Beelman Trucking v. Workers' Compensation

• Decision Date: 31 March 2008
• Docket Number: No. 5-07-0071WC.,5-07-0071WC.
• Citation: 886 N.E.2d 479
• Parties: BEELMAN TRUCKING, Appellant, v. WORKERS' COMPENSATION COMMISSION et al. (Jack G. Carson, Appellee).
• Court: United States Appellate Court of Illinois

886 N.E.2d 479

BEELMAN TRUCKING, Appellant, v. WORKERS' COMPENSATION COMMISSION et al. (Jack G. Carson, Appellee).

No. 5-07-0071WC.

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

March 31, 2008.

Rehearing Denied May 8, 2008.

Robert N. Hendershot, Evans & Dixon, St. Louis, MO, for Appellant.

Mark Glass, Glass & Korein, LLC, East St. Louis, IL, for Jack Carson.

Charles G. Haskins, Jr., John W. Powers, Cullen, Haskins, Nicholson & Menchetti, P.C., Chicago, IL, for Amicus Curiae, Illinois Trial Lawyers Association.

Presiding Justice McCULLOUGH delivered the opinion of the court:

The claimant, Jack G. Carson, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)), after he sustained severe injuries in a motor vehicle accident that occurred while he was driving for the respondent, Beelman Trucking (Beelman), on April 19, 1995. Carson's injuries included a burst fracture at C5-6 resulting in the complete loss of use of both legs and the near complete paralysis of the left arm and a degloving injury to the right arm that required a midhumeral amputation. The parties agree that Carson's injuries arose out of and in the course of his employment with Beelman. There is disagreement in regard to the appropriate method and scope of the compensation that Carson is entitled to receive under the Act. The disputed issues were whether Carson was entitled to temporary total disability (TTD) or maintenance benefits during the period of vocational rehabilitation even though he was receiving statutory permanent total disability (PTD) benefits under section 8(e)(18) of the Act (820 ILCS 305/8(e)(18) (West 2004)); whether Carson was entitled to awards under section 8(e)(10) of the Act (820 ILCS 305/8(e)(10) (West 2004)) for the losses of each arm in conjunction with a PTD award under section 8(e)(18); whether the respondent is liable under section 8(a) of the Act (820 ILCS 305/8(a) (West 2004)) for a voice-activated computer system; and whether the respondent is liable under section 8(a) to pay that portion of Carson's motor vehicle insurance premium pertaining to the handicap modifications endorsement.

Following a hearing on October 27, 2005, arbitrator Jennifer Teague awarded statutory PTD benefits of $489.69 per week for life under section 8(e)(18), a benefit of $396.89 for 250 weeks pursuant to section 8(e)(10) for the above-elbow surgical amputation of the right arm, and a benefit of $396.89 for 235 weeks pursuant to section 8(e)(10) for the paralysis of the left arm just below shoulder level. Arbitrator Teague also awarded $12,674.35 to reimburse Carson for the expenses of the voice-activated computer system and $708 to cover the costs of the handicap modifications endorsement to his automobile insurance premium. The computer and premium expenses were awarded pursuant to section 8(a) of the Act. The arbitrator denied Carson's claim for TTD or maintenance benefits and his motion for penalties and attorney fees.

The following factual recitation is taken from the evidence presented at the arbitration hearing on October 27, 2005.

Jack Carson, an over-the-road trucker, was involved in a motor vehicle accident on April 19, 1995, while driving for the respondent. He was ejected from his vehicle and he sustained severe and permanent injuries. Carson suffered a burst fracture at C5-6 resulting in a complete loss of use of both legs and the near complete paralysis of the left arm. Carson sustained a severe degloving injury to the right arm that required surgical treatments, including a below-elbow amputation of the right arm in April 1995 and ultimately a midhumeral amputation of the right arm in May 1995. In addition, Carson suffered a near avulsion of his right ear and an injury to his right chest wall. As a result of the spinal injury, Carson has no sensation below the level of his midchest and his left arm is paralyzed below the level of the shoulder. This condition is referred to as tetraplegia. Carson does not have a prosthesis for his right arm because he lacks the shoulder strength to make it functional. At the time of the accident, Carson was 30 years old, married, and the father of a two-year-old boy. He was earning $748.02 a week.

