Cleaning/Svmbl v. Ill. Workers' Comp. Comm'n

• Decision Date: 28 April 2011
• Docket Number: No. 4–10–0313 WC.,4–10–0313 WC.
• Citation: Cleaning/Svmbl v. Ill. Workers' Comp. Comm'n, 409 Ill.App.3d 463, 949 N.E.2d 1158, 351 Ill.Dec. 63 (Ill. App. 2011)
• Parties: ABSOLUTE CLEANING/SVMBL, Appellant,v.ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Suanne Palazzolo, Appellee).
• Court: Appellate Court of Illinois

409 Ill.App.3d 463

949 N.E.2d 1158

351 Ill.Dec. 63

ABSOLUTE CLEANING/SVMBL, Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Suanne Palazzolo, Appellee).

No. 4–10–0313 WC.

Appellate Court of Illinois, Fourth District.

April 28, 2011.

Theodore J. Powers (argued), Jeffrey N. Powell, Rusin, Maciorowski & Friedman, Ltd., Chicago, for Absolute Cleaning/SVMBL.John V. Boshardy (argued), John V. Boshardy & Associates, P.C., Springfield, for Workers' Compensation Commission.

OPINION

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

Absolute Cleaning/SVMBL (Absolute) appeals from an order of the circuit court of Sangamon County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), finding that its employee, Suanne Palazzolo (claimant), sustained work-related injuries on May 9, 2006, and November 6, 2006, which arose out of and in the course of her employment and awarding the claimant benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)). For the reasons that follow,

[351 Ill.Dec. 66 , 949 N.E.2d 1161]

we affirm the judgment of the circuit court and remand this cause to the Commission.

The following factual recitation is taken from the evidence presented at the arbitration hearing on the claimant's petition for adjustment of claim.

The claimant, a worker for Absolute's cleaning business, testified that, on May 9, 2006, while lifting a mop bucket during her cleaning duties, she experienced a sharp pain in her neck and lower back shooting into her arm and left leg. She testified that, years before that accident, she had sought treatment for neck or back problems but that those problems did not persist until the time of her May 2006 accident.

After the May 2006 accident, the claimant sought treatment from a chiropractor, Dr. Kelly Calloway, but returned to work without restrictions after missing less than one week. The claimant testified that she discontinued chiropractic treatment soon after the accident, and in fact sought no other medical treatment before her next work accident, on November 6, 2006. She testified that, on November 6, she was lifting a trash bag when she felt “ the same feeling all over again,” this time in her back and neck, and “going down the right arm and * * * wrapping around the shoulder blade.” After that incident, the claimant returned to Dr. Calloway. The claimant testified that she continued her chiropractic care from that point until the day of the hearing, and that the care helped to relieve her symptoms.

In her testimony, the claimant stated that Dr. Calloway referred her to Dr. Ronald Hertel “under [the claimant's] wishes.” The claimant said that Dr. Hertel's name was given to her by her former attorney. The claimant later clarified that Dr. Calloway told her that she needed to see another doctor and that she could “choose a doctor that [Dr. Calloway] could refer [her] out to.” In his December 28, 2006, note, Dr. Hertel wrote that he saw the claimant because she “was referred by her attorney * * * for evaluation.” The claimant disputed that characterization in her testimony. The claimant's medical records include a note, written by Dr. Calloway and dated December 8, 2006, saying, “I would like to refer [the claimant] to * * * Dr. Ronald Hertel * * * because I suspect a cervical disc problem.”

In the patient history included in his December 28, 2006, treatment note, Dr. Hertel observed that the claimant had reported low-back pain after her first work incident but returned to work shortly thereafter and continued to work until the November 6, 2006, incident. Dr. Hertel wrote that, following that incident, the claimant experienced pain in her upper arms, her legs, and low back and problems with her neck. Dr. Hertel's physical examination revealed to him that the claimant's “symptoms [were] far in excess of that which [could] be substantiated on any objective physical finding.” He recommended an MRI of the claimant's spine, but, according to the claimant's testimony, he did not do so until her attorney called the doctor after her appointment to request the recommendation. He also noted that, at the end of his examination, he and the claimant had an argument that led him to conclude that he should not schedule another appointment with her. A record of the January 19, 2007, MRI the claimant later underwent includes the impression that she suffered from mild disc protrusion at L3–L4, annular tear at L4–L5, left paracentral/left lateral disc prolapse at C5–C6, left paracentral disc protrusion at C4–C5, posterior central disc protrusion at C6–C7, and degenerative disc disease at L3–L4, L4–L5, and C5–C6.

