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Flexible Staffing Services v. Illinois Workers' Compensation Commission

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

November 10, 2016


         Appeal from the Circuit Court of Cook County, No. 14-MR-0631 Honorable Carl Anthony Walker, Judge, Presiding.

          JUSTICE HUDSON delivered the opinion of the court. Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart concurred in the opinion.



         ¶ 1 I. INTRODUCTION

         ¶ 2 Respondent, Flexible Staffing Services, appeals a decision of the Illinois Workers' Compensation Commission (Commission) awarding benefits to claimant, Frederick Williams, in accordance with the provisions of the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)). Respondent contends that the Commission applied the incorrect legal standard in assessing claimant's claim and that, in any event, its decision is contrary to the manifest weight of the evidence. We disagree and affirm.

         ¶ 3 II. BACKGROUND

         ¶ 4 It is undisputed that claimant sustained a work-related injury on October 7, 2011, while in respondent's employ. Claimant was welding a section of rail, similar to a train track. The rail fell from a sawhorse, and claimant attempted to grab it. The rail weighed over 400 pounds. He felt immediate sharp pain in his right arm, and he heard something snap. Claimant reported the accident and sought medical care. He was diagnosed with a distal biceps tendon rupture.

         ¶ 5 On October 12, 2011, claimant, who was 45 years old at the time, sought treatment from Dr. Arabindi, an orthopedic surgeon. On November 7, 2011, Arabindi performed an outpatient repair of claimant's right elbow. Claimant underwent physical therapy from November 28, 2011, to February 8, 2012. Claimant saw Arabindi for a final time on March 7, 2012. On that date, claimant complained of numbness and diminished strength. Arabindi found that claimant's range of motion in his right forearm was limited by 5 to 10 degrees. Nevertheless, Arabindi released claimant to full duty. When he attempted to return to full duty, respondent informed claimant that it no longer had work for him.

         ¶ 6 Dr. Mark Levin examined claimant on respondent's behalf. Levin documented claimant's complaints of continuing pain and impaired range of motion as well as claimant's continued use of Norco. Levin found claimant "cooperative." According to Levin, claimant lacked three degrees range of motion in his right elbow. Levin noted "decreased pinprick sensation over the ulnar aspect of the right elbow." Levin opined that the surgery claimant underwent was appropriate and that claimant is now at maximum medical improvement. Using the "AMA Guides to Evaluation of Permanent Impairment, " Levin calculated that claimant had a 6% upper-extremity impairment and a 4% disability rating of the person as a whole.

         ¶ 7 Claimant testified that he had been employed as a welder-fabricator at the time of his accident. He considered his job to be physically demanding. He is right-hand dominant. He served in the Marine Corps for four years and received an honorable discharge. Following his surgery, claimant felt that he was progressing well in physical therapy, though he still experienced pain and lacked full range of motion. He expressed this to Aribindi during their last visit. Aribindi told claimant that his arm was "as good as it is going to get." While he had progressed in physical therapy, claimant's range of motion never fully recovered, which was significant because welding required him to hold his arm in various positions. When Aribindi released claimant to full duty, claimant told him that he did not feel he could perform his job. Claimant testified that he had worked other jobs prior to becoming a welder; however, they were all "physically demanding."

         ¶ 8 The day after he received the release to full duty, claimant testified, he attempted to return to work for respondent. His former supervisor told him that they did not have a position for him. Since his release to full duty, claimant's arm and fingertips continue to tingle. He is numb in the area where surgery was performed, and he continues to experience pain. He takes Norco three times per week. He experiences pain on a daily basis. He has welding equipment in his garage and tries to use it, but he finds it difficult. The pain and sensations he still experiences have not changed since he last saw Aribindi.

         ¶ 9 The arbitrator, applying the factors set forth in section 8.1b of the Act (820 ILCS 305/8.1b (West 2010)), determined that claimant had suffered 30% loss of use of his right arm. The Commission modified the award, finding claimant lost 25% of the use of his right arm. It did not articulate its reasoning. The trial court, on administrative review, remanded the case and directed the Commission to articulate the facts and reasoning upon which it relied in coming to its decision. On remand, the Commission first noted that Levin placed claimant's level of "impairment" at 6%. It noted respondent's argument that this rating should have been given more weight, but it felt that to do so would effectively discount the other factors set forth in section 8.1b. This section states:

"Determination of permanent partial disability. For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria:
(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical ...

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