Opinion
Appeal No. 3-17-0460WC
05-24-2018
CARL ALBERT, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (The City of Peoria, Illinois, Appellees).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois
Circuit No. 16-MR-814
Honorable James A. Mack, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Hoffman, Hudson, Harris, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: The finding of the Commission that the claimant failed to establish he suffered an industrial accident arising out of and in the course of his employment was not against the manifest weight of the evidence.
¶ 2 The claimant, Carl Albert, filed an application for adjustment of claim under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) seeking benefits for
injuries allegedly incurred while employed by the City of Peoria, Illinois (the employer). The application alleged that during the month of February 2014, the claimant was exposed to cold temperatures that caused him to develop frostbite, which resulted in the amputation of the claimant's right great toe. The claimant also alleged that his employment resulted in exposure to cold conditions that caused bilateral lower extremity neuropathy.
¶ 3 The claim proceeded to a hearing before Arbitrator Gregory Dollison on June 18-19, 2015. On October 15, 2015, the arbitrator issued a decision finding that the claimant had failed to prove that an industrial accident occurred that caused the claimant's current conditions of ill-being. The claimant sought review of the arbitrator's decisions before the Illinois Workers' Compensation Commission (Commission), which unanimously affirmed and adopted the arbitrator's decision. The claimant then sought judicial review of the Commission's decision in the circuit court of Peoria County, which confirmed the Commission's decision as not being against the manifest weight of the evidence. The claimant then filed this timely appeal.
¶ 4 BACKGROUND
¶ 5 The following factual recitation is from the evidence presented at the consolidated arbitration hearing on June 18 and 19, 2015. The claimant testified that he worked for the employer as a temporary maintenance worker during the winter season of 2013-2014. He testified that his schedule required him to work two days per week as well as on an as needed basis during snowstorm emergencies. He testified that his job duties included street cleaning, driving snowplows, and other duties as assigned.
¶ 6 On March 11, 2014, the claimant's right great toe was amputated. The claimant maintained that the amputation was the result of frostbite caused by exposure to extreme conditions while working for the employer. He pointed to three occasions when he was allegedly
exposed to conditions that caused his toe to become frostbitten.
¶ 7 The claimant testified that, on or about February 12, 2014, during a severe winter storm, he was operating a snowplow attached to truck number 159. He testified that the heater in that truck was not functioning and, as a result, ice developed on the foot petals. He claimed that the ice on the petal caused his foot to slip repeatedly from the petal leading him to develop a blister on his right great toe. He testified that he informed his supervisor of the lack of heat in the truck and requested assignment of a different truck. He testified that his request was granted, but only after hours of continuing to work in the defective truck. The claimant testified that it was not until several hours later that he was able to warm his feet. In addition, the claimant testified that he made a radio call his supervisor, David Haste, to report that the heater was not functioning on truck number 159. He had no explanation for why there was no record of his radio report.
¶ 8 The claimant testified that a second incident occurred later in February 2014, when he was assigned a 12-hour shift of snow shoveling. He testified that after he finished his shift, he noticed that his sock was frozen to the blister on his right great toe. He further testified that he had to cut the sock away from the blister with scissors. He also testified that he reported this incident to his supervisor.
¶ 9 The claimant testified that a third incident occurred toward the end of February 2014, when he was assigned to work at the site of a water main break. The claimant testified that he was required to stand in water for over four hours while wearing leather boots. The claimant testified that the blister on his right great toe continued to cause pain that eventually spread to his entire right leg.
¶ 10 On March 9, 2014, the claimant sought treatment in the emergency department at OSF/St. Francis Medical Center. Treatment records show that the claimant had a large draining wound on
the right great toe, with redness and swelling extending throughout the ankle and up the right leg. The claimant reported that he had gotten frostbite a few weeks prior and that the blister had developed afterwards. The record further indicated that the claimant reported self-treating for approximately two weeks prior, which included "shaving" the blister with a knife. The claimant was diagnosed with osteomyelitis [an infection of the bone] of the right great toe, and was admitted to the hospital for treatment.
¶ 11 On March 11, 2014, Dr. Jeffrey Garst, an orthopedic surgeon, amputated the claimant's right great toe. Dr. Garst's postoperative notes include the following:
"By way of [the claimant's] history, he apparently tried to treat himself, and things went bad with his toe. He ended up in the hospital and had an obvious infection going up the foot. He was treated with IV antibiotics. His x-rays were negative, but a bone scan showed obvious osteomyelitis in the right great toe. In addition, clinically, the toe had expanded. It had a couple different areas that were draining gross pus. There was a cellulitic area around the entire great toe. It had a sausage-like appearance. It was draining pus from a couple of areas. It was decided to go ahead and do an amputation of this toe."
