Court of Appeals of Illinois, Third District, Workers' Compensation Commission Division
from the Circuit Court of Will County. No. 13-MR-111.
Honorable Barbara Petrungaro, Judge, Presiding.
Bolingbrook Police Department, Appellant: Mr. Joseph P.
Basile, Mr. Michael E. Rusin, Rusin, Maciorowski &
Friedman, Ltd., Chicago, IL.
Michael Toles, Appellee: Mr. Jay Johnson, Woodruff Johnson
& Palermo, Aurora, IL.
Presiding Justice and Hoffman, Justice concurred in the
judgment and opinion. Justice Hudson dissented, with opinion,
joined by Justice Harris.
[¶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.
[¶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
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
" 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
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.
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
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
[¶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
[¶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 and stated that he wanted to
discontinue physical therapy due to surgery. The telephone
" [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
physical therapy in anticipation of surgery.