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Roper Contracting v. Industrial Commission

June 16, 2004

ROPER CONTRACTING, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (LARRY GRABIS, APPELLEE).



Appeal from the Circuit Court of Gallatin County. No. 03 MR 2. Honorable Donald A. Foster, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

Roper Contracting (Roper) appeals from a circuit court order confirming a decision of the Industrial Commission (Commission), awarding permanent partial disability (PPD) benefits, temporary total disability (TTD) benefits, travel expenses and maintenance payments to the claimant, Larry Grabis, in connection with his application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)). For the reasons which follow, we affirm.

On July 31, 2000, the claimant filed an application for adjustment of claim alleging that he had suffered an accidental injury on January 17, 2000, while working for Roper. An arbitration hearing was held on September 21, 2001, during which the following facts were established by the testimony and exhibits presented.

The claimant began working for Roper as a heavy equipment mechanic and super fueler in 1999. As part of the claimant's job, he was required to lift tools weighing 50 to 60 pounds over his head. He was also responsible for refueling Roper's fleet of heavy machinery each morning before the rest of the crew arrived. On January 17, 2000, shortly after the claimant began work and while he was climbing into a fueling truck, the claimant slipped and began to fall from a fender on the truck. To prevent his fall, the claimant extended his left arm and grabbed onto the door of the fueling truck. While the claimant managed to stop his fall, he immediately noticed pain and loss of motion in his left arm and shoulder.

Later that day, the claimant visited his family doctor, Dr. Tom Martin, who diagnosed the claimant with a left rotator cuff tear. The claimant returned to work until March 9, 2000, when he once again visited Dr. Martin complaining of pain and loss of motion in his left shoulder. Dr. Martin referred the claimant to Dr. Alan H. Johnston, an orthopedic surgeon, who ordered an arthrogram of the claimant's left shoulder. An arthrogram was performed on March 16, 2000, and showed a complete tear in the claimant's left rotator cuff. On April 7, 2000, Dr. Johnston operated on the claimant's left shoulder in order to repair his rotator cuff.

After several months of physical therapy with minimal improvement, Dr. Johnston performed a left shoulder manipulation under anesthesia on August 8, 2000, in order to resolve the claimant's adhesive capsulitis. Following the claimant's shoulder manipulation he continued a regimen of physical therapy at the Harrisburg Medical Center in Harrisburg, Illinois. In a letter dated December 22, 2000, the claimant was informed that his worker's compensation carrier had refused to pay for further physical therapy at the Harrisburg Medical Center, but that the carrier was willing to pay for the claimant's therapy and travel expenses for treatment at the Work Place Center of Deconess Hospital in Evansville, Indiana. Thereafter, the claimant's physical therapy took place at the Work Place Center.

In a report from the Work Place Center dated March 2, 2001, the claimant was reported as indicating interest in exploring vocational rehabilitation to "possibly become an equipment operator." A subsequent report from March 19, 2001, recommended that if the claimant was unable to resume working at Roper he would benefit from a vocational rehabilitation program with retraining in an occupation which required less overhead lifting.

At Roper's request, the claimant was examined by Dr. Frank Petkovich on October 16, 2000. In his report of that examination, Dr. Petkovich stated that he had reviewed the claimant's medical records, arthrogram and operative reports and had conducted his own independent medical examination. The doctor opined that although the claimant had made some progress since surgery he still had significant limitation in his range of motion and strength in his left shoulder. Dr. Petkovich also stated that the claimant could work at "lighter duty activities" with restrictions that the claimant not lift more than eight pounds or perform any overhead work with his left upper extremity.

On March 21, 2001, Dr. Johnston examined the claimant and found his range of motion and strength "somewhat" limited in the upper left extremity. The doctor stated that the claimant could "abduct the left arm about 105ø, externally rotate 18ø, and abduct 3ø with pain predominately at the limits of his motion." Dr. Johnston placed the claimant at maximum medical improvement (MMI), and authorized his return to work with restrictions of no overhead reaching of the left upper extremity and no lifting greater than 15 pounds on a repetitive basis of the left upper extremity.

On March 26, 2001, the claimant returned to Roper in order to discuss his return to work with his supervisor, Jerry Kemp. After informing Kemp of his work restrictions, the claimant was told that there was no work suitable for him and that he should sign up for unemployment. The claimant's temporary total disability payments were terminated on April 18, 2001.

On May 18, 2001, the claimant was once again examined, at Roper's request, by Dr. Petkovich. The doctor reviewed the claimant's extensive medical records, including a report from the claimant's prior independent examination on October 16, 2000, and performed a thorough medical examination. Dr. Petkovich opined that the claimant had been treated appropriately and successfully and concluded that he was at maximum medical improvement. The doctor further found the claimant able to return to work with permanent restrictions that he may not lift more than 15 to 20 pounds or do repetitive overhead work with his left upper extremity.

Vocational rehabilitation was not offered to the claimant until approximately September 21, 2001. The claimant did, however, initiate an independent job search on April 10, 2001. During the course of his search, the claimant contacted 21 potential employers and received answers of "maybe[] and later on." The claimant, who was 51 years old at the time of his job search, had completed the 9th grade and held a GED, and had spent his entire life employed as a mechanic. By the date of the hearing, the claimant testified that he had the "prospect" of starting a job with the telephone company earning $280 a week. During the course of his testimony, "prospect" changed to "a hundred percent" and ended with the claimant stating that he would not secure the job only if, "I die or something." Despite the claimant's faith in his forthcoming employment, he did not have a contract with the telephone company indicating an actual job offer.

Following the hearing, an arbitrator found, inter alia, that the claimant sustained an accidental injury on January 17, 2000, arising out of and in the course of his employment at Roper and that a causal relationship exists between the claimant's condition of ill-being and his work-related accident. The arbitrator awarded the claimant PPD benefits representing 50% loss of a man as a whole, and "temporary total disability/maintenance" benefits of $527.04 per week for 87 2/7 weeks, representing the period from January 18, 2000, through September 21, 2001. In addition, the arbitrator ordered Roper to ...


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