Chicago v. Illinois Workers' Comp. Com'n

• Decision Date: 29 May 2007
• Docket Number: No. 1-06-2206 WC.,1-06-2206 WC.
• Citation: 373 Ill. App.3d 1080,871 N.E.2d 765
• Parties: CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and Carl Powell, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

871 N.E.2d 765

373 Ill. App.3d 1080

CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and Carl Powell, Defendants-Appellees.

No. 1-06-2206 WC.

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

May 29, 2007.

James W. Lowry, Hennessy & Roach, P.C., Chicago, for Appellant.

Joseph J. Spingola, Chicago, for Appellee.

Justice GROMETER delivered the opinion of the court:

Claimant, Carl Powell, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)), asserting that on January 3, 1995, he sustained a compensable accident while working as a pipe fitter for respondent, the City of Chicago (respondent or City). Ultimately, the Illinois Workers' Compensation Commission (Commission) awarded claimant 78-3/7 weeks of temporary total disability benefits (see 820 ILCS 305/8(b) (West 1994)) and 263-6/7 weeks of maintenance (see 820 ILCS 305/8(a) (West 1994)). The Commission also awarded claimant permanent total disability (PTD) benefits for life (see 820 ILCS 305/8(f) (West 1994)) as an "odd lot." Respondent appeals, arguing that the Commission erred in finding that claimant was entitled to PTD benefits under the odd-lot theory. We affirm.

I. BACKGROUND

The arbitration hearing on claimant's application for adjustment of claim was held over two dates in August and October 2001. At the hearing, claimant testified that after completing high school, he worked for a "pipe covering outfit" for two years. In 1968, at the age of 21, claimant began an apprenticeship program with the Pipe Fitters' Association. The apprenticeship lasted five years. Throughout his apprenticeship, claimant worked for one contractor. After completing the apprenticeship, claimant worked for the same contractor for an additional five years. At some point, claimant was a reservist in the Illinois National Guard for six years. Claimant testified that he served as an infantryman, but received no particular training. Claimant also testified that he owned a nine-unit apartment building.

In June 1978, claimant began working for respondent as a journeyman pipe fitter. Claimant's position with respondent involved climbing and scaffold work. Claimant testified that the accident at issue occurred on January 3, 1995. On that date, claimant had been assigned to restore a heating unit located on the roof of the Chicago Cultural Center. Claimant testified that as he was exiting the heating unit, he placed his left leg out on the roof for leverage and grabbed onto something to lift himself out. In doing so, claimant's left leg slipped and he fell backwards out of the heating unit. Claimant hit his head and shoulders and his right leg became "tangled" inside the heating unit. Claimant experienced pain throughout his body, but continued to work that day.

On January 6, 1995, claimant sought medical treatment for his injury at Mercy Works. At that time, claimant complained of an injury to the right knee. According to claimant, he did not have any knee problems prior to the accident. Claimant was given some elastic bandages and medication and told to see an orthopaedic surgeon. Claimant continued working at that time. An MRI of claimant's right knee was performed on January 24, 1995. The MRI showed degenerative changes and a horizontal tear of the posterior horn of the medical meniscus. At a follow-up visit at Mercy Works early in February, the attending physician placed claimant on limited duty with no lifting more than 30 pounds, no repeated stooping or squatting, and no climbing.

While continuing to treat at Mercy Works, claimant also began seeing Dr. Dennis Gates, an orthopaedic surgeon. Following an examination on February 8, 1995, Dr. Gates diagnosed "[i]nternal derangement of both knees—bilateral torn menisci with bilateral Baker's cysts." Dr. Gates recommended arthroscopy of both knees and authorized claimant off work. Dr. Gates performed the recommended procedure on February 20, 1995, and claimant began a course of physical therapy. After the surgery, claimant continued to complain of pain and swelling in both knees. In response, Dr. Gates administered a cortisone injection to the left knee. Claimant testified that the injection did not provide any relief. Dr. Gates then instructed claimant to walk using a cane. Because of claimant's continued complaints, Dr. Gates recommended a second surgical procedure. On July 12, 1995, Dr. Gates opined that claimant "ha[d] just about reached maximum medical improvement and that his prognosis is poor [sic] for returning to his job as a laborer." Dr. Gates also recommended that claimant "look into a job where he is not on his legs." On November 6, 1995, claimant underwent a second procedure on his right knee. Claimant testified that his condition did not improve after the second surgery. On January 25, 1996, claimant saw Dr. Gates after his knee "buckled" and he fell down a couple of stairs at his home. In response, Dr. Gates prescribed a hinged knee brace for claimant's right knee and instructed claimant to continue using a cane. Dr. Gates believed that claimant would eventually need to have both knees replaced and that he would be unable to his work as a pipe fitter. Dr. Gates also recommended the following restrictions: no climbing, no lifting in excess of 20 pounds, no running, no prolonged standing or walking, and no walking without a cane for any distances.

