Opinion
No. 2-16-0368WC
08-28-2017
DEWAYNE WALKER, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Superior Ambulance/Illinois Med-Car, Inc. Appellees).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 18th Circuit, DuPage County Illinois
Circuit No. 15-MR-1275
Honorable Bonnie M. Wheaton, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Hoffman, Hudson, Harris, and Moore concurred in the judgment.
ORDER
¶ 1 Held: The Commission's decision was not against the manifest weight of the evidence where the Commission's decision was supported by the competent medical opinion regarding maximum medical improvement, vocational rehabilitation and maintenance. The Commission's credibility determinations regarding the claimant incredible testimony were not against the manifest weight of the evidence.
¶ 2 The claimant, DeWayne Walker, appeals a decision of the Illinois Workers' Compensation Commission (Commission) denying his claim for certain benefits under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). The claimant sought benefits for injuries to his lumbar spine allegedly incurred as the result of an industrial accident occurring on August 25, 2011. Following a hearing before Arbitrator Joshua Luskin on February 14, March 10, and May 12, 2014, the arbitrator determined that the claimant's injury to lumbar spine was causally related to the August 25, 2011, accident. The arbitrator determined, however, that the claimant was offered employment within his work restrictions on July 8, 2013, but refused the offered employment. The arbitrator thereby determined that the claimant was not entitled to temporary total disability (TTD) benefits after July 8, 2013. Likewise, the arbitrator determined that the claimant was not entitled to vocational rehabilitation or maintenance after that date. The arbitrator further determined that the claimant was not entitled to penalties for vexatious and unreasonable denial of payment of benefits.
¶ 3 The claimant sought review of the arbitrator's decision before the Commission. The Commission, with one dissent, affirmed and adopted the decision of the arbitrator. The dissenting commissioner would have found that the proffered job was not a valid job offer within the claimant's work restrictions. The dissenting commissioner would have awarded vocational rehabilitation and maintenance for the time period after July 8, 2013, but would not have awarded penalties. The claimant sought judicial review of the Commission's decision in the circuit court of DuPage County, which confirmed the Commission's decision. The claimant then filed this timely appeal.
¶ 4 The claimant raised the following issues on appeal: (1) whether the claimant was entitled to TTD or maintenance and vocational rehabilitation benefits after July 8, 2013; and (2) whether
the Commission erred in denying the claimant's request for penalties under sections 16, 19(k) and 19(l) of the Act.
¶ 5 BACKGROUND
¶ 6 The following factual recitation is taken from the evidence presented at the arbitration hearings. The claimant, a 46-year-old high school graduate was working as Medi-Car transport driver for Superior Ambulance/Illinois Medi-Car (employer) when the accident occurred on August 25, 2011. On that date, the claimant was assigned to transport a patient from MacNeal Hospital to the patient's home. The patient had undergone knee surgery and could not walk. The claimant and an assistant were transporting the patient to her apartment. While maneuvering the patient up a flight of stairs, the claimant felt pain in his lower back radiating down the left side of his body. The claimant immediately contacted his supervisor after getting the patient into the apartment. Accident and notice were undisputed.
¶ 7 The claimant sought treatment for Dr. Zahurul Huq, who diagnosed disc bulge and herniation. The claimant was off work and treated conservatively with Dr. Huq from September 2, 2011, through December 12, 2011. Dr. Huq referred the claimant to Dr. Roger Lichtenbaum, an orthopedic surgeon, for an evaluation. Dr. Lichtenbaum advised against surgery at that time, suggesting a course of non-surgical pain intervention. After further conservative treatment failed to reduce his pain, the claimant sought treatment elsewhere.
¶ 8 The claimant then undertook a course of treatment with Dr. Kern Singh, a board certified orthopedic surgeon with a specialty in minimally invasive spinal surgery. On March 6, 2012, Dr. Singh performed fusion surgery at L5-S1. Following the surgery, Dr. Singh prescribed four weeks of post-operative physical therapy, which was successfully concluded on June 13, 2012. Following the completion of physical therapy, Dr. Singh released the claimant to light duty. The
claimant returned to work within the light duty restrictions the following day, but was unable to complete the day without experiencing severe pain. The claimant underwent further testing ordered by Dr. Singh, including a myelogram on August 14, 2012, which revealed some additional stenosis and narrowing not addressed by the fusion surgery.
