Bob Red Remodeling, Inc. v. Ill. Workers' Comp. Comm'n

• Decision Date: 31 December 2014
• Docket Number: No. 1–13–0974 WC.,1–13–0974 WC.
• Citation: 23 N.E.3d 1248
• Parties: BOB RED REMODELING, INC., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Zenon Lemanski, Appellee).
• Court: United States Appellate Court of Illinois

23 N.E.3d 1248

BOB RED REMODELING, INC., Appellant

v.ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Zenon Lemanski, Appellee).

No. 1–13–0974 WC.

Appellate Court of Illinois, First District.

Dec. 31, 2014.

L. Elizabeth Coppoletti and Susan A. Garver, both of Nyhan, Bambrick, Kinzie & Lowry, P.C., of Chicago, for appellant.

Matthew J. Belcher and Brian J. Wiehe, both of Belcher Law Office, of Chicago, for appellees.

OPINION

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

¶ 1 I. INTRODUCTION

¶ 2 Respondent, Bob Red Remodeling, Inc., appeals an order of the circuit court of Cook County confirming the decision of the Illinois Workers' Compensation Commission (Commission). For the reasons that follow, we affirm.

¶ 3 II. BACKGROUND

¶ 4 It is undisputed that claimant, Zenon Lemanski, suffered a work-related accident on July 27, 2007, when he fell 11 feet from a rooftop while performing duties for respondent. He was transported by ambulance to Advocate Illinois Masonic Hospital where a CT scan

revealed small temporal lobe contusions and a seven-millimeter acute hemorrhage. On August 3, 2007, claimant underwent a left craniotomy, performed by Dr. Leonard Kranzler. While in the hospital, claimant engaged in speech, physical, and occupational therapy. He was discharged on August 15, 2007, with the following diagnoses: frozen left shoulder; right knee pain; post-concussion syndrome ; and traumatic brain injury. Claimant speaks Polish but not English.

¶ 5 Following his discharge, claimant followed up with Kranzler. He also sought care form Dr. Gourineni, an orthopedic specialist. Gourineni recommended physical therapy for claimant's shoulder and ordered an MRI of his knee

. Gourineni further recommended arthroscopic surgery, but claimant declined. In January 2008, Gourineni released claimant from medical care and directed him to continue activities as tolerated.

¶ 6 Claimant was examined by Dr. Victor Forys, at the request of his attorney. Forys is board certified in internal medicine. He diagnosed traumatic brain injury

, knee pain, and shoulder pain. Forys recommended Zoloft. Claimant continued to see Forys through the date of the arbitration hearing.

¶ 7 At respondent's behest, claimant was examined by Dr. Felise Zollman. She opined that claimant suffered a work-related accident in July 2008. She diagnosed a moderate brain trauma

; a right-knee meniscus tear ; and left shoulder pain and stiffness with no range-of-motion limitation. She also diagnosed mild degenerative lumbar spine changes and depression, “likely secondary to” traumatic brain injury. She believed claimant's condition was causally related to his at-work injury. She recommended a neuropsychological assessment —conducted by a doctor fluent in Polish—to evaluate residual cognitive impairment. Respondent authorized the course of treatment recommended by Zollman.

¶ 8 On February 19, 2009, Forys referred claimant to Dr. Anna Wegierek. Wegierek, a psychologist, opined that claimant's “neuropsychological instability” prevented him from continuing “his daily living activities without supervision” and rendered him unable to participate in occupational activities. Zollman reviewed and criticized Wegierek's methodologies. Based on Zollman's criticisms, respondent informed claimant's attorney that it would no longer authorize treatment with Wegierek. Forys also referred claimant to Dr. Chiappidi, a neurologist. Chiappidi evaluated claimant on March 20, 2009. Chiappidi diagnosed claimant with post-traumatic syndrome and recommended a change in claimant's medications, which Forys did not implement.

¶ 9 Claimant was evaluated by Dr. Jerry Sweet on November 10, 2009. Sweet conducted an interview and performed a number of tests. An interpreter translated Sweet's instructions and questions into Polish. Sweet observed a number of measures indicating insufficient effort and opined that the test results generated likely did not validly reflect post-injury functioning. However, Sweet stated, “Despite the non-credible presentation in this evaluation, it is clear that [claimant] suffered a serious traumatic brain injury

.” Nevertheless, “present findings do not allow a clear appraisal” of the effect of that injury.

