The City of Chicago v. the Ill. Workers' Comp. Comm'n (thomas O'rourke

• Decision Date: 13 May 2011
• Docket Number: No. 1–09–2320 WC.,1–09–2320 WC.
• Citation: The City of Chicago v. the Ill. Workers' Comp. Comm'n (thomas O'rourke, 409 Ill.App.3d 258, 947 N.E.2d 863, 349 Ill.Dec. 849 (Ill. App. 2011)
• Parties: The CITY OF CHICAGO, Appellant,v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Thomas O'Rourke, Appellee).
• Court: Appellate Court of Illinois

409 Ill.App.3d 258

947 N.E.2d 863

349 Ill.Dec. 849

The CITY OF CHICAGO, Appellant,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Thomas O'Rourke, Appellee).

No. 1–09–2320 WC.

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

April 11, 2011.Rehearing Denied May 13, 2011.

Gerald F. Cooper, Scopelitis, Garvin, Light Hanson & Feary, P.C., Chicago, for Appellant.Daniel L. Collins, Krol, Bongiorno & Given, Ltd., Chicago, for Appellee.

OPINION

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

The claimant, Thomas O'Rourke, sought workers' compensation benefits from his employer, the City of Chicago (the employer), for an injury to his lower back arising out of and in the course of his employment on August 27, 2002. The claim was designated as No. 02 WC 55088. While that claim was pending, the claimant returned to work and subsequently reinjured his lower back in an industrial accident on May 5, 2004. That claim was designated as No. 05 WC 34807. The two claims were heard in consolidated arbitration hearings on April 2, 2007, and April 25, 2007, pursuant to section 19(b) of the Workers' Compensation Act (the Act) (

[349 Ill.Dec. 851 , 947 N.E.2d 865]

820 ILCS 305/19(b) (West 2002)). On July 17, 2007, the arbitrator issued separate decisions for each claim. In the August 27, 2002, injury claim, the arbitrator awarded reasonable and necessary medical expenses of $2,973.60 and permanent partial disability (PPD) benefits equal to 20% loss of the person as a whole pursuant to section 8(d)(2) of the Act. 820 ILCS 305/8(d)(2) (West 2002). In the May 5, 2004, injury claim, the arbitrator awarded PPD benefits of $388 per week under a wage-differential determination pursuant to section 8(d)(1) of the Act. 820 ILCS 305/8(d)(1) (West 2002). In addition, on the May 5, 2004, accident claim, the arbitrator awarded $3,242 in reasonable and necessary medical expenses, $9,571.39 in penalties pursuant to section 19(k) of the Act (820 ILCS 305/19(k) (West 2002)), $2,500 in penalties pursuant to section 19( l ) of the Act (820 ILCS 305/19( l ) (West 2002)), and attorney fees of $3,828.55 pursuant to section 16 of the Act (820 ILCS 305/ 16 (West 2002)). The employer appealed to the Illinois Workers' Compensation Commission (Commission), which affirmed and adopted the arbitrator's decisions in both claims. The employer then sought review in the circuit court of Cook County, which confirmed the decision of the Commission. The employer then appealed to this court.

BACKGROUND

On August 27, 2002, the claimant was working for the employer as a laborer in the sewer department. He was pushing a wheelbarrow containing approximately 80 bricks when he heard a pop in his lower back. The claimant reported the incident to his supervisor, who drove the claimant to the nearest hospital. The claimant was subsequently transported to a different hospital where an MRI scan was made of his lower back. He was diagnosed with an acute sciatica and a herniated disk at L4–L5.

On August 30, 2002, the claimant underwent a microdiscectomy at L4–L5 performed by Dr. Richard D. Lim. The claimant participated in postoperative physical therapy and received epidural steroid injections on January 16, 2003, and February 3, 2003. Dr. Lim performed a second microdiscectomy at L3–L4 on March 3, 2003. On June 27, 2003, the claimant underwent a functional capacity evaluation (FCE) which indicated that he could perform at the medium work level. The claimant went through a course of work hardening from July 1, 2003, to July 9, 2003, and was released to full duty by Dr. Lim on July 10, 2003.

The claimant testified that, upon his return to full-duty work in July 2003, his back was mostly free of pain. However, he experienced pain and muscle spasms in both legs on a daily basis. Upon return to work, the claimant performed the job without limitations.

The claimant worked without incident until May 5, 2004, when a trench that the claimant was working in partially collapsed on him. He remained in the trench for approximately 10 minutes while his coworkers dug him out. The claimant did not seek immediate medical attention after being extricated from the trench. However, he decided to seek treatment at Mercy Works Hospital on May 28, 2004, due to pain in his lower back. The claimant was referred to Dr. Lim at Midwest Orthopedics, where he received a course of epidural steroid injections at L5 to treat nerve damage at L5. On December 28, 2004, the claimant underwent an FCE, which revealed that the claimant was still capable of performing at a medium work level.

