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Village of Deerfield v. Illinois Workers' Compensation Commission

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

December 23, 2014

VILLAGE OF DEERFIELD, Appellant,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Hugh Garrity, Appellee)

Appeal from the Circuit Court of Lake County. No. 13 MR 623. Honorable Jorge L. Ortiz, Judge, presiding.

SYLLABUS

In a workers' compensation proceeding where claimant was injured in two accidents, the first injuring his left and right shoulders, and the second injuring his neck and lumbar spine, and the first accident resulted in permanent partial impairment and the award of permanent partial disability of 18.8% of the person-as-a-whole under section 8(d)(2) of the Workers' Compensation Act, and the second accident resulted in claimant being unable to return to his regular employment and an award of a wage differential under section 8(d)(1) of the Act due to the impairment of his earning capacity, the decision of the Illinois Workers' Compensation Commission to make separate awards for injuries to different body parts in separate accidents was properly confirmed by the trial court, since the Commission's decision was not contrary to the manifest weight of the evidence.

W. Britton Isaly, of Ancel Glink Diamond Bush DiCianni & Krafthefer, PC, of Chicago, for appellant.

Richard D. Hannigan, of Hannigan & Botha, Ltd., of Mundelein, for appellee.

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

OPINION

Page 291

STEWART, JUSTICE.

[¶1] The claimant, Hugh Garrity, filed three applications for adjustment of claim against his employer, the Village of Deerfield, seeking workers' compensation benefits. In the first application the claimant alleged that on February 28, 2005, he injured his left shoulder while throwing a scrap light pole into a truck. In the second application he alleged that on August 9, 2005, he injured his cervical and lumbar spine while driving a lawn tractor. In his third application the claimant alleged that on January 12, 2006, he aggravated his left shoulder, left trapezius, and his neck while pulling holiday lights. The claims were consolidated and proceeded to an arbitration hearing under the Workers' Compensation Act (the Act) (820 ILCS 305/1) (West 2004)). The arbitrator found that the claimant did sustain an accident on February 28, 2005, that arose out of and in the course of his employment and that his condition of ill-being was causally related to the accident. The employer was ordered to pay the claimant $567.87 per week for 93.95 weeks, as provided in section 8(e)(10) of the Act, because the injuries sustained caused 25% loss of use of the left arm and 15% loss of use of the right arm. The arbitrator found that the claimant did sustain an accident on August 9, 2005, that arose out of and in the course of his employment and that his condition of ill-being was causally related to the accident. He found that the claimant's work injury of August 9, 2005, resulted in him being incapacitated from pursuing his usual and customary line of employment as contemplated in section 8(d)(1) of the Act. The employer was ordered to pay the claimant a wage differential commencing October 16, 2011, of $694.73 per week for the duration of the disability because the injuries sustained caused loss of earnings as provided in section 8(d)(1) of the Act. The arbitrator found that the claimant did sustain an accident on January 12, 2006, that arose out of and in the course of his employment, but that the claimant's condition of ill-being was not causally related to the accident.

[¶2] The employer appealed to the Illinois Workers' Compensation Commission (Commission). In accordance with the holding in Will County Forest Preserve v. Illinois Workers' Compensation Comm'n, 2012 IL App. (3d) 110077WC, 970 N.E.2d 16, 361 Ill.Dec. 16, the Commission held that when a claimant sustains a work-related injury to the shoulder, benefits are proper under section 8(d)(2). The Commission modified the arbitrator's decision with respect to the permanent partial disability benefits awarded for the claimant's left and right shoulders. The Commission converted the permanent disability award to a person-as-a-whole award under section 8(d)(2). The Commission otherwise affirmed and adopted the arbitrator's decision. The employer filed a timely petition for review in the circuit court of Lake County which confirmed the Commission's decision. The employer appeals.

