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Compass Group v. Illinois Workers' Comp. Comm'n

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

March 28, 2014

COMPASS GROUP, Appellant and Cross-Appellee,
ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Jeffrey Berman, Appellee and Cross-Appellant)

Modified upon denial of rehearing May 13, 2014.

Page 182

[Copyrighted Material Omitted]

Page 183

Appeal from the Circuit Court of Du Page County. Honorable Bonnie M. Wheaton, Judge, Presiding.


In proceedings arising from a workers' compensation claim based on the back injuries claimant suffered when lifting a case of soda while working as a food-service manager, the Illinois Workers' Compensation Commission's findings that plaintiff injured his back when he lifted the soda and that his problems increased after a fall at his house shortly after the injury at work were upheld, the stipulation claimant and his employer entered into regarding various medical bills barred the employer from objecting to any of the terms of that agreement, and claimant's employer failed to show it was prejudiced by the denial of its motion for leave to conduct an evidence deposition of its own expert medical witness; however, the Commission's refusal to award claimant the expenses related to the modifications to his home recommended by his physical therapists was vacated and the cause was remanded to allow the Commission to evaluate the therapists' opinions on that issue.

Julie M. Schum, of Ganan & Shapiro, P.C., of Chicago, for appellant.

Mark F. Slavin, of Slavin & Slavin, of Chicago, for appellee Jeffrey Berman.

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.



Page 184


[¶2] Respondent, Compass Group, appeals an order of the circuit court of Du Page County confirming a decision of the Illinois Workers' Compensation Commission (Commission) awarding benefits to claimant, Jeffrey Berman, under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). Claimant cross-appeals, arguing that the Commission erred in failing to impose penalties or award costs for purportedly medically necessary modifications that claimant made to his home. For the reasons that follow, we affirm in part, vacate in part, and remand.


[¶4] The parties are aware of the facts, and the evidence presented below will not be set forth in great detail. Rather, we provide the following background to facilitate an understanding of this disposition. Additional detail will be provided, as necessary, as we encounter the issues raised by the parties.

[¶5] Claimant was employed by respondent as a food-service manager. On March 19, 2009, he picked up a case of bottled soda weighing about 40 pounds.

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He immediately felt pain and heard a pop in his back, as well as a hissing sound. He worked the rest of his shift in pain. He saw Dr. Sofia Elterman the next morning and she diagnosed a sprain, prescribed Vicodin, and referred claimant to Dr. Lapp, a chiropractor. Following his appointment with Elterman, claimant worked the rest of the day in pain. He saw Lapp the next day, which was a Saturday. The following Monday, claimant went to work despite having difficulty walking. That evening, he was examined by Dr. Jonathan Erulkar at the Illinois Bone and Joint Institute and was diagnosed with stenosis. An MRI was ordered. Erulkar noted that claimant needed a cane to walk. Claimant did not have a cane, so he used his wife's walker.

[¶6] Claimant worked on Tuesday (March 24, 2009). He was in excruciating pain and used the walker to ambulate. On Wednesday morning (March 25, 2009), claimant arose to go to work. He was descending the stairs in his house when his left foot gave way due to severe pain in his back and radiating down his leg. Claimant fell down the stairs, sustaining lacerations and bruises on his elbows, arms, and chest. Claimant was also bleeding from his nose as a result of the fall. Claimant's wife called paramedics, who arrived and helped claimant to his feet. Claimant declined to be taken to a hospital and instead went to work. At work, claimant did paperwork in an office. He could not get out of his desk chair due to pain. A coworker eventually contacted claimant's wife. She came and took claimant to the hospital, where he was admitted.

[¶7] At the hospital, claimant was noted to have abrasions on his head, knees, elbows, and fingers. X rays revealed olecranon bursitis in both elbows. On March 27, 2009, while still in the hospital, claimant began acting delusional. A blood test revealed a blood infection. Claimant was moved to the intensive care unit. Dr. Richard Sherman drained and packed claimant's olecranon bursae. Claimant's renal function began to deteriorate, and he began bleeding in his gastrointestinal system. An endoscopy was performed.

[¶8] An exploratory laparotomy led to a colectomy. Claimant was intubated due to respiratory failure. Subsequently, a tracheotomy was performed, as claimant had difficulty weaning from the breathing machine.

[¶9] On April 30, 2009, claimant was transferred to a long-term care facility. Dr. Istina Morariu observed olecranon bursitis and deep vein thrombosis. A CT scan revealed various back problems, and claimant was eventually diagnosed with a disc space infection. On May 21 and May 31, 2009, claimant underwent spinal surgeries. On June 26, 2009, claimant was transferred to a rehabilitation center, where he was noted to have a right foot drop and shingles on his face. On September 29, 2009, he was transferred to a hospital due to renal insufficiency. He was treated surgically for a left-elbow ulcer. He was sent back to the rehabilitation center, but returned to the hospital on December 1, 2009, for a four-day stay. He was again transferred to the rehabilitation center. Sherman examined claimant and noted ecchymosis and a hematoma in the left forearm. Claimant returned home, but remained under medical care. On May 20, 2010, claimant returned to the hospital and underwent an ileostomy reversal. Claimant was then transferred back and forth between the rehabilitation center and the hospital a number of times.

[¶10] Sherman was of the opinion that the abrasions on claimant's elbows led to septic olecranon bursitis. This infection spread, via claimant's blood stream, to claimant's spine, intestinal tract, and kidneys.

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Dr. Scott Kale, who examined claimant on respondent's behalf, opined that claimant's condition was caused by either his olecranon bursitis or his spinal infection. Kale did not believe that claimant's condition was causally related to his fall down the stairs.


[¶12] We will first address respondent's appeal. We will then turn to claimant's cross-appeal. Before proceeding further, we note that the party appealing an issue has the burden to convince this court that a reversible error has been committed in the proceedings below. TSP-Hope, Inc. v. Home Innovators of Illinois, ...

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