¶ 9 On August 30, 2012, the claimant was examined at the request of the employer by Dr. Alexander Ghanayem, a board certified orthopedic surgeon. Dr. Ghanayem reviewed the claimant's medical records, including the recent myelogram, opined that there was ectopic bone formation extending into the neural foramen on the right side at L5. He further opined that the bone formation was likely a complication from the March 2012 surgery. He recommended cessation of physical therapy and the undertaking of surgical decompression of the nerve root.
¶ 10 On November 6, 2012, Dr. Singh performed additional surgical procedures at L5-S1, which included a fusion of the adjoining discs. The claimant underwent a period of post-operative physical therapy.
¶ 11 On March 11, 2013, the claimant was examined by Dr. Singh. Treatment notes from that session noted some improvement following therapy but with continued complaints of intermittent low back pain radiating through the right buttock and thigh. Diagnostic tests showed good bone consolidation following surgery. Dr. Singh prescribed another month of physical therapy and light duty with a 10-pound lifting restriction and only minimal bending, stooping or squatting.
¶ 12 On March 14, 2013, the respondent made a written offer of light duty to the petitioner. The claimant returned to work in the light duty job offered by the employer.
¶ 13 On March 18, 2013, the claimant was again examined at the request of the employer by Dr. Ghanayem. The claimant reported residual soreness with continuing right leg pain. Dr.
Ghanayem noted that the claimant appeared to be neurologically intact, but he was using a cane, which had not been prescribed by any treating physician. Dr. Ghanayem recommended a lumbar CT scan to evaluate the progress of the bone fusion and concurred in the light duty (sedentary level) restrictions imposed by Dr. Singh. Dr. Ghanayem opined that the claimant had not yet reached maximum medical improvement (MMI).
¶ 14 On March 25, 2013, Dr. Singh noted that the claimant presented with complaints of additional low back and leg pain. Dr. Singh placed the claimant on a restriction of no driving and recommended additional physical therapy. Dr. Singh continued the light duty restrictions.
¶ 15 On March 27, 2013, the employer issued a letter to the claimant advising that it would provide transportation to and from work and maintain the light duty position in accordance with Dr. Singh's no driving restriction.
¶ 16 On April 8, 2013, the claimant was again examined by Dr. Singh. Treatment notes from that examination indicate the claimant reported persistent low back pain radiating down the right leg. A CT scan performed that day was compared to the June 18, 2012 CT scan. Dr. Singh made note of the expected postoperative changes and opined that the fusion was not yet complete. Dr. Singh prescribed ongoing physical therapy. Dr. Singh was apprised that the claimant had been using a cane at work and at physical therapy. Dr. Singh did not prescribe the cane and in fact advised against its use, noting it would likely prolong the healing process.
¶ 17 On April 22, 2013, the claimant was again examined by Dr. Singh, who noted the claimant reported reduced pain. The claimant however asserted that he was only able to sit, stand or walk for about ten minutes at a time. Dr. Singh took the claimant off work and instructed him to participate in an additional four weeks of physical therapy. Dr. Singh made a note that at the end of the four weeks, he would likely order a functional capacity evaluation (FCE) followed by
a work conditioning program.
¶ 18 In May 2013, the claimant traveled by car to Omaha, Nebraska, for a family function lasting approximately one week. The claimant testified that he did not drive to or from Omaha, or while staying in Omaha. He testified that a male cousin did all the driving to and from and in Omaha. On cross-examination, he was confronted with a speeding ticket issued to him on May 8, 2013, by an Illinois State trooper on I-80 near Rock Island, Illinois. The claimant then testified that his cousin was actually driving, but did not have a driver's license and in order to prevent his cousin from being arrested they bribed the state trooper with $200.00. The claimant acknowledged that his driver's license was suspended at the time and he subsequently plead guilty to misdemeanor driving on a suspended driver's license. In rebuttal, the employer presented the live testimony of the arresting officer who testified that the claimant was the driver and produced his Illinois driver's license. The trooper further testified that the claimant was the only adult male in the vehicle, and he was accompanied by a female adult and three children. The trooper also testified that he had not been offered a bribe. He then testified that the entire traffic stop was recorded on the police car dashboard camera, which was then played at the hearing and admitted into evidence. The arbitrator noted that the video clearly showed the claimant as the driver at the time the vehicle was stopped.
¶ 19 On May 16, 2013, Dr. Ghanayem reviewed additional records and the updated CT films from April 2013, but did not actually examine the claimant. He authored a report in which he opined the fusion was not particularly robust but also was not a failed fusion. He interpreted the CT films to suggest ongoing nerve root compression at L5-S1, which he opined would likely be nonresponsive to physical therapy. He recommended sedentary level work and believed the petitioner could drive without restriction. Dr. Ghanayem's report did not address whether the
claimant was at MMI.
