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Bolingbrook Police Dep't v. The Ill. Workers' Comp. Comm'n

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

December 7, 2015

BOLINGBROOK POLICE DEPARTMENT, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Michael Toles, Appellee)

Page 680

         As Corrected.

          Appeal from the Circuit Court of Will County. No. 13-MR-111. Honorable Barbara Petrungaro, Judge, Presiding.

         For Bolingbrook Police Department, Appellant: Mr. Joseph P. Basile, Mr. Michael E. Rusin, Rusin, Maciorowski & Friedman, Ltd., Chicago, IL.

         For Michael Toles, Appellee: Mr. Jay Johnson, Woodruff Johnson & Palermo, Aurora, IL.

         Holdridge, Presiding Justice and Hoffman, Justice concurred in the judgment and opinion. Justice Hudson dissented, with opinion, joined by Justice Harris.

          OPINION

Page 681

          STEWART, JUSTICE.

          [¶1] The claimant, Michael Toles, worked as a police officer for the employer, Bolingbrook Police Department. He injured his back while loading his duty bag into his personal vehicle in preparation for reporting to the police station for work. He filed a claim for benefits pursuant to the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2012)). The Commission found that the claimant sustained an accidental injury arising out of and in the course of his employment. The Commission further found that the claimant established a causal relationship between the accident and the condition of ill-being in his low back requiring surgery. In light of these findings, the Commission awarded the claimant reasonable and necessary medical expenses, 5-2/7 weeks of temporary total disability (TTD) benefits, and 100 weeks of permanent partial disability (PPD) benefits. The employer appeals the Commission's finding that the claimant's injury arose out of and in the course of his employment. The employer also takes issue with the Commission's finding that the claimant's conditions of ill-being in his low back are causally related to the accident. We affirm.

         [¶2] I. BACKGROUND

          [¶3] The claimant began working for the employer as a police officer in September 1995. The claimant testified that his job duties required him to wear an armored

Page 682

vest, a Kevlar helmet, and a duty belt that consisted of two pairs of handcuffs, a firearm, two firearm cartridges, a metal baton, and a taser. He injured his back on February 17, 2009, as he lifted his duty bag to place it in his personal vehicle prior to leaving his home for work. He testified that the duty bag weighed approximately 40 pounds and contained the equipment he uses as a police officer on patrol, including the Kevlar helmet, gas mask, vehicle and criminal codes, incident reports, extra ammunition, his handcuffs, and " a few other items." He described the incident as follows:

" That day I was getting ready to go to work. I put on my uniform, put on my coat, I was in my garage. I went to go pick up my duty bag, and I lifted it up and I turned to go put it in the trunk of the car and my back gave out on me."

         He testified that he felt a sharp pain in his lower back. He had problems with his back prior to this incident, but he testified that this pain was different because it was incapacitating. He had to " hobble" back into his house bent over.

          [¶4] The claimant stated that he was required to keep the duty bag " with [his] person." The employer did not require him to take the duty bag home and did not require him to take it to the station at the end of his shift. However, the employer did not prohibit him from keeping the duty bag at his home. When asked why he was putting the duty bag in the trunk of his car, he responded:

" I kept it in the trunk because that way I didn't have to carry it all the way into the station. Tried to be as smart as possible. Drive the squad car to my car, take it out of the trunk of my personal car, take it up, set it down in the garage. It's typical. Most police officers would do that instead of having to carry their duty bags back and forth to their lockers because of the weight of it."

          [¶5] The claimant explained that he kept his duty bag in his garage at home " [t]o keep it safe." On cross-examination, he acknowledged that there was no requirement that he take his duty bag home after each shift but added that the employer did not have a policy prohibiting it either.

