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Kawa v. Illinois Workers' Compensation Commission

Court of Appeals of Illinois, First District, Workers Compensation Commission Division

June 3, 2013

BRYON KAWA, Appellant,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Ford Motor Co., Appellee).

Appeal from the Circuit Court of Cook County No. 11-L-50726 Honorable Margaret Ann Brennan, Judge, presiding.

Presiding Justice Holdridge and Justices Hoffman and Hudson concurred in the judgment and opinion.

OPINION

STEWART, JUSTICE

¶ 1 The claimant, Bryon Kawa, was employed as a launch engineer for the employer, Ford Motor Co., when he was involved in a job-related vehicle accident. As a result of the accident, the claimant underwent treatments for injuries to his right shoulder, right knee, and low back, and the claimant has experienced continuous shoulder, back, and knee pain since the date of the accident. After a hearing pursuant to section 19(b) of the Workers' Compensation Act (the Act) (820 ILCS 305/19(b) (West 2010)), the arbitrator found that the claimant engaged in an injurious practice, which both imperiled and retarded his recovery, by declining to participate in a multidisciplinary pain management program that included psychological treatments. The arbitrator further found that, due to the claimant's failure to participate in the multidisciplinary pain management program, he failed to prove that his conditions of ill-being were causally related to the work accident and found that he was at maximum medical improvement (MMI) as of February 25, 2008, the day his treating physician recommended the multidisciplinary pain management program. The arbitrator also found that "any and all treatment after February 25, 2008, was and is neither necessary nor reasonable unless and until [the claimant] fully complies with the prescription of participation in a multidisciplinary pain management program with strong psychological elements." The arbitrator denied temporary total disability (TTD) benefits after June 4, 2008, and found that the claimant was not entitled to any further TTD benefits until he completed the multidisciplinary pain management program. The arbitrator also denied vocational rehabilitation and maintenance benefits and denied the claimant's request for penalties and attorney fees.

¶ 2 The claimant appealed the arbitrator's decision to the Commission. The Commission affirmed and adopted the arbitrator's decision, except that the Commission found that the claimant did not engage in an injurious practice by declining to participate in the multidisciplinary pain management program. The Commission found, however, that the claimant had reached MMI because he "chose not to avail himself of further treatment." The claimant appealed the Commission's decision to the circuit court, and the circuit court entered a judgment confirming the Commission's decision. The claimant now appeals the circuit court's judgment.

¶ 3 BACKGROUND

¶ 4 The claimant worked for the employer as a launch engineer at an assembly plant in Chicago, Illinois. The claimant's job required him to lift components and teach operators how to use particular pieces of equipment. He had to bend, stoop, and move around vehicles. The weight of the components that the claimant had to lift varied between one and 50 pounds. In addition, the claimant's job duties required a lot of walking inside the employer's large manufacturing facility. The claimant estimated that he walked about 5 miles each day inside the facility. The claimant typically worked 10 to 12 hour shifts. The employer's vocational rehabilitation consultant, Julie Bose, believed that the claimant's job would be classified as sedentary-light on the Matheson's classification scale. However, she never actually observed a launch engineer's job duties, and the employer had not provided her with a written job description.

¶ 5 On February 13, 2007, the employer sent the claimant and four other workers to its assembly plant located in Dearborn, Michigan. The claimant rode in the back seat of a 12-passenger van owned by the employer. During the ride to Dearborn, the driver lost control of the van. The van skidded and rolled 360 degrees. The claimant estimated that the van was traveling between 50 and 60 miles per hour when the driver lost control. The claimant had been wearing his seatbelt, but when the van stopped rolling, he was on the van's floorboard.

¶ 6 The claimant testified that he sustained bruising on the left side and on the back of his head, as well as injuries to his neck, back, chest, right shoulder, and right knee. An ambulance carried the claimant to a nearby hospital for emergency medical treatment. Records from the emergency room indicate that the claimant had tenderness in his right shoulder, mid chest, right knee, and back and had an abrasion on his right shoulder. At the hospital, the emergency room staff took CT scans of the claimant's neck, chest, abdomen, head, and low back. The CT scan of the lumbar spine showed a "[s]mall central disk protrusion at the L5-S1 level without spinal stenosis." They also took x-rays of his right leg and shoulder. According to the imaging report, the x-rays showed no right knee fracture and "no focal lysis." In addition, the surrounding soft tissues of the knee showed no abnormality. The x-ray of the right shoulder showed an "acromioclavicular separation." The emergency room staff provided the claimant with a sling for his right arm and pain medication.

