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Con-Way Freight, Inc. 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. 2015-L-50168; the Hon. Kay Marie Hanlon, Judge, presiding.


          Mark P. Rusin and Amy M. Doig, of Rusin & Maciorowski, Ltd., of Chicago, for appellant.

          Michael J. Brandenberg, of Krol, Bongiorno & Given, Ltd., of Chicago, for appellee.

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



         ¶ 1 The claimant, Robert Armstrong, was employed as a "line haul" truck driver for the employer, Con-Way Freight, Inc., when he was involved in a workplace accident. He filed a claim pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)), claiming injuries to both of his feet. An arbitrator awarded the claimant benefits under the Act, including permanent partial disability (PPD) benefits for 30% loss of the right foot and 8% loss of the left foot. The employer sought review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). The sole issue that the employer raised before the Commission concerned the nature and extent of the claimant's permanent partial disability. The Commission corrected a calculation error in the arbitrator's decision but otherwise affirmed and adopted the decision. The employer sought review of the Commission's decision before the circuit court. The circuit court entered a judgment confirming the Commission's decision. The employer now appeals the circuit court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 It is undisputed that the claimant was involved in a workplace accident on December 8, 2011, when a dolly weighing several thousand pounds ran over both of his feet while he was assisting another driver. At the time of the accident, he was 42 years old. He was taken to the emergency room, where X-rays showed that he had sustained fractures to the right fourth and fifth metatarsals, a dislocation of the proximal interphalangeal joints of the fifth toe on the right side, and a fracture of the cuboid and proximal phalanx of the left foot. That same day, Dr. Surender Dhiman, an orthopedic surgeon, performed surgery on the claimant's right foot. Two surgical screws were placed in the claimant's foot.

         ¶ 4 Following the surgery, the claimant followed up with Dr. Dhiman approximately once per month. Dr. Dhiman released the claimant to return to light duty work on March 27, 2012, and discharged the claimant from his care, releasing the claimant to work full duty beginning April 4, 2012. Dr. Dhiman noted that the claimant had completed his physical therapy and was improving. He believed that the claimant could resume driving trucks. The claimant returned to work full duty on April 5, 2012.

         ¶ 5 On June 25, 2012, the claimant returned to Dr. Dhiman with complaints of occasional aching on the side of his right foot. X-rays revealed healing of the claimant's fractures. The claimant returned to Dr. Dhiman in December 2012 with complaints that the two screws that had been placed in his right foot were causing him pain. The doctor performed a screw removal surgery on December 27, 2012. The doctor removed only one of the screws in the claimant's right foot and left a second screw in place. Following the screw removal surgery, on January 14, 2013, Dr. Dhiman released the claimant back to work full duty.

         ¶ 6 The claimant last saw Dr. Dhiman on March 4, 2013. He complained of some induration and tenderness in the area of the surgical scar on his right foot. The doctor released the claimant from his care, and there is no evidence that the claimant has sought any further medical care for any foot problems since his last visit with Dr. Dhiman.

         ¶ 7 The claimant's job duties require him to drive a truck on a daily basis from Bridgeview, Illinois, to Tomah, Wisconsin. The job description indicates that he is required to perform heavy job duties, including loading and unloading heavy objects, some weighing over 75 pounds. The claimant testified that he has to manually manipulate heavy freight, operate a forklift, and drive 10- to 12-hour shifts, approximately 500 miles round trip per day. At the time of the arbitration hearing, he was earning more money than he had prior to the accident.

         ¶ 8 The claimant testified that, since returning to work full duty after the accident, he has noticed an increase in pain and other symptoms in his right foot. He testified that his right foot is always in pain and that he has a constant throbbing sensation. The pain is worse during cold weather, when driving long distances, and when pressing the foot pedals of the truck. For pain relief, he removes his boot while driving and takes over-the-counter medication on a regular basis. He testified that when he walks his dog he is unable to walk as far as he did prior to the accident because of pain in his right foot. His right foot swells with overuse, and his work shoes feel tighter. He cannot jog or hop on his right foot without pain. With respect to his left foot, he stated that he has a constant tingling sensation from the top of the foot, near the ...

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