Court of Appeals of Illinois, Second District, Workers' Compensation Commission Division
VICTOR R. SCIMECA, Plaintiff-Appellee,
ILLINOIS WORKERS' COMPENSATION COMMISSION and VILLAGE OF HEBRON, Defendants-Appellants.
from the Circuit Court of McHenry County No. 13-MR-150
Honorable Michael T. Caldwell, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court. Presiding
Justice Holdridge and Justices Hoffman, Harris, and
Overstreet concurred in the judgment.
1 Held: The trial court correctly determined that
the decision of the Illinois Workers' Compensation
Commission awarding benefits to claimant was contrary to the
manifest weight of the evidence where opinions of
respondent's experts lacked a reasonable foundation.
2 I. INTRODUCTION
3 Respondent, the Village of Hebron, appeals an order of the
circuit court of McHenry County that set aside a decision of
the Illinois Workers' Compensation Commission
(Commission) as contrary to the manifest weight of the
evidence. The trial court further ordered that the decision
of the arbitrator be reinstated in its entirety. For the
reasons that follow, we affirm the trial court. We also
remand for further proceedings, if any, in accordance with
Thomas v. Industrial Comm'n, 78 Ill.2d 327
4 III. BACKGROUND
5 The following evidence was presented at the arbitration
hearing. Claimant testified that he was employed by
respondent as a patrol officer. His duties included those of
a "traditional police officer." On February 3,
2011, he was working for respondent. His shift started the
night before. There was a snowstorm, and an order was in
effect closing all roads. Claimant was dispatched to assist a
stranded motorist. He located the motorist after checking on
another vehicle that was on the side of the road. As he
walked around the first vehicle, he was struck by a passing
truck and thrown over the hood of the parked vehicle.
Visibility was limited, and claimant could not see what the
truck was doing before it struck him. Claimant stated that he
was "a little sore, " but, as he was cold and numb,
he did not appreciate the extent of his injuries. He then
located and assisted the stranded motorist and finished his
6 Claimant subsequently notified his supervisor and sought
medical care at the Condell Acute Care Center (February 6,
2011). He reported that he was having problems with his lower
back and ribs. He was evaluated and X rays were taken.
Claimant was given medication and a shot. He was also taken
off work and told to follow-up in a few days. On February 8,
2011, he returned to Condell and reported numbness in his
left leg in addition to his back pain. He further stated that
"it felt like the rib was pushing out of [his] chest,
and [he] could actually see it push the skin forward."
However, X rays did not show a break. Claimant underwent an
MRI on February 9, 2011. He was then advised to see a
7 Accordingly, claimant sought care from Dr. Jonathan Citow.
He first saw Citow on February 25, 2011. Citow recommended
"an injection and some medication." On May 6, 2011,
claimant again saw Citow. Citow recommended surgery on
claimant's lumbar spine. While claimant was waiting for
respondent's workers' compensation carrier to approve
the surgery, claimant was asked to be evaluated by a doctor
on respondent's behalf. He was directed to see Dr. Sean
Salehi. Claimant underwent surgery on June 6, 2011.
8 Claimant next saw Citow on June 29, 2011. Citow directed
claimant to continue taking anti-inflammatory medication and
muscle-relaxers. He also ordered physical therapy. Claimant
started physical therapy at Colletti Physical Therapy.
Claimant only went to Colletti three to five times, as he
felt they were too aggressive. Claimant contacted Citow, and
Citow referred him to Alliant Physical Therapy. He completed
the prescribed four weeks of therapy, but did not have
"good relief" from his pain and numbness. He
reported this to Citow. Citow re-evaluated claimant on August
31, 2011. Citow recommended an orthopedic evaluation of
claimant's ribs. Citow also wanted claimant to undergo a
second MRI, but claimant could not obtain approval to get
one. The second MRI was not performed until May 2012.
Claimant also could not obtain approval to see an orthopedic
specialist, as recommended by Citow. Instead,
respondent's worker's compensation carrier sent
claimant for a second evaluation by a doctor acting on
respondent's behalf-Dr. J.S. Player. Claimant saw Player
in December. As of the time of the arbitration hearing,
claimant had not been evaluated by an orthopedic specialist.
9 The second MRI was performed on May 18, 2012. Citow
reviewed it. Citow recommended further treatment (a hearsay
objection was sustained as to the nature of that treatment
and a copy of Citow's report was admitted into evidence),
but it was never approved by respondent's workers'
compensation carrier. Citow has never released claimant to
return to full-duty employment.
10 On cross-examination, claimant testified that, in August
2011, he told a therapist he needed to take frequent breaks
to alleviate pain in his hips. Claimant acknowledged that in
September 2011, he helped his neighbor transport two jet skis
to a service shop. Claimant denied climbing onto the trailer.
He stated he did not attempt to move them around. He assisted
his neighbor unhitch the trailer. He has refused requests to
assist others due to his medical condition. On
redirect-examination, claimant explained that unhitching the
trailer did not require any lifting. Claimant does not own a
jet ski or a trailer.
11 Mark T. Drong, a private investigator, testified for
respondent. He was hired by respondent to surveil claimant.
In September 2011, he was watching claimant at claimant's
home. On September 10, 2011, he followed claimant to a nearby
resort (claimant lives in a lake community). He pulled in,
and a trailer was hitched up to claimant's vehicle.
Someone was with claimant in the vehicle. Claimant bent over
to hitch the trailer to his vehicle. They then proceeded to a
mechanic's shop. Unhitching the trailer involved further
bending. He also observed claimant adjusting the jet skis on
the trailer. The trailer was left at the shop. Drong did not
recall claimant actually getting onto the trailer. During the
time he surveilled claimant, Drong did not observe claimant
having problems moving about. ...