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Amy Shafer v. the Illinois Workers' Compensation Commission et al. (Bill Doran Company

October 28, 2011

AMY SHAFER,
APPELLANT AND CROSS-APPELLEE,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL. (BILL DORAN COMPANY, )
APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of the 7th Judicial Circuit, Sangamon County, Illinois Circuit No. 09-MR-815, 09-MR-816, 09-MR-830 Honorable Leslie J. Graves, Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge

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

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

OPINION

¶ 1 The claimant, Amy Shafer, filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2008)) seeking benefits for injuries she claimed to have sustained in two separate accidents while working as an employee of appellee and cross-appellant Bill Doran Company (employer). Following a hearing, an arbitrator issued two separate decisions under two separate case numbers, one for each work-related accident alleged by the claimant. The arbitrator found that all of the claimant's injuries arose out and in the course of her employment and awarded temporary total disability (TTD) benefits, incurred medical expenses, and prospective medical treatment recommended by the claimant's doctors.

¶ 2 The employer appealed the arbitrator's decisions to the Illinois Workers' Compensation Commission (the Commission). The Commission modified the arbitrator's decision in one of the cases (case number 07-WC-56127) by reducing the period of temporary total disability and by noting that the Act's medical fee schedule applies to the award of medical expenses. The Commission affirmed the arbitrator's decision in all other respects and adopted the arbitrator's decision as modified. Commissioner Dauphin dissented from the Commission's decision because she believed that the employer's use of an improper case number in its petition for review deprived the Commission of jurisdiction over the employer's appeal of that case. The Commission modified the arbitrator's decision in the other case (case number 07-WC-56125) to reflect that the fee schedule applied, and unanimously affirmed the arbitrator's decision as modified.

¶ 3 The claimant sought judicial review of the Commission's decision regarding case number 07-WC-56127 in the circuit court of Sangamon County. The employer sought judicial review of the Commission's decisions in both cases. The employer also argued that the Commission's award of TTD benefits, medical expenses, and prospective medical treatments was against the manifest weight of the evidence. The circuit court affirmed the Commission's decision "as to all issues and in all respects." This appeal followed.

¶ 4 FACTS

¶ 5 The employer delivers flowers and supplies to retailers in the floral industry. The claimant worked for the employer as a supply salesperson. Her job duties included making sales calls to customers, retrieving ordered items from the warehouse, packaging orders, and preparing packages for shipment.

¶ 6 During the arbitration hearing, the claimant testified that, on November 23, 2007, she worked in the warehouse all day moving heavy glassware. When she was at home later that evening, she felt a muscle tighten on her lower left side. On November 27, 2007, she went to see her family doctor, Dr. Michael Bova. Dr. Bova diagnosed the claimant as having a sprain of her lower lumbar region and left radicular pain. Dr. Bova prescribed medications and placed the claimant on light duty for one week. The claimant testified that she presented Dr. Bova's light duty work slip to her manager, but her manager did not change her work duties. Over the next few days, the claimant continued to work even though she was experiencing pain and cramps on the left side of her lower back.

¶ 7 The claimant testified that she suffered a second injury at work on November 30, 2007. On that day, she was loading a case of glassware into a metal pushcart. In order to get the glassware into the cart, she had to bend over and turn her body from the right to the left. While she was doing this, she heard a "pop" in her lower back. She told a co-worker that she was hurt, and he went to get the manager. The claimant testified that she told her manager that she was "severely hurt," but her manager walked away and did nothing.

¶ 8 Later that day, the claimant prepared and filed a written incident report which stated that she was injured on November 30, 2007, while "lifting a box of glassware/pulling orders." The report described the claimant's injury as a "[p]ulled back muscle." It also noted that the claimant was on light duty at the time of the injury. The following Monday, a woman from the employer's corporate office called the claimant and told her that she needed to file a separate incident report for the November 23, 2007, injury, which the claimant did. On that report, the claimant described her November 23 injury as a lower back injury. The claimant did not ask her supervisor to sign either of the incident reports. The claimant was terminated prior to the start of her shift on December 5, 2007.