         [¶6] (1)

         [¶7] The Claimant's Medical Treatments for Low Back Conditions Prior to the Accident

          [¶8] The evidence in the record establishes that the claimant received medical treatments for low back pain before the February 17, 2009, incident. The claimant testified that he experienced a sharp pain in his lower back at the end of his shift on November 21, 2008. Before that incident, he had sciatica problems " from time to time" and had received chiropractic adjustments for a low back condition.

          [¶9] Medical records show that he periodically received chiropractic treatment from Dr. Carl Geipel between 2002 and 2009. Dr. Geipel's records reflect that the claimant had a " severe low back condition" as early as July 2002. Thereafter, he reported a variety of symptoms while treating with Dr. Geipel, including right-sided low back pain, right sciatic nerve complaints, sharp pain and tightness in his low back, and low back pain radiating to the right hip and lower extremity. He testified that he never discussed back surgery with Dr. Geipel.

          [¶10] On November 26, 2008, he consulted with a spine surgeon, Dr. Nicholas Mataragas. According to Dr. Mataragas, at that time, the claimant reported a history of low back and right leg pain for about a week without any contributing factor. The claimant testified that he told Dr. Mataragas that he had been seeing a chiropractor

Page 683

for years and that he was experiencing increased pain. Upon physical examination, straight-leg raising was positive on the right, which, according to Dr. Mataragas, was indicative of nerve compression in the claimant's spine. Dr. Mataragas' impression was degenerative disc disease with radiculopathy. Dr. Mataragas prescribed over-the-counter pain medication, advised the claimant to modify his activities, and ordered an MRI. The MRI showed a disc herniation at L5-S1.

          [¶11] The claimant returned to Dr. Mataragas' office on December 5, 2008. At that time, he continued to complain of pain in his low back and right leg. He reported that he believed that his tool belt seemed to give him some back pain. Dr. Mataragas noted that, despite these symptoms, the claimant was " functionally quite well." Dr. Mataragas prescribed physical therapy and advised him that if, at the completion of therapy, he still had symptoms, epidural steroid injections would be considered. The claimant testified that the physical therapy provided some improvement, but he still experienced discomfort.

          [¶12] The claimant saw Dr. Mataragas on February 13, 2009. At that time, he was still symptomatic, so he and Dr. Mataragas discussed " [a]ll of [his] treatment options." The claimant testified that he believed that they talked about another round of physical therapy and possibly steroid treatments. He denied that he and Dr. Mataragas discussed surgery as an option on February 13, 2009. He testified that he was not a candidate for surgery at that time. Dr. Mataragas testified that they " probably discussed everything from *** epidural steroid injections to surgery." Dr. Mataragas' office note reflects that the claimant wanted to take some time to consider his options and would contact the doctor's office when he made " a decision regarding any further treatment." Dr. Mataragas testified that there was no specific recommendation for surgery at that time; they only discussed options.

          [¶13] A telephone log from the claimant's physical therapist states that he contacted her on February 13[1] and stated that he wanted to discontinue physical therapy due to surgery. The telephone log provides:

" [The claimant] called to inform us today was his last 'training' session. [The claimant] stated having seen [ sic ] MD today [and] *** has considered surgery. [The claimant] stated [physical therapy] has worked but continues to have [pain] and 'tightness' the next day. [The claimant] also said Doctor said he has signif [ sic ] nerve impingement [and] the 'next step is to remove cartilage to relieve pressure.' [The claimant] reports the MD stated now that he has been in therapy for [about three months] the success rate of the surgery will [darr] *** due to the nerve impingement. [The claimant] states the surgery will probably be within next 2 weeks [and] to [discontinue] therapy."

          [¶14] A February 18, 2009, discharge summary prepared by claimant's physical therapist states that claimant " saw his MD on 2/13/09" and " came into the clinic after MD appt. stating that he wanted to be D/C'd from PT due to possibly having surgery." At the arbitration hearing, the claimant denied telling the physical therapist before February 17 that he was discontinuing

Page 684

physical therapy in anticipation of surgery.

         [¶15] ...


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