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Workers' Compensation Commission Division v. Illinois Workers' Compensation Commission

March 28, 2011

WORKERS' COMPENSATION COMMISSION DIVISION WILLIAM MULLIGAN,
APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION, RAND MCNALLY,
APPELLEE.



Appeal from the Circuit Court of Cook County. Nos 09-L-50515, 09-L-50516 Honorable Lawrence O'Gara, Judge, presiding.

The opinion of the court was delivered by: Justice Stewart

NOTICE Workers' Compensation

Decision filed 03/28/11. The text of Commission Division this decision may be changed or c orrected prio r to the filing o f a Peti tion for Rehearing or the disposition of the same.

JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice McCullough and Justices Hudson and Hoffman concurred in the judgment and opinion. Justice Holdridge specially concurred, with opinion.

OPINION

The central issue in this appeal concerns the requirement in section 12 of the Illinois Workers' Compensation Act (820 ILCS 305/12 (West 2008)) (the Act), that the proponent of medical testimony furnish a report of the medical expert to the other party at least "48 hours before the time the case is set for hearing." This appeal is brought by the claimant, William Mulligan, from an order of the circuit court which confirmed a decision of the Illinois Workers' Compensation Commission (the Commission), awarding the claimant 12 weeks of temporary total disability (TTD) benefits and permanent partial disability (PPD) benefits to the extent of 50% of the person as a whole as a result of a work-related accident.

On appeal, the claimant argues, among other issues, that the Commission improperly admitted the medical testimony of two witnesses over his objection in violation of section 12 of the Act. We agree with the claimant and reverse the judgment of the circuit court, vacate the decision of the Commission, and remand the matter to the Commission for further proceedings.

BACKGROUND

The claimant, who worked as the vice president of sales and marketing for the employer, Rand McNally, suffered two work-related accidents, one in February 1994, and one in May 1994. On March 21, 1995, the claimant filed a separate application for adjustment of claim for each of these 1994 accidents. The arbitrator conducted a consolidated hearing on the claimant's claims on three different days, spanning a period of over two years: April 20, 2004, July 27, 2005, and July 31, 2006. At the arbitration hearing, it was undisputed that the claimant suffered from significant degenerative conditions in his neck and right knee prior to the 1994 accidents at issue. The parties disputed whether the claimant's accidents aggravated his pre-existing neck and knee conditions.

The claimant had a number of surgical procedures on his right knee prior to the 1994 work accidents, including a total right knee replacement in January 1988. In March 1991, the claimant had surgery on his neck which included a "cervical hemilaminectomy at C4/5 and C5/6" and a "foraminotomy at C4/5 and C5/6." The claimant testified that after his knee replacement in January 1988, his knee was pain free and he was "able to do just about anything." In June 1993, however, the claimant experienced sudden pain and swelling in his right knee. The claimant saw Dr. Sonnenberg, and he found "a 2 effusion of the right knee" and that the claimant had tenderness "over the base of the patellar tendon where it inserts into the anterior tibial tubercle." Dr. Sonnenberg noted in his June 18, 1993, report that the claimant did a lot of golfing and swimming and that he encouraged "swimming over golfing until the effusion goes down." Dr. Sonnenberg stated in his report that an x-ray of the claimant's right knee did not reveal any loosening and that the knee looked "very good."

The first work-related accident involved in this appeal occurred on February 23, 1994. On that day, the claimant was headed to the employer's Nashville, Tennessee, facility with a co-worker, and they were walking in the parking lot of the Chicago Midway Airport to catch their flight. There was approximately 8 inches of snow on the ground that day. As the claimant walked through the parking lot, carrying his overnight bag and briefcase, his feet slipped on the snow and he fell. He testified that his right knee got caught under his body, twisted, and hyperflexed. He testified that he also struck his neck during the fall, but the only pain at the time was in his knee. He could not walk, but his co-worker helped him into the terminal where they got a wheelchair to get him to his flight. The next day he had to get another wheelchair in Nashville, and on the third day after the accident, he was able to walk with a limp.

The claimant testified that his right knee hurt and was swollen for a week. The claimant's neck hurt after the accident, but not to the extent of his knee. A week or two after the accident, however, his neck started hurting more than his knee. The claimant did not miss any work as a result of the February 1994 fall. Although he testified that he was treated by a chiropractor, he did not produce any medical records for treatment following that accident.

The second accident occurred on May 31, 1994. In describing the second accident, the claimant testified that it occurred when he was coming down the stairs in front of the employer's headquarters as a co-worker briefed him on a possible acquisition of a company in California. The claimant was heading to the airport for a flight to Los Angeles, California, and was running late. The stairs in front of the employer's headquarters were "shiny marble," and the claimant slipped and fell backwards on the stairs because they were "slippery." The fall rendered the claimant unconscious for 10 to 15 minutes. He testified that he again hyperflexed his right knee during the fall. Paramedics transported the claimant to the emergency room at St. Francis Hospital. He missed his flight to Los Angeles and did not complete the business trip.

The emergency room records show that the claimant reported that he hit the right side of his neck and his right knee. X-rays of the right knee at the emergency room revealed the prior total knee replacement, but did not reveal anything wrong with the prosthetic. X-rays of the claimant's cervical spine revealed anterior osteophytes formation at C5, 6, and 7, and degenerative changes at the C5 and C6 discs.

At the arbitration hearing, the claimant presented evidence that his neck conditions worsened shortly after the May 1994 accident. He sought treatment by a chiropractor in June 1994, hoping that adjustments to his neck and shoulders would relieve the pain he experienced in his neck and head, which had increased after the May 1994 accident. By December 1994, the claimant continued to have an acceleration of headaches, neck pain that radiated into his right shoulder, and persistent numbness of his right thumb, index finger, and middle finger.

