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Professional Transportation, Inc v. Illinois Workers' Compensation Commission et al.

January 19, 2012

PROFESSIONAL TRANSPORTATION, INC.,
APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL.
BARRY A. CLARKE,
APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF KANKAKEE COUNTY No. 10 MR 176 HONORABLE KENDALL WENZELMAN, 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 and Holdridge concurred in the judgment and opinion.

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

OPINION

¶ 1 Professional Transportation, Inc. (Professional) appeals from an order of the Circuit Court of Kankakee County, confirming a decision of the Illinois Workers' Commission (Commission) which awarded the claimant, Barry A. Clarke, benefits under the Workers' Compensation Act (Act) (820 ILCS 301/1 et seq. (West 2002)) which included permanent total disability (PTD) benefits under section 8(f) of the Act (820 ILCS 301/8(f) (West 2002)) and a recovery for medical expenses in the sum of $131,626.31. Professional argues that the Commission's award of PTD benefits is against the manifest weight of the evidence and that its award of medical expenses both violates the law-of-the-case doctrine and is against the manifest weight of the evidence. For the reasons which follow, we affirm in part and reverse in part the circuit court's judgment, set aside in part and modify in part the Commission's decision, and remand this matter back to the Commission for further proceedings.

¶ 2 The following factual recitation is taken from the record and the evidence presented at the arbitration hearings.

¶ 3 The claimant was employed by Professional as the driver of a multi-passenger van, transporting railroad workers to and from the Kankakee railroad yards. He drove the vehicle over 200 miles per day, covering various routes. In addition to driving the vehicle, the claimant's duties included loading and unloading the passengers' packs weighing 60 to 70 pounds and cleaning out the van. Prior to working for Professional, the claimant had been employed as an air traffic controller for 27 years.

¶ 4 As the claimant was cleaning out the van on March 26, 2003, he stepped down from the vehicle onto a frozen clump of ice and rock, twisting his right knee. According to the claimant, he felt a tear within his right knee. On that same day, the claimant sought treatment from his primary care physician, Dr. Rahul Deepankar, who referred him to Dr. Alexander Michalow, an orthopedic surgeon at Orthopedic Associates of Kankakee.

¶ 5 Dr. Michalow ordered a MRI of the claimant's right knee which was performed on March 27, 2003. The scan revealed a large tear of the medial meniscus. As a consequence, Dr. Michalow recommended that the claimant undergo arthroscopic surgery.

¶ 6 Dr. Michalow performed arthroscopic surgery upon the claimant's right knee on April 8, 2003. Dr. Michalow's postoperative diagnosis was a medial meniscus tear, multiple loose bodies, chondromalacia of the femoral trochlea, and mild diffuse synovitis.

¶ 7 The claimant remained off of work from the date of the accident until July 2003, when he attempted to return to work. However, his attempted return to work as a driver lasted only 4 hours when his right knee began to swell. The claimant returned to see Dr. Deepankar on July 31, 2003. Dr. Deepankar authorized the claimant to remain off of work until further notice and referred him back to Dr. Michalow.

¶ 8 The claimant continued under the care of Dr. Michalow. On March 3, 2004, Dr. Michalow diagnosed the claimant as suffering from arthritis in the patellofemoral compartment of the right knee. Dr. Michalow authorized the claimant to return to a sitting job that required only minimal walking. On March 31, 2004, Dr. Michalow referred the claimant to Dr. Milton Smit, also an orthopedic surgeon at Orthopedic Associates of Kankakee, for a second opinion.

¶ 9 Dr. Smit examined the claimant in April 2004 and recommended a total right knee replacement. Dr. Smit was of a belief that the claimant could return to work if a sitting job with minimal walking was available.

¶ 10 The claimant was referred to Dr. Brian Cole, an orthopedic surgeon at Rush-Presbyterian Medical Center, for another opinion. Dr. Cole examined the claimant on June 7, 2004, and diagnosed bi- to tricompartmental osteoarthritis. Dr. Cole concluded that the claimant was probably a candidate for a total right knee replacement and referred him to his associate, Dr. Mitchell Sheinkop, for further treatment.

¶ 11 According to the claimant, it was in June 2004 that he started to notice swelling and pain in his left knee. He stated that he had been favoring his left knee while walking.

¶ 12 On August 20, 2004, the claimant was examined by Dr. Sheinkop. He diagnosed the claimant as suffering from post-traumatic arthritis of the right knee which was the result of the claimant's work accident in March 2003. Dr. Sheinkop determined that the claimant was a candidate for replacement surgery on both his right and left knees.

¶ 13 The claimant underwent bilateral knee replacement surgery which was performed by Dr. Sheinkop on October 26, 2004. The claimant's recovery from that surgery was complicated by his having developed a pulmonary embolism in his left lung while hospitalized. The claimant was not released from the hospital until November 6, 2004. According to Dr. Sheinkop's testimony, a thrombophlebitis resulting in a pulmonary embolism is a known complication of knee replacement surgery, necessitating prolonged hospitalization and anticoagulant treatment.

¶ 14 The claimant continued under the care of Dr. Sheinkop following his release from the hospital. On March 7, 2005, Dr. Sheinkop noted that the claimant still complained of pain in both knees. On June 17, 2005, Dr. Sheinkop noted that the claimant had excellent functional capacity, yet complained of pain that was out of proportion to the level to be expected based upon his examination and x-ray analysis. Suspecting that the claimant might be suffering from a metal allergy, Dr. Sheinkop ordered metal sensitivity tests which revealed that the claimant had a mild degree of reactivity to nickel.

¶ 15 When deposed, Dr. Sheinkop testified that he restricted the claimant from squatting, kneeling, frequent use of stairs, climbing, and lifting or carrying in excess of 40 pounds. However he did not place any restrictions on his driving other than requiring his use of a vehicle with an automatic transmission. He stated that the claimant could stand up to two hours per day and could sit from six to eight hours. According to Dr. Sheinkop, a job requiring the claimant to drive for long periods of time would put him at risk of suffering another pulmonary embolism. The claimant would require periodic breaks from driving to allow him to walk around.

ΒΆ 16 Approximately six months after the claimant's surgery, a supervisor from Professional contacted him and inquired about his returning to work. The claimant related his symptoms and the medication that he was taking. According to the claimant, Professional never again called him and thereafter terminated his employment. Lowell Woods, Professional's risk manager, testified that the company could have accommodated the restriction placed upon the claimant by Dr. Sheinkop, but that, to his knowledge, the claimant never called back. Woods stated that Professional's policies permit a driver to pull over and take a break if the driver is feeling fatigued of feels that a break is ...


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