¶ 7 After the accident, the claimant contacted his primary care physician, Dr. Evan Geissler, who referred the claimant to Dr. Nicole Einhorn. The claimant first saw Dr. Einhorn on February 19, 2007. She examined the claimant's right shoulder and right knee and took additional x-rays. She also recommended an MRI of the claimant's right shoulder. Dr. Einhorn's diagnosis of the claimant's right shoulder was a high-grade A/C joint separation. Dr. Einhorn indicated in her report that she would schedule the surgery "once workers comp approval is given." Dr. Einhorn prescribed pain medication and recommended the surgery on the claimant's right shoulder. The claimant testified that during his initial visits with Dr. Einhorn, he was in extreme pain. He described the pain as a 10 on a scale of 1 to 10. In addition, he had difficulty sleeping because of the right shoulder and right collarbone pain. The slightest movement of the shoulder caused him extreme pain.

¶ 8 On March 12, 2007, at the request of the employer, the claimant submitted to an independent medical examination (IME) conducted by Dr. Blair Rhode. Dr. Rhode's examination focused primarily on the claimant's right shoulder, but the claimant testified that he also examined his knee. Dr. Rhode recommended conservative care including the use of a sling. Dr. Rhode also noted that the claimant was negative for anxiety and depression.

¶ 9 On March 21, 2007, the claimant began treatments by Dr. Koh. Dr. Koh noted that the claimant was in a significant amount of pain and was taking high doses of narcotic medication. He prescribed Norco and also recommended surgery on the right shoulder.

¶ 10 On May 10, 2007, Dr. Koh performed the surgery on the claimant's right shoulder. The claimant continued to follow up with Dr. Koh after the surgery. The claimant testified that after the surgery, he noticed that he had difficulty moving his shoulder through a full range of motion. He still experienced a lot of pain when he tried to move his shoulder in a normal manner. He testified that he did not have any problems with his right shoulder, low back, or right knee prior to the accident. On May 10, 2007, the claimant also began treatments with Dr. Nader for pain management and low back pain.

¶ 11 Dr. Koh saw the claimant on May 18, 2007. Dr. Koh noted that the claimant had lost some range of motion in his shoulder and encouraged the claimant to start moving and using his arm to try to get some motion back. He prescribed physical therapy for the right shoulder. On May 31, 2007, the claimant began physical therapy three times per week.

¶ 12 The claimant went back for a second IME with Dr. Rhode on June 8, 2007. Dr. Rhode wrote in his report that the claimant presented for an IME of his right shoulder, lower back, and right knee. Dr. Rhode wrote that "[t]he claimant is mildly magnified in his symptomatology. He is essentially inhibitory to examination relative to his right shoulder due to pain." Dr. Rhode diagnosed the claimant with grade 3 acromioclavicular separation -- post open repair and lumbar strain.

¶ 13 After seeing Dr. Rhode for the second IME, the claimant continued with his physical therapy. On June 15, 2007, an MRI scan was taken of the claimant's right knee. The radiologist's impression from the MRI included "very small right joint effusion, " and "very mild chondromalacia patellae." At this time, the claimant was still using a sling most of the time, except during therapy. Physical therapy notes indicate that the claimant reported that he experienced high intensity pain when he took off his sling.

¶ 14 The claimant saw Dr. Koh on July 6, 2007, and he recommended different medications and continued physical therapy for the claimant's shoulder. The claimant continued with the physical therapy through July and August 2007. At this time, the claimant was on high doses of Norco every four to six hours and had limited ability to move his arm. Dr. Koh believed that the claimant would remain on complete disability at this time, but would be able to return to desk work after an arthroscopic capsular release on the claimant's right shoulder.

¶ 15 Physical therapy progress notes from July 2007 indicate that the claimant was progressing slowly with respect to his shoulder and knee. On August 22, 2007, the claimant saw Dr. Koh who took additional x-rays and recommended continued physical therapy and the arthroscopic capsular release to improve the range of motion in the claimant's right shoulder. Dr. Koh's notes indicate that the claimant still experienced anterior medial pain in his right knee. The claimant was given a knee injection, and he continued with physical therapy for his knee and shoulder. Dr. Koh also referred the claimant to Dr. Rittenburg for low back treatments.

