Hosteny v. Ill. Workers' Comp. Comm'n

• Decision Date: 29 December 2009
• Docket Number: No. 1-08-3238 WC.,1-08-3238 WC.
• Citation: 340 Ill.Dec. 475,928 N.E.2d 474,397 Ill.App.3d 665
• Parties: Jerry HOSTENY, Plaintiff-Appellant,v.ILLINOIS WORKERS' COMPENSATION COMMISSION and Anning Johnson Co., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

397 Ill.App.3d 665

928 N.E.2d 474

340 Ill.Dec. 475

Jerry HOSTENY, Plaintiff-Appellant,v.ILLINOIS WORKERS' COMPENSATION COMMISSION and Anning Johnson Co., Defendants-Appellees.

No. 1-08-3238 WC.

Appellate Court of Illinois,

First District,

Workers' Compensation Commission Division.

Dec. 29, 2009.

Cullen, Haskins, Nicholson & Menchetti, P.C., Chicago, IL, for Appellant.

Rusin, Maciorowski & Friedman, Ltd., Chicago, IL, for Appellee.

Justice HUDSON delivered the opinion of the court:

Claimant, Jerry Hosteny, filed three applications for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)) for injuries he allegedly sustained while in the employ of respondent, Anning Johnson Co. Following a hearing, the arbitrator determined that claimant sustained compensable accidents on two of the three alleged accident dates. The arbitrator awarded claimant medical expenses, temporary total disability (TTD) benefits, and permanent partial disability (PPD) benefits. Respondent appealed, and the Illinois Workers' Compensation Commission (Commission) reversed. On judicial review, the circuit court of Cook County confirmed. Before this court, claimant challenges the Commission's findings that he failed to sustain his burden of proving compensable injuries arising out of and in the course of his employment on June 4, 2004, and August 2, 2004. For the reasons that follow, we affirm.

I. BACKGROUND

Claimant filed three applications for adjustment of claim pursuant to the Act (820 ILCS 305/1 et seq. (West 2004)) for injuries he allegedly sustained while in the employ of respondent on June 4, 2004 (No. 04 WC 59684), August 2, 2004 (No. 04 WC 59685), and September 15, 2004 (No. 04 WC 59686). The cases were consolidated for hearing before an arbitrator. The following evidence was presented at the arbitration hearing.

Claimant, a journeyman painter, was hired by respondent on March 3, 2004. In June 2004, claimant was assigned as the foreman at the Sunrise Assisted Living (Sunrise) job site. According to claimant, on June 4, 2004, while at Sunrise, he was carrying a 32-foot long ladder “throughout the day” while painting window lintels. Claimant stated that while lifting the ladder, he heard a “popping sound” in the back of his neck. Feeling no pain, claimant finished the day. Claimant stated that upon returning home that evening, he still felt no pain. The next morning, a Saturday, claimant awoke with posterior neck pain and soreness. He returned to work the following Monday, noting that when he was working he had no symptoms. Claimant explained that it was only while relaxing at night or trying to sleep that he experienced soreness. Claimant stated that in the weeks that followed, the pain began radiating into his arm.

Claimant testified that his boss, Robert Cascio, would be present at his job site in person three times per week and that Cascio would contact claimant via walkie-talkie and/or telephone three to five times per day. Nevertheless, claimant admitted that he did not immediately tell anyone at work about his injury and that he did not immediately seek medical assistance. According to claimant, however, on July 13, 2004, he told Cascio that “[his] neck and [his] back was sore [ sic ]” and, other than noting he was going to see a chiropractor for his condition, that was “the end of the conversation.”

On July 15, 2004, claimant treated with his chiropractor, Dr. Jack Gamble, for the first time after June 4, 2004. At that time, claimant presented his group insurance card for treatment. Dr. Gamble's initial report notes complaints of left-sided neck pain and soreness radiating into the left shoulder and left upper arm. Although Dr. Gamble's report does not reference a work injury, claimant testified that he told Dr. Gamble that he hurt himself at work lifting a 32-foot ladder. After July 15, 2004, claimant saw Dr. Gamble on July 16, July 20, July 22, July 27, and July 29, 2004, with complaints similar to those raised during his initial visit. None of the office notes from these visits reflects that claimant reported a work accident or that his pain was brought on by work activities, and claimant continued to work regular duty during Dr. Gamble's treatment. Claimant testified that the therapy administered by Dr. Gamble provided “very little” relief.

