zones. He also noted a 5 millimeter granuloma in the right mid zone.

On June 15, 2011, Dr. Christopher Meyer, board-certified radiologist and B-reader, interpreted a March 2007 chest X-ray as negative for CWP. He also reviewed a February 24, 2010, chest X-ray as negative for CWP. He observed a calcified granuloma in the right mid zone.

On October 2, 2013, Dr. Jeffrey Selby examined the claimant at the employer’s request. Dr. Selby was board-certified in internal medicine and pulmonology. He was a B-reader. The claimant had no complaints concerning his health. He reported occasional shortness of breath but was not sure when it started. Pulmonary function testing was conducted. Dr. Selby interpreted an X-ray of October 2, 2013, as negative for CWP. Exercise testing was within normal ranges.

The employer deposed Dr. Meyer. He compared X-rays of March 1, 2007, February 24, 2010, February 26, 2011, and March 8, 2011. He found no evidence of CWP. He noted a calcified granuloma in the right mid zone. He found no change on serial exams he reviewed and no significant changes in the X-ray films.

Dr. Glennon Paul’s deposition was taken on the claimant’s behalf. He was board-certified in internal medicine, asthma, allergy, and immunology. He was not a B-reader, nor was he board-certified in pulmonology. He concluded, based on all of the testing and data, the petitioner had CWP, chronic bronchitis, and a restrictive vestibular defect. He testified this was caused by coal dust and the coal mine environment. He testified the petitioner was totally disabled from work as a coal miner and could perform only light manual labor. He did not review any of the claimant’s medical records. He did not know if the claimant left mining due to an inability to perform his job.

Dr. Selby was deposed. He reviewed the claimant’s complete medical history. He testified the claimant suffered from severe coronary artery disease. He testified coronary artery disease and deconditioning are common causes of shortness of breath on exertion. The results of tests he conducted revealed no pulmonary obstruction or diffusion impairment. The exercise testing is the gold standard to determine cardiopulmonary ability, and the claimant’s testing did not reveal a limit to exercise based on a ventilatory impairment. He opined the claimant was capable of heavy manual labor from a pulmonary standpoint. He testified the claimant did not suffer from a respiratory or pulmonary abnormality as a result of coal mine dust inhalation or his coal mine employment. He saw no evidence of CWP, COPD, or asthma. He determined the claimant’s shortness of breath and fatigue were caused by extensive coronary artery disease, sleep apnea, and hypertension.

The arbitrator found the claimant failed to prove he had an occupational disease. The arbitrator found the B-readings of Dr. Meyer and Dr. Selby, as well as the independent NIOSH B-readers, more persuasive than Dr. Paul’s opinion. The Commission affirmed, and the circuit court confirmed the ruling.

On appeal, the claimant argued the decisions that he failed to establish an occupational disease and that he suffered a disablement were against the manifest weight of the evidence. The court disagreed. The Commission’s finding that the claimant did not suffer from CWP, COPD, or any respiratory occupational disease rested firmly on the opinions of Dr. Meyer and Dr. Selby and the independent NIOSH B-readings. This evidence was challenged, and the claimant’s medical experts all opined he suffered from an occupational disease.

The court observed that Dr. Paul’s opinion was diminished by the Commission because he was not a B-reader. The opinion stated, “In the final analysis, unless the evidence on one side is so compelling as to render the opposite conclusion clearly apparent, we must defer to the Commission, which is uniquely situated to weigh competing medical evidence and to resolve any evidentiary conflicts.” 2018 IL App (5th) 180012WC-U at ¶28. The court commented further that the evidence was, in many ways, evenly balanced, making the Commission the ultimate decision-maker.

The court also rejected the argument that the AMA GUIDES TO EVALUATION OF PERMANENT IMPAIRMENT (6th ed.) established a measurable level of impairment. The court noted there is no reported case in which the impairment ratio is proof of the presence of an occupational disease.

The court also commented in a footnote about the question of the admission of older X-rays being used to form opinions. The claimant argued the Commission should not consider any opinions based on older films. The court commented that this argument might have merit when the claimant objects to the admission of the older films. In this case he did not and therefore could not argue that those films should be excluded as irrelevant. In future cases, it might be appropriate to object to the admissibility of older films and the opinions supported by them when the newest films show the presence of CWP.

For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) — 2015 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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