¶ 16 The claimant saw Dr. Rittenburg on August 31, 2007. He recommended an MRI of the lumbar spine to evaluate for any disc pathology or other underlying injury. He diagnosed chronic axial low back pain. In his report, Dr. Rittenburg wrote that it was likely that the claimant's back would be addressed after the claimant's scheduled shoulder surgery.

¶ 17 Dr. Koh performed the arthroscopic capsular release on the claimant's right shoulder on September 10, 2007. The claimant continued with physical therapy after the surgery and continued to follow up with Dr. Koh.

¶ 18 On September 22, 2007, an MRI of the clamant's lumbar spine was taken. The radiologist's impression from the MRI was "Mild degenerative changes in the lower spine but no spinal canal or neuroforaminal stenosis." Dr. Rittenburg prescribed physical therapy for the claimant's lower back that included pool treatment, strengthening exercises, and ultrasound.

¶ 19 As of October 2007, the claimant was still using a sling. Dr. Koh wrote in a report dated October 26, 2007, that he recommended continued physical therapy for the claimant's shoulder and knee and that he did not think that the claimant was able to do any sort of lifting or activity with his right arm including using a computer mouse. He also noted right knee pain.

¶ 20 The claimant saw Dr. Rhode a third time for an IME on November 26, 2007. With respect to the claimant's shoulder, Dr. Rhode diagnosed the claimant as having a grade 3 acromioclavicular separation - - 6 months post open repair and 2 months post arthroscopic lysis of adhesions. Dr. Rhode noted that there was significant loss of range of motion in the claimant's right arm and believed that there was "a significant psychological component to the claimant's current shoulder disease state that will require management." With respect to the claimant's low back, Dr. Rhode diagnosed the claimant as having a lumbar strain. In his report, he wrote, "I believe the claimant demonstrates evidence of persistent low back pain due to lumbar dysfunction due to a lumbar strain sustained in a motor vehicle accident." He felt that there was also a psychological component with respect to the claimant's low back condition. With respect to the claimant's right knee pain, Dr. Rhode wrote that the claimant appears to exhibit significant pain referred to the medial parapatellar retinaculum. He wrote, "As with the shoulder and lumbar issues, I am concerned that the claimant's psychological state of being will supersede any intervention from a musculoskeletal standpoint at this current time."

¶ 21 Dr. Rhode recommended a psychiatric evaluation, continued aggressive physical therapy with the right shoulder, and a multidisciplinary approach with respect to the lumbar spine. Dr. Rhode wrote that he would be extremely cautious in proceeding with any invasive treatment on the claimant's knee based on his assessment that "the claimant's psychological state supercedes any anatomic pathology at this point."

¶ 22 Physical therapy progress reports from December 2007 indicate that the claimant continued to progress slowly with respect to pain, mobility, and strength goals.

¶ 23 On December 28, 2007, the employer's vocational rehabilitation consultant, Julie Bose, attended the claimant's appointment with Dr. Koh. Bose met the claimant in Dr. Koh's waiting room and began asking him medical questions while they were in the waiting room. According to Bose, the claimant would not confirm or deny his identity. According to the claimant, however, he did not want to disclose his private medical information in the company of other patients in the waiting room.

¶ 24 The claimant met with Dr. Koh, and Bose later came in and spoke with the doctor. Bose wrote in her report concerning her meeting with Dr. Koh that there was a tentative diagnosis of frozen shoulder or adhesive capsulitis that was partially derived from the claimant not using his right arm. Dr. Koh recommended that the claimant discontinue the use of the sling because it was making his frozen shoulder worse. In his December 28, 2007, report, Dr. Koh wrote that the claimant "still had a lot of pain in his shoulder, a 9/10 and also anterior medial knee pain and plica." The claimant had no use of his right arm and could not do any significant work involving squatting, kneeling, standing, or walking.

¶ 25 According to Bose, Dr. Koh recommended a psychiatric or a psychological evaluation. The doctor agreed to Bose's suggestion of a comprehensive pain evaluation that included psychiatric or a psychological component. Dr. Koh indicated that he had good experiences with Rehabilitation Institute of Chicago (RIC), which is a multidisciplinary program as opposed to an anesthesiology based program. Dr. Koh made the recommendation for the claimant to be evaluated by RIC, and the employer approved Dr. Koh's recommendation.

¶ 26 On January 8, 2008, the employer sent the claimant a letter informing him that he had been placed on "no work available status" effective January 2, 2008, due to the following medical restrictions: avoid repetitive squatting, kneeling, prolonged standing, walking; no use of right arm; and no driving. On February 26, 2008, the employer sent the claimant another letter again stating that he had been placed on "no work available" status since January 3, 2008.

