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Workers’ Compensation FLASHPOINTS February 2019

February 15, 2019Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

Petitioner Recovers Award for Permanent Partial Disability and Wage Differential

The Workers’ Compensation Division of the Illinois Appellate Court filed a decision in Pisano v. Illinois Workers’ Compensation Commission, 2018 IL App (1st) 172712WC, in which a number of issues were raised. Primarily, the case involved when a petitioner is entitled to a scheduled permanency award under §8(e) and a wage loss under §8(d)1 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq. It also involved “odd-lot” permanent and total disability and penalties. The summaries of the legal principles contained in the opinion are very useful.

The petitioner, an employee of the City of Chicago, filed three applications for adjustment of claim. On October 31, 2005, he injured his right elbow and right wrist. On December 12, 2007, he again injured the right wrist. On December 6, 2010, he injured his shoulders, back, and neck from a fall while going to a vocational rehabilitation appointment. The claims were consolidated, and the hearings were conducted pursuant to §19(b) of the Act. In all of the cases, the parties stipulated to accident.

The petitioner had one year of high school education, attended trade school, and served in the Navy. He started with the city in 1979 and became a hoist engineer in the water department.

The petitioner’s first accident resulted in a right shoulder strain, right elbow fracture, and a right wrist contusion. He treated at MercyWorks and was referred to Dr. Heller at Midland Orthopedics. An MRI revealed a triangular fibrocartilage complex (TFCC) tear of the right wrist. On March 1, 2006, Dr. Nagle performed surgery on the right wrist. A functional capacity evaluation (FCE) was conducted on April 21, 2006, which placed the petitioner at a light-to-medium physical-demand level with lifting restrictions of 55 pounds floor to waist and 30 pounds waist to overhead occasionally. This did not meet the demands of a hoist engineer. On May 11, 2006, Dr. Nagle released the petitioner with permanent restrictions based on the FCE.

The petitioner continued to make periodic visits to Dr. Nagle, and on March 22, 2007, told Dr. Nagle he wanted to return to work as a hoist engineer. An FCE was conducted on April 4, 2007. The petitioner was able to lift 100 pounds floor to waist and 50 pounds waist to overhead. This met the job requirements. The next month the petitioner told Dr. Nagle he had developed wrist pain following the FCE. Dr. Nagle disagreed with the FCE results and advised the petitioner to avoid heavy and repeated axial loading of the wrist and not to lift more than 50 pounds waist to shoulder. On July 26, 2007, Dr. Nagle reviewed a job description for a hoist engineer. It did not mention lifting 50 pounds above shoulder level as a requirement. Dr. Nagle therefore authorized a return to regular duty as a hoist engineer according to the job description. MercyWorks also authorized full duty work. The petitioner returned to work driving a graffiti blaster.

On December 12, 2007, the petitioner’s right hand was struck by a car mirror. He was evaluated at MercyWorks and was told the wrist was aggravated. He was allowed to return to work. In March 2008, his pain increased. He was placed on restrictions the city could not accommodate. He was referred to Dr. Nagle after some physical therapy.

Dr. Nagle examined him on June 17, 2008, and limited above shoulder lifting to no more than 50 pounds. The petitioner informed Dr. Nagle the restriction was causing some difficulty with returning to work. Dr. Nagle allowed work at full duty. An FCE was done on June 30, 2008, and resulted in a medium physical demand level. The petitioner had additional therapy. On September 15, 2008, MercyWorks discharged him at maximum medical improvement (MMI) with lifting restrictions of 35 pounds occasionally and 20 pounds frequently. The city retained Edward Steffan to provide vocational services on July 29, 2009, for a job search program. The petitioner conducted a job search but had no success.

On December 6, 2010, while going to a meeting with the vocational counselor, he fell, which caused pain to his neck, shoulders, and low back. Dr. Prinz ordered MRIs of the neck and shoulders. They revealed tears in both shoulders and cervical stenosis. Dr. Prinz referred him to Dr. Maday for the shoulders and Dr. Espinosa for the back and neck. The petitioner declined injections that Dr. Maday recommended, so Dr. Maday recommended a home exercise program and a one-month follow up. Dr. Espinosa ordered a lumbar MRI. He eventually diagnosed cervical and lumbar degenerative disc disease.

On January 31, 2011, Dr. Michael Kornblatt examined the petitioner for the city. He diagnosed a cervical strain from the fall and preexisting degenerative disc disease as well as a mild lumbar strain that was from the fall. He stated that the petitioner was able to perform a job search and work full time lifting up to 25 pounds and that MMI would be one month with some therapy.

The petitioner returned to Dr. Maday on February 11, 2011. Dr. Maday prescribed physical therapy. On July 1, 2011, he was discharged from therapy. On September 1, 2011, MercyWorks found him at MMI and able to work with a 30 pound lifting restriction.

