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National Freight Industries v. Illinois Workers' Compensation Commission

Court of Appeals of Illinois, Fifth District

June 13, 2013

THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Andrew Smith and Fischer Lumber, Appellees). ANDREW SMITH, Appellant,

Rehearing denied Date: September 3, 2013

Held: [*] Where claimant suffered two separate work-related back injuries, one in 2006 and the second in 2008, the Workers’ Compensation Commission properly found that the second injury was an independent, intervening cause breaking the causal connection between claimant’s current condition of ill-being and the injury he suffered in 2006, but the Commission’s finding that claimant was not entitled to a permanency award for his first injury was vacated and the cause was remanded for a determination of the permanency attributable to each injury, since the second injury was separate and distinct and claimant was entitled to seek a permanency award as to each injury.

Appeal from the Circuit Court of Madison County, Nos. 10-MR-148, 10- MR-305; the Hon. Clarence W. Harrison II, Judge, presiding.

Julie A. Garrison and Robert Maciorowski, both of Maciorowski, Sackmann & Ulrich, LLP, of Chicago, for appellant National Freight Industries.

Leslie N. Collins and David M. Galanti, both of Galanti Law Office, P.C., of East Alton, for appellant Andrew Smith.

R. Kent Shultz, of Holtkamp, Liese, Schultz & Hilliker, P.C., of St. Louis, Missouri, for appellee Fischer Lumber.

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



¶ 1 On December 31, 2008, claimant, Andrew Smith, filed an application for adjustment of claim (No. 08 WC 56873) pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2006)) seeking benefits for injuries sustained in a motor vehicle accident on December 4, 2008, while in the employ of National Freight Industries. That same day, claimant filed a second application for adjustment of claim (No. 08 WC 56874) alleging the occurrence of a work-related accident on November 6, 2006 (prior to the accident alleged in the first application), while in the employ of Fischer Lumber. Following a consolidated hearing held pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), the arbitrator determined that claimant's current condition of ill-being was not a natural consequence of the November 6, 2006, injury and that the accident of December 4, 2008, constituted an independent, intervening accident that broke the chain of causation. As such, the arbitrator found that Fischer Lumber's liability for temporary total disability (TTD) benefits and medical expenses ceased on December 4, 2008, and that National Freight was liable for TTD benefits and medical expenses for the period from December 5, 2008, through the date of the arbitration hearing. In addition, the arbitrator determined that claimant was not entitled to a permanency award against Fischer Lumber because claimant's injury had not reached maximum medical improvement prior to the date of the second accident. The Illinois Workers' Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator. The circuit court of Madison County confirmed the decision of the Commission.

¶ 2 Thereafter, claimant and National Freight filed separate appeals, which we consolidated on our own motion. In appeal No. 5-12-0043WC, National Freight argues that the Commission's finding that the December 4, 2008, accident broke the chain of causation from claimant's prior work accident is both contrary to law and against the manifest weight of the evidence. In appeal No. 5-12-0047WC, claimant argues that the Commission's finding that he was not entitled to a permanency award from Fischer Lumber is against the manifest weight of the evidence. For the reasons set forth below, we affirm in part, vacate in part, and remand the cause for further proceedings.


¶ 4 The following factual recitation is taken from the evidence presented at the arbitration hearing held on August 21, 2009, as well as the record on appeal. On November 6, 2006, claimant was employed by Fischer Lumber as a driver. In the process of pulling boxes off of a truck, claimant felt a "pop" in his lower back followed by a sharp pain in his low back that radiated to his right leg. Claimant had a prior back surgery in 1995 or 1996, but by his testimony, he had been doing well with no ongoing treatment or symptoms.

¶ 5 Claimant presented to the emergency room at St. Francis Hospital on November 7, 2006, with complaints of low back pain and numbness radiating to the right buttock, leg, and knee. Claimant was diagnosed with a back strain. He was prescribed muscle relaxers and pain medication, given work restrictions, and instructed to follow up with Dr. Jerome Epplin, his primary-care physician. When claimant saw Dr. Epplin on November 10, 2006, he provided a history of a burning sensation in the right side of his back with numbness radiating down his right leg after lifting a box at work. Dr. Epplin diagnosed lumbar back pain and took claimant off work through November 13, 2006. Claimant continued to treat with Dr. Epplin, complaining of right-sided back and leg pain, so Dr. Epplin ordered an MRI of the lumbar spine. The MRI was taken on December 14, 2006.