¶ 12 While hospitalized, the claimant was treated by Dr. Sharjeel Ahmad, an infectious disease specialist. Dr. Ahmad issued a report stating that postoperative cultures showed the presence of Pasteurella pneumotropica, an infection caused by exposure of the open wound to animal (primarily dog) saliva.
¶ 13 Treatment records contained a statement by the claimant that he allowed his pet dog to lick the open wound on his right great toe. In testimony at hearing, he acknowledged allowing this to happen on occasions when he had removed the bandage to "air out" the wound.
¶ 14 On March 19, 2014, the claimant gave a detailed history to OSF Occupational Health regarding the course of his condition. A written report containing the claimant's statements to the occupational therapist was included in the record. The report contains detailed descriptions by the claimant of steps he took to self-treat a blister on his right great toe, including using a razor-like knife to cut off blackened skin that had formed on the edges of the blister, and dressing the blister with bandages. During his testimony, the claimant denied self-treating the blister, denied making the statements contained in the occupational health report, and had no response when queried as to why the report would contain such information.
¶ 15 After discharge from the hospital, the claimant treated postoperatively with his primary care physician, Dr. Daniel Hoffman. In an April 7, 2014, treatment note, Dr. Hoffman reported the claimant's complaint of bilateral pain in both feet and lower legs. Dr. Hoffman recommended a consultation with a neurologist to rule out peripheral damage due to frostbite. A follow-up treatment note from Dr. Garst also noted the claimant's complaint of pain in both feet.
¶ 16 On April 22, 2014, the claimant sought treatment from Dr. Edward Trudeau, a physiatrist and rehabilitation specialist. Dr. Trudeau administered neurological testing which he interpreted to reveal moderate/severe sensory neuropathy in the lower extremities. Nothing in the record indicated that Dr. Trudeau had an opinion regarding the cause of the claimant's neuropathy.
¶ 17 On April 28, 2014, Dr. Hoffman referred the claimant to Dr. John Ruff, a podiatrist. On examination, he diagnosed possible plantar fascia strain with associated plantar fibromatosis. Dr. Ruff was unable to conclude whether the claimant had ever had frostbite of the feet. He constructed orthotic supports and prescribed Neurontin for neuropathic symptoms. The claimant continued to treat with Dr. Ruff from May 9, 2014, through June 3, 2014, during which time Dr. Ruff increased the dosage of Neurontin. The claimant also continued to treat with Dr. Hoffman
and Dr. Garst through December 2015.
¶ 18 The claimant's temporary employment with the employer ended, as scheduled, in March 2014. The claimant had not sought work after the injury. Dr. Garst placed the claimant on a work restriction of no standing for long periods of time. Dr. Garst noted that the work restrictions were related to the amputation, not the claimant's neuropathic complaints.
¶ 19 On January 20, 2015, the claimant underwent a functional capacity examination (FCE) that showed he was capable of medium-duty work.
¶ 20 On cross-examination, the claimant acknowledged that he could not provide specific dates for any of the three alleged occurrences. Regarding his testimony that he had been driving truck number 159 in early February, the claimant was unable to explain why the employer's work assignment records showed that the only time the claimant had been assigned to that truck was on January 18, 2014. The claimant was confronted during cross-examination with work records that showed he worked only 3 hours shoveling snow on the date he claimed to have shoveled snow for 12 hours without a break. The claimant maintained that he testified truthfully regarding shoveling snow for 12 hours, but he must have gotten the date wrong. The claimant also acknowledged that he did not seek medical treatment during until some weeks after the third event. The claimant further acknowledged that he did not receive a diagnosis of frostbite from any treating physician.
¶ 21 Dr. Garst testified by evidence deposition that, based upon the history the claimant gave regarding his employment, the claimant likely suffered from frostbite of the great toe as a result of his employment, and the frostbite was likely a contributing factor in the development of osteomyelitis. The osteomyelitis, Dr. Garst opined, led to the need for the amputation. On cross-examination, Dr. Garst acknowledged that the claimant's self-treatment and the "story about the
dog licking" were significant causal factors. Ultimately, Dr. Garst was conflicted as to whether the frostbite caused the need for amputation or whether it was the infection. To that point, Dr. Garst stated during cross-examination:
"It was probably to his detriment that he delayed treatment. Do I think that his dog licking his toe as he described to me caused his infection? Probably, based upon his culture results. Do I think taking a knife to his blister contributed to his infection? Probably so."
¶ 22 Dr. Garst was also cross-examined about the diagnosis of frostbite. He acknowledged that the treatment notes indicated the claimant's subjective report of "frostbite" but there was no recoded medical diagnosis of frostbite. Dr. Garst testified his recollection was that the claimant had frostbite. He surmised that, although he did not record a diagnosis of frostbite, he must have made a diagnosis of frostbite at the time.
