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Accolade v. Illinois Workers' Compensation Commission

Court of Appeals of Illinois, Third District, Workers’ Compensation Commission Division

May 30, 2013


Appeal from the Circuit Court of Tazewell County, No. 11-MR-111 Honorable Paul Gilfillan, Judge, Presiding.

JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart concurred in the judgment and opinion.



¶ 1 Claimant, Joan Shannon, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) alleging that she sustained a compensable injury while working as a caregiver for respondent, Autumn Accolade. The arbitrator found that claimant's injury arose out of and in the course of her employment with respondent and that claimant's current condition of ill-being is causally related to the industrial accident. As such, the arbitrator awarded claimant reasonable and necessary medical expenses (see 820 ILCS 305/8(a) (West 2008)), temporary total disability (TTD) benefits (see 820 ILCS 305/8(b) (West 2008)), and permanent partial disability (PPD) benefits (see 820 ILCS 305/8(d)(2) (West 2008)). The Illinois Workers' Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator. The circuit court of Tazewell County confirmed the decision of the Commission. On appeal, respondent argues that the evidence fails to support the Commission's finding that claimant sustained an accident arising out of her employment. We affirm.


¶ 3 The following factual recitation is taken from the evidence presented at the arbitration hearing held on August 25, 2010. Respondent operates an assisted-care facility. Claimant was hired by respondent as a caregiver in October 2008. Claimant's duties involved helping residents in their activities of daily living, such as bathing, serving meals, cleaning, and laundry.

¶ 4 With respect to the injury at issue, claimant related that on March 15, 2009, she was assisting a female resident with a shower when she felt something in her neck "pop" as she reached to remove a soap dish. Claimant testified that the soap dish was on a ledge underneath the showerhead. As a result, when the shower was on, water would run onto the soap dish causing suds to form. Claimant stated that she felt it necessary to remove the soap dish because she was concerned for the resident's safety, specifically that the resident might slip on the soap suds. Claimant testified that while she had her right hand on the resident, she turned towards her left and extended her left arm to reach for the soap dish. Claimant testified that as she reached for the soap dish, she felt her neck "pop" and experienced a "shooting pain" down her right arm and into her armpit. Claimant testified that because of the pain in her right arm and neck, she was only able to "coach" the resident for the remaining part of her shower. Claimant testified that she then went to the kitchen and told the cook that she was assisting a resident in the shower when she felt a "pop" in her neck. Claimant obtained an ice pack and held ice on her neck. Thereafter, claimant continued to work, performing various chores, although she was able to do activities which required the use of only her left arm.

¶ 5 The following day, claimant was seen by her primary-care physician, Dr. William Baumgartner. At that time, claimant reported the onset of shooting pain down her shoulder after she "reached" at work the previous day. X rays were taken, an MRI was recommended, and pain medication was prescribed. The X rays were interpreted by Dr. Raymond Lee, who noted a history of claimant "lifting [a] patient under shower yesterday" when she experienced "a popping sensation in her spine with pain." The X rays showed marked degenerative disc disease at C5-C6. The MRI revealed a large central disc herniation at C6-C7 with moderate flattening along the ventral cord and bilateral foraminal narrowing.

¶ 6 On March 19, 2009, claimant was examined by Dr. Peter Rossi. Dr. Rossi noted that claimant has "a long history of back and neck pain" and that over the past 48 hours, she had been experiencing severe neck pain and worsening right upper-extremity radicular symptoms. After examining claimant and reviewing the MRI, Dr. Rossi diagnosed a C6-7 disc herniation with severe radicular symptoms. Dr. Rossi administered intramuscular injections of Kenalog and Toradol, which decreased claimant's pain somewhat. In addition, Dr. Rossi consulted Dr. Dzung Dinh, a neurosurgeon, who referred claimant to OSF St. Francis Medical Center (St. Francis) for possible surgical intervention.

¶ 7 Claimant was admitted to St. Francis on March 19, 2009, and treated with Dr. Dinh and Dr. William Lee. Dr. William Lee's records reflect a history of claimant "bending over at work when she felt a pop and then had neck pain radiating down into her right arm." Dr. William Lee ordered a repeat MRI, which was performed the following day. That MRI revealed a right C6-7 herniated nucleus pulposus as well as disc degeneration and uncovertebral spurring on the left at C5-6. Dr. Dinh gave claimant the option of undergoing surgery or treating the injury conservatively. Claimant opted for conservative treatment. Claimant was discharged from the hospital on March 20, 2009, with a prescription for pain medication, instructions to see a physical therapist, and a referral to Dr. Rossi for an epidural injection on the right at C6-7. The discharge summary reflects that claimant's injury occurred as she was "helping a resident and she felt a pop in the back of her neck and had pain radiating into the right upper extremity, right pectoral and scapular region, as well as axilla region on the right side."

¶ 8 Claimant reported no improvement with conservative treatment, and eventually decided to undergo surgery. The operation, which consisted of an anterior cervical discectomy and fusion at C5-C6 and C6-C7 with cornerstone cortical graft and vision plating from C5-C7, was performed by Dr. Dinh on April 2, 2009. Claimant was discharged from the hospital on April 3, 2009. The discharge summary states that claimant's injury occurred when she "bent over at work and felt a pop in the back of her neck, radiating down her right arm." Claimant continued to treat with Dr. Dinh following surgery, and was seen in follow-up on May 12, 2009. At that time, claimant's incision was healing well and X rays showed the fusion and plate were in good position. Dr. Dinh referred claimant to physical therapy.

¶ 9 Claimant presented for an independent medical examination (IME) by Dr. Steven Pineda on November 2, 2009, at the request of her attorney. Dr. Pineda's notes contain the following history of injury:

"There was an individual who was in a shower, and [claimant] was assisting that individual and there was some soap and water and there was some slippery ground, and in the process of assisting this individual into the shower, as far as I understand it, she slipped or twisted and as she did so, she felt a pop in her neck and had pain in her right arm. She did not fall, but it is essentially an event where she was holding the individual and in the process of holding and/or balancing this individual, [claimant] slipped and twisted in the shower and then the pain ensued."

Dr. Pineda opined that, although there is evidence of degeneration on claimant's cervical MRI, which likely existed prior to the injury at issue, claimant "at the very least" aggravated her cervical disc disease to the point of requiring treatment. He added that claimant had nearly reached maximum medical improvement (MMI). Dr. Pineda opined that it was likely claimant would need lifting restrictions starting in the 35- to ...

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