O'Neil v. Ill. Workers' Comp. Comm'n

• Decision Date: 04 February 2020
• Docket Number: No. 2-19-0427WC,2-19-0427WC
• Citation: 149 N.E.3d 586,2020 IL App (2d) 190427 WC,440 Ill.Dec. 36
• Parties: Justin O'NEIL, Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (JGS Marine, LLC, d/b/a Mastercraft Boats, Appellee).
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190427 WC

149 N.E.3d 586

440 Ill.Dec. 36

Justin O'NEIL, Appellant,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al.

(JGS Marine, LLC, d/b/a Mastercraft Boats, Appellee).

No. 2-19-0427WC

Appellate Court of Illinois, Second District, WORKERS' COMPENSATION COMMISSION DIVISION.

Opinion filed February 4, 2020

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

¶ 1 Claimant, Justin O'Neil, appeals from an order of the circuit court of Lake County that confirmed a decision of the Illinois Workers' Compensation Commission (Commission) that reversed an award of attorney fees and penalties assessed by the arbitrator against respondent, JGS Marine, LLC, d/b/a Mastercraft Boats. The Commission, relying in part on our opinion in Hollywood Casino-Aurora, Inc. v. Illinois Workers' Compensation Comm'n , 2012 IL App (2d) 110426WC, 359 Ill.Dec. 818, 967 N.E.2d 848, concluded that it was without statutory authority to award attorney fees and penalties pursuant to sections 16 and 19(l ) of the Workers' Compensation Act (Act) ( 820 ILCS 305/16, 19(l ) (West 2016)) based on respondent's decision to revoke authorization for surgery to claimant's right knee. For the reasons set forth below, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On October 13, 2016, claimant filed an application for adjustment of claim alleging that he sustained an injury to his right knee on February 11, 2016, while working for respondent. The matter proceeded to an arbitration hearing pursuant to section 19(b) of the Act ( 820 ILCS 305/19(b) (West 2016)) before Arbitrator Gregory Dollison. The following summary is taken from the evidence presented at that hearing, which was held on May 15, 2017.

¶ 4 Claimant was employed by respondent as a marine technician. In this capacity, claimant's duties included mechanical work, the installation of boat accessories, and general boat maintenance. On February 11, 2016, claimant was installing a swim platform on the back of a boat. While positioning the platform onto support brackets, claimant lowered his right knee onto the concrete floor below. As claimant came down on his right knee, he "felt a pop and then a sharp pain" and immediately twisted his knee in response. The parties stipulated to accident but disputed causal connection.

¶ 5 Claimant testified that he attempted to finish his shift the day of the accident (a Thursday), but respondent had him go home to rest. Claimant's pain was a little worse the day after the accident, so he stayed at home to ice and elevate his leg. On Saturday, February 13, 2016, claimant, a veteran of the United States Navy, sought medical care for his right knee at a Veteran's Administration (VA) facility. Claimant was diagnosed with prepatellar bursitis. The treatment plan consisted of a pull-on sleeve, ice, elevation, and pain medication. Claimant returned to work the Monday following the injury, explaining that he "tried to tough it out" because he did not want to lose his job. Thereafter, claimant experienced ongoing knee pain and swelling and was referred for an orthopaedic consultation by medical personnel at the VA facility. The consulting orthopaedic physician agreed with the diagnosis of prepatellar bursitis. The doctor did not recommend aspiration or surgery at that time and instructed claimant to return on an as-needed basis.

¶ 6 During the months that followed, claimant continued to retain fluid in his right knee, and although the amount of fluid fluctuated, the knee would occasionally approach the size of a racquetball. After four months, claimant told respondent that he wanted to see a physician. Respondent authorized claimant to seek treatment at Advocate Occupational Health, where he was examined by Cheryl Culberson, an advanced practice nurse. Culberson diagnosed prepatellar bursitis, prescribed conservative treatment, authorized claimant to return to work without restrictions, and referred claimant to Dr. Roger Chams, an orthopaedic surgeon at the Illinois Bone and Joint Institute. Claimant saw Dr. Chams on June 21, 2016. At that time, Dr. Chams noted that claimant continued to have swelling at the anterior aspect of the right knee as well as pain deep to the patella. Dr. Chams diagnosed prepatellar bursitis and noted that claimant's injury was work related. He aspirated 20 milliliters of fluid from the right knee and administered a steroid injection. Dr. Chams also prescribed an MRI to rule out a meniscal injury. Dr. Chams authorized claimant to work full duty with the caveat that he be allowed to rest or be excused from work for complaints of knee pain.