¶ 20 On June 6, 2013, the claimant underwent an FCE which suggested the claimant was presently able to work at the light physical demand level. It was noted that the claimant was scheduled to undertake a work conditioning program shortly thereafter and a final determination as to the claimant's work level would be done at that time.
¶ 21 Physical therapy reports generated during June 2013, indicated that by June 30, 2013, the claimant had progressed to the point where he could lift and carry 40 pounds and lift 30 pounds overhead for 10 repetitions, which now placed him at the "light-to-medium" physical demand level. The reports further indicated that the claimant had missed several appointments and had ultimately been discharged from the program due to failure to attend.
¶ 22 On July 8, 2013, Dr. Singh noted that the claimant had been discharged from work conditioning on June 30, 2013, after having progressed to the "light to medium" level. He further noted that x-rays showed substantial improvement in the fusion. Dr. Singh opined that the claimant was at MMI and released him to work with work restrictions in the "light to medium" category as delineated in the work conditioning discharge report of June 30, 2013.
¶ 23 On July 29, 2013, the employer issued a letter to the claimant offering a permanent position as a porter, which paid the same rate as the claimant's prior position. Evidence presented at the hearing established that the porter's job duties primarily included washing and cleaning the exterior and interior of the vehicles and performing equipment checks to ensure function of the equipment. The job description of the porter position noted that the employee would be required to stand, bend, walk, and reach with his hands and arms.
¶ 24 The employer's human resources manager, Jobin Joseph, testified regarding the porter position offered to the claimant. Joseph testified that he was aware of the claimant's permanent
30-pound lifting restriction and that he could not be on his feet for extended periods of time. Joseph testified that the porter position was the only permanent position they had available that would accommodate the claimant's permanent restrictions. Joseph testified that when the offer of the porter job was made to the claimant, he immediately responded that the position was beneath him and he did not want to go from a driver's position to one where he had to wash cars.
¶ 25 The claimant testified that he rejected the porter position because he did not believe that it was within his permanent job restrictions, and that he would not be able to adequately handle the demands of the job. He further testified that he had not worked since the employer offered him the porter position. He did not submit any job logs or describe any efforts he made to secure additional employment. The claimant requested vocational assistance and job placement, as well as maintenance benefits through the last date of the hearing.
¶ 26 The arbitrator noted that the facts and circumstances surrounding the accident were not disputed and there was a general consensus of all medical professionals that the fusion surgery and subsequent revision procedure were causally related to the accident. The arbitrator therefore awarded all TTD and medical benefits incurred up to July 8, 2013, the date upon which Dr. Singh opined that the claimant had reached MMI. The arbitrator further noted that a future permanency award would address any disability after that date. Regarding the claimant's claim for vocational rehabilitation and maintenance benefits after July 8, 2013, the arbitrator noted "multiple instances where the [claimant] demonstrated a lack of both veracity and forthrightness" and found that the claimant "demonstrated a serious credibility deficit" that adversely impacted the arbitrator's findings "as to all issues in dispute."
¶ 27 In denying the claim for vocational rehabilitation and maintenance benefits, the arbitrator determined that the employer had made a good faith effort to provide the claimant with work
within his permanent restrictions, but the claimant had unreasonably turned down the offer. The arbitrator further noted that the claimant had failed to provide any evidence of a diligent job search or vocational counseling efforts necessary to establish entitlement to vocational rehabilitation and maintenance. The arbitrator further rejected the claimant's request for penalties and fees, finding that the employer's delay or denial of benefits was based upon a good-faith doubt as to liability and were not vexatious in nature.
¶ 28 The claimant appealed the arbitrator's award to the Commission, which affirmed and adopted the arbitrator's award with one dissent. The dissenting commissioner would have found that the employer's offer of employment as a porter was not done in good-faith as it was not within the claimant's permanent restrictions. The claimant then sought judicial review of the Commission's decision in the circuit court of DuPage County, which confirmed the Commission's ruling.
