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Workers’ Compensation FLASHPOINTS May 2019

May 15, 2019Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

This month features a review of two recent Illinois Workers’ Compensation Commission decisions. The first case concerns causal connection between the accidental injury and condition of ill-being and a credibility determination. The second case is a repetitive trauma causing bilateral carpal tunnel syndrome with the arbitrator’s §8.1b analysis for the permanency awards.

Petitioner Failed To Prove That His Condition of Ill-Being Was Causally Related to His Accidental Injury

The Commission affirmed an arbitration decision finding the petitioner failed to prove a causal relationship between his condition of ill-being and his work-related accident in Larson v. Rhodes Auto SSS, Inc., No. 15 WC 27682, 2019 WL 1597142, 19 I.W.C.C. 140 (Mar. 1, 2019). The Commission modified the decision on the average weekly wage based on the parties’ stipulation as to the amount of the annual earnings. The petitioner sustained a back injury on July 9, 2015, from falling off the second to last step of a ladder. He presented to St. Mary’s Hospital reporting a history of slipping and falling two steps from the ground approximately two feet in height and landing on his feet on concrete. He complained of right low back pain that radiated into the right buttock and thigh. A physical exam demonstrated 70 degrees of right straight leg raising and 80 degrees of left straight leg raising. There was mild tenderness in the right lower paraspinal and right sacral area. The diagnosis was a low back strain. He was released with a 5-pound lifting restriction. He was seen there again on July 13, 2015, and given a 10-pound lifting restriction.

On August 14, 2015, the petitioner returned and was again diagnosed with a low back strain. A 20-pound lifting restriction was issued. His last visit to St. Mary’s was on August 28, 2015. He was working light duty. He continued to report low back pain. He was referred to Dr. Van, an orthopedic spine surgeon. Dr. Van initially evaluated the petitioner on October 7, 2015. The petitioner reported continued low back pain that had improved 50 percent from the date of injury. A physical examination revealed a full pain free range of motion and strength in both lower extremities. Dr. Van diagnosed a lumbar sprain and prescribed medication. He recommended stretching exercises and stated the petitioner could seek employment as available. The petitioner returned to Dr. Van on November 4, 2015, reporting little pain. His physical exam was unchanged. Dr. Van again diagnosed a lumbar strain and released the patient to full duty work.

The petitioner saw Dr. Rhode on January 7, 2016, and provided him with a history of slipping off a ladder and landing forcefully, straight legged on the ground. He said he felt instant pain in the back radiating into the legs. He stated that he had minimal improvement, that a lumbar MRI was cancelled, and that he was told he could work full duty despite continued back pain radiating into the legs. Dr. Rhode diagnosed a lumbar radiculopathy, recommended an MRI, and took him off work. The MRI revealed spinal canal stenosis with a disc protrusion at L5-S1, which the radiologist thought was compressing the S1 nerve root. It also revealed degenerative changes. Dr. Rhode reviewed the MRI report and recommended epidural steroid injection.

On February 29, 2016, Dr. Li examined the petitioner at the respondent’s request. He diagnosed a lumbar sprain superimposed on congenital spinal stenosis. Dr. Li felt there was symptom magnification. He noted that if Dr. Van’s records were accurate, there was no need for further treatment. He testified that during the initial ER visit the petitioner complained of pain radiating down the right buttock and into the thigh. He did not consider those symptoms to be consistent with a radicular complaint. He agreed the mechanism of injury was consistent for causing the type of symptoms reported.

The petitioner’s medical treatment continued with Dr. Rhode through September 29, 2016. He received two epidural steroid injections and had 61 physical therapy sessions. At the end of therapy he complained of mild back pain but no radicular symptoms. He testified he had no relief from the injections. He was referred to Dr. Templin.

Surveillance was introduced that was taken in November 2016 showing the petitioner carrying a baby, cleaning out the bed of a pickup truck, climbing out of the truck bed, bending at the waist, and squatting to place the baby in a baby seat.

Dr. Templin evaluated the petitioner on November 29, 2016. The petitioner reported low back pain and right sided radiculopathy. Dr. Templin found no tenderness to palpation and a positive straight leg raise test. He felt the MRI revealed a disc protrusion at L5-S1. He recommended surgery and issued a 10-pound lifting restriction. A second MRI was performed on May 3, 2017, that was interpreted to show a right disc protrusion at L5-S1 with compression on the right S1 nerve root.

