St. Elizabeth's Hosp. v. Workers' Comp.

• Decision Date: 21 February 2007
• Docket Number: No. 05-06-0081 WC.,05-06-0081 WC.
• Parties: ST. ELIZABETH'S HOSPITAL, Appellant, v. WORKERS' COMPENSATION COMMISSION et al. (Calvin Nichols, Appellee).
• Court: United States Appellate Court of Illinois

864 N.E.2d 266

ST. ELIZABETH'S HOSPITAL, Appellant, v. WORKERS' COMPENSATION COMMISSION et al. (Calvin Nichols, Appellee).

No. 05-06-0081 WC.

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

February 21, 2007.

Michael J. Nester, Robert J. Bassett, Donovan, Rose, Nester & Joley, P.C., Belleville, for Appellant.

Jon E. Rosenstengel, Jerald J. Bonifield, Bonifield & Rosenstengel, P.C., Belleville, for Appellee.

Justice GROMETER delivered the opinion of the court:

Calvin Nichols filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). According to Nichols, he sustained a work-related injury when he slipped and twisted his back while in the employ of respondent, St. Elizabeth's Hospital (St. Elizabeth's). The arbitrator found that Nichols' condition of ill-being was causally related to his employment. The Workers' Compensation Commission (Commission) adopted the decision of the arbitrator, and the circuit court of St. Clair County confirmed the award. St. Elizabeth's now appeals, contending that the Commission's decision was contrary to the manifest weight of the evidence. For the reasons that follow, we affirm.

Before turning to the merits of this appeal, we note that a potential jurisdictional issue exists. Though it was not raised by the parties, we have a duty to consider our jurisdiction over an appeal and dismiss it if jurisdiction is lacking. Peabody Coal Co. v. Industrial Comm'n, 307 Ill.App.3d 393, 395, 240 Ill.Dec. 889, 718 N.E.2d 370 (1999). In this case, the arbitrator did not set an amount for temporary total disability (820 ILCS 305/8(b) (West 2002)) in his order, and the Commission simply adopted the order without addressing this omission. In certain circumstances, where the amount of an award is not set, appellate jurisdiction is lacking. Two cases exemplify this principle.

In A.O. Smith Corp. v. Industrial Comm'n, 109 Ill.2d 52, 54-55, 92 Ill.Dec. 524, 485 N.E.2d 335 (1985), a trial court reversed a decision of the Commission and remanded. Appeal was taken directly to the supreme court. The parties, however, had stipulated to the facts, including the employee's earnings and weekly benefits payable under the Act. A.O. Smith Corp., 109 Ill.2d at 54, 92 Ill.Dec. 524, 485 N.E.2d 335. The supreme court, while noting that jurisdiction would ordinarily be lacking following a remand by a trial court to the Commission, did not dismiss the appeal because, due to the parties' stipulations, "[t]he calculation of the amount of the award upon affirmance is a simple mathematical process." A.O. Smith Corp., 109 Ill.2d at 54-55, 92 Ill.Dec. 524, 485 N.E.2d 335.

The appellate court elaborated upon that holding by the supreme court in Williams v. Industrial Comm'n, 336 Ill.App.3d 513, 516, 271 Ill.Dec. 178, 784 N.E.2d 396 (2003). In Williams, 336 Ill.App.3d at 516, 271 Ill.Dec. 178, 784 N.E.2d 396, we held, "If, however, the agency on remand has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters or merely make a mathematical calculation, then the order is final for purposes of appeal." Williams involved two awards of attorney fees. The court distinguished between section 19(k) of the Act (820 ILCS 305/19(k) (West 2000)), which provides for a 50% award, and section 16 of the Act (820 ILCS 305/16 (West 2000)), which vests the Commission with the discretion to award "all or any part" of attorney fees and costs against an employer. Since section 19(k) requires only a simple mathematical calculation, that an award pursuant to it has not been set does not impair jurisdiction. Williams, 336 Ill.App.3d at 516-17, 271 Ill.Dec. 178, 784 N.E.2d 396. Conversely, because the amount of fees under section 16 is discretionary, where the Commission has not determined the amount of an award, the order is not final. Williams, 336 Ill.App.3d at 516-17, 271 Ill.Dec. 178, 784 N.E.2d 396.

