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Vogel v. Industrial Commission

January 4, 2005

BRIAN VOGEL, APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (HOGAN'S PLUMBING, INC., APPELLANT).
HOGAN'S PLUMBING, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (BRIAN VOGEL, APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 02-MR-0368 & 03-MR-1523. Honorable Bonnie M. Wheaton, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

PUBLISHED

Illinois Workers' Compensation Commission Division

I. INTRODUCTION

Claimant, Brian Vogel, sustained cervical injuries while working for employer, Hogan's Plumbing, Inc. An arbitrator awarded claimant 45 weeks of temporary total disability (TTD) benefits and $32,987.80 in medical expenses. The arbitrator found that injuries claimant received as a result of three automobile accidents broke the causal chain and therefore that his current condition of ill-being was not causally related to his work injury. The Industrial Commission*fn1 (Commission) adopted the arbitrator's findings. On judicial review, the trial court found that the Commission's decision was against the manifest weight of the evidence and contrary to law. On remand, the Commission awarded claimant 85 weeks of TTD benefits and $36,915 in medical expenses and ordered employer to authorize surgery prescribed by claimant's treating physician. The trial court confirmed the Commission's decision on remand. On appeal, employer argues that the trial court erred in holding that the Commission's decision was against the manifest weight of the evidence. We affirm.

II. BACKGROUND

The arbitration hearing took place on August 23, 2001. Claimant began working for employer on June 22, 1998. On July 10, 1998, he was delivering a whirlpool tub to a customer's home. While dragging the tub, which weighed 275 to 300 pounds, he tripped over some debris. Claimant felt pain in his neck that radiated down his right arm and into his fingers. Claimant reported the accident upon returning to employer's office. He continued working until July 26, 1998, when he went to the emergency room at Central Du Page Hospital.

Claimant saw Dr. Harb Boury, a neurosurgeon, on July 29, 1998. Dr. Boury diagnosed herniated discs at C4-C5 and C5-C6 and a bulging disc at C6-C7 and also noted his impression that claimant had a congenitally narrow cervical spinal canal. Dr. Boury ordered claimant off of work.

Claimant underwent surgery on March 12, 1999. Dr. Boury performed an anterior cervical discectomy and fusion at C4-C5 and C5-C6. During his deposition, Dr. Boury testified that claimant's fusion had been progressing nicely. According to Dr. Boury, a person with a job like claimant's typically would not be able to return to work until about six months after the surgery. On April 26, 1999, Dr. Boury reported that X rays showed that the graft height and alignment were well maintained. The bone graft was beginning to fuse but was not yet solid. On June 7, 1999, Dr. Boury reported that an X ray taken on June 4, 1999, showed that the alignment was good and the height of the graft was maintained, but the fusion was not completely solid. He advised claimant to wean himself off of his rigid neck brace over the next 7 to 10 days and, after that period, to continue to wear the brace while driving.

Claimant testified that he "was doing fine" and was experiencing no pain until he was involved in an automobile accident on June 9, 1999. Another car hit claimant's vehicle from behind while claimant was traveling to his first session of physical therapy. Claimant was wearing a soft brace at the time. After the accident, claimant experienced pain in his neck, shoulder, and arm.

Claimant saw Dr. Boury on June 10, 1999, and informed him about the auto accident. Dr. Boury reviewed the X rays taken at the emergency room and determined that the bone graft remained in place and the alignment remained satisfactory. He advised claimant to wear a rigid neck brace for another six weeks.

Claimant saw Dr. Boury again on June 14, 1999. Claimant complained of pain in the upper part of his right arm. The pain radiated downward but not all the way into his hand. Dr. Boury testified that claimant's symptoms were "almost like a throw back to" what claimant experienced before the surgery. On July 12, 1999, claimant informed Dr. Boury that he had taken a job delivering pizzas. Dr. Boury advised claimant that such work was appropriate because it was "not a physical job." An X ray taken on July 24, 1999, showed that the graft was in a good position and the alignment was satisfactory.

A functional capacity evaluation conducted on August 16, 1999, concluded that claimant was able to lift 50 pounds occasionally and could function in a job requiring a medium physical demand level. Claimant's job with employer was rated at the very heavy physical demand level. Claimant underwent two weeks of work hardening but was unable to achieve any physical or functional gains. On August 30, 1999, Dr. Boury authorized claimant to return to work within the restrictions prescribed in the functional capacity evaluation.

Claimant remained symptomatic, and, in September 1999, Dr. Boury referred claimant to Dr. Steven Baker, an orthopaedic surgeon. In his referral letter to Dr. Baker, Dr. Boury related claimant's complaint that "ever since the car accident, my shoulder never felt the same." Dr. Baker noted that claimant's condition ...


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