Elgin Bd. of Educ. Sch. Dist. U–46 v. Ill. Workers' Comp. Comm'n

• Decision Date: 08 June 2011
• Docket Number: No. 1–09–3446 WC.,1–09–3446 WC.
• Citation: 268 Ed. Law Rep. 523,409 Ill.App.3d 943,949 N.E.2d 198,350 Ill.Dec. 710
• Parties: ELGIN BOARD OF EDUCATION SCHOOL DISTRICT U–46, Plaintiff–Appellant,v.ILLINOIS WORKERS' COMPENSATION COMMISSION and Linda Weiler, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

409 Ill.App.3d 943

949 N.E.2d 198

350 Ill.Dec. 710

268 Ed. Law Rep. 523

ELGIN BOARD OF EDUCATION SCHOOL DISTRICT U–46, Plaintiff–Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION and Linda Weiler, Defendants–Appellees.

No. 1–09–3446 WC.

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

April 25, 2011.Rehearing Denied June 8, 2011.

Robert T. Newman, Maciorowski, Sackmann & Ulrich, LLP, Chicago, IL, for Appellant.Steven J. Seidman, Chicago, IL, for Appellee.

[350 Ill.Dec. 712 , 409 Ill.App.3d 944] OPINION

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

Respondent, Elgin Board of Education School District U–46, appeals an order of the Illinois Workers' Compensation Commission (Commission) awarding benefits to claimant, Linda Weiler. Respondent raises three issues on appeal. First, it argues that the Commission's finding that claimant's current condition of ill-being is causally related to an accident at work is against the manifest weight of the evidence. Second, it argues that the Commission erred in calculating claimant's average weekly wage under section 10 of the Workers' Compensation Act (Act) (820 ILCS 305/10 (West 2002)). Third, it contends that the Commission erred in denying it credit under section 8(j) of the Act (820 ILCS 305/8(j) (West 2002)) for wages paid to claimant in lieu of temporary total disability (TTD) benefits. We agree with respondent's third contention and remand the cause to the Commission for a calculation of the credit. We otherwise affirm.

I. BACKGROUND

Claimant was employed by respondent as a teacher. In 1996, claimant suffered a stroke. To prevent similar episodes, claimant was prescribed Coumadin, a blood-thinning agent. On November 7, 2002, Dr. Richard Rosseau performed an arthroscopic procedure on claimant's right knee, which was unrelated to her work duties. To improve clotting in preparation for the surgery, Dr. Rosseau instructed claimant to stop taking the Coumadin five days prior to the procedure. Per Dr. Rosseau's instructions, a day or two following the surgery claimant resumed taking Coumadin.

Claimant returned to work full duty on November 12, 2002. At that time, claimant did not note any swelling of her right knee. On November 13, 2002, claimant struck her right knee against a metal desk as she arose from her seat to assist a student. As a result, the surgical incisions on her knee opened and began to bleed to the point that her skirt became soiled with blood. The knee also began to swell. The following day, claimant contacted Dr. Rosseau. Dr. Rosseau examined claimant on November 15, 2002, and diagnosed hemarthrosis, which he defined as “blood in a joint creating some inflammation.” Thereafter, claimant treated with Dr. Rosseau for several months. During that time, Dr. Rosseau aspirated the knee, prescribed pain medication, and instructed claimant to remain off her feet. Claimant also attended physical therapy. Dr. Rosseau released claimant to return to work with no restrictions on March 31, 2003. Claimant retired in June 2003, at the end of the 2002–03 academic year.

At the arbitration hearing, claimant testified that she had been employed by respondent for 20 years. During the year preceding her injury, claimant was required to work 40 weeks (a regular school year) and the parties stipulated that she was paid an annual salary of $61,459 for this work. Claimant had two options for

[350 Ill.Dec. 713 , 949 N.E.2d 201]

receiving her salary. She could be paid twice a month during each month of the calendar year (resulting in 24 payments) or she could be paid twice a month during each month of the academic year (resulting in 20 payments). Claimant chose the former option and received paychecks year round. Claimant testified that during the period of time she was off work (November 14, 2002, through March 30, 2003), she was paid her regular salary through the use of accumulated sick pay. Claimant stated that the sick pay she used has not been reinstated and that the use of the sick pay reduced her retirement benefit.

During respondent's cross-examination of claimant, it referred to a “sample letter” labeled as its exhibit No. 3. A copy of the letter has not been included in the record on appeal. However, respondent's attorney represented that the letter informed school district employees that they have the option of using earned sick leave in order to receive full pay for an absence resulting from a work-related injury, that respondent's human resources department would automatically charge sick leave when an employee is absent because of a work-related injury unless the employee directs respondent otherwise in writing, and that once accumulated sick leave is exhausted, respondent would contact the injured employee and place him or her on TTD benefits. Claimant denied ever having personally received a similar letter and stated that she never informed respondent that she preferred to receive TTD benefits instead of her full salary. The arbitrator sustained claimant's objection to the admission of respondent's exhibit No. 3 on foundational grounds.