[¶3] BACKGROUND

[¶4] The following factual recitation is taken from the evidence presented at the arbitration hearing conducted on December 19, 2011. The claimant asked that the three cases be consolidated for convenience and requested that separate decisions be written on each claim. The employer did not object and the arbitrator granted the request.

[¶5] The claimant testified that on September 15, 1981, he started working for the employer as a maintenance operator. On February 28, 2005, the claimant injured his left shoulder while he was loading a

Page 292

scrap light pole onto a truck. On March 2, 2005, he was examined at the employer's health clinic, Omega Healthcare. In the clinic's progress notes, the examiner noted that the claimant was injured when lifting some old removed street light poles onto a truck. He was diagnosed with a left shoulder sprain. The claimant was restricted from using his left arm and driving the company vehicle. The claimant was instructed to return in five days for further evaluation.

[¶6] The claimant returned to Omega Healthcare on March 7, 2005. He reported that he still had discomfort in his anterior shoulder. The claimant was diagnosed with shoulder strain. The claimant was restricted from lifting more than 10 pounds with his left arm and from driving company vehicles. He was instructed to return in one week. At a follow-up examination on March 14, 2005, the claimant had improved and his restrictions were modified to assistance with lifting over 50 pounds.

[¶7] On March 23, 2005, the claimant returned to Omega Healthcare for a follow-up examination. His 50 pounds restriction was continued. The progress notes indicate that the claimant " still hurts when he reaches up above his shoulder." The claimant testified that at the time of his release he continued to experience pain and weakness in his left arm and shoulder.

[¶8] On August 9, 2005, the claimant was driving a lawn tractor and had to duck and twist his body to avoid being struck by a tree branch. He injured his neck and back. He was seen the next day at Omega Healthcare where he was diagnosed with a cervical and lumbar strain. The claimant was prescribed medication and was restricted from driving, from lifting over 10 pounds, and from bending, twisting or climbing. On August 15, 2005, his lifting restriction was increased to 20 pounds, he was allowed minimal bending and stooping, and he was told he must be able to change position from sitting to standing and moving about as needed. He was restricted from truck or heavy equipment driving or mowing.

[¶9] The claimant was seen at Omega Healthcare on August 22, 2005, and it was noted that he took himself off work on August 17, 2005. Physical therapy was prescribed to expedite his rehabilitation. The claimant testified that he was told to avoid repetitive stop and go motions with his vehicle, and no lifting over 20 pounds.

[¶10] The claimant started physical therapy on September 13, 2005. On September 26, 2005, the claimant was examined at Omega Healthcare. The examiner noted that the claimant complained that his physical therapy was not helping, that his range of motion continued to be limited, and that he could not move his neck very well. Due to his slow progress, the claimant was referred to Dr. Martin Lanoff.

[¶11] Dr. Lanoff examined the claimant on October 18, 2005. Dr. Lanoff diagnosed the claimant with significant tension myalgia and cervicothoracic and lumbar myofacial issues, mostly in the cervical and trapezius regions. He noted that it was secondary to left shoulder impingement. He wrote that the claimant's left shoulder impingement never healed after the first accident. Dr. Lanoff prescribed physical therapy. The claimant began physical therapy on October 31, 2005.

[¶12] On November 15, 2005, Dr. Lanoff examined the claimant. He noted that the claimant's cervical spine had improved after three weeks of physical therapy, but that his shoulder was worse. The claimant received a subacromial injection. Dr. Lanoff ordered a magnetic resonance imaging scan (MRI) of the left shoulder.

Page 293

[¶13] On December 6, 2005, Dr. Lanoff examined the claimant. The claimant complained that he had minimal improvement in therapy. The claimant had left trapezius symptoms, and left shoulder impingement and rotator cuff tendinitis. Dr. Lanoff noted concern about rotator cuff pathology, which he felt might be causing the claimant's cervical discomfort. He averred that it was also possible that cervical neuropathology was causing weakness about the rotator cuff. He stated that it was " a difficult differential diagnosis." Dr. Lanoff recommended an ...


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