¶ 29 ANALYSIS
¶ 30 1. TTD benefits after July 8, 2013
¶ 31 In this appeal, the claimant first maintains that the Commission erred in terminating his TTD benefits on July 8, 2013. A claimant is temporarily and totally disabled from the time an injury incapacitates him until such time as he is as far recovered or restored as the permanent character of his injury will permit. Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 542 (2007). In determining whether a claimant is no longer entitled to continue receiving TTD benefits, the primary consideration is whether the claimant's condition has stabilized and he is capable of returning to the workforce. Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n, 236 Ill. 2d 132, 146 (2010). Consideration will be given to such factors as whether the claimant has been released to work, the medical opinion testimony regarding the
present extent of the injuries, and "most importantly, whether the injury has stabilized." Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 760 (2003). Whether the condition has stabilized may be determined based upon medical opinion testimony that the claimant has reached MMI. Id. Once the claimant has reached MMI, his condition has stabilized and he is no longer eligible for TTD benefits. Id. The period during which a claimant is temporarily and totally disabled is a question of fact, and as such the Commission's decision regarding whether a claimant has reached MMI will not be overturned on appeal unless it is against the manifest weight of the evidence. Nascote Industries v. Industrial Comm'n, 353 Ill. App. 3d 1067, 1072 (2004). For a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 539 (2007).
¶ 32 In finding that the claimant reached MMI on July 8, 2013, the Commission relied upon the report of Dr. Singh on that date in which he opined that the claimant was at MMI. In that report, Dr. Singh notes that the claimant had reached the point where there had been substantial improvement in the fusion following surgery and the claimant had undergone work hardening, at least to the point where he could function at the light to medium level. More importantly, Dr. Singh discharged the claimant from his treatment - a clear indication that he was of the opinion that the claimant would not benefit from further medical treatment, i.e. he was as far recovered or restored as the permanent character of his injury would permit.
¶ 33 Dr. Singh's opinion on MMI was not contradicted by any other medical opinion. Dr. Ghanayem had opined in March 2013 that the claimant had not reached MMI, based primarily upon his opinion that further bone fusion would occur. This is the last time Dr. Ghanayem gave an opinion as to whether the claimant had reached MMI. In May 2013, he noted the presence of
nerve root compression, which he opined would not be amenable to physical therapy. However, he gave no opinion as to whether that condition would improve with further medical intervention or would have to be addressed as a permanent symptom.
¶ 34 The claimant argues that the Commission terminated TTD benefits based upon several improper factors including an erroneous conclusion that the claimant was engaged in symptom magnification based upon his unilateral decision to walk with a cane, its disapproval of the "alleged bribe of a police officer" and the Commission's erroneous belief that the claimant was under a driving restriction when he was driving to Omaha. We disagree. While those issues were all germane to the claimant's credibility or distinct lack thereof, the Commission relied primarily upon the opinion of the claimant's treating physician that he had reached a point where no further medical treatment would improve his condition. While it might be possible to argue that the claimant's nerve root compression, as noted by Dr. Ghanayem, might still be amenable to further medical treatment, such a conclusion would be pure speculation since there is no opinion testimony contradicting Dr. Singh's opinion. The Commission's determination that the claimant reached MMI on July 8, 2013, is not against the manifest weigh of the evidence.
¶ 35 2. Vocational Rehabilitation and Maintenance
¶ 36 The claimant next argues that, even if he was no longer entitled to TTD benefits after July 8, 2013, the Commission erred in denying him an opportunity to engage in vocational rehabilitation and receive maintenance benefits after that date. Section 8(a) of the Act provides that an employer "shall *** pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto." 820 ILCS 305/8(a) (West 2012). The determination of whether a claimant is entitled to maintenance benefits is a question of fact to be decided by the
Commission, and its finding on that issue will not be reversed unless it is against the manifest weight of the evidence. W.B. Olson v. Illinois Workers' Compensation Comm'n, 2012 IL App (1st) 113129WC ¶ 39. Thus the Commission's decision will not be reversed on review unless an opposite conclusion is clearly apparent. University of Illinois v. Industrial Comm'n, 365 Ill. App. 3d 906, 910 (2006). Moreover, by its own terms, the Act permits maintenance benefits only while a claimant is engaged in a prescribed vocational rehabilitation program, and if the claimant is not engaged in some type of "rehabilitation" such as physical rehabilitation, formal job training or a self-directed job search, there is no obligation to provide maintenance. Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1019 (2005).
¶ 37 We start with the observation that, by the claimant's own admission, he was not engaged in nor had requested a prescribed vocational rehabilitation program, physical rehabilitation, job training or self-directed job search. Based upon this fact alone, the claimant has failed to establish that the Commission's denial of vocational rehabilitation and maintenance was against the manifest weight of the evidence.
¶ 38 We further note that the Commission determined that the claimant had refused a good-faith offer of a job by the employer; a job which the Commission determined was within the claimant's permanent restrictions. Benefits may be suspended or terminated if the claimant refuses work offered to him that comports with the physical restrictions imposed by his treating physician. Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n, 236 Ill. 2d 132, 146 (2010). The claimant takes issue with the Commission's determination that the offer was made in good faith and that it was within his restrictions. Whether a claimant has refused work within his physical restrictions is a question of fact for the Commission and its determination on that issue will not be overturned on appeal unless it is against the manifest
weight of the evidence. Otto Baum Company, Inc. v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100959WC ¶ 13.
