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Workers’ Compensation FLASHPOINTS January 2022

Joseph P. Basile | E-mail Joseph Basile

The issue of causation is presented in a Rule 23 order issued by the appellate court at the end of the year. The case concerns aggravation of a degenerative cervical spine condition and the need for surgery.

Commission Reasonably Concluded Accident Aggravated Claimant’s Preexisting Cervical Disc Disease, Accelerated Need for Surgery

The Workers’ Compensation Commission Division of the Illinois Appellate Court upheld the Commission’s findings in Greater Peoria Mass Transit District v. Illinois Workers’ Compensation Commission, 2021 IL App (3d) 210223WC-U. The claimant was a bus operator who experienced severe pain and numbness radiating from his neck down his right arm when he began turning the steering wheel of the bus to make a right turn on January 10, 2019. He had experienced those symptoms for months before but not to the same extent as when the incident occurred. He saw a physician, who diagnosed an impingement syndrome. An MRI revealed a tear, and the claimant was referred to a Dr. Mahoney, who diagnosed cervical spondylosis with myelopathy and referred the claimant to Dr. Mulconrey.

Dr. Mulconrey diagnosed right upper extremity paralysis and radiculopathy. He ordered testing and restricted the claimant to work with a five-pound lifting limit, which the respondent could not accommodate. After reviewing a new MRI and EMG, Dr. Mulconrey diagnosed cervical spondylosis with radiculopathy and right upper extremity paralysis. He recommended cervical decompression and fusion and continued work restrictions.

Dr. Weiss conducted an exam and review of records pursuant to §12 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq. In his opinion, in the absence of any associated significant mechanical problems, the forces involved in turning a steering wheel would be insufficient to cause or aggravate radiculopathy.

Dr. Mulconrey testified to his history, exam findings, diagnoses, and recommendation for surgery. He testified the cervical spine condition was aggravated by the work accident based on the claimant’s history that he was able to function and work with the preexisting condition and after the injury the symptoms became so severe that he was unable to continue to work.

Dr. Weiss testified to the opinions he provided in his report. He supported his opinion that the incident was not a causative factor based on the fact that the claimant had atrophy that was confirmed on videos of the claimant’s driving activities on the date of the accident. He testified the atrophy would have been present three to six months before it was diagnosed by Dr. Mulconrey. Dr. Weiss agreed the claimant was a surgical candidate but testified the need for surgery predated the accident.

At the arbitration hearing, the claimant presented evidence of his care and treatment before the accident. Between September 17, 2009, and September 12, 2018, there were no complaints of neck, right shoulder, or right arm pain or discomfort. The September 12, 2018, exam demonstrated normal motion in the musculoskeletal region. There was no mention of symptoms described as having arisen after the accident.

The arbitrator found that the claimant sustained a work-related accident and that the condition of ill-being was causally related to the accident. The arbitrator relied on Dr. Mulconrey’s opinion that the accident aggravated the preexisting degenerative cervical condition. The arbitrator found the accident was a cause in the increase in pain symptoms and accelerated the need for surgery. The arbitrator awarded temporary total disability (TTD), medical expenses, and prospective medical, including the surgery. A majority of the Commission affirmed and adopted the decision.

The issue on appeal by the respondent was whether the Commission properly determined the claimant’s condition of ill-being was causally related to the January 10, 2019, incident. The court found there was sufficient evidence to support the Commission’s causation finding. The court noted that, despite the preexisting condition, the claimant was able to work full duty as a bus driver prior to the accident. After the accident, he was taken off work and never returned to full duty. The claimant’s testimony concerning the intensification of his symptoms was consistent with the histories he provided to his physicians. This was evidence showing an aggravation of the claimant’s condition coincident with the accident, which was sufficient to support an inference of causation. The court also found the Commission was entitled to credit Dr. Mulconrey’s opinion over Dr. Weiss’s opinion.

The opinion pointed out that when an accident accelerates the need for surgery, a claimant may recover under the Act. Schroeder v. Illinois Workers’ Compensation Commission, 2017 IL App (4th) 160192WC, 79 N.E.3d 833, 414 Ill.Dec. 198. The opinion refers to Dr. Mulconrey’s testimony on cross-examination. He testified that if the claimant had presented to him prior to the accident with a lack of pain and ability to work, he would have been a surgical candidate. However, the claimant did not seek medical treatment before the accident, and it was the complaints of pain afterward that led the claimant to seek medical attention. This supported the inference that the accident accelerated the need for surgery. The court found the Commission’s finding on this point was not against the manifest weight of the evidence.

The opinion went further, explaining why the court rejected arguments made by the respondent that there was no evidence that the incident aggravated the preexisting condition. The court found that, based on the record, it could not say that a conclusion opposite that of the Commission on the issue of causation was clearly apparent or that, in turn, the Commission’s decision was against the manifest weight of the evidence.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE®, 2019). 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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