¶ 7 When claimant returned to Dr. Chams on July 5, 2016, he reported that the aspiration and injection only provided temporary relief from his symptoms. Dr. Chams noted that the MRI revealed evidence of prepatellar bursitis with mild chondromalacia of the patella and a small joint effusion with no meniscal tear. Dr. Chams instructed claimant to avoid painful positions and activities. To this end, Dr. Chams placed claimant on "light duty and light kneeling." In the months that followed, claimant continued to treat with Dr. Chams. During that time, Dr. Chams repeatedly aspirated the right knee, administered another injection, and ordered a second MRI. The repeat MRI demonstrated a significant prepatellar bursal inflammation as well as some mild chondromalacia and a lateral tilt of the kneecap. Ultimately, Dr. Chams recommended surgery consisting of a right knee arthroscopy and open removal of the prepatellar bursa.

¶ 8 On October 10, 2016, respondent's insurance carrier approved the surgery proposed by Dr. Chams. Claimant testified that he delayed the surgery because he was the only marine technician and respondent was "very busy." Claimant intended to proceed with the surgery in the winter when work was not as hectic. On December 2, 2016, Dr. Chams recorded that the proposed surgery was scheduled for December 17, 2016. On December 8, 2016, Dr. Chams received notification that respondent's insurance carrier had revoked the surgery authorization for claimant, citing the need for an "[a]dditional investigation."

¶ 9 Claimant testified that he was told that respondent revoked authorization for the surgery because of a note in the VA records referencing a prior procedure to his right knee in 2001. That note, dated February 13, 2016, provides as follows:

"[Patient] was informed that I will be his corpsmen[[sic ].] [P]laced on hospital gown/orient to his room[.] [W]arm blankets and call lights given/side rails up[.] [A]waiting to be seen by ER MD/[patient] states this happened in 2001 when he was active duty—performed surgery on knee, which [patient] describes as a incision [sic] and drainage [.]" (Emphasis added.)

The note was signed by Corpsman Nicholas Blackmond, who claimant described as "a check-in person" at the VA facility.

¶ 10 Claimant denied undergoing any procedure to or experiencing any injury involving his right knee prior to the February 11, 2016, work accident. Claimant admitted that he had prior surgery to his right leg but that this was to the shin area, about three inches below the knee. Claimant testified that the procedure left a visible scar. The arbitrator, upon being shown the mark, described it as "a faint scar 3, 3 and a half inches below the knee." A VA record dated July 2005 references that in January 2002, claimant had "two lipomas [benign fatty tumors ] removed from his right lower leg" and that he "currently has one visible scar about 1 inch by 1/3 inch wide below his right kneecap." The scar is described as having "a lighter complexion" and being "nontender and nonadherent to the underlying tissue." Among the impressions of the doctor at that time was "a residual scar for the removal of a lipoma on [claimant's] right leg." A VA record dated October 2008 references that claimant's past medical and surgical history was significant for lipoma removal, sinusitis, a foot injury, and an appendectomy.

¶ 11 Based on the foregoing evidence, the arbitrator concluded that claimant established by a preponderance of the evidence that a causal relationship exists between his right-knee condition of ill-being and the accident that occurred on February 11, 2016, while working for respondent. As such, the arbitrator ordered respondent to authorize the surgery prescribed by Dr. Chams.

¶ 12 The arbitrator also considered whether penalties and attorney fees should be imposed upon respondent. The arbitrator concluded that respondent "offered no good-faith arguments at trial indicating there was a genuine controversy pertaining to the payment of benefits under the Act, i.e. , authorizing the surgery." In this regard, the arbitrator rejected respondent's reliance on the statement from the VA record of February 13, 2016, as proof for the proposition that claimant received treatment to his right knee prior to his workplace accident, explaining that the removal of lipomas located below the kneecap more than 14 years prior to the claim at issue did not constitute evidence of claimant undergoing treatment to his knee prior to his workplace accident. Further, the arbitrator found that the VA record of February 13, 2016, was "at best ambiguous" given claimant's testimony that he had never undergone surgery to his right knee prior to the February 11, 2016, industrial accident and medical records (including other VA records) supporting claimant's testimony. The arbitrator reasoned that "[p]racticality would dictate that [r]espondent should have known" that the treatment noted in the February 13, 2016, VA record was a reference to the procedure completed in 2002 to claimant's right leg.

¶ 13 The arbitrator also emphasized that respondent offered no medical opinion that claimant's right knee condition of ill-being was not causally related to his workplace accident, such as an independent medical examination pursuant to section 12 of the Act ( 820 ILCS 305/12 (West 2016) ) or the use of "utilization review" under ...