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Steak 'N Shake v. The Illinois Workers' Compensation Commission

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

November 17, 2016

STEAK 'N SHAKE, Appellant,

         Appeal from Circuit Court of Peoria County No. 14MR833 Honorable James Mack, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Hoffman and Stewart concurred in the judgment and opinion. Presiding Justice Holdridge specially concurred, with opinion, joined by Justice Hudson.



         ¶ 1 Claimant, Joan Anderson, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), alleging she sustained injuries to her right hand and thumb and seeking benefits from the employer, Steak 'n Shake. Following a hearing, the arbitrator found that claimant sustained accidental injuries to her right hand that were causally related to her employment on May 30, 2008. The arbitrator awarded claimant (1) 152-3/7 weeks' temporary total disability (TTD) benefits (June 11, 2008, through January 18, 2010, and February 15, 2010, through June 9, 2011); (2) reasonable and necessary medical expenses excluding a single billing which was denied based upon evidentiary issues; and (3) 112-5/7 weeks' permanent partial disability (PPD) benefits, representing a 55% loss of use of claimant's right hand.

         ¶ 2 On review, the Illinois Workers' Compensation Commission (Commission) modified the arbitrator's decision by reducing her TTD award and ordering the employer to pay claimant 128-6/7 weeks' TTD benefits (June 11, 2008, through January 18, 2010, and February 15, 2010, through December 24, 2010). It otherwise affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Peoria County confirmed the Commission's decision. The employer appeals.

         ¶ 3 I. BACKGROUND

         ¶ 4 The following factual recitation is taken from the evidence presented at the arbitration hearing conducted on October 24 and 29, 2013.

         ¶ 5 The employer operates a chain of casual fast food restaurants. In March 2004, claimant began working for the employer as a waitress. On the date of her alleged accident, May 30, 2008, her position with the employer was best described as waitress/trainer/manager. Claimant testified that, on that date, the restaurant was very busy and she was trying to keep the dining room cleaned up to keep the flow of customers moving as quickly as possible. Although she was a manager of that shift, she started bussing tables and carrying tubs of dirty dishes out of the dining room to help keep the customer flow moving. Claimant testified they were "busy as all get out." Further, she testified that she was moving very swiftly, and, as she was wiping down a table, she felt and heard a loud "pop" in her right hand. Claimant testified she immediately felt an excruciating pain (like she had never felt before) that began in her thumb and shot all the way across her hand. She stated, prior to that moment, she had never experienced any pain in her right hand and had never treated for pain to her right hand or any joints in her body.

         ¶ 6 Claimant testified she immediately informed one of the other managers on duty about the accident. The next day, she informed the appropriate district manager. This testimony was unrebutted.

         ¶ 7 After going home, claimant sought an appointment with her primary care physician. However, because she could not be seen that day, she obtained an appointment with her husband's physician, Dr. Daniel Hoffman.

         ¶ 8 Dr. Hoffman's treatment notes establish that claimant presented with symptoms of right hand swelling. He noted tenderness and swelling over the dorsal aspect of the right hand. Dr. Hoffman diagnosed a soft tissue injury, prescribed pain medication, and referred claimant to Dr. Jeffrey Traina, an orthopedic specialist.

         ¶ 9 On June 11, 2008, claimant was examined by Dr. Traina. She gave a history of cleaning a table while at work and experiencing sudden and intense pain in her right hand. A physical examination revealed tenderness at the base of the second metacarpal, localized swelling in the same area, and otherwise normal symptoms. Dr. Traina gave an initial impression of edema with pain over the second metacarpal suggestive of overuse. He ordered claimant off work, prescribed a wrist brace and anti-inflammatory medication, and ordered her to return in 10 days.

         ¶ 10 On June 23, 2008, claimant followed up with Dr. Traina, who observed that claimant's symptoms had improved, but still remained. He continued his order that claimant remain off work, and ordered her to follow up with him in three weeks.

         ¶ 11 On July 24, 2008, Dr. Traina ordered a magnetic resonance imaging (MRI) scan, the results of which he read to show a mild chronic injury to the base of the first metacarpal joint (i.e., the thumb), with some evidence of degenerative changes in the same area. Following the MRI, Dr. Traina allowed claimant to return to work with a restriction of not using her right hand, prescribed physical therapy, and continued anti-inflammatory medication and the use of a hand brace.

         ¶ 12 On August 12, 2008, claimant was again examined by Dr. Traina. She reported continued symptoms of right hand and thumb pain. Dr. Traina ordered continued physical therapy, continued use of a hand brace, and anti-inflammatories.

         ¶ 13 From August until October 13, 2008, Dr. Traina ordered a series of treatments, including a special thumb brace and cortisone injections, all of which were reported to be unsuccessful in relieving claimant's symptoms. At that point, Dr. Traina referred claimant to a hand surgeon.

         ¶ 14 The next recorded treatment for claimant occurred on June 29, 2009, approximately eight months after her last appointment with Dr. Traina, when claimant returned to Dr. Hoffman. Claimant reported continuing pain in her right hand and thumb. Dr. Hoffman observed swelling and tenderness. He diagnosed possible tendonitis and advised claimant to remain off work and to follow up with Dr. Traina.

         ¶ 15 The record contains a treatment report indicating that, on August 31, 2009, claim- ant sought treatment from her primary care provider, Nurse Practitioner Debbie Hayes. The record also established that Nurse Hayes referred claimant to Dr. James Williams, an orthopedic hand surgeon at Midwest Orthopedic Center.

         ¶ 16 On October 22, 2009, claimant was examined by Dr. Williams. She gave a history of pain after wiping tables at work in May 2008. After reviewing all medical treatment records, Dr. Williams recommended a right thumb joint ...

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