Court of Appeals of Illinois, First District, Workers' Compensation Commission Division
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.
HOLDRIDGE PRESIDING JUSTICE
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
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
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 ...