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Walker Brothers, Inc. v. The Illinois Workers' Compensation Commission

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

September 13, 2019


          Appeal from the Circuit Court of the First Judicial Circuit Cook County, Illinois Circuit No. 17-L-51020 Honorable James M. McGing, Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the judgment and opinion.



         ¶ 1 The employer, Walker Brothers, Inc., appeals an order of the circuit court of Cook County confirming a decision of the Illinois Workers' Compensation Commission (Commission) awarding the claimant, Clarette Ramsey, medical, temporary total disability (TTD), and permanent partial disability (PPD) benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2016)).

         ¶ 2 FACTS

         ¶ 3 The following factual recitation is taken from the evidence presented at the arbitration hearing on November 19, 2015, and the Commission's decision dated November 9, 2017.

         ¶ 4 The claimant testified that he had worked for the employer as a cook since 1978. On February 13, 2013, at around 5:50 a.m., he parked in the Ace Hardware (Ace) parking lot near the employer's restaurant and waited for another worker to arrive before exiting his car because he did not have a key to unlock the restaurant doors. The claimant explained that he parked at the Ace parking lot because "[t]hat's where they give us permission to park." Further, the claimant testified that the employer's supervisors posted a note in the employee break room stating, "we can only park at Ace but not between Thanksgiving and Christmas, park on the street." However, there were no signs in the Ace parking lot reserving parking spots for the employer's employees. The claimant then saw Jesus Salanas, a colleague, arrive and walk toward the restaurant. At that time, the claimant exited his vehicle and rushed to follow him because the employer had a policy of disciplining employees who clocked in even two minutes late. The claimant slipped and fell on Ace's snowy and icy parking lot surface. He recalled that he screamed and Salanas came back to attend to him and help him locate his cell phone.

         ¶ 5 The claimant testified that he felt pain in his shoulder, hip, and back after his fall. He reported the accident to his manager and went to the emergency room for treatment. Medical records indicated that he complained of left hip and left shoulder pain from slipping on ice and denied back pain. X-rays of the claimant's hip and shoulder were negative for fractures and dislocations, but he was diagnosed with left hip and left shoulder contusions and was instructed for follow-up treatment. The emergency room report stated that the claimant reported that the accident was not witnessed. The claimant also saw his primary care provider, Dr. Jonathan Littman, who diagnosed him with contusions on the left shoulder and left hip. He prescribed the claimant pain medication and instructed him not to work from February 15, 2013, to February 19, 2013. The claimant visited Dr. Littman again in March and was referred to physical therapy.

         ¶ 6 In April 2013, the claimant was referred to Dr. Gregory Dairyko, an orthopedic surgeon, who ordered spine, hip, pelvis, and shoulder x-rays. The x-rays revealed evidence of arthritis in the lumbar spine and mild degenerative changes in the left shoulder. The claimant reported 10/10 pain and Dr. Dairyko administered a cortisone injection to the claimant's left shoulder. Dr. Dairyko ordered the claimant to continue physical therapy, but believed that surgery may become necessary. A month later, the claimant reported continued pain. Dr. Dairyko recommended an MRI of the left shoulder. The MRI showed that the claimant suffered from tendinosis, a partial thickness tear in the distal insertion, and marked degenerative hypertrophic changes in the acromioclavicular (AC) joint. Dr. Dairyko noted that the claimant had aggravated preexisting AC joint arthritis due to the February 13, 2013, fall. Based on these positive findings and the failed physical therapy and cortisone injection, Dr. Dairyko recommended surgery.

         ¶ 7 On August 14, 2013, the claimant underwent a left should arthroscopy, subacromial decompression, distal clavicle excision, limited debridement, and rotator cuff repair. The claimant's postoperative diagnosis was a left shoulder rotator cuff tear and left shoulder AC joint arthritis. Following this surgery, the claimant continued physical therapy and followed up with Dr. Dairyko. The claimant testified that he stopped working for the employer after his surgery and did not return to work until November 4, 2013, when Dr. Dairyko allowed him to work with restrictions of no pulling, pushing, or lifting greater that five pounds with the left arm. The claimant returned to work on November 5, 2013, and the employer honored his restrictions. Dr. Dairyko released the claimant to full duty work as of November 25, 2013. In November 2013, Dr. Dairyko's last treatment note indicated that there were some improvements in the claimant's left shoulder, but some pain continued. The claimant's last physical therapy note from December 2013 noted similar progress. The claimant stated that he was subsequently terminated from his employment because he was unable to perform his job functions. It is undisputed that the claimant's average weekly wage was $576.10 while he worked for the employer.

         ¶ 8 At the time of the arbitration hearing, the claimant was 63 years old. He had difficulty sleeping on his left shoulder and hip, difficulty raising items with his left shoulder, and back pain with extended sitting. He stated that he was not seeking treatment for his back and hip pain, but instead was managing his pain with medications.

         ¶ 9 Dr. Kevin Walsh testified by deposition that he conducted an examination of the claimant by the employer's request on December 17, 2013. He reviewed the claimant's medical records, including the initial emergency room records, treatment with Drs. Littman and Dairyko, and physical therapy records. Dr. Walsh opined that the claimant suffered a contusion to the shoulder as a result of his fall. He concluded that the claimant did not suffer a rotator cuff tear and that the rotator cuff tear described by Dr. Dairyko was more likely than not degenerative in origin and "quite small," measuring only a few millimeters. Dr. Walsh concluded, that while it was reasonable for the claimant to be evaluated in the emergency room and seek treatment from his primary care provider and an orthopedic surgeon, the need for arthroscopic intervention was not clearly established in the claimant's medical records. Thus, he opined that the claimant did not require additional treatment and did not require any work restrictions.

         ¶ 10 Dr. Guido Marra testified by deposition that he conducted an examination of the claimant by the claimant's request on April 8, 2014. He testified that he reviewed the claimant's May 2013 MRI and agreed that it showed a small rotator cuff with arthritic changes in the AC joint and anterior acromial spurring. Dr. Marra stated that he could not say whether the rotator cuff was caused by the accident, but opined that the claimant's left shoulder condition was causally related to the alleged accident and his treatment was reasonable and necessary. He opined that his causation opinion was based on the claimant not having shoulder pain prior to the accident and subsequently complaining of pain after the accident.

         ¶ 11 Salanas, the claimant's colleague, testified that he worked for the employer for about 15 years at the time of the claimant's accident. Salanas stated that he saw the claimant in his car on the morning of February 13, 2013, but he did not see him fall or see him on the ground. Salanas stated that the employees were not allowed to park in the employer's parking lot because it was too small. Salanas normally parked in either the Ace parking lot, which was a two or three minute walk from the employer's restaurant, or on a side street. Salanas stated that the employees were not required to park in the Ace parking lot and that most employees park on side streets because parking at Ace requires them to cross a street to reach work. Additionally, some employees parked in the Subway ...

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