The respondent arranged for an examination with Dr. Mather on May 5, 2017. The petitioner reported back pain and stated he could not even think of running or jumping. He reported he could not perform any yard work and that walking would cause pain. He told Dr. Mather he could not bend at the waist. Dr. Mather reviewed the medical records and surveillance. He found several positive Waddell findings and nonorganic pain complaints. He diagnosed a lumbar strain at best that would have resolved after one or two weeks. He issued an addendum after reviewing the MRI of May 3, 2017. He wrote that the scan demonstrated disc degeneration at L5-S1with a minimal disc bulge that was non-compressive.

Dr. Rhode testified the accident was a forceful axial load mechanism that caused a right-sided radiculopathy. He testified the MRI’s were reflective of acute disc herniation and agreed with Dr. Templin’s surgical recommendation.

The arbitrator determined the petitioner’s condition of ill-being in his spine was not causally related to the accident. She relied on the opinions of Dr. Li and Dr. Mather to do so, finding they were entitled to greater weight than Dr. Rhode’s opinion and noted that Dr. Templin did not testify. She found the opinions of Dr. Li and Dr. Mather persuasive because they plausibly reflected the petitioner’s medical condition given the objective diagnostic and clinical evidence of the symptomatology. They were corroborated by the most contemporaneous medical records to the accident from St. Mary’s and Dr. Van. The petitioner had minimal complaints of pain for months following the injury and reported taking over-the-counter medications and doing home exercises. Within five weeks of the injury, he reported a 50-percent improvement in his symptoms. The arbitrator commented that the physical examinations did not produce objective clinical evidence corroborating the radiculopathy the petitioner claimed beginning six months after the accident.

She also questioned the petitioner’s credibility, noting he reported an inability to engage in various activities that were revealed in the surveillance.

As a result she awarded the reasonable and necessary medical expenses incurred up to November 4, 2015. She denied any further medical expenses after that date as well as the claim for prospective medical care. Temporary total disability (TTD) was awarded for 17 weeks from July 10, 2015, through November 4, 2015.

Petitioner Proves Bilateral Carpal Tunnel Syndrome Was Result of Repetitive Work Activities

In Popejoy v. Southern Illinois University Carbondale, No. 15 WC 39284, 2019 WL 1597163, 19 I.W.C.C. 0160 (Mar. 14, 2019), the Commission affirmed an arbitration decision finding the petitioner’s bilateral carpal tunnel syndrome was work-related and awarding a 10-percent loss to the right hand, a 3-percent loss to the left hand, medical expenses, and TTD. The petitioner’s job was an Account Technician II position. The job description listed the multiple functions required. The essential physical demands identified fine hand manipulation as constant at 67 – 100 percent and more than 800 repetitions a day. Data entry sheets were prepared daily. These had to be individually typed.

The petitioner testified that in the Spring 2015 she developed bilateral wrist burning that was worsening. She testified her job duties had increased since April 2013. She reported the symptoms to her supervisor. This was the time of year when all purchase requests had to be submitted for approval before the end of the fiscal year on June 30. She began treatment in April 2015 at Shawnee Health Care. An EMG/NCV was positive for mild bilateral carpal tunnel syndrome. She was referred to Dr. Young whom she first saw on June 18, 2015. She told Dr. Young that she was performing increased data entry of contracts as well as the other duties of her position. Dr. Young diagnosed bilateral carpal tunnel syndrome, right thumb CMC arthrosis, prescribed splints, and Volataren gel. At a follow up on July 23, 2015, she reported the symptoms continued to bother her. Dr. Young recommended surgery and allowed her to continue to work full duty.

Dr. Young performed a right carpal tunnel release on November 18, 2015. He released the petitioner to work on November 26, 2015, with no use of the right hand until December 2, 2015. On that day the petitioner reported improvement in her symptoms and that she did not wish to proceed with surgery on the left hand. She returned to Dr. Young on January 5, 2016, reporting overall improvement. Dr. Young released her at maximum medical improvement.

Dr. Suddekum examined her at the request of the respondent on June 21, 2016. She reported performing data entry 7.5 hours a day, 5 days a week. Dr. Sudekum reviewed the medical records and all reports of injury. He diagnosed left carpal tunnel syndrome, and resolved right carpal tunnel syndrome and formed an opinion that the work activities were a contributing factor to the onset of the carpal tunnel syndrome.

The petitioner testified to a good result from the surgery without further treatment after January 2016. She testified on cross-examination of being diagnosed with hypertension for which she took medication. She testified that 98 percent of her job required typing.