In April 1995, the claimant saw a neurologist, Dr. Jerva. According to Dr. Jerva's records, after the 1994 accidents the claimant suffered from numbness and tingling in his right arm and from "cervical radiculopathy and occipital headaches." Dr. Jerva wrote in his April 5, 1995 report: "Symptoms began increasing in December, 1994, and continued to accelerate until such time as it has become unbearable and intractable." The claimant's pain in the "occipital region and upper cervical region [was] severe with radiation into the right shoulder." Dr. Jerva concluded that the claimant's neck condition was "clearly" cervical degenerative osteoarthritis "with a C6 radiculopathy and an associated cerebral concussion with loss of consciousness for ten minutes or more."

Dr. Jerva's records from 1996 state that the claimant had "persistent tingling and numbness in the C5 and C6 distribution" and that the claimant complained mainly of headaches and numbness in his right thumb, index, and middle finger. In addition, the records state that the claimant had a "[r]adicular component extending up the right extremity to the middle arm" and had "[e]xquisite tenderness overlying the right greater occipital nerve."

After the May 31, 1994, accident, the claimant did not seek any medical attention with respect to his right knee until he saw Dr. Sonnenberg in June 1996. Dr. Sonnenberg wrote in his notes dated June 26, 1996, that the claimant had been doing well with his knee replacement, except for occasional swelling, but he was concerned about possible wear of the claimant's knee prosthesis.

The claimant saw Dr. Reinhart in August 1996 concerning his right knee pain and swelling. Dr. Reinhart noted that the claimant had effusion and tenderness in his knee area and that x-rays "demonstrated what appear[ed] to be metal on metal contact" in the knee prosthesis. The x-rays of the prosthesis showed "[s]ignificant medial tilting of the tibial tray." Dr. Reinhart suspected that the claimant's knee problems "related to wear from his original prosthesis." He did not know whether the conditions were a recent occurrence or had been "a chronic or progressive condition since no previous x-rays were available." Dr. Reinhart recommended a "[r]ight total knee revision."

Later in 1996, the claimant saw Dr. Sweeney who suspected a possible infection in the knee joint. Cultures from around the knee, however, returned negative which indicated that there was no infection. On February 25, 1997, Dr. Sweeney replaced the claimant's entire knee prosthetic. After the surgery, the claimant had to wear a knee brace to hold the new knee prosthetic in place while he walked. The brace reached the top of his right thigh and extended underneath his foot. He also walked with the assistance of a cane. He could walk only 100 to 150 yards at a time before the muscles and tendons in his knee got hot and sore, and he had to rest.

With respect to the claimant's neck pain, on October 8, 1998, Dr. Cerullo and Dr. Geisler performed a "C3 through C7 laminectomy." The claimant testified that, after the surgery, the back of his neck would become tight during the day which caused headaches. On a normal day, he could last two or three hours before he had to put his head down. When his neck got tight, he had to lay his head down for 45 minutes to an hour, and then he would feel better for another hour or two. In addition, he testified that if he could not lay down and take the weight off his neck, he had to take five to eight hydrocodone pills throughout the day. He did not take any hydrocodone pills on the days he could lay down frequently and take the weight off his neck. In March 2006, he started wearing a morphine patch that emitted pain medicine into his bloodstream. Pain injections in the claimant's shoulder and neck were successful for only a week or two.

The claimant testified that he had to hold his cane in his left hand because he suffered from carpal tunnel syndrome in his right arm. At times, he suffered numbness or pain from his right shoulder down to his hand. He could not grasp anything forcefully with his right hand because of pain. At times, he could not open and close his right hand. The claimant testified that, at the time of the arbitration hearing, he spent his days watching television, reading the newspaper, and talking on the telephone. He laid down every two or three hours. He testified that he could not do anything around the house, such as mowing the lawn or gardening, because of pain in his neck and shoulders. On an ordinary day, he did not have much pain in his right knee because he did not walk much. If he tried to walk anywhere, however, his knee would start to hurt after walking approximately 100 yards. He testified that the pain in his neck was getting worse. The claimant also testified that at times, both hands felt paralyzed and he was unable to completely close his hands.

On the issues of causation and the nature and extent of his disability, the claimant presented the evidence deposition testimony of Dr. Gates. Dr. Gates testified that he examined the claimant in 2003, and also reviewed his medical records. Dr. Gates found that the claimant's 1997 right knee revision was unstable. He observed that the claimant had to use a cane, wear a brace, and walk with a painful and unstable gait. Dr. Gates could see that the lower leg shifted sideways when the claimant walked because his ligaments were stretched out, damaged, and not functioning properly. The claimant still had fluid or swelling in his right knee and had moderate to significant tenderness over the knee. Because of the knee instability, Dr. Gates did not believe that the claimant could perform any type of employment that involved walking. Dr. Gates felt that there was a causal connection between the claimant's two 1994 accidents and the claimant's knee and neck conditions. With respect to the knee injury, he testified that both accidents were "classical for causing loosening of the prosthesis." In his report dated July 11, 2003, Dr. Gates wrote that the two accidents that occurred in 1994 were "responsible for the subsequent surgeries and revision in 1997."

The claimant also presented the evidence deposition testimony of Dr. Chmell. Dr. Chmell is an orthopedic surgeon who examined the claimant and reviewed his medical records in January 2004. Dr. Chmell testified that the claimant's right knee suffered from "gross instability *** in all planes." The ...


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