ABF Freight Sys. v. Ill. Workers' Comp. Comm'n

• Decision Date: 11 December 2015
• Docket Number: No. 1–14–1306 WC.,1–14–1306 WC.
• Parties: ABF FREIGHT SYSTEM, Respondent–Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (John Rodriguez, Petitioner–Appellee).
• Court: United States Appellate Court of Illinois

45 N.E.3d 757

ABF FREIGHT SYSTEM, Respondent–Appellant

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (John Rodriguez, Petitioner–Appellee).

No. 1–14–1306 WC.

Appellate Court of Illinois, First District, Workers' Compensation Commission Division.

Dec. 11, 2015.

Matthew Ignoffo, of Keefe, Campbell, Biery & Associates, LLC, Chicago, for appellant.

Ivan M. Rittenberg, of Rittenberg, Buffen, Gulbrandsen, Robinson & Saks, Ltd., Chicago, for appellee.

OPINION

Justice HUDSON delivered the judgment of the court, with opinion.

¶ 1 I. INTRODUCTION

¶ 2 Respondent, ABF Freight System, appeals an order of the circuit court of Cook County that confirmed a decision of the Illinois Workers' Compensation Commission (Commission) granting benefits to claimant, John Rodriguez, in accordance with the Illinois Workers' Compensation Act (Act) ( 820 ILCS 305/1 et seq.

(West 2010)). Respondent raises a number of arguments as to why the Commission's decision should not stand. As we find none of these arguments well founded, we affirm.

¶ 3 II. BACKGROUND

¶ 4 It is undisputed that claimant suffered a compensable injury on August 22, 2011, when he backed a forklift into a raised steel structure on a loading dock while in respondent's employ. Claimant described the collision as “violent.” He felt pain shoot down his left leg. His primary care physician, Dr. Leo Pepa, referred him to Dr. Tom D. Stanley, a board certified orthopedic surgeon. Stanley first examined claimant on August 24, 2011. He ordered an MRI, which revealed that a “large left para-central disc extrusion at the L5–S1 level with superior migration, [sic ] is compressing the same sided S1 traversing nerve root and the thecal sac” and

showed “ [d]iffuse disc bulges at the L1–L2 and L2–L3” levels. Claimant also complained of pain in his right knee. On October 6, 2011, Stanley performed a hemilaminotomy discectomy

. This surgery was paid for by respondent's workers' compensation carrier. During an October 21, 2011, follow-up visit, claimant reported that he was doing well and his pain had largely resolved. He was released to light-duty work.

¶ 5 One month later, during another follow-up visit, claimant reported that he had begun experiencing radicular symptoms in his left leg. Stanley diagnosed a recurrent disc herniation and possibly a meniscus tear

in the right knee. In December 2011, Stanley ordered another MRI. A number of medical professionals disagreed on what this MRI showed. Stanley interpreted it as revealing a recurrent disc herniation at the L5–S1 level. A radiologist interpreted the MRI as representing “postsurgical changes.” He noted, “There is intermediate T1 signal material extending posteriorly from the disc space in a left paracentral location approximately 7 mm.” He continued, “This enhances on postcontrast axial images and is therefore compatible with epidural fibrosis rather than disc protrusion.” The material “displaces the origin of the left S1 nerve root posteriorly.”

¶ 6 On January 30, 2012, claimant was examined by Dr. Andrew Zelby on respondent's behalf. He believed the MRI simply showed postoperative changes. He opined that repeating the discectomy

surgery was not warranted, as the MRI indicated no disc protrusion. Further, claimant was not a candidate for a fusion due to his degenerative disc disease, smoking, and obesity. Zelby believed a fusion would create more problems than it solved. Zelby noted certain inconsistencies during his examination of claimant. For example, the results of the lying straight-leg raise and the sitting straight-leg raise were different despite the fact that they are essentially the same test. Zelby recommended a work-hardening program.

¶ 7 Stanley reviewed and responded to Zelby's findings. In a letter, Stanley wrote, “I do not really understand [Zelby's] evaluation of the MRI because clearly on the MRI you can see the current disc herniation.” Stanley suggested that if there was any doubt as to the December 2011 MRI, a repeat MRI be performed with a “high-definition machine.” A repeat MRI was performed on May 25, 2012. It showed a large disc herniation.

