Greaney v. Industrial Comm'n

• Decision Date: 29 June 2005
• Docket Number: No. 1-04-2796 WC.,1-04-2796 WC.
• Citation: 832 N.E.2d 331
• Parties: William GREANEY, Appellant-Cross-Appellee, v. The INDUSTRIAL COMMISSION, et al. (Michel Masonry Co., Appellee-Cross-Appellant).
• Court: Illinois Supreme Court

832 N.E.2d 331

William GREANEY, Appellant-Cross-Appellee, v. The INDUSTRIAL COMMISSION, et al. (Michel Masonry Co., Appellee-Cross-Appellant).

No. 1-04-2796 WC.

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

June 29, 2005.

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Corti, Freeman and Aleksy, Chicago (Richard Aleksy, of counsel), for Appellant.

Garofalo, Schreiber, Hart & Storm, Chicago (Kevin J. Reid, of counsel), for Appellee.

Justice HOFFMAN delivered the opinion of the court:

The claimant, William Greaney, appeals and Michel Masonry Co. (Michel) cross-appeals from various orders of the circuit court of Cook County entered on judicial review of decisions of the Industrial Commission (Commission)¹ awarding the claimant certain benefits in connection with his application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)). For the reasons which follow, we affirm in part, reverse in part, vacate in part, and remand this matter to the Commission with instructions.

On September 11, 1998, the claimant filed an application for adjustment of claim alleging that he had suffered an accidental injury while working for Michel on June 15, 1998. An arbitration hearing was held on May 8, 2001, during which the following facts were established by the testimony and exhibits presented.

The claimant testified that, prior to his injury, he had been employed by Michel as a laborer for approximately five months. The claimant stated that, on June 15, 1998, he was carrying two buckets containing approximately 100 pounds of mortar down a flight a stairs when his right hip "gave way," causing his back to rotate. He testified that he immediately notified the foreman about his injury, and that he went to the emergency room at Palos Community Hospital (Palos) that same day. The records from Palos state that the claimant presented with complaints of a "low back injury," and that he underwent a CT scan which showed asymmetric bulging of his intervertebral disc at L5-S1, and bulging annulus with no focal herniation at L4-5 and L3-4.

On June 19, 1998, the claimant visited Dr. Paul Atkenson, an orthopaedic surgeon. The claimant testified that he treated with Dr. Atkenson for several weeks, and that the doctor referred him to the Orland Therapy Specialists (Orland) for physical therapy. In a letter from Orland to Dr. Atkenson dated June 24, 1998, a therapist stated that the claimant was suffering from low back pain and right leg pain following a work injury on June 15, 1998. The therapist further noted that the claimant's right hip flexion strength measured four on a scale of five.

The claimant testified that he was eventually referred by Michel's insurance carrier to Dr. Muhammad Alvi. Dr. Alvi's records, which were admitted into evidence over Michel's hearsay, foundation, and authenticity objections, show that the claimant's first examination was on July 11, 1998. In a report addressing that examination, Dr. Alvi stated that the claimant was presenting with constant severe mid-line lower back symptoms, and moderate to severe bilateral myospasms in his legs. Dr. Alvi diagnosed the claimant as suffering from lumbar neuritis/radicolitis with associated myospasms, and began a treatment program which consisted of manipulation, passive stretching, and the application of paravertebral nerve blocks.

The claimant stated that he was subsequently referred by Dr. Alvi to Dr. William A. Earman. In a post-examination report dated September 21, 1998, Dr. Earman opined that the claimant was suffering from a lumbar spine strain, and he recommended a course of physical therapy and lumbar support. In a letter to Michel's insurance carrier dated October 23, 1998, Dr. Earman reported that the claimant had completed his course of physical therapy and that, in his opinion, the claimant was not in need of additional treatment. Accordingly, Dr. Earman released the claimant to return to full duty work and discharged him from his care. In a faxed response to an inquiry from Michel's insurance carrier dated October 28, 1998, Dr. Earman stated that the claimant would reach maximum medical improvement (MMI) on October 30, 1998.

On October 26, 1998, Dr. Alvi similarly released the claimant to return to work with the only restriction being that he wear a belt during "lifting operations." The claimant testified that he returned to Michel for two days before he stopped working again on October 27, 1998. Following an examination on December 14, 1998, Dr. Alvi found the claimant to be totally incapacitated, and took him off-work.