¶ 27 On February 25, 2008, the claimant went to RIC, and he was interviewed by various vocational specialists and doctors. A report of his psychological evaluation states that the claimant's "pain problem appears to be affected by psychosocial factors that could be addressed with psychological intervention." The report also states that the claimant "appears to be focused on further medical intervention, but with education may be open to a more multi-disciplinary approach to pain management that would include psychological intervention." A report from a physician's evaluation indicated that the claimant suffered from: (1) post right acromioclavicular joint reconstruction secondary to acromioclavicular joint separation, (2) right shoulder adhesive capsulitis status post arthroscopic capsular release and manipulation under anesthesia, (3) chronic low back pain not otherwise specified, (4) multilevel midlumbar degenerative disk disease, (5) right patellofemoral pain syndrome plus/minus pes brusitis, and (6) mild myofascial pain syndrome, lumbar region.

¶ 28 According to Bose, the staff at RIC believed that the claimant was "a bit on the paranoid side" and was skeptical about their program. After their evaluation, RIC staff recommended that the claimant would benefit from their pain program if Dr. Koh could send a letter stating that he could attend the program without use of a sling, that knee surgery was not scheduled, and that the claimant could participate fully in the program.

¶ 29 The claimant testified that after his initial visit at RIC, someone scheduled the treatments at RIC to begin on March 17, 2008. According to the claimant, the March 17, 2008, appointment at RIC was made without his input or consent and before Dr. Koh had read any reports or documents relevant to RIC's recommended program. The claimant testified that he was not comfortable with RIC because a lot of the questions he was asked at RIC concerned jobs he had applied for, social security benefits, salary information, and whether he had filed a products liability lawsuit. He was also uncomfortable with having to go to Chicago every day for the program from his home in Indiana, and he believed that RIC had less equipment than the hospital where he was then undergoing physical therapy. For these reasons, he decided not to attend the appointment at RIC scheduled for March 17, 2008. According to Bose, Dr. Koh furnished RIC with written authorization for the claimant to participate in the program. In addition, Bose testified that the employer agreed to furnish the claimant with lodgings in the area of the RIC program so he could attend the program.

¶ 30 Bose testified that on March 12, 2008, with the prior approval of the claimant's attorney, she arrived at a scheduled visit with Dr. Koh and the claimant. The claimant would not speak with Bose but allowed her to speak with Dr. Koh in his presence. Dr. Koh told Bose that the claimant had some concerns about the RIC pain program, that the claimant felt that he was asked some questions that were inappropriate, and that the claimant did not have confidence in the program. Dr. Koh said that the claimant would rather attend a pain program in Indiana. Dr. Koh told Bose that the claimant should continue with therapy because he was making some progress and that if the claimant did not want to go to RIC, they could consider an alternative program. Dr. Koh stated that he preferred a multidisciplinary program.

¶ 31 On March 12, 2008, Dr. Koh wrote in his report that he believed that the claimant was improving and recommended continued physical therapy and continuing his physical restrictions. He wrote that the claimant was not comfortable with the RIC program and felt "extremely strong" about it. Dr. Koh believed that, while the benefit of the RIC pain management program was high, if the claimant was not willing to participate, an alternative pain management program would be reasonable to consider.

¶ 32 The employer, however, never recommended or approved an alternative pain management program. Instead, on March 25, 2008, the employer filed a motion to suspend benefits pursuant to section 19(d) of the Act. In the motion, the employer admitted that the work-related accident occurred, that the claimant sustained injuries as a result of the accident, and that the claimant underwent treatment for his right shoulder, right knee, and lower back, but that he had not returned to work. The employer alleged that the claimant would benefit from the interdisciplinary pain management program at RIC, but the claimant had refused to participate. The employer concluded that the claimant's failure to enter the RIC program constituted "an injurious practice, which has both imperiled and retarded his recovery." Therefore, the employer requested a suspension of the claimant's compensation pursuant to section 19(d) of the Act (820 ILCS 305/19(d) (West 2008)).