There was conflicting testimony about the city’s offer of a watchman position to the petitioner. Based on a job description, Dr. Maday expressed concerns about heavy lifting and confronting individuals. The city presented evidence that the position did not involve heavy lifting and that 911 was to be called if an unauthorized person was on the premises. The petitioner did not go through the fingerprinting process for the position.

A vocational counselor testified for the petitioner that there were challenges to his returning to the workforce. He testified that a stable labor market did not exist for the petitioner. He also expressed concerns as to whether the watchman position was appropriate.

Ed Steffan testified that if the watchman position did not require physical confrontation, had a 30-pound lifting restriction, and called for monitoring security footage, walking the premises, and calling 911 if there was an unauthorized person on the property, then the petitioner was qualified. He also testified to jobs in which the petitioner could secure employment. He did not review the job duties of a watchman and had no opinion whether that would be an appropriate job for the petitioner.

The arbitrator issued a single decision awarding a 20-percent loss to the right arm for the elbow fracture and a 30-percent loss to the right hand. The arbitrator also found the petitioner failed to prove a permanent and total disability and that no stable labor market existed. The arbitrator found the petitioner failed to complete the application process for the watchman position. She determined the petitioner was entitled to a wage loss due to the injuries from the December 12, 2007, accident. The arbitrator also held that the injuries from the December 6, 2010, fall were part of the vocational rehabilitation process from the December 12, 2007, accident and that the permanency was the wage loss award for that accident.

The Commission modified the decision with respect to the date the wage loss was to start and otherwise affirmed and adopted the decisions. The circuit court remanded the case, ruling there should only have been one type of award and not one for both a scheduled loss and wage loss. On remand, the Commission issued a wage loss and vacated the awards for the loss to the right arm and the right wrist.

On appeal, the petitioner raised multiple issues. He claimed entitlement to a scheduled award and a wage loss. He argued there was error in not awarding permanent and total disability as well as not awarding permanency for the 2010 fall. He also argued error in failing to award penalties and attorneys’ fees for failure to pay medical expenses and maintenance benefits.

The court agreed with the petitioner’s argument that he was entitled to separate awards because he suffered multiple injuries to multiple body parts in multiple accidents based on Baumgardner v. Illinois Workers’ Compensation Commission, 409 Ill.App.3d 274, 947 N.E.2d 856, 349 Ill.Dec. 842 (1st Dist. 2011). The Commission’s award for permanent partial disability benefits for the fractured right elbow was not against the manifest weight of the evidence because the petitioner sustained only one injury to this body part. The opinion also cites Village of Deerfield v. Illinois Workers’ Compensation Commission, 2014 IL App (2d) 131202WC, 24 N.E.3d 290, 388 Ill.Dec. 382. The award for the loss to the right arm was reinstated.

The court next found the scheduled award for the right wrist was against the manifest weight of the evidence and affirmed the award for the wage loss for the two accidents that caused the injuries to the right wrist, relying again on Baumgardner. The right wrist was injured in both the 2005 and 2007 accidents, and therefore only one award could be made.

The next issue was whether the petitioner established a permanent and total disability under the odd-lot category. The court found the petitioner established a diligent but unsuccessful job search. It further held the city met its burden of showing some kind of suitable work was available to the petitioner by presenting evidence the petitioner was employable as a watchman. The evidence established the duties of the position were within the petitioner’s 30-pound lifting restriction. It did not require overhead lifting. Although the petitioner completed a questionnaire as part of the job offer process, he did not follow up for the fingerprinting process, which was necessary before he would be hired. The Commission’s finding that a bona fidejob offer for the position was made to the petitioner was not against the manifest weight of the evidence. The same was also true of the Commission’s finding that the position was suitable employment for the petitioner.

The court then found the Commission’s decision not to award permanency benefits for the injuries to his neck and shoulders from the December 2010 fall was not against the manifest weight of the evidence. The Commission could have reasonably concluded based on Dr. Kornblatt’s opinion that the petitioner completely recovered from those injuries without any residual disability and that any residual symptoms were the result of his unrelated preexisting conditions.

As to the issue of penalties and attorneys’ fees, the court agreed with the city that medical bills from Dr. Nagle and ATI Physical Therapy were paid through the group insurance plan. The parties stipulated to this and that only $100 in bills was unpaid. Based on this, the arbitrator did not award penalties and the Commission affirmed. The court found this was not against the manifest weight of the evidence. As to the claim for penalties and fees for failure to pay maintenance, the arbitrator found that neither party presented evidence as to what sums were paid for what benefits. The arbitrator found there was no evidence to determine what credits were owed to respondent or what sums were paid to the petitioner. The arbitrator was unable to determine if maintenance benefits had not been paid without justification. The Commission affirmed and adopted this finding, and based on the record the court could not say it was improper. Furthermore, once the city stopped paying maintenance, it began paying a wage differential.

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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