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Irikzarry v. Industrial Commission

February 25, 2003


Appeal from the Circuit Court of Kane County. No. 01--MR--182 Honorable Michael J. Colwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge


Alejandro Irizarry filed an application for adjustment of claim seeking workers' compensation benefits for an industrial accident he sustained while working for Dynaweld, Inc. He alleged injuries to multiple parts of his body, including his left knee. The matter proceeded to a hearing before arbitrator Angelo Caliendo under section 19(b) of the Workers' Compensation Act (820 ILCS 305/19(b) (West 2000)). Arbitrator Caliendo awarded medical expenses and temporary total disability (TTD) benefits through the date of the hearing. No appeal was taken from the arbitrator's decision.

The matter subsequently proceeded to a second section 19(b) hearing where arbitrator Caliendo awarded additional TTD benefits for two periods. The latest period terminated 15 months before the hearing. The arbitrator denied Irizarry's claim for additional TTD benefits, further medical expenses, and vocational rehabilitation. Irizarry appealed to the Illinois Industrial Commission (Commission), which affirmed the arbitrator's decision. He then appealed to the Kane County circuit court, which confirmed the Commission's decision.

The matter ultimately proceeded to a final hearing before arbitrator Peter Akemann, who awarded permanent partial disability (PPD) benefits representing 40% loss of use of Irizarry's left leg. The arbitrator denied all other claims for compensation and medical expenses. Irizarry appealed to the Commission, which affirmed the arbitrator's decision. He then appealed to the Kane County circuit court, which confirmed the Commission's decision. Irizarry now brings this appeal, claiming the Commission erred in three respects: (1) concluding that injuries to his head, neck, right shoulder, and back were not causally connected to his industrial accident; (2) denying additional TTD benefits and medical expenses; and (3) awarding benefits for permanent partial, rather than permanent total, disability. We reverse and remand.


Irizarry was working for Dynaweld on January 21, 1991, when he fell and injured himself. The next day he visited Mercy Hospital and was diagnosed with an acute contusion/sprain of his left knee. He continued treating with Dr. David Clark, and an MRI showed evidence of an injury to the medial collateral ligament in his left knee. In March of 1991 Dr. Clark performed arthroscopic surgery on the knee for patellar chondromalacia. Irizarry's postoperative recovery was slow and marked by left leg weakness. To evaluate the weakness problem, Dr. Clark obtained a lumbar MRI in June of 1991, which revealed minimal degenerative changes with some bulging at L4-L5 and L5-S1. In July of 1991 Irizarry also underwent an EMG/NCV of the left leg, which yielded "essentially normal" results.

Dr. Clark issued a work release on September 12, 1991, stating: "I really feel it would be most important for [Irizarry] to try and get on with it instead of looking for disability which I am beginning to feel is the major thrust behind all of this situation." On the following day, Irizarry visited Dr. Thomas Townsend (chiropractor) and received a note describing him as "totally incapacitated" due to pain in his neck, right shoulder, back, and left knee. A cervical MRI revealed normal findings. X rays were interpreted as showing "early degenerative bone proliferation" in the thoracic and lumbar regions, and biomechanical alterations at all levels.

Townsend referred Irizarry to Dr. Michael Morgenstern for his left knee complaints. Both Townsend and Morgenstern rendered subsequent treatment and authorized him to remain off work. Dr. Morgenstern administered an injection of Depo-Medrol and Marcaine in Irizarry's left knee. A lumbar CT scan in October of 1991 showed findings consistent with the prior MRI: Schmorl's nodes at L4 and a posterior disc bulge at L4-L5, but no stenosis or facet joint pathology.

Irizarry remained off work, and his workers' compensation claim proceeded to a section 19(b) hearing before arbitrator Caliendo on October 11, 1991. The arbitrator awarded TTD benefits covering the entire period between Irizarry's accident and the arbitration hearing. He also awarded medical expenses totaling $2,504.80. The expenses included bills from Drs. Morgenstern and Townsend.