Regarding the second alleged accident date, claimant testified that on August 2, 2004, he again picked up the 32-foot ladder while working at Sunrise and felt pain in the back of his neck. Claimant explained that the June accident differed from the August accident in that with the former he “felt a pop, no pain” whereas with the latter he “felt a pain.” After the August incident, claimant continued to work that day, explaining that he “took it easy” and that the pain “went away.” However, claimant testified that the pain in his neck soon spread to his left shoulder and left arm. Claimant also described cramping in the left arm and hand, and he stated that “everything started to increase in strength” and that the neck pain was “deeper.” Nevertheless, claimant worked regular duty from August 2, 2004, through September 22, 2004, explaining that he only had symptoms while at home resting or trying to sleep.

Claimant admitted that at no time in June, July, or August 2004 did he ever complete an accident report. Claimant testified that he reported a work injury to Cascio on the afternoon of September 15, 2004, after he got home from work, and that Cascio suggested that respondent “frowned” upon workers' compensation claims. Claimant stated that he knew “exactly” what Cascio was telling him.

Claimant testified that on September 17, 2004, two days after speaking with Cascio, he sought treatment with Dr. John Fielder, his primary care provider. Claimant complained of soreness in the left arm and neck with forearm cramps, noting that his symptoms had been present since July. A separate notation in Dr. Fielder's note stated “painting since March,” but no specific work injury or accident is referenced. Claimant was referred for a September 21, 2004, cervical MRI and a September 24, 2004, EMG/NCV. According to claimant, Dr. Fielder called him on September 22, 2004, with the results of the MRI, noting that the film showed a disc protrusion at C5-6, a mild disc bulge at C6-7, and a pinched nerve. Dr. Fielder issued a slip authorizing claimant off work beginning September 22, 2004. Claimant testified that he immediately called Cascio and was told that he did not need to complete any paperwork before leaving work. Claimant testified that later the same day he called Cascio again because he could not obtain treatment without authorization, explaining that Cascio may have misunderstood him. When Cascio asked what he meant, claimant responded that he got hurt at work. Cascio replied “You did? When did it happen?” Claimant responded that it was on June 4, 2004, and August 2, 2004.

The EMG/NCV showed advanced left carpal tunnel syndrome, but reflected no evidence of radiculopathy, and claimant was referred to pain specialist Dr. Maunak Rana. Claimant saw Dr. Rana on September 28, 2004, noting a recent history of cervical spine pain radiating down his left upper extremity with occasional numbness in the forearm and first three fingers. Claimant told Dr. Rana that he was injured on June 4, 2004, and August 2, 2004, while “carrying a 32-foot ladder at work throughout the day and fe[eling] discomfort.” Claimant related that “staying busy and moving helps him and when he is lying in bed and in idle positions, his symptoms are worsened.” Dr. Rana diagnosed cervical radiculitis, facet syndrome, a herniated cervical disc, and myofascial pain. Dr. Rana recommended various injections. During his consultation with Dr. Rana, claimant asked Dr. Rana “whether or not his accident caused his pain or whether this would be a pre-existing condition.” Dr. Rana responded that he was unable to answer that inquiry, and he referred claimant to Dr. Fielder who could compare claimant's condition before and after the accidents.

On October 5, 2004, claimant called Dr. Rana regarding the results of his EMG/NCV. Claimant questioned how that test failed to indicate radiculopathy given the MRI results. Dr. Rana told claimant to speak to Dr. Chulsoo Kim, who performed the EMG/NCV, “to find out whether this is an acute or chronic condition, since it is specifically not dictated as to that effect and to ask him about the fact that there is no evidence of any cervical radiculopathy present, given the findings on MRI.” Dr. Rana also told claimant to contact Dr. Fielder about what his next options would be. During the call, claimant also told Dr. Rana that Dr. Fielder indicated that Dr. Rana should fill out his disability form. Dr. Rana told claimant that he only met him after his accident and thus was unable to comment as to the degree of disability he had, suggesting that he contact Dr. Fielder to determine how his health changed after this particular injury. One of Dr. Fielder's progress notes references a telephone call from claimant's wife, who called from the office of claimant's attorney on October 5, 2004. During the call, claimant's wife related that Dr. Rana did not note a pinched nerve on the EMG. At that time, claimant was referred to neurologist, Dr. Mohamed Ghumra. Claimant stated that Dr. Fielder has since, at claimant's request, opined claimant's surgical condition was work-related on an October 14, 2004, temporary disability form.

Dr. Ghumra's October 12, 2004, report notes, per the history from claimant and his wife:

“[I]t appears that [claimant] was carrying a 32-feet [ sic ] ladder at work and has been working on his regular schedule. On 06/04/04 and the subsequent day and 08/02/04, he had two separate work-related injuries. He states that he injured his neck and started experiencing some pain radiating down to his left shoulder and all the way down to his hand.

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