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Workers' Compensation Commission Division v. Illinois Workers' Compensation

November 5, 2012


Appeal from the Circuit Court of Cook County No. 11 L 50222 Honorable Margaret Brennan, 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.

Justices Hudson, Holdridge, Turner, and Stewart concurred in the judgment and the opinion.


¶ 1 W. B. Olson, Inc. (Olson) appeals from an order of the Circuit Court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), awarding the claimant, Craig Kolin, benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) for injuries to his right knee that he received while in Olson's employ. For the reasons which follow, we affirm the judgment of the circuit court.

¶ 2 The following factual recitation is taken from the record, including the evidence adduced at the various arbitration hearings conducted in reference to the claimant's application for adjustment of claim.

¶ 3 The 56-year-old claimant is a long-time union laborer residing in Highland, Indiana. Prior to his employment as a laborer, the claimant had worked as a truck driver, but he had not maintained his commercial driver's license (CDL). On February 1, 2006, the claimant was working as a construction laborer for Olson. He was cleaning up a job site inside a building, gathering debris in a wheelbarrow and hauling it to a dumpster outside. In performing this task, the claimant was using a ramp that had been constructed of a plank that was 12 feet long and 2 feet wide. As he was moving down the plank, the wheelbarrow started to tip. When the claimant tried to pull the wheelbarrow back, he stuck his leg out and felt a "pop," before falling to the ground.

¶ 4 After the accident, the claimant began an extensive course of medical treatment. Dr. Paulino Chan performed two successive right-knee arthroscopy procedures on February 15, 2006, and May 22, 2006. After each of these procedures, the claimant was followed by Dr. Chan, attended postoperative physical therapy, and received cortisone injections.

¶ 5 During September 2006, the claimant continued to treat with Dr. Chan, who recommended use of a brace to help alleviate the claimant's ongoing pain. The claimant also was examined by Dr. Mark Levin, Olson's section 12 examiner. Dr. Levin suggested a functional capacity examination (FCE) and possible work hardening.

¶ 6 In October 2006, Olson offered the claimant light-duty employment performing an accounts payable position in its offices in Northbrook, Illinois. The claimant drove from his home in Highland, Indiana, which took approximately two hours. After several days, the claimant returned to Dr. Chan and reported that the had experienced knee and hip pain while driving. Dr. Chan restricted the claimant to one hour of driving per day and prescribed the use of a Donjoy brace. Thereafter, Dr. Chan restricted the claimant from performing any work that involved heavy lifting and the use of stairs or ladders.

¶ 7 In January 2007, the claimant sought a second opinion from Dr. Charles Bush-Joseph. Upon examination, Dr. Bush-Joseph advised that he did not think the claimant was a candidate for meniscal transplantation. He further advised that the claimant could accept his current level of disability with some permanent restriction, or he could engage in an aggressive rehabilitation program, which may provide significant symptomatic relief. In addition, Dr. Bush-Joseph opined that major reconstruction surgery would not provide the claimant with sufficient relief to allow him to return to full duty as a construction laborer.

¶ 8 On February 5, 2007, Dr. Chan directed the claimant to begin his third course of physical therapy, after which an FCE was performed on May 16, 2007. The results of the FCE indicated that the claimant was capable of performing work at the light-to-medium level of physical demand, which fell below that required of a construction laborer, and work hardening was suggested. Upon reviewing the FCE results, Dr. Chan advised that another work-hardening program would not be beneficial because the claimant already had participated in three courses of physical therapy "with one of the best [physical] therapists in the area." When the claimant returned to Dr. Chan on July 12, 2007, he reported that Olson's workers' compensation insurance carrier required him to engage in work hardening. Dr. Chan acquiesced and allowed the claimant to undergo work hardening.

¶ 9 The claimant underwent nine work-hardening sessions during the 14-day period between July 25 and August 8, 2007. On August 8, the claimant returned to Dr. Chan, who noted that the claimant had increased knee pain, swelling, painful range of motion, tenderness to palpation, and a "noticeable to significant" limp. Dr. Chan directed the claimant to cease the work-hardening program immediately, and he authored a note to that effect.

¶ 10 Thereafter, the claimant was examined by Dr. Pietro Tonino, at the request of Olson. Dr. Tonino concluded that the arthroscopic findings were sufficient to be responsible for the claimant's clinical condition, which is related to his employment accident. Dr. Tonino opined that the claimant did not require any further medical treatment and that he should be discharged from medical care within the restriction specified in the FCE report and the work-hardening discharge summary. Dr. Tonino also opined that the claimant did not require any driving restriction. Dr. Tonino noted that the claimant may require a total knee replacement in the future, but he currently was not a candidate for such a procedure. According to the claimant, Dr. Tonino told him during the examination that a partial knee replacement would be beneficial.

¶ 11 The claimant subsequently returned to Dr. Chan, who disagreed with Dr. Tonino's conclusions. Dr. Chan ordered the continued use of the Donjoy brace maintained the claimant's work restrictions, including the limitation of driving no more than one hour per day.

ΒΆ 12 In December 2007, Olson again offered the claimant light-duty employment in the Northbrook office. Although the required amount of driving exceeded the limitation imposed by Dr. Chan, the claimant was directed to attempt the commute. The claimant reported for work in Northbrook on five days, and his trip averaged two hours each way. When he returned to Dr. Chan, he reported that he was experiencing pain in his right knee ...

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