¶ 6 Fischer Lumber sent claimant to Dr. Daniel Kitchens, a board-certified neurosurgeon, on January 10, 2007. At that time, claimant reported the onset of low back pain radiating to the right thigh in November 2006 while unloading boxes at work. Claimant told Dr. Kitchens that he was off work for four days after the injury and then returned to work without restrictions until he was laid off. Claimant reported pain on a daily basis in his lower back and somewhat into his right flank and right thigh. Claimant also described numbness into his right thigh. Claimant denied weakness or difficulty with walking. Dr. Kitchens reviewed the December 2006 MRI and concluded that claimant had a right-sided disc herniation at the L3-4 level (labeled L2-3 level on the MRI), a left-sided disc protrusion at the L4-5 level (labeled L3-4 level on the MRI), a right L4 radiculopathy, and fibrosis on the right side at the L4-5 level. Dr. Kitchens stated that the discrepancy between the level of his findings and those of the radiologist reading the MRI was due to the fact that claimant had a lumbarized sacral spine. Dr. Kitchens diagnosed a disc herniation to the right side at L3-4 and suggested conservative treatment, including physical therapy and pain medication. Claimant was also given work restrictions of no lifting over 20 pounds and limited standing, bending, stooping, squatting, crawling, kneeling, pulling, pushing, twisting, and climbing. Dr. Kitchens related the disc herniation at L3-4 and claimant's right L4 radiculopathy to the November 6, 2006, work accident.

¶ 7 Claimant was hired by National Freight as a "spotter" on January 19, 2007. Claimant worked in this position for six months before becoming a driver. During this time, claimant continued to treat with Dr. Epplin, complaining of back pain and worsening right leg pain. Dr. Epplin continued to prescribe pain medication and muscle relaxers. However, when claimant reported no relief from the medications, Dr. Epplin recommended that he follow up with Dr. Kitchens.

¶ 8 Claimant returned to Dr. Kitchens on September 10, 2008, complaining of continued pain in his low back radiating down into his right thigh. Dr. Kitchens recommended a repeat MRI of the lumbar spine, with and without contrast. The MRI was taken on September 18, 2008. Dr. Kitchens saw claimant in a follow-up visit on September 25, 2008. At that time, claimant continued to have pain in his back and down into his right thigh, and also reported occasional "discomfort" into his left side. Dr. Kitchens reviewed the September 2008 MRI report and observed:

"[The] MRI report reveals bilateral disc protrusions at the right L2-L3 and L4-5 levels and a disc protrusion to the left at the L3-L4 level. However, [claimant] appears to have residual disc at the Sl-S2 level, and I would label the L2-L3 disc as the L3-L4 disc, as before. There does not appear to be significant change in this disc protrusion."
Dr. Kitchens discussed continued conservative measures versus surgery of a right L3-4 microdiscectomy and instructed claimant to return on an as-needed basis. Claimant ultimately decided to have surgery, and it was scheduled for December 5, 2008.

¶ 9 On December 4, 2008, the day before surgery was scheduled, claimant was involved in a motor vehicle accident while driving a tractor-trailer for National Freight. Claimant testified that he felt a "pop" on the left side of his back and began to immediately experience "a real sharp pain down [his] left side *** and [his] lower back." Claimant also described numbness and tingling down his left leg. Claimant presented to Dr. Kitchens on December 5, 2008, for surgery. Claimant described pain in his back and down into both legs following the motor vehicle accident. Dr. Kitchens described these complaints as different than the ones claimant had previously voiced. Dr. Kitchens cancelled the surgery because claimant did not bring in his MRI films and he wanted to give the pain time to resolve in the event that it was just a flare-up. Dr. Kitchens recommended a new MRI to look for any change in his lumbar spine and referred claimant to Dr. Gordon Chu.

¶ 10 Dr. Chu saw claimant on December 10, 2008. At that time, claimant reported that he began experiencing pain down the right leg in 2006 following an injury at work. Claimant stated that following the motor vehicle accident, he began experiencing left leg pain. Dr. Chu reviewed the September 18, 2008, MRI. He noted a "problem with nomenclature with respect to the levels" because claimant appeared to have a partially lumbarized sacrum. He interpreted the MRI as showing a right-sided L2-3 disc herniation in the foramen and a left-sided L3-4 disc herniation. Dr. Chu's impression was disc herniations at two levels. Dr. Chu noted that the right side herniation has been symptomatic for the past two years. He believed that something may have occurred due to the motor vehicle accident, but noted that this was speculation because the new MRI had not yet been performed.

¶ 11 An MRI was taken on December 10, 2008. The MRI report described: (1) severe degenerative disc disease, diffused bulging of the discs, and facet hypertrophy causing moderate to severe spinal stenosis at L2-3; (2) a large pleural-based disc herniation extending from the midline to the left intervertebral foramen at L3-4, causing associated moderate spinal stenosis; and (3) severe degenerative arthritis with right-sided diffuse bulging of the disc at L4-5, causing some foraminal narrowing. Dr. Chu had a radiologist compare the December 2008 MRI with the MRIs taken in December 2006 and September 2008. The radiologist noted an interval change between both of the earlier studies and the December 2008 MRI. Specifically, he observed that at L3-4 there was previously a fairly large left paracentral disc herniation which now crosses the midline and reaches almost to the medial aspect of the right neural foramen. As a result, he concluded that the disc herniation was more extensive.

ΒΆ 12 Meanwhile, claimant saw Dr. Epplin on December 17, 2008. At that time, claimant complained of low back pain radiating to the left leg following the motor vehicle accident. Upon reviewing the MRI, Dr. Epplin diagnosed a herniated disc. He referred claimant to Dr. Kitchens for follow-up and authorized claimant to remain off work until medically cleared. Claimant returned to Dr. Epplin's office on December 31, 2008, with bilateral leg weakness, ...

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