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Tower Automotive v. the Illinois Workers Compensation Commission

January 31, 2011

TOWER AUTOMOTIVE,
APPELLANT,
v.
THE ILLINOIS WORKERS COMPENSATION COMMISSION, ET AL.,
ELMER TOLMAIRE III,
APPELLEE



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 09 L 50296 HONORABLE ROBERT NAWROT,JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

Workers' Compensation Commission Division

NOTICE

Decision filed 01/31/11. The text of this decision may be changed or correcte d prio r to the filing o f a Petition for Rehearing or the disposition of the same.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Presiding Justice McCullough and Justices Hudson and Holdridge concurred in the judgment and opinion.

Justice Stewart concurred in part and dissented in part, with opinion.

OPINION

Tower Automotive (Tower) appeals from an order of the Circuit Court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), awarding Robert Nawrot (the claimant) certain compensation pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)), for injuries he allegedly received while in Tower's employ on June 30, 2005. Tower contends that the Commission's findings, that the claimant suffered an accident arising out of and in the course of his employment and that his current condition of ill-being is causally related to an accident while working, are against the manifest weight of the evidence. It argues, therefore, that the Commission's awards of benefits to the claimant for temporary total disability (TTD) and permanent partial disability (PPD) are also against the manifest weight of the evidence. In addition to claiming that the Commission's calculation of the claimant's average weekly wage and its award of $165,289.16 to the claimant for reasonable and necessary medical expenses are against the manifest weight of the evidence, Tower claims that both the wage calculation and medical expense award are contrary to law. For the reasons which follow, we reverse that portion of the circuit court's judgment which confirmed the Commission's $165,289.16 award for medical expenses, affirm the circuit court's judgment in all other respects, vacate the Commission's award to the claimant for medical expenses, and remand this matter back to the Commission with instructions to award the claimant medical expenses in an amount consistent with the holdings expressed herein.

The following facts necessary to a resolution of this appeal are taken from the evidence presented by the parties and admitted during the arbitration hearing which was held pursuant to the Act to resolve the claimant's application for adjustment of claim.

The claimant began working for Tower as a material handler in November of 2004. The duties of that position consisted of operating a forklift, loading and unloading trucks, and delivering parts throughout Tower's facility. The claimant testified that he drove the forklift 60% of the time, requiring that he "constantly" move his head from side to side to avoid foot traffic. In May of 2005, according to the claimant, he began to experience tingling in his hands which radiated up his arms to his elbows. The claimant stated that he reported the problem to his immediate supervisor, Said Ali, and that he was told to advise Ali if the condition worsened.

On instructions from Ali, the claimant sought treatment at the Ingalls Occupational Health Center (Ingalls), Tower's company clinic, on June 30, 2005. He gave a history of operating a forklift 8 to 12 hours per day and complained of bilateral hand numbness and weakness. The claimant was diagnosed with tendinitis, given medication, instructed to return for follow-up treatment on July 5, 2005, and released to return to full-duty work, without restrictions.

The claimant returned to Ingalls on July 5, 2005. In addition to hand and wrist pain, he reported having experienced spasms in his trapezius bilaterally and numbness starting at the forearm and encompassing the entire hand. The claimant was advised to wear wrist splints at night, and his medication was adjusted. Again, however, his work duties were not restricted.

When the claimant returned to Ingalls the following week and reported no improvement, an EMG was ordered. He underwent the EMG on July 22, 2005. The study revealed evidence of mild bilateral carpal tunnel syndrome at the wrists. There was also evidence of mild-to-moderate right cervical radiculopathy, active in the C6-C7 myotomes, and evidence of more chronic old degenerative disease in the upper left extremity. When the claimant returned to Ingalls to review the results of the EMG, a cervical MRI was suggested, and he was referred for an orthopaedic evaluation.

On August 15, 2005, the claimant returned to Ingalls, complaining of constant numbness in his hands to an extent that he was unable to feel anything. The claimant was diagnosed with cervical radiculopathy and his work duties were restricted to no overhead work with either arm, and no climbing of ladders, stairs, or inclines. Three days later, the claimant returned to Ingalls and reported that his symptoms were getting worse. His work restrictions were increased to include limitations on driving. An MRI was ordered, and the claimant was referred to Dr. Martin Luken at the Chicago Institute of Neurosurgery and Neuroresearch.

When the claimant saw Dr. Luken on August 22, 2005, he reported that, two or three months earlier, he began to experience "troublesome numbness" in the palms of his hands, thumbs, and index fingers, right greater than left, which occasionally radiated into his forearms. Although the claimant was unable to attribute his symptoms to any specific injury or activity, he did report that he worked 12 hours per day and performed duties which required him to twist his neck as he operated a forklift. He stated that his symptoms worsened as the workday progressed. Dr. Luken concluded that, while the claimant's symptoms and clinical findings were compatible with a combination of cervical radiculopathy and carpal tunnel syndrome, his clinical examination of the claimant also suggested the possibility of cervical compression myelopathy. Dr. Luken suggested that the claimant undergo a cervical MRI.

The claimant returned to Dr. Luken for follow-up treatments in August and September 2005, and continued to report numbness and tingling in his upper extremities along with a burning sensation across his shoulder blades. Dr. Luken continued the claimant's work restrictions.

On September 20, 2005, the claimant was examined by Dr. Richard Lim. At that time, the claimant complained of numbness in both hands and neck pain which began in June 2005. After examining the claimant and reviewing the claimant's EMG and the x-rays of his cervical spine, Dr. Lim diagnosed bilateral carpal tunnel syndrome, cervical spondylolisthesis, and cervical spondylitis myelopathy, and he opined that the carpal tunnel syndrome was work related; whereas, the claimant's cervical condition was "most likely *** a degenerative condition and pre-existing his current level of symptoms." Dr. Lim did not believe that the claimant had reached maximum medical improvement (MMI). He too recommended that the claimant undergo a cervical MRI and, because of the severe numbness and clumsiness in his hands, Dr. Lim had reservations about the claimant operating a vehicle and restricted the use of his upper extremities for any type of repetitive motion.

On October 17, 2005, the claimant sought treatment from his family physician, Dr. Eleazer Calero. Dr. Calero diagnosed bilateral carpal tunnel syndrome and cervical ...


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