Claimant visited Dr. Bush Joseph, an orthopedist, for a second opinion on March 13, 1996. Following a physical examination, Dr. Bush Joseph's impression was bilateral medial compartment arthrosis. During the examination, claimant told Dr. Bush Joseph that he is "totally disabled regarding any attempts at labor or work." Dr. Bush Joseph stated that claimant "does seem functionally quite disabled by his symptoms and little can be offered him in regards to treatment." Dr. Bush Joseph opined that claimant may eventually consider a total knee replacement.

On June 25, 1996, claimant presented for a functional capacity evaluation (FCE) per a recommendation by Dr. Gates. After conducting a pre-FCE musculoskeletal evaluation, the physical therapist noted that claimant's pain limited his functional abilities. As a result, it was deemed "risky" to have claimant perform weight-bearing resistive activities, and the FCE was not attempted. On August 7, 1996, medical personnel at Mercy Works opined that claimant had reached maximum medical improvement (MMI) and claimant was discharged from their care. Claimant continued to see Dr. Gates intermittently through at least May 1997, with complaints of back "troubles" as well as hip and knee pain. Dr. Gates asked claimant to consider a total replacement of both knees and reiterated that claimant could not return to work as a pipe fitter.

Claimant was examined by Dr. Samuel Chmell on July 15, 2000, at the request of his attorney. Dr. Chmell examined claimant and reviewed claimant's medical records. Dr. Chmell's diagnosis was threefold: (1) torn medial meniscus both knees; (2) "[t]raumatic exacerbation" of degenerative arthritis of both knees; and (3) Baker's cyst both knees secondary to claimant's other two conditions. Dr. Chmell classified the condition of ill being as "permanent" and indicated that claimant would eventually require a total replacement of both knees. Dr. Chmell added that "[w]ith or without these knee replacements, [claimant] can never return to the type of work he was doing before. The only type of work that would be a consideration for him would be a sedentary job." In September 2000, claimant was examined by Dr. Schlamberg, an orthopaedic surgeon. Dr. Schlamberg gave claimant a work status report indicating that claimant would be unable to return to work as a pipe fitter.

At respondent's request, claimant was examined at Mercy Works in September 2000 and in August 2001. On both occasions, claimant was given a work status discharge sheet. The discharge sheet issued in September 2000, indicated that claimant could return to work with various restrictions, including no lifting more than five pounds, ground-level work only, minimal walking, and no kneeling or bending. Claimant tendered the sheet to his supervisor, who signed the sheet and wrote "NO! CANNOT USE THIS EMPLOYEE." The August 2001 discharge sheet indicated that claimant could return to work, ground level only, with minimal walking, no climbing, and no kneeling or bending. The sheet also indicated that claimant had reached MMI.

Claimant acknowledged that since the time of his injury in 1995, he has not tried to find a job on his own and that he has not updated his resume. He also stated that between 1996 and May 2001, respondent has never indicated that it had a job for him. However, claimant did admit meeting with respondent. Introduced into evidence were four letters asking claimant to report for an appointment "to provide [claimant] with an opportunity for Vocational Rehabilitation" in the City's "Work Training/Work Experience" program. The letters are dated March 24, 1998, September 21, 1999, March 2, 2001, and May 24, 2001. Also introduced into evidence is a letter from respondent dated May 23, 2001, scheduling an interview with Russell Baggett.

Claimant testified that he did not remember interviewing with respondent in May 1998 and he did not recall seeing the letter dated September 21, 1999. Walter O'Grady, an employee with respondent's Committee on Finance, recalled that respondent attempted to place claimant in a program to provide vocational rehabilitation. According to O'Grady, these programs can lead to a full-time position. No one testified regarding whether claimant attended the meeting referenced in the May 1998 letter. Although O'Grady did recall attending a meeting with claimant in response to the September 1999 letter, no details about that meeting were provided.

Cl...