Court of Appeals of Illinois, First District, Workers' Compensation Commission Division
from the Circuit Court of Cook County, No. 15-L-50353; the
Hon. Carl Anthony Walker, Judge, presiding
J. Spingola, of Oak Brook, for appellant.
Christopher L. Jarchow, of Hennessy & Roach, P.C., of
Chicago, for appellee.
JUSTICE HOFFMAN delivered the judgment of the court, with
opinion. Presiding Justice Holdridge and Justices Hudson,
Harris, and Moore concurred in the judgment and opinion.
1 The claimant, Anthony Murff, appeals from an order of the
circuit court of Cook County which confirmed a decision of
the Illinois Workers' Compensation Commission
(Commission), denying his petition pursuant to section 19(h)
of the Workers' Compensation Act (Act) (820 ILCS
305/19(h) (West 2014)) by reason of his failure to present
evidence demonstrating a change in his physical or mental
condition. For the reasons that follow, we affirm the
judgment of the circuit court.
2 The following factual recitation is taken from the evidence
presented at the arbitration hearing conducted on December
27, 2013, and at a section 19(h) (820 ILCS 305/19(h) (West
2014)) hearing conducted by the Commission on December 22,
3 The claimant was employed by the City of Chicago (City) as
a laborer and worked in its streets and sanitation
department. On January 23, 2009, the claimant was at work,
pulling a heavy garbage container through the snow, when he
felt a pop in his left shoulder. Following his work accident,
the claimant sought treatment from Dr. Bush-Joseph and Dr.
Phillips who diagnosed him with a C5-C6 disc herniation
"with resultant cervical radiculopathy" and a
partial-thickness rotator cuff tear of the left shoulder with
possible radiculopathy. The claimant underwent a course of
medical treatment, including physical therapy, steroid
injections, and cervical spine surgery performed on August
10, 2009. The claimant, however, continued to experience
left-sided neck pain and stiffness, left shoulder pain, and
numbness and tingling in the left hand. Ultimately, on May
14, 2010, Dr. Bush-Joseph released the claimant to light-duty
work with a restriction of no lifting greater than 20 pounds.
Dr. Bleier of MercyWorks Occupational Health, the City's
designated medical facility, also determined that
restrictions of no lifting more than 25 pounds and limited
use of the left arm were appropriate. According to a work
status note dated June 3, 2010, Dr. Bleier wrote that the
City was going to provide the claimant with a rodent control
job as a temporary accommodation.
4 On June 8, 2010, the claimant returned to work as a
sanitation laborer in the City's rodent control
department. His job duties included "baiting" yards
and alleys, which required him to carry a 10-pound bucket of
poison in his right hand and a scooper in his left hand. He
testified that his job title and pay remained the same as
when he worked as a garbage man.
5 On August 7, 2011, the claimant was examined by Dr. Chmell,
an orthopedic surgeon, at his attorney's request. In his
report, Dr. Chmell opined that the claimant's January 23,
2009, work accident resulted in his C5-C6 disc herniation and
left shoulder rotator cuff tendinopathy and that the medical
treatment he received for these injuries was reasonable and
necessary. Following his examination, Dr. Chmell concluded
that the claimant had reached maximum medical improvement,
would always require restrictions, and would never be able to
resume working as a garbage collector.
6 At the original arbitration hearing, the claimant testified
that he has good and bad days. He explained that he continues
to experience pain in his shoulder, stiffness in his neck,
and numbness and tingling in his hands. The claimant also
testified that any overhead activities are "extremely
hard" and he has difficulty getting dressed and applying
deodorant to his left side. He used to be an avid hunter and
fisherman, but is no longer able to "sport fish"
with a lure. He also struggles with lifting his
grandchildren, gripping pens and pencils, and driving for
long periods of time. Despite these limitations, the claimant
stated that he has learned to live with his condition and is
able to function.
7 Following the arbitration hearing, the arbitrator issued a
written decision on January 22, 2014, finding that the
claimant suffered an injury to his cervical spine and left
shoulder as a result of the work accident of January 23,
2009, and that the injury arose out of and in the course of
his employment with the City. The arbitrator awarded the
claimant temporary total disability (TTD) benefits from
January 27, 2009, through June 8, 2010, and permanent partial
disability (PPD) benefits in the amount of $664.72 per week
for 250 weeks because the cervical spine and left shoulder
injuries resulted in a 50% loss of use of a person as a
whole. Neither party filed for a review of the
arbitrator's decision before the Commission. Thus,
pursuant to section 19(b) of the Act, the arbitrator's
decision became the conclusive decision of the Commission.
820 ILCS 305/19(b) (West 2014).
8 After the hearing, the claimant continued working for the
City as a sanitation laborer in rodent control. On June 11,
2014, the claimant's supervisor, George Escavez, told him
to report to 39th Street and South Iron Street, which is the
City's refuse collection for garbage station. The
claimant went to that location the next day and was informed
by Gloria, the superintendent, that he was assigned to work
as a garbage man. When the claimant told Gloria about his
work restrictions, she called and spoke with Escavez in
rodent control, and told the claimant that she did not know
why they sent him to the sanitation station. Gloria
instructed the claimant to return to the office for rodent
control, which he did. There, Escavez explained to the
claimant that he was supposed to be released to work as a
garbage man and, if he could not perform the work, to swipe
out and go home or call the union.
9 On June 20, 2014, the claimant filed a petition pursuant to
section 19(h) of the Act (820 ILCS 305/19(h) (West 2014)),
and section 8(a) of the Act (820 ILCS 305/8(a) (West 2014)),
alleging a material increase in his disability and seeking an
award of additional benefits, including ...