Compass Grp. v. Ill. Workers' Comp. Comm'n

• Decision Date: 28 March 2014
• Docket Number: No. 2–12–1283 WC.,2–12–1283 WC.
• Citation: 28 N.E.3d 181
• Parties: COMPASS GROUP, Appellant and Cross–Appellee, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Jeffrey Berman, Appellee and Cross–Appellant).
• Court: United States Appellate Court of Illinois

28 N.E.3d 181

COMPASS GROUP, Appellant and Cross–Appellee

v.ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Jeffrey Berman, Appellee and Cross–Appellant).

No. 2–12–1283 WC.

Appellate Court of Illinois, Second District.

March 28, 2014.

Modified Upon Denial of Rehearing May 13, 2014.

Julie M. Schum, Ganan & Shapiro, P.C., Chicago, for appellant.

Mark F. Slavin, Slavin & Slavin, Chicago, for appellee Jeffrey Berman.

OPINION

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

¶ 1 I. INTRODUCTION

¶ 2 Respondent, Compass Group, appeals an order of the circuit court of Du Page County confirming a decision of the Illinois Workers' Compensation Commission (Commission) awarding benefits to claimant, Jeffrey Berman, under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). Claimant cross-appeals, arguing that the Commission erred in failing to impose penalties or award costs for purportedly medically necessary modifications that claimant made to his home. For the reasons that follow, we affirm in part, vacate in part, and remand.

¶ 3 II. BACKGROUND

¶ 4 The parties are aware of the facts, and the evidence presented below will not be set forth in great detail. Rather, we provide the following background to facilitate an understanding of this disposition. Additional detail will be provided, as necessary, as we encounter the issues raised by the parties.

¶ 5 Claimant was employed by respondent as a food-service manager. On March 19, 2009, he picked up a case of bottled soda weighing about 40 pounds.

He immediately felt pain and heard a pop in his back, as well as a hissing sound. He worked the rest of his shift in pain. He saw Dr. Sofia Elterman the next morning and she diagnosed a sprain, prescribed Vicodin, and referred claimant to Dr. Lapp, a chiropractor. Following his appointment with Elterman, claimant worked the rest of the day in pain. He saw Lapp the next day, which was a Saturday. The following Monday, claimant went to work despite having difficulty walking. That evening, he was examined by Dr. Jonathan Erulkar at the Illinois Bone and Joint Institute and was diagnosed with stenosis. An MRI was ordered. Erulkar noted that claimant needed a cane to walk. Claimant did not have a cane, so he used his wife's walker.

¶ 6 Claimant worked on Tuesday (March 24, 2009). He was in excruciating pain and used the walker to ambulate. On Wednesday morning (March 25, 2009), claimant arose to go to work. He was descending the stairs in his house when his left foot gave way due to severe pain in his back and radiating down his leg. Claimant fell down the stairs, sustaining lacerations and bruises on his elbows, arms, and chest. Claimant was also bleeding from his nose as a result of the fall. Claimant's wife called paramedics, who arrived and helped claimant to his feet. Claimant declined to be taken to a hospital and instead went to work. At work, claimant did paperwork in an office. He could not get out of his desk chair due to pain. A coworker eventually contacted claimant's wife. She came and took claimant to the hospital, where he was admitted.

¶ 7 At the hospital, claimant was noted to have abrasions on his head, knees, elbows, and fingers. X rays revealed olecranon bursitis in both elbows. On March 27, 2009, while still in the hospital, claimant began acting delusional. A blood test revealed a blood infection. Claimant was moved to the intensive care unit. Dr. Richard Sherman drained and packed claimant's olecranon bursae. Claimant's renal function began to deteriorate, and he began bleeding in his gastrointestinal system. An endoscopy was performed.

¶ 8 An exploratory laparotomy led to a colectomy. Claimant was intubated due to respiratory failure. Subsequently, a tracheotomy was performed, as claimant had difficulty weaning from the breathing machine.

¶ 9 On April 30, 2009, claimant was transferred to a long-term care facility. Dr. Istina Morariu observed olecranon bursitis and deep vein thrombosis. A CT scan revealed various back problems, and claimant was eventually diagnosed with a disc space infection. On May 21 and May 31, 2009, claimant underwent spinal surgeries. On June 26, 2009, claimant was transferred to a rehabilitation center, where he was noted to have a right foot drop and shingles on his face. On September 29, 2009, he was transferred to a hospital due to renal insufficiency. He was treated surgically for a left-elbow ulcer. He was sent back to the rehabilitation center, but returned to the hospital on December 1, 2009, for a four-day stay. He was again transferred to the rehabilitation center. Sherman examined claimant and noted ecchymosis and a hematoma in the left forearm. Claimant returned home, but remained under medical care. On May 20, 2010, claimant returned to the hospital and underwent an ileostomy reversal. Claimant was then transferred back and forth between the rehabilitation center and the hospital a number of times.