¶ 8 However, between the times of the two MRIs, claimant suffered an injury. On March 20, 2012, his newborn baby was crying. He went to change her and noted there were no diapers, so he went to the garage, where more diapers were stored. Claimant described the incident thusly: “And I went to step on a chair and noticed the chair was kind of flimsy; and when I came down—there was a jagged edge on the chair. When I came down, I cut my leg open.” Claimant suffered a 12–inch laceration on his leg

and sought medical care at the St. Alexius Medical Center. Claimant stated that if he had injured his back at this time, he would have reported the injury to his doctors. He further testified that he did not fall off the chair. Medical records from this visit corroborate claimant's testimony. His back pain did not change following this incident.

¶ 9 Subsequently, Zelby opined that this incident could have been an intervening cause. Specifically, he stated, “I would say that if he fell off a chair with such force to lacerate his leg, that could certainly be enough force to cause a recurrent herniation, particularly in someone who weighs 388 pounds.” He based this opinion on his belief that the December 2011 MRI showed no recurrent disc herniation while the May 2012 MRI did.

¶ 10 Stanley again responded to Zelby's updated opinion. He wrote, “Again, I don't understand Dr. Zelby's interpretation because the recurrent disc herniation is clearly visible on the first MRIs.” He further noted that to the extent Zelby based his opinion on claimant having fallen from a chair, the medical records at St. Alexius Hospital “show that he was not complaining of any other complaints other than the laceration.”

¶ 11 The arbitrator found that claimant's condition of ill-being was causally related to his employment with respondent. She first noted that there was no dispute as to accident, causation as to the initial injury, and the appropriateness of claimant's initial surgery. At issue was whether claimant's continuing condition of ill-being (the recurrent disc herniation) was causally related to claimant's at-work accident and whether claimant should receive surgery for that condition. Also at issue was the causal relationship between the condition of claimant's knee and his employment. She expressly found Stanley's testimony to be entitled to greater weight than Zelby's. She characterized claimant's ongoing complaints as “credible.” The arbitrator found Stanley's readings of the MRIs to be entitled to greater weight as well. Thus, to the extent Zelby's opinion is based on his belief that the December 2011 MRI did not show a herniation, it was ill founded. She also found that the condition of claimant's right knee was causally related to his employment, relying primarily on the fact that his knee problem developed concurrently with his work-related accident. Claimant's average weekly wage was determined to be $674.46, resulting in a temporary-total-disability (TTD) rate of $449.64 (a finding later modified by the Commission, as will be explained below). The arbitrator also overruled an objection by claimant to certain testimony from Zelby asserting that it was not based on medical records or contained in his report (the Commission overruled that arbitrator's ruling here).

¶ 12 The Commission affirmed and adopted most of the arbitrator's opinion; however, it modified two aspects of it. The Commission noted that claimant's testimony was unrebutted. Furthermore, medical records corroborate that he experienced only a short period of relief following the initial surgery. Prior to the December 2011 MRI, his symptoms gradually worsened. It found that, regarding the March 2012 incident involving the leg laceration

, the evidence and testimony contained “no indication of any type of fall or twisting to reinjure his back.” It credited Stanley's testimony that radicular symptoms were already present in December 2011. It rejected Zelby's opinion for a number of reasons, including that it failed “to take into account the undisputed medical documentation of the return of [claimant's] radicular symptoms about three weeks post surgery.”

¶ 13 Regarding average weekly wage, the Commission modified the arbitrator's decision, finding as follows. When claimant began working for respondent, he was employed as a “casual employee.” He held this position from December 11, 2010, to March 19, 2011. As a casual employee, claimant was told the day before a shift whether respondent needed him to come to work. He was nonunion and worked about 19 hours per week. After obtaining his certification as a “spotter,” claimant became a full-time, union employee and worked about 36.6 hours per week. Essentially, the Commission determined that time spent as a casual employee should not have been used to calculate claimant's average weekly wage. However, it also held that the arbitrator erroneously concluded that claimant had worked 21–3/7 weeks in his new position rather than 22 weeks. The Commission, using 22 weeks, recalculated claimant's average weekly wage as $661.29, which yielded a TTD rate of $440.86. It modified the arbitrator's decision accordingly.

¶ 14 The Commission also reversed the arbitrator's overruling of claimant's objection to the admission of the deposition of Zelby. The Commission determined that “Zelby's opinions contained within the deposition transcript were not based on medical records and not contained in his § 12, IME report.” It thus concluded that “[t]he Arbitrator erred in allowing the deposition transcript into evidence.” It further held that this issue was moot, as the arbitrator found Stanley's testimony to be entitled to more weight.

¶ 15 Respondent appealed. The circuit court of Cook County confirmed the Commission without significant comment. This appeal followed.

¶ 16 III. ANALYSIS

¶ 17 On appeal, respondent...