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Certified Testing v. Industrial Commission

September 28, 2006

CERTIFIED TESTING, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (MICHAEL NIXON, APPELLEE).



Appeal from the Circuit Court of Macon County. No. 05-MR-198 Honorable Thomas E. Little, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

Claimant, Michael Nixon, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)) for injuries he sustained to his right knee on November 22, 2002, while working for employer, Certified Testing. Following a hearing on claimant's section 19(b) petition (820 ILCS 305/19(b) (West 2002)), the arbitrator determined that claimant's injuries arose out of and in the course of his employment and awarded him 13 2 weeks' temporary total disability (TTD) benefits and medical expenses. The Industrial Commission*fn1 (Commission) affirmed and adopted the arbitrator's decision and remanded the cause for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 332-35 (1980). The trial court confirmed the Commission's decision, and employer appeals. We affirm.

I. BACKGROUND

Claimant, age 51, has been a member of the Sheet Metal Workers, Local 218 (Local 218), for over 29 years. On November 22, 2002, employer hired claimant to work at Normal Community High School in Bloomington-Normal. Claimant walked up stairs to a lower roof of the building and then climbed an extension ladder from the lower roof to the penthouse. On his way back down the ladder, claimant carried approximately 75 to 80 pounds of gear on his shoulders and felt a burning sensation in his right knee. He "had a horrific time trying to get off the ladder. [He] had to really slowly come down the ladder." Claimant testified that when his partner, Chuck Helms, arrived, he told Helms that he had hurt his knee.

On November 21, 2002, the day before the alleged accident, claimant weighed approximately 380 pounds. He testified that he had a previous knee problem. A January 11, 2001, note from Dr. Michael Wall, claimant's primary care physician for 10 to 12 years, reflects that claimant complained of having right knee pain off and on for several weeks. At that time, claimant did not provide a history of trauma or injury to the knee and he indicated that he was taking over-the-counter medications without relief. Claimant experienced grinding in his right knee, and Dr. Wall diagnosed him with crepitus and internal derangement. In February 2002, Dr. Wall prescribed claimant a knee brace for his right knee. Claimant testified that his prior knee problems did not cause him to miss work or prohibit him from performing his regular duties. Claimant's union employment records that were admitted into evidence confirm that his prior knee problems did not restrict or prohibit him from performing his job duties.

After discussing his injury with Helms, claimant telephoned Dr. Wall and scheduled an appointment to see him immediately. Dr. Wall's notes of his initial examination of claimant's injury indicate that claimant's chief complaint was "[r]ight knee pain/injured a long time ago but woke up this a.m. with terrible pain" and:

"[Claimant] presents today with complaints of right knee pain which has been a chronic problem for 3 years. [Claimant] states he injured it 3 years ago, and since that time has had occasional flare ups of his knee pain. He states that over the past week he has been doing a lot of ladder climbing and over this week he has noticed increased swelling and pain to his right knee. He denies any specific new injury to the knee."

At arbitration, claimant disagreed with Dr. Wall's notations that he woke up with pain and that the injury had been a chronic problem for three years. When asked whether he had denied a new injury, claimant explained "Well, it's not like I fell off the ladder or anything like that. It's the burning sensation I felt when I was coming down the ladder with my equipment on my shoulder. That's -- I mean, I don't know how else to put it, except, that's when it happened. I was stretched out, and I had the burning sensation."

Dr. Wall recommended an MRI, which revealed an "anterior cruciate ligament tear of indeterminate age, with prominent narrowing of the patellorfemoral joint with regional osteophyte formation consistent with severe changes of chondromalacia of the patella." Dr. Wall referred claimant to Dr. Michael Trice, an orthopedic specialist. Dr. Trice examined claimant on November 27, 2002. His notes indicate that on November 22, 2002, claimant felt a sharp pain in his knee while going up the ladder and the pain was worse going down.

Dr. Trice diagnosed possible internal derangement and anterior cruciate ligament strain and recommended arthroscopic surgery. Claimant underwent surgery on December 9, 2002, which confirmed internal derangement and revealed a torn medial meniscus, patellofemoral chondromalacia, medial femoral chondromalacia, and a 50% tear of his anterior cruciate ligament. One of Dr. Trice's records pertaining to claimant's surgery lists November 22, 2002, as the date that claimant's condition first appeared and states that claimant had not been treated for his condition within the past two years.

After surgery, claimant continued to treat with Dr. Trice. Due to ongoing right knee pain, claimant received Hylagen injections in an attempt to alleviate the symptoms. Claimant attended three sessions of work hardening and was advised to continue a rehabilitation program at the YMCA. On February 27, 2003, Dr. Trice released claimant to work, effective March 3, 2003. In his May 22, 2002, notes, Dr. Trice opined that there was a causal relationship between claimant's injury and the symptoms he developed and, while the accident did not cause the arthritis found in claimant's knee, the injury resulted in damage to his ligament and cartilage.

After completing some physical therapy, claimant attempted to return to work for another company. He worked for two weeks, but stopped because the knee injections he had received did not work as hoped. Claimant did not work from July 2002 through the date of the hearing, December 5, 2003.

Dr. Michael Watson evaluated claimant on August 19, 2003, at the request of claimant's counsel. Dr. Watson's narrative report and deposition were admitted into evidence. Prior to his examination of claimant, Dr. Watson reviewed claimant's medical records from Drs. Wall and Trice. Dr. Watson explained that claimant told him that he injured himself on November 22, 2002, while climbing an extension ladder with equipment on his back and that, although claimant had experienced prior, intermittent problems with his right knee, none caused as much intense pain or trouble as the accident on November 22, 2002. Dr. Watson examined claimant's right knee, and the results were consistent with a partial thickness tearing of his anterior cruciate ligament. Also, X rays revealed moderately advanced osteoarthritis. In his narrative report, Dr. Watson opined that the November 2002 injury aggravated a pre-existing condition and, because the condition was now more severe, claimant may have difficulty climbing when carrying heavy equipment, as is required by his job.

In his deposition, Dr. Watson opined that joint replacement surgery would be risky due to claimant's age and weight, although it was one option to be considered as a last resort. Dr. Watson stated, "I felt it was possible that he may not be able to go back and do such activities as climbing and carrying heavy equipment, so really his options were very limited." Dr. Watson further opined that, based on the history provided, claimant's pre-existing knee condition was aggravated by climbing the ladder while bearing additional weight. Also, the ladder climbing may have partially torn claimant's anterior cruciate ligament; however, Dr. Watson could make no definite conclusion in that regard. Moreover, he opined that the accident aggravated claimant's pre-existing chondromalacia and osteoarthritis condition to the point where the surgery performed by Dr. Trice was necessary.

During Dr. Watson's deposition, claimant's counsel asked whether Dr. Watson would restrict claimant's employment as a sheet metal worker. Employer's counsel objected pursuant to "Section 12." The objection was overruled, and Dr. Watson testified:

"I think, as I stated in my narrative, that it would be -- well, that he would not be able to do things like climb stairs, climb ladders, particularly with carrying heavy equipment, and even more particularly carrying equipment up ladders and stairs, so climbing I think is out. Heavy carrying would be out. He may even be limited in his ability to walk for long periods of time and squat and kneel and those sorts of things. *** [N]o, I don't think that he ...


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