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Nascote Industries v. Industrial Commission

December 1, 2004

NASCOTE INDUSTRIES, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL., (LAURIE K. BERRY, APPELLEE).



Appeal from the Circuit Court of Clinton County. No. 03-MR-51. Honorable Kathleen Moran, Judge, presiding.

The opinion of the court was delivered by: Justice Hoffman

PUBLISHED

Nascote Industries (Nascote) appeals from a circuit court order confirming a decision of the Industrial Commission (Commission) awarding temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, maintenance benefits, medical expenses, penalties, and attorney fees to the claimant, Laurie K. Berry, in connection with her 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 in part and reverse in part.

On June 9, 1999, the claimant filed an application for adjustment of claim alleging that she had suffered an accidental injury on January 5, 1999, while working for Nascote. At the beginning of the arbitration hearing, the parties submitted a request for hearing form wherein they stipulated, inter alia, that the claimant was paid all TTD benefits owed up until January 8, 2001, and that the claimant was paid $3,106.95 in "TPD [temporary partial disability]/ maintenance" benefits for the period between March 15, 2000, and July 6, 2000. The following facts were established by the testimony and exhibits presented at the hearing.

The claimant testified that she began her employment with Nascote in 1995, and that at the time of her injury on January 5, 1999, she was employed as a paint technician. On the day she was injured, however, the claimant stated that she was "filling in" as a washer technician, which was a job she performed "on occasion." As a washer technician, the claimant testified that her job entailed the collection of information from certain machines utilizing a 28-pound data recorder. During the data collection process, the claimant stated that she was required to repeatedly lift and carry the data recorder while walking up and down a staircase. According to the claimant, after performing these duties on January 5, 1999, she began to experience a sharp pain in her lower back which extended down her hip and through her left leg.

The claimant stated that she told her supervisor about her injury, and that she visited Dr. John Osborn, her family practitioner, on January 14, 1999. After undergoing a CT scan, an MRI, and visiting several doctors, the claimant was diagnosed with a herniated lumbar disc and was advised to have surgery. On April 12, 1999, the claimant underwent a microdiscectomy and foraminotomy. Following surgery, the claimant continued to experience pain in her lower back, and was referred by her attorney to Dr. Joseph Hanaway.

On August 16, 1999, the claimant underwent a myelogram and post-myelogram CT scan. In a post-examination report dated September 14, 1999, Dr. Hanaway opined that the post-myelogram CT scan revealed a large mass and a protruding disc. The doctor ordered an MRI with contrast to determine whether the post-myelogram CT scan was showing scar tissue or a herniated disc, and stated that the claimant should "not be working." The resulting MRI revealed, in Dr. Hanaway's opinion, evidence of re-extruded disc material in the lower lumber region with some scar enhancement. Due to the claimant's reluctance to revisit the surgeon who performed her microdiscectomy and foraminotomy, Dr. Hanaway referred her to Dr. George Schoedinger for a surgical consultation.

On November 1, 1999, Dr. Schoedinger performed his initial examination of the claimant. In a report of that examination, the doctor opined that the claimant's persistent lower back pain was caused by retained disc material with an associated disc rupture. A contemporaneous patient status report stated that the claimant was unable to return to work, and placed her return to work date as indefinite. On January 3, 2000, Dr. Schoedinger performed an anterior lumbar discography and instrumented interbody infusion.

On January 31, 2000, the claimant was once again examined by Dr. Schoedinger, who stated in a patient status report that the claimant was unable to return to work. In that same report, he noted that the claimant was sent to physical therapy for a home exercise program that she was to pursue on a regular basis.

The claimant next saw Dr. Schoedinger on March 13, 2000. In a patient status report dated that same day, Dr. Schoedinger specified that the claimant could return to work as of March 15, 2000, with restrictions of a four-hour work day, doing sedentary work and no lifting of more than 10 pounds. Accordingly, on March 15, 2000, the claimant signed a return to work agreement wherein she accepted a position at Nascote working four-hour shifts doing sedentary work with no lifting over 10 pounds. That return to work agreement, which was also signed by the claimant's supervisor and Monica Zopp, the occupational health nurse at Nascote, states, in part, that: "It is agreed that through completion of these realistic rehabilitation activities the aim is to achieve the stated objective, of return to regular duty."

Dr. Schoedinger next saw the claimant on April 24, 2000. In a report of that visit, he noted that the claimant told him that she had been doing her exercises.

On July 6, 2000, Dr. Schoedinger prescribed a physical therapy program for the claimant which was to be conducted three days per week for eight weeks. In a post-examination report dated the same day, Dr. Schoedinger stated that the claimant could increase her sedentary four-hour work day to an eight-hour work day. Thereafter, the claimant returned to working eight-hour, light duty shifts.

Pursuant to Dr. Schoedinger's instructions, the claimant underwent physical therapy from July 17, 2000, through August 21, 2000. The therapy was provided by Nascote at Healthsouth. In Healthsouth's final report dated August 21, 2000, the physical therapist noted that the claimant continued to complain of low back pain, radiating into both legs. He stated that the claimant exhibited a guarding posture while standing and continued to have palpable muscle spasms of the paraspinal and periformis muscles.

On August 22, 2000, Dr. Schoedinger concluded that the claimant had reached maximum medical improvement (MMI), and that she should undergo a functional capacity evaluation (FCE). The claimant completed an FCE on September 11, 2000, the results of which, as described by Dr. Schoedinger in a letter dated September 26, 2000, indicated that the claimant was capable of light duty work consistent with the tasks required of a paint technician. In a letter dated October 16, 2000, Dr. Schoedinger opined that, ...


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