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Otto Baum Company, Inc v. Illinois Workers' Compensation Commission et al.

September 29, 2011

OTTO BAUM COMPANY, INC.,
APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL. (TIM HILTON, APPELLEES).



APPEAL FROM THE CIRCUIT COURT OF McLEAN COUNTY No. 10 MR 247 HONORABLE MICHAEL J. PRALL, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

Workers' Compensation Commission Division

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

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

OPINION

¶ 1 Otto Baum Company, Inc. (Otto), appeals from an order of the circuit court of McLean County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission) awarding the claimant 13 6/7 weeks of temporary total disability (TTD) benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) for injuries he received while working on August 6, 2008. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 The following factual recitation is taken from the record on appeal and the evidence presented at the arbitration hearing conducted on May 12, 2009.

¶ 3 The claimant, who worked as a laborer for Otto for several months but as a union laborer for seven years, was injured at work on August 6, 2008. He testified that he sought medical treatment soon after the injury and was taken off of work. On August 19, 2008, Dr. Grant Zehr examined the claimant before noting some improvement but concluding that the claimant could not yet return to work. On August 28, 2008, a magnetic resonance imaging (MRI) of the claimant's spine revealed disc bulges and degenerative changes. On that date, the claimant was cleared to return to work, with restrictions that he limit himself to sedentary duty. Also in late August, Otto's associate risk manager, Marc Collins, sent the claimant a letter offering him a temporary position within his work restrictions. The claimant testified that he reported for the offered work, but, on the second day, he exacerbated his condition while trying to use a weed trimmer.

¶ 4 In his testimony, the claimant stated that he did not recall having any subsequent conversations with Collins regarding returning to work for Otto in a restricted capacity. Collins, however, testified that he contacted the claimant on September 2, 2008, to offer him light-duty work, but that the claimant told him that "he was blacking out because *** his anti-depressants were mixing with whatever painkillers he was prescribed and he didn't want to drive over." Collins further recalled that, on September 9, the claimant declined another offer for light-duty work because it "hurt [him] to drive [his car]" the distance required for the commute.

¶ 5 By September 10, 2008, the claimant was still cleared to work but limited to sedentary duty; these restrictions were repeated on September 18.

¶ 6 On October 21, 2008, the claimant saw Dr. Paul Nord, his family physician, who took him off of work completely for one week. An October 27, 2008, treatment note from Dr. William Jhee states that the claimant's pain had exacerbated just prior to his visit.

¶ 7 The claimant testified that, on November 11, 2008, Dr. Nord cleared him for sedentary work and that he thereafter requested appropriate work from Otto, but that Otto did not offer him work then or at any time after. In his testimony, Collins stated that the claimant contacted him in late November or early December 2008, after he had obtained representation for his workers' compensation claim, to request work and that Collins responded by telling the claimant to make the request through his attorney. Collins testified that Otto was no longer offering the claimant work because the claimant had declined previous work offers.

¶ 8 The results of a December 8, 2008, functional capacity evaluation (FCE) revealed that the claimant was capable of light-medium to medium work, and that work hardening was recommended. The claimant testified that he did not complete work hardening due to difficulty paying for the service. Collins testified that he made sure that work hardening services were authorized for the claimant after they were recommended in December 2008.

ΒΆ 9 OnJuly 9, 2009, following a hearing conducted pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), the arbitrator awarded the claimant TTD benefits for 3 3/7 weeks (from August 7 through August 25, 2008, and from ...


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