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Will County Forest Preserve A/K/A Forest Preserve District of Will County v. Illinois Workers' Compensation Commission et al.

February 17, 2012

WILL COUNTY FOREST PRESERVE A/K/A FOREST PRESERVE DISTRICT OF WILL COUNTY, APPELLANT,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL.
(DENZIL SMOTHERS, APPELLEE).



Appeal from the Circuit Court DISTRICT of Will County. Honorable Barbara Petrungaro, Judge, Presiding No. 10-MR-673

The opinion of the court was delivered by: Justice Hudson

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

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

OPINION

¶ 1 Respondent, Will County Forest Preserve District a/k/a Forest Preserve District of Will County, appeals from a judgment of the circuit court of Will County confirming a decision of the Illinois Workers' Compensation Commission (Commission). The Commission, affirming and adopting the decision of the arbitrator, determined that claimant, Denzil Smothers, suffered a compensable shoulder injury on June 2, 2008, which "partially incapacitate[s] him from pursuing the duties of his usual and customary line of employment." As such, the Commission awarded claimant a person-as-a-whole award under section 8(d)2 of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)2 (West 2008)). On appeal, respondent concedes that claimant suffered an injury which resulted in a partial incapacity. However, respondent argues that an award under section 8(d)2 was improper because claimant failed to establish that this incapacity prevents him "from pursuing the duties of his usual and customary line of employment." Respondent therefore maintains that the Commission should have awarded claimant benefits for a scheduled injury to the arm as set forth in section 8(e)(10) of the Act (820 ILCS 305/8(e)(10) (West 2008)). We conclude that an award under section 8(d)2 is proper, but on a basis different than that proffered by the Commission. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On February 4, 2009, claimant filed an application for adjustment of claim alleging that on June 2, 2008, he sustained an injury to his right shoulder while in respondent's employ. The matter proceeded to arbitration on June 19, 2009. Among the issues in dispute were causal connection and nature and extent of the injury. The evidence presented at the arbitration hearing established that claimant, who is right-hand dominant, has worked for respondent for more than 20 years, most recently as a heavy-equipment operator. Claimant testified that in this position, he is subject to impact and vibration from various types of equipment, including tractors, dump trucks, jack hammers, chain saws, and sledge hammers. The physical-demand level for an equipment operator is medium to medium/heavy.

¶ 4 The parties stipulated that on June 2, 2008, claimant sustained an injury to his right shoulder which arose out of and in the course of his employment. Claimant explained that the injury occurred as he was trying to lift the tailgate of a trailer and he felt a "burning severe pain in [his] right shoulder." Conservative treatment resulted in limited symptomatic improvement. As a result, on June 23, 2008, claimant presented for treatment to Dr. Harry Fuentes of Parkview Orthopaedics. Dr. Fuentes ordered an MRI. Upon reviewing the MRI, Dr. Fuentes diagnosed a partial thickness rotator cuff tear of the right shoulder with a possible posterior inferior labral tear. On August 13, 2008, Dr. Fuentes performed an arthroscopic repair of the right rotator cuff and a subacromial decompression with acromioplasty. Following surgery, claimant underwent physical therapy and work hardening.

¶ 5 A case-management report dated November 20, 2008, indicates that claimant had been participating in a daily work-hardening program for up to three hours a day. The report notes that claimant demonstrated the ability to safely lift 80 pounds from floor to bench height and 60 pounds to shelf height. The report further notes that claimant demonstrated the ability to perform essential job tasks such as entering and exiting a truck cab, bilateral and unilateral carrying of equipment, bilateral shoulder carrying of equipment, sweeping, digging, packing gravel, and forward and overhead reaching. The report concludes that claimant meets the physical-demand requirements (medium/heavy) for a safe, full-duty return to work. On November 24, 2008, claimant visited Dr. Fuentes and reported that his shoulder "feels great." At that time, Dr. Fuentes released claimant to full duty without limitations and instructed him to return on an as-needed basis. Claimant has not visited Dr. Fuentes for his right shoulder since he was released to full duty.

¶ 6 Claimant acknowledged that after November 24, 2008, he has been able to perform his job. However, he testified that since returning to work, he has noticed that his right shoulder becomes stiff and weak if he uses it a lot. Claimant also indicated that he experiences soreness with vibration and sensitivity with changes in the weather. Claimant cited several examples of how he compensates for these problems by using his left side more frequently than his right side, especially with heavy or repetitive activities. Representative of these examples is the following testimony from claimant:

"For instance, if I am loading bags of concrete, 50, 60 pounds of concrete and I am having to pull them off of the truck, I will notice that the right side is starting to get weak. So I switch over to the left side, and I start using that for a while until it kind of calms down, and then I start using the right side which is I am right handed [sic].

So I generally use the right hand all of the time. The other thing is climbing in and out of my truck or up and down off [a] tractor. I notice I have been using my left hand to pull myself up into the truck now because if I pull my whole weight with my right side up and down off the tractor all day, it gets sore pretty quick."

Claimant testified that prior to the June 2, 2008, accident, he did not use his left arm frequently for tasks that required the use of only one arm because most of the equipment he uses is geared towards right-handed individuals.

ΒΆ 7 Claimant also testified that he experiences a "rubbing affect [sic]" with tasks that require him to extend his arms over his head such as greasing a tractor. Further, claimant recounted that prior to the June 2, 2008, accident, he was able to lift between 75 and 80 pounds overhead with his right shoulder. Although claimant still attempts to lift the same amount, he testified that he quickly becomes sore. As a result, he generally tries to limit overhead lifting with his right ...


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