¶ 10 Sherman was of the opinion that the abrasions on claimant's elbows led to septic olecranon bursitis. This infection spread, via claimant's blood stream, to claimant's spine, intestinal tract, and kidneys.

Dr. Scott Kale, who examined claimant on respondent's behalf, opined that claimant's condition was caused by either his olecranon bursitis or his spinal infection. Kale did not believe that claimant's condition was causally related to his fall down the stairs.

¶ 11 III. ANALYSIS

¶ 12 We will first address respondent's appeal. We will then turn to claimant's cross-appeal. Before proceeding further, we note that the party appealing an issue has the burden to convince this court that a reversible error has been committed in the proceedings below. TSP–Hope, Inc. v. Home Innovators of Illinois, LLC, 382 Ill.App.3d 1171, 1173, 322 Ill.Dec. 301, 890 N.E.2d 1220 (2008).

¶ 13 Both parties cite decisions of the Commission in support of their arguments. This is improper, as they have no precedential value. See S & H Floor Covering, Inc. v. Illinois Workers' Compensation Comm'n, 373 Ill.App.3d 259, 266, 312 Ill.Dec. 377, 870 N.E.2d 821 (2007). Hence, we strike such citations from both parties' briefs.

¶ 14 A. RESPONDENT'S APPEAL

¶ 15 Respondent raises a number of issues in its appeal. First, it contests the Commission's finding regarding causation. Second, it asserts that “[n]o penalties or fees should be imposed,” a puzzling assertion, as the Commission did not award penalties or fees in this case. Similarly odd is respondent's third claim, that it is entitled to a credit of $420,385.16 in accordance with section 8(j) of the Act (820 ILCS 305/8(j) (West 2008)), since respondent was given a credit in this amount (discounting the possibility, of course, that respondent was entitled to two awards of exactly that amount and received only one). Fourth, respondent contends that the award of medical expenses should have been based upon a negotiated rate rather than the scheduled rate. Fifth, respondent complains of the arbitrator's denial of its request to conduct an evidence deposition of its own expert witness, Dr. Kale. Sixth and finally, respondent asserts that the Commission erred in failing to address a number of objections that it purportedly raised to medical bills.

¶ 16 1. Causation

¶ 17 We first turn to respondent's arguments regarding causation (respondent raises a general argument about causation and, in a separate section, an argument concerning medical expenses that is based on lack of causation; we will address these arguments jointly). It is axiomatic that to recover under the Act, an employee must show that his or her condition of ill-being is causally related to his or her employment. Palos Electric Co. v. Industrial Comm'n, 314 Ill.App.3d 920, 926, 247 Ill.Dec. 548, 732 N.E.2d 603 (2000). When a “ ‘primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment.’ ” Caterpillar, Inc. v. Industrial Comm'n, 228 Ill.App.3d 288, 293, 169 Ill.Dec. 390, 591 N.E.2d 894 (1992) (quoting 1 Arthur Larson, The Law of Workmen's Compensation § 13.00, at 3–502 (1990)). Moreover, we note that employment need be only a cause, not the sole or primary cause, of a claimant's condition, that an employer takes an employee as it finds him, and that the existence of a preexisting condition does not preclude recovery under the Act. Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 205, 278 Ill.Dec. 70, 797 N.E.2d 665 (2003).

¶ 18 Causation presents a question of fact. Id. As such, we will disturb the decision of the Commission only if it is contrary to the manifest weight of the evidence. University of Illinois v. Industrial Comm'n, 365 Ill.App.3d 906, 910, 303 Ill.Dec. 174, 851 N.E.2d 72 (2006). A decision is against the manifest weight of the evidence only where an opposite conclusion is clearly apparent. Mobil Oil Corp. v. Industrial Comm'n, 327 Ill.App.3d 778, 789, 261 Ill.Dec. 924, 764 N.E.2d 539 (2002). It is primarily the role of the Commission to weigh and resolve conflicts in the evidence and to evaluate witnesses. O'Dette v. Industrial Comm'n, 79 Ill.2d 249, 253, 38 Ill.Dec. 133, 403 N.E.2d 221 (1980). Finally, we owe substantial deference to the Commission's findings regarding medical issues, as its expertise in this area is well recognized. Long v. Industrial Comm'n, 76 Ill.2d 561, 566, 31 Ill.Dec. 815, 394 N.E.2d 1192 (1979).

¶ 19 The crux of this issue involves the divergent opinions of claimant's treating physician, Dr. Sherman, and respondent's section 12 examiner (820 ILCS 305/12 (West 2008) ), Dr. Kale. Respondent blatantly requests this court to “find the opinion of Dr. Kale to be the most qualified and persuasive opinion” and to “adopt the opinion of Dr. Kale.” Of course, this is not our role. We will not merely reevaluate the credibility of these witnesses and substitute our judgment for that of the Commission. See Setzekorn v. Industrial...