¶ 23 Dr. Garst did not provide an opinion regarding the claimant's bilateral lower extremity neuropathy. His diagnosis was limited to the right great toe. When queried about Dr. Trudeau's findings related to bilateral neuropathy, Dr. Garst observed that the claimant's neuropathy could have been caused by previously reported low-back pain.
¶ 24 On July 22, 2014, the claimant was examined at the request of the employer by Dr. Karen Levin, a board certified neurologist. Dr. Levin opined that, based upon her examination of the claimant and her review of the medical records, the claimant had not exhibited symptoms of frostbite. She noted that the symptoms of frostbite do not include an isolated blister. She further noted that frostbite is intensely painful and would not likely be amenable to gradual self-treatment as described by the claimant. Dr. Levin further opined that amputation of the claimant's toe was caused by his extremely poor care of a blister, including cutting it with a knife
and allowing the dog to lick the wound. She concluded that the osteomyelitis, which required amputation of the toe, was directly caused by infection from the improperly treated blister.
¶ 25 On the question of whether the claimant's bilateral peripheral neuropathy was causally related to his employment activities, Dr. Levin opined that the neurological condition the claimant currently suffered were caused by a pre-existing low back problem and was not caused or exacerbated by his employment. Dr. Levin noted that the claimant had received treatments for low back neuropathy since at least 2005, and had been taking prescription pain medication since well before his alleged work injuries. She opined that the claimant's neuropathy was caused entirely by his chronic low back condition.
¶ 26 On April 10, 2015, the claimant was examined at the request of the employer by Dr. Nirain D'Souza, a board certified orthopedic surgeon. After examining the claimant and reviewing all relevant medical records, Dr. D'Souza opined that the claimant lacked any of the classic symptoms of frostbite. Instead, he opined that the claimant's amputated toe was the result of a chronically infected blister. He further opined that the claimant's osteomyelitis was caused by a Pasteurella infection directly traceable to the dog licking the wound; and, had the wound been promptly and properly treated, it would not have been necessary to amputate the toe. Regarding whether the condition of ill-being that lead to the amputation was causally related to the claimant's employment, Dr. D'Souza noted that the claimant gave a history that, if credited, would establish that the blister was work related.
¶ 27 On the question of whether the claimant's bilateral peripheral neuropathy was causally related to his employment activities, Dr. D'Souza opined that he "did not believe that [the claimant's] current neurological condition was in any way related to" his employment. Rather, he opined that the claimant's neuropathy was a chronic condition that had been documented
throughout the claimant's prior medical history.
¶ 28 The employer's director of operations, Sie Maroon, testified that he was one of the claimant's supervisors, depending upon which shift he worked. Maroon testified that the claimant complained of foot pain on several occasions, but never provided any specific information regarding a work accident. Maroon recalled that in early February 2014, the claimant mentioned foot pain, but declined Maroon's suggestion that he see the employer's physician. Maroon further testified that, at some time in mid-February, the claimant told him that he had a blister on his toe. Maroon again suggested that the claimant seek medical treatment, and the claimant again declined, saying that he could treat a blister as well as any doctor or hospital. Maroon testified that the claimant made no mention that the blister was the result of a work-related accident. Maroon testified that on March 6, 2014, the claimant again told him of pain in his right foot. Again, Maroon suggested that the claimant seek medical attention, and again, the claimant refused.
¶ 29 Regarding the claimant's alleged injury while driving truck number 159, Maroon testified that the claimant never reported a non-functioning heater, nor was Maroon aware of any other drivers reporting that truck number 159 had a defective heater. Maroon also testified that the claimant was not required to shovel snow for the duration of a 12-hour shift since it was the employer's stated procedure to allow any employee working outside during winter to take frequent warming breaks as the employee deemed necessary. Maroon also contradicted the claimant's testimony that he was required to stand in freezing water for over four hours at the site of a water main break. Maroon testified that Illinois American Water Company is responsible for dealing with water main breaks, not the City of Peoria. Maroon further testified that when city employees assist at the site of a water main break, it is only in a support capacity and does not
involve city employees standing in water for hours. Maroon also testified that the employer provides all city employees, including the claimant, waterproof rubber boots whenever they are required to work with or near standing water.
¶ 30 The employer's fleet division manager, Bob Williams, testified regarding the condition of truck number 159. Williams testified that there was no report of any heater malfunction in that truck. He based his testimony on the written work repair orders for that particular truck and his personal knowledge that all mechanical issues regarding all city vehicles would be documented by a written work order. He testified that he reviewed the repair records for each truck the claimant drove between January 18, 2014, and February 1, 2014, and that there had been no reported issue of heater malfunction with any truck during this time period. Williams opined that if any driver had encountered a non-functioning heater in any truck, it would have been reported for repair.
