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Mechanical Devices v. Industrial Commission

October 29, 2003

MECHANICAL DEVICES, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, (MICHAEL JOHNSON, APPELLEE).
MICHAEL JOHNSON, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, (MECHANICAL DEVICES, APPELLEE).



Appeal from the Circuit Court of McLean County. Nos. 01-MR-114; 01-MR-116

The opinion of the court was delivered by: Justice Callum

UNPUBLISHED

Claimant, Michael Johnson, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)) for injuries to his shoulder and back. The arbitrator found that claimant had sustained accidental injuries arising out of and in the course of his employment by Mechanical Devices (employer). The arbitrator awarded claimant medical expenses and temporary total disability (TTD) benefits for 22 weeks. He denied prospective medical benefits and penalties. The Industrial Commission (Commission) reversed the arbitrator in part and found that claimant was entitled to TTD benefits for a total of 52 1/7 weeks. The Commission denied prospective medical benefits and penalties. The parties appealed, and the circuit court consolidated the appeals and confirmed the Commission's decision. Employer now appeals the Commission's TTD award, and claimant appeals the Commission's denial of penalties and attorney fees. We affirm the TTD award, as modified, and we affirm the denial of penalties and fees.

BACKGROUND

On May 30, 1997, claimant began working for employer as a machinist. On February 2, 1999, claimant attempted to catch with his right arm a 150- to 180-pound part that slipped from a lifting device. Claimant jerked his right shoulder and back, and he twisted to the right. He experienced immediate pain in his right shoulder and was driven to Dr. Lawrence Nord, an orthopedic surgeon and employer's doctor. Dr. Nord diagnosed right shoulder strain.

Claimant testified that he began to experience lower back pain the day after the accident. On February 9, 1999, Dr. Nord diagnosed claimant with right shoulder strain and lumbar strain and ordered an MRI, which indicated a rotator cuff tear. On March 17, 1999, claimant underwent shoulder surgery and was later diagnosed with right shoulder impingement. Claimant began physical therapy in March 1999. On April 28, 1999, employer terminated claimant's employment because claimant had exhausted his medical leave time.

At the time of his accident, claimant also worked at the YWCA as a shuttle bus driver. He began working with the YWCA on October 11, 1998, and averaged between 20 and 25 hours per week. Claimant stopped working at the YWCA after his accident.

In notes and letters dated March 18 and April 12, 1999, Dr. Nord noted that claimant's back problems were related to his injury. However, in a letter dated May 17, 1999, Dr. Nord stated that claimant's injury to his back was minimal and that his injury was not substantially related to his back discomfort. Dr. Nord also wrote that claimant's injury may have temporarily aggravated a pre-existing condition in claimant's spine. Dr. Nord testified that he revised his opinion between the earlier letters and May 17 based on his review of claimant's myelogram and another physician's opinion.

On June 3, 1999, Dr. Nord released claimant to work with restrictions. These included: standing and sitting for limited periods; no climbing; occasional bending; and no lifting of objects over 10 pounds. Employer, which had commenced paying claimant TTD benefits from the date of the accident, stopped paying as of June 3, 1999.

Dr. Nord examined claimant for the last time on July 1, 1999. He testified that claimant was not at maximum medical improvement with respect to his right shoulder and was not able to work full duty with his right shoulder. Dr. Nord stated that claimant's accident was the causative factor in his impingement syndrome and his need for shoulder surgery. However, Dr. Nord also testified that the impingement syndrome was not caused by the accident; rather, it was present before the accident.

Dr. Nord further testified that claimant had congenital spinal stenosis. He stated that, on July 1, 1999, claimant was not at maximum medical improvement regarding his low back and that claimant's disc bulge/herniation could possibly have been caused by the accident. Dr. Nord stated that claimant's work restrictions were 90% causally related to his congenital condition. He did not recommend decompressive surgery for claimant's back problems. Instead, Dr. Nord recommended weight loss, physical therapy, and anti-inflammatory medications to treat claimant's back, and he recommended exercise to treat claimant's shoulder condition.