The medical records and vocational reports show the accident left Carson dependent with regard to self-care and activities of daily living. Carson requires regular monitoring for complications that often arise from his conditions, including urinary tract infections, respiratory infections, skin breakdown, and sleep issues. Beelman continues to provide medical and adjuvant services pursuant to section 8(a). Carson has full-time nursing assistance in his home, a motorized wheelchair, and a customized van for transportation. Modifications were made to his home to accommodate his wheelchair.

The medical and rehabilitation records in evidence show that as early as September 1996, Carson's attending physician, Thomas F. Lieb, M.D., strongly recommended that Carson obtain a computer and environmental control unit to allow him to have some control over his household environment, to access information and to communicate online, and to have communication for safety and security reasons. In his progress notes, Dr. Lieb acknowledged that the system would not alleviate the need for attendant care, but he thought that it could reduce the amount of time that the attendant was needed. Dr. Lieb noted that the system would permit Carson some measure of independence and that it would be important for Carson's health and emotional well-being. Dr. Lieb indicated that Carson was not a candidate for a right arm prosthesis because he lacked the shoulder control and strength and because a prosthesis would interfere with the operation of the power wheelchair. Rehabilitation and occupational therapists concurred in the recommendation for the voice-activated computer and environmental control unit. Beelman would not approve payment for the computer and environmental control unit. Carson obtained it at his own expense in 2001. According to the invoices and billing statements, the costs for the equipment, installation, and training totaled $12,674.35.

Carson testified briefly during the hearing. He stated that he is no longer married. He lives alone. His son visits with him three or four times a week and on weekends. Carson testified that he obtained the computer and environmental control system in 2001 and that he paid for the equipment out of his pocket. Carson stated that the system enables him to operate his telephone, television, VCR, and lamp with his computer. He is also able to send and receive e-mail and read newspapers and other materials online. Carson stated that he is unable to read a book or paper unless someone holds it and turns the pages. Carson said that he is unable to drive his van and that he is homebound unless someone drives him. Beelman provided the modified van to accommodate his wheelchair. Carson pays the insurance premium on the van, which includes a biannual charge of $708 to cover a handicap modifications endorsement.

On review, the Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision with one modification. The Commission entered an order increasing the award for the loss of the right arm from 250 weeks to 300 weeks, finding that a prosthetic device would not restore some functional use of Carson's right arm. The circuit court of Clinton County confirmed the decision of the Commission. Beelman's appeal presents the following issues: (1) whether the Commission's decision to award benefits for specific losses pursuant to section 8(e)(10) in conjunction with the award of statutory permanent total disability benefits pursuant to section 8(e)(18) to compensate for distinct injuries sustained in a single accident is contrary to the law; (2) whether the Commission's decision to increase the section 8(e)(10) award for the above-elbow amputation of the right arm from 250 weeks to 300 weeks is contrary to the law; (3) whether the Commission's award for the costs of the voice-activated computer system is contrary to the law; and (4) whether the Commission's award of the additional insurance premium for the handicap modifications endorsement is contrary to the law.

The first issue addressed is whether the Commission erred in awarding benefits under section 8(e)(10) in conjunction with the statutory permanent total disability award under section 8(e)(18) where the injuries were incurred in a single accident. Carson sustained numerous injuries, the most severe of which were a cervical spinal injury and a degloving injury to the right arm. The C5-6 burst injury to the cervical spine resulted in the complete loss of use of Carson's legs and almost complete paralysis of his left arm. The disability from this injury falls within the ambit of section 8(e)(18) of the Act.

Section 8(e)(18) provides that:

"The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.

Any employee who has previously suffered the loss or permanent and complete loss of the use of any of such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members[,] the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss or permanent and complete loss of the use of the member occasioned by the last independent accident." 820 ILCS 305/8(e)(18) (West 2004).

The respondent argues that the award of 300 weeks pursuant...