In correspondence to claimant's attorney dated January 18, 2006, Dr. Rosseau opined that claimant's post-surgical hemarthrosis was the result of the blow to the right knee which occurred at work on November 13, 2002. Dr. Rosseau acknowledged that claimant was “significantly more prone” to hemarthrosis because she was taking Coumadin. However, he noted that the Coumadin was medically required because of claimant's vascular history, which, in addition to a stroke, was significant for mitral valve prolapse.

Dr. Rosseau provided additional evidence by deposition. Dr. Rosseau testified that the most common cause of hemarthrosis is trauma and that the condition is seen post-surgically as surgery is a form of trauma. He added, however, that hemarthrosis can occur independent of surgery as a result of an impact to a joint. With respect to the role of Coumadin in hemarthrosis, Dr. Rosseau testified that clotting is a “very important element of wound healing” and that Coumadin would make one's blood more difficult to clot. Nevertheless, he stated that it is unusual for hemarthrosis to occur purely as a result of anticoagulation.

Dr. Rosseau indicated that claimant's hemarthrosis resulted from a form of trauma, and he identified three possible sources: (1) a tourniquet that was placed on claimant's upper thigh during the arthroscopic surgery; (2) the surgery itself; and (3) the incident at work on November 13, 2002, when claimant struck her knee on the desk. Dr. Rosseau ruled out the tourniquet as the source of claimant's hemarthrosis, noting that although some bruising is seen in the area where the device was applied, the bruising was “different and separate than the hemarthrosis.” Dr. Rosseau also noted that a majority of claimant's symptoms were suggestive of hemarthrosis. For instance, he pointed out that the tourniquet effects will frequently manifest in the lower leg following the muscle plains whereas claimant's swelling was isolated to the knee. Dr. Rosseau explained that swelling limited to the knee

[350 Ill.Dec. 714 , 949 N.E.2d 202]

and above would indicate that it is a more contained form of irritation or swelling which would be more related to hemarthrosis.

Dr. Rosseau acknowledged that claimant's use of Coumadin “would make her more prone to a hemarthrosis.” Nevertheless, he did not believe that claimant's Coumadin levels were too high following surgery. He explained that an International Normalized Ratio (INR) of 1.0 is considered normal coagulation. The higher the INR, the slower an individual's blood coagulates. According to Dr. Rosseau, claimant's INR the day prior to surgery was “basically normal,” measuring 1.1. Claimant's next INR reading was taken on November 16, 2002, and measured 2.5. Dr. Rosseau stated that although an INR level of 2.5 is elevated, it is within the “therapeutic range” of between 2 and 3. Ultimately, Dr. Rosseau described the incident at work as “the eliciting source of the hemarthrosis,” explaining that claimant reported a significant increase in the pain and swelling immediately after the incident and there was no other documented source of injury or irritation.

On cross-examination, Dr. Rosseau testified that, unbeknownst to him, claimant's primary-care physician administered another anticoagulant, Lovenox, to her after she stopped taking Coumadin in preparation for the arthroscopic procedure. Dr. Rosseau testified that in many individuals, there is an “unacceptably high incidence of hemarthrosis with the use of Lovenox.” Nevertheless, he noted that the Lovenox was used for only two days and was stopped on November 5, 2002, two days prior to surgery, which, according to Dr. Rosseau, should have been adequate for the effects of the Lovenox to reverse. Dr. Rosseau also noted that by December 8, 2002, claimant's INR was measured at 6.8, which was double what is considered therapeutic.

Dr. J.S. Player reviewed claimant's medical records at the request of respondent's attorney and authored a report of his findings. Dr. Player opined that any individual who is taking Coumadin post-arthroscopy of the knee is at increased risk for a hemarthrosis when minor trauma has occurred. Dr. Player further opined that an individual whose Coumadin level is elevated beyond the therapeutic range is at risk for a hemarthrosis especially in a post-arthroscopy knee, even if a trauma has not occurred. Acknowledging that claimant sustained a direct blow to her right knee at work on November 13, 2002, Dr. Player wrote that if claimant's Coumadin level was elevated beyond the therapeutic level, then her postoperative state and elevated Coumadin level alone could be the cause of her right knee hemarthrosis regardless of the November 13, 2002, incident. Dr. Player noted, however, that although claimant resumed taking Coumadin after surgery, “it is...