The claimant was also referred by Dr. Alvi to Dr. Mark A. Lorenz, whose records were admitted into evidence at the arbitration hearing over Michel's hearsay and authentication objections. These records show that the claimant first visited Dr. Lorenz on January 14, 1999, at which time he was diagnosed with diskogenic back pain without a true herniation, and prescribed a regimen of physical therapy with Dr. Bob L. Hung.

The claimant first visited Dr. Hung on January 14, 1999. In a report following that examination, Dr. Hung found the claimant to be suffering from myofascial pain, mechanical low back pain, and a "deconditioned back." Following an examination on February 18, 1999, Dr. Hung also found the claimant to be suffering from right hip bursitis, and recommended that he undergo a functional capacity examination (FCE) following the completion of his physical therapy program.

The record shows that the claimant completed a FCE on March 31, 1999, the results of which indicated that he was incapable of performing the duties of a laborer. A report detailing the result of this FCE was contained within the documents submitted by Dr. Alvi, and was also admitted into evidence as a separate exhibit from LaGrange Memorial Hospital Work Rehabilitation Center (LaGrange). Also contained in the LaGrange exhibit was a letter from Meg Wilton, a registered nurse hired by Michel's insurance carrier to manage the claimant's case, which contained a description of the physical demands of the claimant's job. The LaGrange exhibit was admitted into evidence over Michel's hearsay, foundation, and authenticity objections.

In a post-examination report dated April 15, 1999, Dr. Hung stated that the claimant's lower back pain had resolved "quite nicely," but that his right hip pain had worsened to the point where he had difficulty ambulating. Dr. Hung also stated that, despite his right hip pain, the claimant "did quite well" on the FCE. In a post-examination report dated May 25, 1999, Dr. Hung noted that the claimant stated he had been suffering from right hip pain "ever since the accident itself." In a subsequent post-examination report, Dr. Hung stated that the claimant's right hip pain was the main limiting factor in terms of his return to work on a full duty basis and that, unless his hip pain lessened, he would most likely not be able to return to his previous work level. The claimant completed a second FCE on August 25, 1999, the results of which showed that the claimant's capabilities fell within the "medium-heavy" physical demand level, while his position as a laborer fell within the "heavy to very heavy" physical demand level. The report from the claimant's second FCE was contained in the documents submitted by Dr. Lorenz.

The claimant testified that he was released to return to work on November 4, 1999, "within the restrictions imposed by the [FCE]." The claimant stated that, following his release, he contacted Michel in order to inquire about a job, and that Michel did not offer him a position within his restrictions. The claimant then initiated an independent job search and eventually accepted a position as an x-ray technician with National Testing Service (NTS) on December 25, 1999. The claimant stated that NTS paid him $10.75 an hour, and that his job required him to travel extensively, climb in and out of ditches, and sit around "for hours upon hours." According to the claimant, he left his job at NTS because it was causing him back pain. He subsequently took a job with Inlander Brothers (Inlander) as a forklift driver where he earned $8 an hour. The claimant stated that his job at Inlander allowed him to walk around and stretch every 20 minutes, and that he was not required to do any heavy lifting.

At Michel's request, the claimant was examined several times by Dr. Boone Brackett. Over Michel's hearsay, foundation, and authenticity objections, the claimant introduced a post-examination report from Dr. Brackett dated March 6, 2001. In this report, Dr. Brackett stated that the claimant returned to work in November 1999 with a "sixty-five pound weight restriction," and opined that the claimant was doing "reasonably well" working within this restriction.

Admitted into evidence were two exhibits containing certain information relating to the claimant's employment. The first form contained detailed information from the claimant's employment at Michel. It listed the number of hours and days the claimant worked during each of the 17 weekly pay periods he was employed by Michel prior to his injury. This exhibit showed that the claimant worked 420.5 hours and earned $9,451.18 during that period. Although the claimant testified that his workweek consisted of five eight-hour days, the exhibit reflects that he only worked 59 days during the 17 weekly pay periods preceding his injury. The form listed the claimant's hourly wage at $22.35 during the first 15 weekly pay periods, and as $23.35 per hour during the final two weekly pay periods. A second form listed the same details for the claimant's employment during the period between December 25, 1999, and February 17, 2001. The claimant testified that, at the time of the arbitration hearing, laborers earned $25.41 an hour. The arbitrator, however,...