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Murff v. Illinois Workers' Compensation Commission

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

January 6, 2017

ANTHONY MURFF, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (City of Chicago, Appellee).

         Appeal from the Circuit Court of Cook County, No. 15-L-50353; the Hon. Carl Anthony Walker, Judge, presiding

          Joseph 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.

          OPINION

          HOFFMAN JUSTICE.

         ¶ 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, 2014.

         ¶ 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 ...


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