On July 6, 1999, claimant returned to work at the YWCA. Claimant testified that the job was within his work restrictions. It included breaks of up to 2 hours; involved no kneeling, climbing, or lifting of over 10 pounds; and did not require him to provide passengers with special assistance. He drove a shuttle bus an average of 15 hours per week between July 1999 and January 2000, the date of the arbitration hearing. The bus had automatic transmission and a power seat. On July 26, 1999, claimant enrolled full-time in cosmetology school. He attended classes four days per week from 4 p.m. to 10 p.m. The training involved classroom instruction and hands-on training that included standing and sitting while cutting hair. Claimant testified that he did not have to lift any objects that weighed over 10 pounds and that he did not have to stand for 5 or 6 hours straight or sit for 4 hours straight.
At about this time, claimant turned down a job at Federal Express. He testified that he had applied for the job before his injuries and turned it down because it was not within his work restrictions, as it involved lifting packages and unloading a truck. Claimant also turned down a job from Hertz because it involved moving cars, whereas he had applied for a customer service job.

Dr. Robert Martin, claimant's independent medical examiner, reviewed claimant's medical records and examined claimant on June 10, 1999. He diagnosed impingement syndrome caused by a rotator cuff tear regarding claimant's right shoulder. Dr. Martin testified that claimant's tendon tear, impingement syndrome, and disc herniation were causally related to his accident. Dr. Martin also testified that claimant's shoulder required physical therapy and that claimant will have permanent impairment as a result of the injury. As of June 10, 1999, Dr. Martin stated that claimant could have worked with restrictions.

Dr. Alexander Ghanayem, an orthopedic surgeon, examined claimant on August 27, 1999. He stated that claimant had a developmentally narrow spinal cord and stenosis secondary to disc protrusion at the L5-S1 level. Dr. Ghanayem diagnosed claimant with symptomatic disc herniation and symptomatic spinal stenosis. He testified that the accident may have rendered claimant's asymptomatic disc herniation symptomatic. Dr. Ghanayem stated that claimant's disc herniation, tendon tear, and impingement syndrome were caused or aggravated by the accident. Claimant could likely drive a shuttle bus if he could stand and stretch occasionally and move around.

Dr. Philip George, employer's independent medical examiner, stated in a report dated January 10, 2000, that there was a causal relationship between claimant's accident and his right shoulder and low back problems. Claimant could work with restrictions. Dr. George did not consider claimant a candidate for spinal surgery; instead, he recommended weight loss, exercise, and anti-inflammatory medication.

The arbitrator rendered his decision on June 30, 2000. He found that as a result of the accident claimant was temporarily and totally disabled from February 3, 1999 through July 6, 1999, and he awarded claimant TTD benefits for that period, a total of 22 weeks. The arbitrator also awarded compensation accrued from February 2, 1999 through February 3, 2000, the date of the arbitration hearing, plus medical costs. The arbitrator found that there was insufficient evidence to award or order future back surgery and thus denied claimant's prospective medical claims. The arbitrator also denied penalties, finding that there existed substantial disputes in the case.

Claimant appealed. The Commission found that claimant had not reached maximum medical improvement and was thus entitled to TTD benefits through February 2, 2000, a total of 52 1/7 weeks. The Commission found that claimant presented credible medical evidence to support a relationship between his shoulder condition and the accident. Thus, it concluded that the injuries were causally related to claimant's employment. The Commission also found that Drs. George, Ghanayem, and Martin's opinions more persuasive than Dr. Nord's and concluded that claimant presented credible evidence regarding his low back pain condition and the injury.

The Commission further found that claimant's YWCA job was within his work restrictions. It awarded employer a credit for wages claimant earned at the YWCA after his return to work there in July 1999. The Commission noted that claimant turned down jobs at Federal Express and Hertz, but stated that employer never obtained a vocational assessment of claimant to show what types of jobs might be suitable for him. It concluded that the fact that claimant could have looked for work was not dispositive on the issue of entitlement to TTD benefits. The Commission further commented that claimant's enrollment in cosmetology school did not in and of itself disqualify claimant from TTD benefits.

The Commission denied penalties and attorney fees, finding that a reasonable dispute existed regarding claimant's entitlement to TTD benefits after June 2, 1999. It further found that employer's actions were not unreasonable or vexatious. The Commission remanded the case to the arbitrator for a hearing on all ...


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