¶ 33 Instead of the RIC program, Dr. Koh referred the claimant to a pain management program at St. Margaret Mercy Hospital in northwest Indiana that was closer to the claimant's home. According to Bose, the St. Margaret Mercy program is not a multidisciplinary program but was an anesthesiology-based program. She did not believe that the claimant's participation in a non-multidisciplinary pain program would be effective because Dr. Koh and other physicians who had evaluated the claimant believed that there was "a psychological overlay." Nonetheless, she testified that the type of approach that St. Margaret Mercy provided could have some positive effect. Because the claimant was adamantly opposed to the RIC program, Bose believed that the claimant's attendance in the RIC program would likely have been unsuccessful.

¶ 34 The employer's workers' compensation claims representative, Jennifer Nawracaj, also testified that the St. Margaret Mercy program is anaesthesia based. She testified that it included injections and medications. Nawracaj testified that she did not approve the program because a multidisciplinary approach had been recommended for the claimant.

¶ 35 On May 28, 2008, Dr. Koh wrote that the claimant was making slow but steady progress in physical therapy. The claimant's therapist, Sarah Skinner, believed that he was ready for work conditioning. Dr. Koh recommended work conditioning followed by a baseline functional capacity evaluation (FCE). Bose testified that she attended the claimant's May 28, 2008, examination with Dr. Koh. According to Bose, at that evaluation, Dr. Koh indicated that the claimant could do sedentary work, but could not do significant squatting, kneeling, standing, or walking, and that his right arm should not be elevated above 90 degrees. In addition, the claimant was able to drive for only short distances, 10 to 15 minutes, due to shoulder pain.

¶ 36 On June 2, 2008, the employer's attorney sent the claimant a letter indicating that the employer had the ability to accommodate the claimant's work restrictions. On June 6, 2008, the claimant met with Christina Peace who was a training supervisor working for the employer at the Chicago assembly plant. The claimant met with Peace to talk about returning to work with the employer. At that time, the claimant's launch engineer position had been filled and was no longer open. Peace told the claimant that the only open position that was available at the Chicago plant was production supervisor. According to Peace, the claimant told him that he was not interested in that position because he was physically unable to perform the duties. Peace testified that the claimant reported an inability to drive, that his arm was not fully functional and was still in a sling, and that the claimant may have mentioned something about his back. The claimant told Peace that he wanted to remain an engineer. Peace provided the claimant with postings for various jobs with the employer at locations other than the Chicago assembly plant. According to the claimant, none of the listed jobs were located in Illinois or Indiana. Most of the jobs were located in Michigan.

¶ 37 On June 9, 2008, the claimant submitted to an IME conducted by Dr. Bare at the request of the employer. In his report, Dr. Bare wrote that his diagnosis was "Right shoulder mild residual adhesive capsulitis, knee pain." He did not believe that the claimant's "subjective and objective findings correlate." He also did not believe any further physical therapy was warranted. In addition, he did not believe that a multidisciplinary pain approach would help the claimant at that point in time. He wrote that it may have been beneficial when it was originally prescribed, but he felt that it was past the point in which it would be helpful. He recommended weaning the claimant off narcotic medications and utilizing anti-inflammatories for pain. Dr. Bare felt that the claimant was doing better than the claimant believed he was doing and that the claimant would be able to do all activities except heavy overhead lifting with his right shoulder. According to Dr. Bare, squatting, kneeling, and driving were very reasonable for the claimant. He did not feel that the claimant's knee warranted any restrictions. He did not believe that the claimant was at MMI and recommended that he continue with stretching and strengthening. He believed that the claimant "should be able to resume his normal activities as an engineer at this time."

¶ 38 On June 10, 2008, Peace sent the claimant a letter informing him that he was cleared to work on June 4, 2008, and she included a list of available positions with the employer.

¶ 39 A physical therapy report dated June 23, 2008, indicated that physical therapy treatments for the claimant's right shoulder had resulted in improvement in the areas of functional passive and active range of motion, assisted mobility, and functional strength. Treatments of the right knee focused on restoring standing strength/endurance and long distance community ambulation. The claimant reported ongoing difficulty with ambulation as a result of "knee pain during stance phase, patellar pathology, and reports of instability during midstance on his right lower extremity."

¶ 40 On July 3, 2008, Peace provided the claimant with additional job listings with the employer. Peace testified that she provided the claimant with the lists of openings with the employer on a weekly basis.

ΒΆ 41 On July 10, 2008, Peace sent another letter to the claimant concerning job listings with the employer. According to the claimant, Peace told him that there was no guarantee he could get any particular position, but that she would help him submit his resume internally. Peace testified that she thought that some of the open positions were sedentary, desk-based positions. The claimant testified that he did not apply for any of the job listings that Peace provided because he was undergoing ...


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