The claimant remained off work until May 2, 2005, when he returned to work with the employer as a night watchman earning $17 per hour. His previous position

[349 Ill.Dec. 852 , 947 N.E.2d 866]

as a laborer in the sewer department paid $29 per hour from June 1, 2004, to June 30, 2005, $30.15 per hour from July 1, 2005, to June 30, 2006, and $31.55 per hour from July 1, 2006, to June 30, 2007. The employer paid the claimant $19,142.97 in wage differential payments for the period from May 2, 2005, to March 31, 2006.

At the arbitration hearing, the City argued that the claimant was entitled to only one permanency award, maintaining that the claimant could not receive a permanency award under both section 8(d)(1) and section 8(d)(2) for the same injured lumbar spine. The arbitrator disagreed, citing Consolidated Freightways v. Industrial Comm'n, 237 Ill.App.3d 549, 554, 178 Ill.Dec. 439, 604 N.E.2d 962 (1992), a case where the court upheld the Commission's denial of a credit for a previous award under section 8(e) against a subsequent person as a whole award under section 8(d)(2). The arbitrator also noted that the injuries were different in nature because the claimant had been able to return to work after the first injury but was precluded from returning to work after the second.

Regarding the awarding of penalties and attorney fees in No. 05 WC 34807, the arbitrator found that the employer had failed to pay the wage differential benefit from May 2, 2005, through March 31, 2006, without explanation for the delay. The claimant testified to great hardship being placed upon him by the employer's delay in promptly paying the wage differential benefit. The arbitrator, therefore, found that the employer's delay in paying the wage differential benefit was unreasonable and vexatious and assessed penalties and attorney fees pursuant to the Act.

The employer appealed the arbitrator's decision to the Commission, which affirmed and adopted the arbitrator's decision. The employer then sought review in the Cook County circuit court, which confirmed the decision of the Commission. The employer then filed a timely appeal to this court. On appeal, the employer raises three issues: (1) whether the Commission erred in awarding the claimant PPD benefits for both 20% of the person as a whole pursuant to section 8(d)(2) of the Act and a wage differential award pursuant to section 8(d)(1) of the Act for the same condition of ill-being of his lower back; (2) whether the Commission erred in awarding medical expenses based upon the proofs presented at the hearing; and (3) whether the Commission erred in awarding the claimant penalties and attorney fees for unreasonable delay in the payment of benefits.

DISCUSSION

1. Permanency

The employer maintains that the Act prohibits two permanency awards for the same current condition of ill-being even if that current condition of ill-being is the result of two separate industrial accidents. The employer presents a question of statutory interpretation, which is reviewed de novo. Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 60, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989).

The employer begins its argument by noting that at the consolidated hearing on both claims, the claimant presented no evidence to establish that each industrial accident caused separate and distinct conditions of ill-being. The record, according to the employer, merely established that the claimant had the same general complaint at the hearing, that his legs would spasm and go numb on a daily basis, which he had after he returned to work following the first accident. The employer also points out that the objective measurements of the claimant's functional work capacity

[349 Ill.Dec. 853 , 947 N.E.2d 867]

was at the same level (medium) after the second accident as it had been before that accident. Moreover, the employer points out that the treatment after both industrial accidents was directed at the same region of the lumbar spine.

On the date of the hearing, according to the employer, there was no evidence presented to establish which current condition of ill-being was caused by which industrial accident. The claimant presented no evidence as to what current physical limitation, which pain, and which numbness came from which accident. No medical testimony was presented to describe which portion of the claimant's current condition of ill-being could be attributed specifically to each of the two accidents. In short, there was no way to separate and apportion the claimant's current condition of ill-being into two separate claims. Thus, the employer maintains, the claimant has only one permanency claim, and he must elect to proceed under either section 8(d)(1) or section 8(d)(2) of the Act, but not both. See Freeman United Coal Mining Co. v. Industrial Comm'n, 283 Ill.App.3d 785, 791, 219 Ill.Dec. 234, 670 N.E.2d 1122 (1996) (a claimant “is entitled to an award for his disability based on either wage differential or percentage of the person as a whole; claimant is not entitled to an award for both, whether or not he suffers from both a functional disability and a loss of earning capacity”) (emphasis added and in original). This conclusion comes from the express language of the statute, according to the court:

“Under the plain language of section 8(d), loss of...