¶ 10 An evidence deposition of Dr. Forys was conducted on April 22, 2010. Forys testified that he is board certified in internal medicine. Forys speaks Polish. Forys first saw claimant on January 22, 2008, about six months after his accident. Claimant was 57 years old. Claimant complained of headaches, heaviness, fatigue, dizziness, impulsiveness, anxiety, and decreased concentration. A physical examination revealed a depression in claimant's skull. Claimant had a decreased range of motion in his neck. Claimant's condition has remained essentially the same ever since (Forys had seen claimant a week before the deposition), though physical therapy resulted in a minor, temporary improvement. Forys opined that claimant's condition was permanent and would not improve. Claimant would need assistance with all activities of daily living. At the time of the deposition, claimant's only caregiver was his wife. Forys believed claimant would benefit from home healthcare. He needs care around the clock. Forys testified that claimant is permanently disabled and unable to work.

¶ 11 In his most recent visit with claimant, claimant's wife reported that claimant was having trouble with memory. Forys believed claimant might be developing a degree of dementia

. Forys continued claimant on Zoloft, which, he testified, is the only drug approved to treat traumatic brain injury. He also prescribed Wellbutrin, which he thought might give claimant more energy. Forys explained that claimant is not per se depressed; rather, he suffers from an organic brain injury. Forys believed claimant should have contact with medical personnel on a monthly basis.

¶ 12 Forys knows Wegierek. She speaks Polish fluently. Her assessments are more objective than those of Forys. He agreed with her opinion that claimant is permanently and totally disabled. Forys opined that claimant would continue to need total nursing care and medical supervision. Further, claimant's condition will deteriorate.

¶ 13 During cross-examination, Forys testified that he could not recall having referred claimant to a specialist in traumatic brain injury

. While physical therapy helped for a while, claimant eventually “plateaued.” On redirect, Forys testified that there was no treatment that would enable claimant to lead a normal life.

¶ 14 Claimant continued to treat with Forys. Zollman reevaluated claimant on July 8, 2010. She opined that any vertigo experienced by claimant was not due to a central nervous system lesion. Symptom magnification was possibly playing a “significant role in the claimant's current presentation.” Neither headaches nor vertigo could be objectively correlated. She recommended claimant stop treating with Forys.

¶ 15 Dr. Zollman was deposed on September 15, 2010. She testified that she specializes in neuro-rehabilitation and medical acupuncture

. She is board certified in these areas. She examined claimant on two occasions—November 3, 2008 and July 8, 2010. At the first visit, in addition to claimant, his wife and a translator were present. Claimant reported left shoulder pain, right knee pain, dizziness, headaches, sensitivity to smell, and “some difficulty with misplacing items around his home.” Claimant was “awake, alert, [and] oriented.” He primarily spoke Polish. Watching claimant and the interpreter interact, Zollman concluded that claimant “was at least not grossly impaired.” He was, on occasion, “very literal,” and his affect was “a little bit blunted.”

¶ 16 Zollman checked claimant's coordination. While it did not appear normal, “the manner in which it was not normal did not—was not consistent with any kind of recognized physical abnormality.” Zollman explained, “[I]t appeared to me to be somewhat contrived or artificial.”

¶ 17 Zollman opined that claimant's traumatic brain injury

was related to his at-work accident. She believed claimant could return to work on a restricted basis. She recommended a neuropsychological assessment and possibly speech therapy.

¶ 18 Zollman authored a letter dated April 29, 2009, in which she reviewed and criticized Wegierek's methodologies. Zollman noted that Wegierek did not perform any validity testing; she used IQ tests that were originally written in English and translated to Polish; and she relied on only two tests. Zollman recommended that claimant be evaluated by a neuropsychologist who speaks Polish or had a translator available.

¶ 19 When Zollman reevaluated claimant, he reported dizziness and headaches. Knee and shoulder pain “were really not active issues.” Claimant's wife stated he was forgetful. At home, claimant feeds and dresses himself (thought his wife lays out his clothes and prepares meals). He takes care of his basic grooming and can go to the bathroom by himself. He needs assistance in the shower. They take walks on a daily basis. Claimant's responses to specific questions were often vague, but he did not appear to suffer from short-term memory problems. Claimant's gait was normal, and he was able to do a deep-knee bend. Claimant described vertigo; however, what he described was not consistent with “benign positional vertigo

,” which Zollman had previously diagnosed. She agreed with Sweet that treatment “should be geared towards psychological and psychiatric care.” Zollman believed that Forys was not providing appropriate care and that he was not “current in his understanding of traumatic brain injury.” She disagreed that claimant's condition would worsen, as a traumatic brain injury is not a degenerative event.

¶ 20 On September 23, 2010, respondent moved, inter alia, to terminate payment of benefits under the Workers' Compensation Act (the Act), arguing claimant's failure to obtain appropriate care in accordance with Zollman's recommendations constituted an...