Her supervisor testified that the job duties had increased because the construction on campus increased dramatically from June 2013 to April 2015. She testified that in addition to typing, the job required opening mail, photocopying payments, routing payments for signature, answering calls from vendors, and answering questions from other employees. She testified that in 2014 and 2015 students were available to help the petitioner. She estimated that 50 percent of the job required typing and that there would be some printing and matching up paperwork. The petitioner would walk to place folders in mailboxes. She testified that there was not any one thing that was continuous.

On rebuttal the petitioner testified that the supervisor’s testimony about the mail was accurate but reiterated that most of the day was spent on the computer and that everything she did involved entering data. She described that things piled up, there were deadlines to be met, and that they did not take breaks.

The supervisor was recalled and testified that the petitioner would have breaks from typing when she had to walk payments around and when she had to photocopy payments.

Dr. Young testified the petitioner’s work duties likely contributed to her carpal tunnel syndrome, given her repetitive work, the cumulative nature of it over several years, and the more recent increase in activity. He testified the petitioner listed eight specific job duties on a questionnaire and which ones aggravated her symptoms. He viewed thickening of the transverse carpal ligaments during surgery, which indicated moderate to severe pressure on the median nerve. On cross-examination with regard to the job duties, Dr. Young could not say whether the petitioner was writing or typing, how long she performed any given activities during the week, or if she had intermittent rest periods. He agreed that her hypertension, weight, and gender were risk factors and that medical literature exists concluding that typing is not contributory to carpal tunnel syndrome. On redirect, he testified an individual with multiple risk factors would be more susceptible to developing carpal tunnel syndrome from cumulative trauma than someone without them.

Dr. Sudekem testified he agreed with the diagnosis of bilateral carpal tunnel syndrome. He did not have a formal job description and his opinion that the petitioner’s job duties could serve as an aggravating factor was based on what the petitioner told him. He was later provided a job description and issued an addendum. He noted this reflected one third to two thirds of the day involved sitting, meaning she was not sitting the entire day, which he believed indicated she would not be typing constantly. He noted activities including e-mail, copying, filing, and meeting with other employees. This was different than what the petitioner told him. He testified to medical literature that indicates no real support that typing or keyboard entry causes carpal tunnel syndrome. He noted her multiple risk factors. He testified that she would have developed carpal tunnel syndrome regardless of her employment activities and that her work duties did not cause or aggravate it.

In finding an accidental injury, the arbitrator relied on the petitioner’s testimony. She testified she would be constantly behind in entering data and had piles to work through. He found her testimony credible. He noted, based on the petitioner’s and the supervisor’s testimony, that there was an increase in the data entry duties between 2013 and 2015 when she developed her symptoms. The greater weight of the evidence supported a finding that the petitioner was performing significant data entry duties and keyboarding during that period that coincided with the development of worsening symptoms. She consistently reported her history of work and symptoms to her employer, Dr. Young, and Dr. Sudekum. Based on that history, Dr. Young and Dr. Sudekum, initially, found the work to be a causative factor.

The arbitrator’s decision pointed out that Dr. Young’s opinion was not the strongest he had seen in support of causation, noting the doctor could not specifically say what activities the petitioner performed at work based on the questionnaire. What was clear was that the doctor based his opinion on the petitioner performing significant data entry. He also rejected Dr. Sudekum’s reversal of his original opinion. His initial opinion was based on the job description the petitioner provided him. Her description was credible. The arbitrator did not consider the reliance on the written job description as a basis for changing the opinion to be persuasive.

The arbitrator noted that while the petitioner had risk factors, she met her burden of proving by a preponderance of the evidence that her increased job duties were a contributing cause of her condition of ill-being.

In awarding the permanency, the arbitrator’s decision set forth the five factors required under §8.1b of the Workers’ Compensation Act, 820 ILCS 305/1, et seq. Neither party submitted an AMA impairment rating. With regard to the occupation, the arbitrator found a medium level of weight, noting that in part this factor tended to show a lesser level of permanency based on a full-duty return and a greater level of permanency based on her continuing to perform data entry. As to the petitioner’s age at the time of the injury, she was 47. Since neither party submitted evidence to show the impact her age might have on permanency, he gave that factor no weight. As to her future earning capacity, again no evidence was offered. The arbitrator concluded she did not suffer any loss of future earnings and found a minimal level of weight for this factor.

As to the evidence of disability in the medical records, the arbitrator noted her testimony and Dr. Young’s records described a very good result from the surgery on the right hand. For the left hand, testing revealed a mild carpal tunnel with minimal treatment and no follow up. This factor carried the greatest weight, and he awarded a 10-percent loss to the right hand and a 3-percent loss to the left hand.

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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