¶ 39 There are two parts to the Commission's finding that the claimant refused work within his physical restrictions: 1) whether the work offered by the employer was within the physical restriction put in place by Dr. Singh; and 2) whether the claimant refuse to perform that work. Starting with the question of whether the job duties of porter were within the restrictions imposed by Dr. Singh, Mr. Joseph testified that he was personally familiar with the job duties of porter and was aware of the physical restrictions placed upon the claimant by Dr. Singh. He further testified that the porter position was "the only permanent position they had available that would accommodate the claimant's permanent restrictions." The claimant maintains that the sedentary position he had been occupying since he returned to work was the only position within the restrictions and that the porter position required activities beyond his restrictions. He further maintains that Dr. Singh's observation that the claimant was able to perform "light to medium level" work was incorrect and that Dr. Ghanayem's observation that the claimant was limited to "light level" work was the only appropriate conclusion.
¶ 40 Given the record, it cannot be said that the Commission's determination that the employer offered employment within the claimant's restrictions was against the manifest weight of the evidence. The Commission credited Joseph's testimony that the duties of porter matched the claimant's restrictions. While there was some evidence to the contrary, it cannot be said that the Commission erred in weighing the evidence. The record supports a conclusion that Joseph was aware of job duties of porter and the claimant's restrictions, and was able to testify that the porter job comported with the claimant's restrictions. In addition, the Commission noted that Dr. Ghanayem's opinion regarding the claimant's work level limitation was rendered at a point in
time before the claimant had reached MMI. Dr. Singh's opinion regarding the claimant's work level limitations was rendered later. Thus, the claimant is incorrect in suggesting that Dr. Ghanayem's opinion contradicted Dr. Singh's since each report covered different time periods in the claimant's treatment. In short, there is evidence in the record to support a conclusion that the restrictions imposed by Dr. Singh were less restrictive than those suggested earlier by Dr. Ghanayem.
¶ 41 Turning to the question of whether the claimant refused the porter position, two witnesses testified on that issue; Mr. Joseph and the claimant. Joseph testified that, when offered the job, the claimant "immediately" rejected it as being "beneath" him. The claimant testified that he did not reject the job as being beneath him. Rather, he told Joseph that he was concerned that the physical requirements of the job were more than he could tolerate given his restrictions. This contrast in testimony presents a credibility contest for the Commission to resolve. While it is true that Joseph works for the employer and therefore might have some credibility issues, his credibility compared favorably to the claimant's, a man who falsely testified that he and his imaginary cousin bribed a state trooper so that the trooper would give the claimant a speeding ticket instead of the cousin. The claimant maintains that the Commission placed too much emphasis on the "alleged bribe." Given that this may have been the most incredible lie ever told in a workers' compensation hearing, it would be difficult for the Commission, or anyone else, to place "too much" emphasis on the "alleged bribe." The Commission's finding that the claimant refused suitable work offered to him by his employer was not against the manifest weight of the evidence.
¶ 42 3. Penalties and Fees
¶ 43 The claimant finally maintains that he is entitled to penalties and attorney fees in
accordance with sections 16, 19(k), and 19(l) of the Act. See 820 ILCS 305/16, 19(k), 19(l) (West 2012). We review such claims under the manifest weight standard of review. Mechanical Devices, 344 Ill. App. 3d at 763. A section 19(l) fee is similar to a late fee and is mandatory if payment is late and an employer does not show an adequate justification for the delay. McMahan v. Industrial Comm'n, 183 Ill. App. 3d 499, 515 (1998). Sections 16 and 19(k) require a finding that the employer's denial of benefits was unreasonable or vexatious resulting from bad faith or improper purpose. Id.
¶ 44 The claimant maintains that the employer engaged in bad faith when it offered employment that was clearly in excess of his physical restrictions. Since it has been determined that the employer did not offer employment known to be beyond the claimant's restrictions, the matter of penalties and fees is moot. See Tower Automotive v. Illinois Workers' Compensation Comm'n, 407 Ill. App. 3d 427, 436 (2011).
¶ 45 CONCLUSION
¶ 46 The judgment of the circuit court of DuPage County, which confirmed the decision of the Commission is affirmed. The matter is remanded to the Commission for further action consistent with this disposition.
¶ 47 Affirmed; cause remanded.