Here, we are concerned with an award of temporary total disability (820 ILCS 305/8(b) (West 2002)). If ascertaining the proper amount of the award involves a simple mathematical process, we do not lack jurisdiction over this appeal. Section 8(b) of the Act provides:

"The compensation rate for temporary total incapacity under this paragraph (b) of this Section shall be equal to 66 2/3 % of the employee's average weekly wage computed in accordance with Section 10, provided that it shall be not less than the following amounts in the following cases:

$100.90 in case of a single person;

$105.50 in case of a married person with no children;

$108.30 in case of one child;

$113.40 in case of 2 children;

$117.40 in case of 3 children;

$124.30 in case of 4 or more children;

nor exceed the employee's average weekly wage computed in accordance with the provisions of Section 10, whichever is less." 820 ILCS 305/8(b)(1) (West 2002).

Though the arbitrator did not set an amount for temporary total disability in his order, he did make a finding determining that Nichols' average weekly wage was $324.65. He also determined that Nichols was married and had eight children. Given these findings, determining the proper amount of the award for temporary total disability on remand is a simple mathematical process. Accordingly, pursuant to Williams and A.O. Smith Corp., we do not lack jurisdiction over this appeal.

BACKGROUND

A hearing on Nichols' application was held on June 18, 2003. Nichols testified that he was employed as a patient care assistant for St. Elizabeth's. His duties included transporting patients to surgery and moving medical equipment. He also was responsible for restocking surgical carts.

On September 16, 2002, Nichols was moving a bed to the patient floor. He came across five monitors in the front hall of the hospital. The monitors were about six feet tall and a couple of feet wide. Nichols moved the monitors back to their appropriate rooms. As he was moving the last monitor, Nichols stated, he encountered "some water or something" on the floor, which he did not see. Nichols slipped and caught himself on the monitor. He did not fall to the ground. Nichols explained what happened as he slipped: "[M]y weight went down and I, like, twisted my back[;] all the weight went on my back." He immediately experienced minor pain in his lower back.

Nichols acknowledged that he had previously experienced back pain in June 2002 or July 2002, which was diagnosed as a muscle spasm. At that time, he did not experience any pain radiating down his leg. He was treated for this injury by Dr. Leone, who prescribed muscle relaxers. This injury caused Nichols to miss two weeks of work; however, after he resumed working, he did not have any problems with his back until the incident on September 16, 2002.

Nichols testified that after his fall in September, he started having a throbbing pain in his back. His right leg would also swell up and become numb. He never experienced pain radiating down his right leg before this incident. Also, according to Nichols, the pain he experienced after September 16 was worse than he had in June or July. Nichols has not worked since the incident.

Nichols sought treatment from Dr. Windsor, an emergency room doctor. Windsor took Nichols off work for a few days, gave him some pain medication, and referred him to Dr. Anwar Khan. Khan also prescribed pain medication. Eventually, Nichols sought treatment from Dr. William Sprich, whom Nichols knew from work. He first saw Sprich in November 2002.

Sprich sent Nichols for a number of tests. Sprich performed a two-level fusion at L2-L3 and L3-L4 on April 29, 2003. The surgery eliminated the pain in Nichols' leg and reduced his back pain. Nichols described his condition as "a lot better" since the surgery. At the time of the hearing, he had not been released to resume work and was still treating with Sprich.

Also entered into evidence was Sprich's deposition, which was taken on April 2, 2003. Sprich testified that he first saw Nichols on November 18, 2002. Nichols complained of back pain and radiculopathy. Nichols described the incident where he fell and caught himself on the monitor. Sprich performed an examination. It revealed that Nichols suffered from spasms in his lower back and that his range of motion was limited by his condition. An MRI showed either a herniation or very pronounced bulge at L2-L3. A discogram revealed a tear. Sprich opined that Nichols' injury was consistent with the sort of twisting Nichols had described to Sprich. Sprich recommended two courses of action to Nichols, one of which was a two-level fusion. Sprich later explained that an injury at the level of Nichols' was more consistent with a twisting injury and less consistent with normal wear.

During cross-examination, Sprich agreed that the majority of the protrusion at the L2-L3 level was on the left side; however, he disagreed when defense counsel stated that such a protrusion would not cause pain in Nichols' right leg. Sprich also agreed that some of Nichols' degeneration likely preceded the September 16 incident. Additionally, Sprich related that Nichols reported that he had no history of prior back injuries when Nichols first came to him.

Dr. Russell Cantrell also testified via evidence deposition. Cantrell stated that he examined Nichols at the request of St. Elizabeth's. Cantrell reviewed an MRI that had been performed on Nichols on September 24, 2002. During a physical examination, Cantrell noted that Nichols was standing in such a way as to shift weight off his right leg and that Nichols' range of motion was limited. However, Cantrell opined that the results of radiological testing "did not correlate with [Nichols'] subjective pain complaints." Cantrell believed that further treatment would not alleviate Nichols' subjective complaints. Cantrell testified that any injury sustained on September 16, 2002, did not result...