A note from Dr. Morgenstern on October 30, 1991, reads: "Today, the patient additionally states he injured his low back." Irizarry subsequently complained of numbness and tingling in the fourth and fifth fingers of his right hand. An EMG of his upper extremities in November of 1991 revealed normal findings. Shortly afterward Doctor Morgenstern administered two epidural injections into Irizarry's lower back. In February of 1992 Doctor Morgenstern performed a second arthroscopic surgery on Irizarry's left knee. The procedure involved debriding a partial tear of the anterior cruciate ligament, and a partial synovectomy of the medial and lateral compartments.

On April 8, 1992, Townsend released Irizarry to work, noting that he was permanently incapable of performing "heavy and moderate work." Townsend restricted him from bending, stooping, lifting, pushing, pulling, climbing, elevation of the shoulders and arms, and repetitive head or neck movements involving flexion, extension, or rotation. During a functional capacity evaluation in mid-1992, Irizarry demonstrated abilities in the "light to sedentary" work category. Dr. Morgenstern issued a light-duty release on July 23, 1992, and Irizarry continued to complain of sciatica. A lumbar MRI in August of 1992 revealed disc degeneration at L4-L5 and L5-S1, with mild posterior bulging, but no stenosis or foraminal encroachment.

Dr. Morgenstern reviewed the MRI results and said Irizarry was "certainly not a surgical candidate." On September 3, 1992, the doctor opined that Irizarry was at maximum medical improvement and could not return to his usual work as a welder. Dynaweld gave him a referral for vocational rehabilitation services. Three months later he returned to Dr. Morgenstern with continued left knee complaints and received another injection.

In March of 1993 two rehabilitation consultants (Sylvia Sykes and Louisa Castellanos) issued a report describing Irizarry's participation in vocational rehabilitation. According to the report, Irizarry failed to contact three employers per week as requested. He cancelled two interviews with one employer before finally appearing. He told another employer he could only work the third shift and that he could not risk being cut because of a "blood problem." He refused to sit down during an interview with a third employer; instead, he stooped over the interviewer's desk and advised that he could not drive to and from work.

In April of 1993 Irizarry visited Dr. Benjamin Narrajos complaining of sharp, shooting lower back pain and dull neck pain. The doctor diagnosed chronic neck and lumbar strains with radiculopathy.

Castellanos prepared a follow-up rehabilitation report in April of 1993 stating that she had arranged for Irizarry to attend a job fair at Hollywood Casino. Irizarry asked her, "[I]f I get the job do I have to work it?" He later told Castellanos that he attended the fair and completed a job application. However, she followed up and discovered that the casino did not have an application on file for Irizarry and that all applicants had received an interview. His rehabilitation file was closed.

The file was reopened in July of 1993, and four interviews were arranged for Irizarry. At the first interview he appeared with his shirt undone, held onto the wall as he walked, and needed assistance completing the job application. At the third interview he failed to complete the application (providing only his name and social security number) and told the interviewer he could not perform the work because of neck pain. He arrived at the fourth interview over an hour late. His rehabilitation file was again closed.

Irizarry returned to Dr. Morgenstern in November of 1993 and February of 1994 with complaints of back pain. Both times his physical examination was unchanged from 1992.

In June of 1994 Irizarry visited Dr. Leonard Kranzler for an examination at Dynaweld's request. He complained of lower back pain and bilateral leg pain (worse on the left) radiating into his heels. Doctor Kranzler conducted a physical examination and opined that Irizarry had no objective deficits and could perform unrestricted work. Specifically, the doctor noted that no anatomical basis existed for Irizarry's report of numbness on the left side of his body. The doctor also noted that Irizarry displayed positive results during a straight leg test but, at another point during the examination, he reached within 11 centimeters of his toes. According to the doctor, these findings were inconsistent.

In August of 1994 Irizarry visited Dr. John Martell for a left knee examination at Dynaweld's request. Dr. Martell found an anterior cruciate deficiency with frequent giving way and early degenerative changes. He recommended a knee brace and mentioned a possible reconstruction of the anterior cruciate ligament if Irizarry did not experience improvement. The doctor advised that Irizarry could perform work with limited lifting (10 pounds frequent and 15 pounds occasional).

The matter proceeded to a second section 19(b) hearing before arbitrator Caliendo on December 12, 1994. In part, the arbitrator's written decision read:

"The Petitioner was a forty-three year old welder who suffered injuries to his left knee, neck, right shoulder, and lower back on ...

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