¶ 9 After her second injury on November 30, 2007, the claimant claimed that she had severe pain in her lower back, cramping pain in her neck, severe tingling pain in her legs, and tingling pain in her arms. During the next several days, her neck pain progressed from a "kink" to "real stiffness." By the morning of December 5, she was unable to turn her head to the right. Two days later, she awoke with a stiff and painful neck. The claimant testified that she did not have any injury at home during this time period, and she attributed all of her pain to her November 30 work accident.

¶ 10 The claimant returned to Dr. Bova on December 10, 2007. Dr. Bova's record of that visit reflects that the claimant told him that she had twisted her back again while on light duty and that "something popped in [her] back." Dr. Bova diagnosed the claimant with spasms in her upper and lower back and tingling pain radiating into her hands and left leg, and he ordered the claimant off work. Dr. Bova ordered X-rays and an MRI of the claimant's cervical and lumbar spine. The claimant underwent an MRI of her cervical spine on December 11, 2007, which revealed a right-sided C5-C6 disc herniation. A lumbar MRI performed on the same date showed a small right-sided disc herniation at L3-L4 and a posterior herniation at L4-L5.

¶ 11 Dr. Bova placed the claimant off work from December 10, 2007, through December 16, 2007. On December 13, 2007, Dr. Bova issued the claimant an off-work slip putting her off work until further notice due to back and neck injuries. On December 18, 2007, the claimant returned to Dr. Bova and asked him for a light duty work slip so she could apply for unemployment benefits. Dr. Bova issued her a return to work slip requiring her to refrain from lifting anything over 10 pounds. Dr. Bova prescribed additional pain medication on December 27, 2007, and referred the claimant to anesthesiologist Dr. Babu Prasad. On January 14, 2008, the claimant returned to Dr. Bova and asked to be taken off work. Dr. Bova placed her off work from January 11, 2008, through February 1, 2008. The claimant visited Dr. Bova again on January 29, 2008, at which time Dr. Bova continued her off work until February 29, 2008.

¶ 12 Dr. Prasad gave the claimant lower lumbar epidural steroid injections on January 22, 2008. He also referred the claimant to neurologist Dr. Joshua Warach for an EMG.

¶ 13 Dr. Warach met with the claimant on January 23, 2008, for a neurologic consultation. He drafted a letter to Dr. Prasad that same day summarizing his impressions and recommendations. The letter indicates that the claimant told Dr. Warach that she had injured herself at work on November 23, 2007, and November 29, 2007,*fn1 and that "[s]ince then she has experienced persistent constant aching and sharp pain, variable in intensity, in the low back with radiation down the entire left leg," "persistent intermittent tingling" in both legs, and "intermittent numbness and tingling of both hands with constant coldness of the hands and feet." Dr. Warach also noted that "[t]he patient also gives a history of onset upon awakening from sleep 12/5/07, without any other injury, of stiffness in the posterior cervical region of her neck," and that "[s]ince then [the claimant] has experienced persistent and constant aching and sharp pain, variable in intensity, in the posterior cervical region of her neck with radiations into both shoulders and scapulae." Dr. Warach's letter also notes that the claimant "denies any previous history of relevant neurologic symptoms prior to onset of the above." Dr. Warach diagnosed the claimant as having pain in her neck, arms, lower back, and legs. He recommended follow-up X-rays and EMG/NVC testing of the lower extremities and prescribed physical therapy.

ΒΆ 14 The claimant returned to Dr. Bova on January 29, 2008. Dr. Bova's notes reflect that the claimant was limited in her range of motion and could not bend over or climb stairs. The claimant had physical therapy sessions on January 30, 2008, February 1, 2008, and February 4, 2008. Dr. Prasad gave the ...


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