In her testimony, the claimant said that she also saw her family doctor, Dr. Chris

[351 Ill.Dec. 67 , 949 N.E.2d 1162]

Sprinkel, because Dr. Calloway “told [her] that [she] would have to go to see him to get pain medicine.” On cross-examination, the claimant clarified that Dr. Calloway did not give her a written referral to see Dr. Sprinkel but instead “just advised” her to see him if she wanted pain medication.

The claimant recalled that Dr. Sprinkel prescribed pain medication but told her that she needed to see a specialist and that she should arrange the referral through Dr. Calloway. Dr. Sprinkel's December 11, 2006, treatment note states that the claimant “[s]hould follow-up with the back specialist.”

The claimant explained that Dr. Calloway first recommended that she see a Dr. Freytag but that Calloway “gave [her] the choice and [she] heard that Dr. Pencek was better.” On cross-examination, the claimant stated that she saw Dr. Terrence Pencek via a referral from Dr. Calloway. On further questioning, she clarified: “I was allowed to choose my own doctor and I chose Dr. Pencek and [Dr. Calloway] referred me out to him. She gave [me] the choice of who I would like to see.” The record on appeal contains a note, dated February 20, 2007, in which Dr. Calloway refers the claimant to Dr. Freytag.

In her January 21, 2007, report of an examination of the claimant undertaken at Absolute's request, Dr. Sandra Tate noted tenderness in the claimant's upper trapezius muscles and left posterior superior iliac spine, and she noted from MRI reports that the claimant had “degenerative disc changes in the cervical spine at C5–6 and C6–7 with a left paracentral protrusion at L4–5.” Dr. Tate opined that “the patient's left sacroiliac joint dysfunction may be causally related to the November 2006 injury,” while the claimant's neck and back problems “were, at most, exacerbated but not caused by the May 2006 injury.” Dr. Tate indicated that the claimant could work with restrictions and might benefit from additional treatment or physical therapy.

In a March 12, 2007, treatment note, Dr. Pencek wrote that he was seeing the claimant after a referral from her chiropractor—an assertion he repeated in his deposition—and that the claimant told him that her consultation with Dr. Hertel was at her request. Pencek noted tenderness over the claimant's left trapezius and left posterior neck, noted that the claimant reported left leg and low-back pain, and indicated that the claimant had disc herniations on the left side of the C5–C6 and C4–C5 levels. Pencek recommended physical therapy and epidural injections, and he wrote that the claimant appeared frustrated that he did not recommend surgery.

Physical therapy treatment notes for March 2007 indicate that the claimant continued to report pain in her neck and back but that her “subjective reports [were] in excess of her general objective presentation.” Also in March 2007, the claimant saw Dr. Hyunchul Jung via a referral from Dr. Pencek. Dr. Jung, a pain specialist, recommended, and later performed, epidural injections. The claimant testified that she underwent four epidural injections, which gave her limited relief in her back and no relief in her neck.

In a note following his May 24, 2007, examination of the claimant, Dr. Pencek opined that the claimant would “benefit from a C5–6 anterior cervical discectomy and fusion.” In a note following an October 2007 examination, he again stated that the claimant would benefit from a C5–C6 discectomy, and, in his deposition testimony, Dr. Pencek stated that he continued to recommend that surgery for the claimant. He opined that her cervical disc symptoms were caused at least in part by her work accidents and that her lumbar disc problems

[351 Ill.Dec. 68 , 949 N.E.2d 1163]

could have been caused by the work accidents. He also stated, however, that he did not recommend further treatment for her lumbar spine. On cross-examination, Dr. Pencek agreed that much of his evaluation was based on the claimant's subjective complaints.

In a July 12, 2007, report of her second evaluation of the claimant on behalf of Absolute, Dr. Tate stated that she reviewed additional medical records and again examined the claimant before concluding that the claimant was magnifying her symptoms, had reached maximum medical improvement, and likely could return to work with a restriction that she lift no more than 50 pounds. In her deposition, Dr. Tate clarified that her assessment meant that the claimant no longer needed chiropractic or other medical care, or any surgery. Dr. Tate explained that surgery would be warranted only with certain findings of disc-related pain, and she found no evidence that the claimant suffered from disc-related pain.

The claimant testified that her pain continued as of the time of the hearing and that she continued chiropractic care through that date. She further recalled that Dr. Pencek had told her that “it was [her] choice” whether to continue with chiropractic care.

The claimant testified that she was no longer employed by Absolute at the time of her testimony, because “[t]hey laid [her] off because they lost their contract out at the mine.” She agreed, however, that Absolute was still cleaning other...