¶ 31 The arbitrator determined that the claimant failed to establish by a preponderance of the evidence that he suffered an accident that arose out of and in the course of his employment. Specifically, the arbitrator determined that the claimant's descriptions of the how he came to be injured were not credible. While the arbitrator commented than none of the three specific occurrences described by the claimant were credible, the incident involving truck number 159 was the most salient as it was the incident that allegedly caused the blister. The arbitrator noted that the claimant was "positive" that he was driving truck number 159 in early February 2014, and that the nonfunctioning heater in that truck caused his frostbite/blister. However, the arbitrator found more credible the testimony of Maroon and Williams that the claimant did not operate truck number 159 anytime in February 2014, and that the truck did not have a nonfunctioning heater. In addition, the arbitrator found Maroon to be more credible in his
testimony regarding the purported 12-hour snow shoveling shift and the water main break.
¶ 32 The arbitrator further noted the claimant's lack of credibility regarding the dates of the occurrences and his lack of specific details conflicted with the credible testimony of the employer's witnesses and the medical documentation. The arbitrator noted that the mere inability to recall specific dates did not defeat the claim, but the totality of the circumstances in this particular matter negatively impacted the claimant's credibility. The arbitrator further noted that the claimant had no explanation as to why the written medical records regarding what he told providers contradicted his testimony, observing that "[i]t is unlikely that multiple medical professionals would fabricate [the claimant's] statements.
¶ 33 After finding that the claimant failed to prove that a work-related accident occurred, the arbitrator observed that the issue of whether the claimant's current condition of ill-being was causally related to his employment was moot. Nonetheless, the arbitrator determined that the claimant had failed to prove that either the amputation of his right great toe or his alleged bilateral lower extremity neuropathy were causally related to his employment.
¶ 34 Regarding the bilateral neuropathy, the arbitrator noted that Drs. Levin and D'Souza opined that the claimant's bilateral neuropathy was chronic and unrelated to his employment. Dr. Garst was somewhat equivocal, noting merely that the claimant's prior low back problems could have caused his bilateral neuropathy.
¶ 35 Regarding the amputation of the claimant's great toe, the arbitrator found: 1) that the claimant had not proven that he contracted frostbite that necessitated amputation of his toe; and 2) assuming that he had proven that his employment caused the blister on his great toe, the claimant's actions after sustaining the blister were independent intervening events that would have broke any chain of causation. Specifically, the arbitrator observed:
"While a typical infection may not rise to the standard of an intervening event, here the facts support a finding of an intervening event. Even if [the claimant's] blister occurred during work, his actions, including but not limited to the dog licking incident, over the next month broke the chain of causation. Therefore, [the claimant] has failed to show that his need for [the] amputation was causally related to his employment."
¶ 36 In a unanimous decision, the Commission affirmed and adopted the arbitrator's decision. The claimant sought judicial review of the Commission's decision. The circuit court of Peoria County found that the Commission's decision was not against the manifest weight of the evidence and confirmed the Commission's decision. This appeal followed.
¶ 37 ANALYSIS
¶ 38 1. Accident
¶ 39 The claimant first maintains that the Commission erred in finding that he had failed to prove that he suffered an industrial accident. Under the Act, a claimant must establish each element of his claim by a preponderance of the evidence. Nee v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 132609WC, ¶ 19. Whether a claimant suffered a work-related accident is a question of fact for the Commission to determine. Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 538 (2007). In making this determination, it is within the exclusive purview of the Commission to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine the weight to given to evidence, and resolve conflicts arising from the evidence. Shafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 38. A factual finding by the Commission will not be set aside unless it is against the manifest weight of the evidence. Weyer v. Illinois Workers' Compensation Comm'n, 387 Ill.
App. 3d 297, 310 (2008). A finding of fact is against the manifest weight of the evidence when the opposite conclusion is clearly apparent. Tower Automotive v. Illinois Workers' Compensation Comm'n, 407 Ill. App. 3d 427, 434-35 (2011). The test is whether the evidence is sufficient to support the Commission's finding, not whether the court or any other tribunal might reach the opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 833 (2002).
¶ 40 Here, the claimant maintains that his testimony regarding his work activities in the month of February 2014 was unrebutted and established that an accident occurred in the manner he described. He points out that a claimant's testimony, standing alone, is sufficient to establish the occurrence of an industrial accident. See Corn Products Refining Co. v. Industrial Comm'n, 6 Ill. 2d 439, 443 (1955). The claimant maintains that the Commission was improperly focused on his inability to state with precision the exact dates upon which the three events occurred. He further maintains that the employer's stipulation to notice negates his need to establish the specific dates of the events.
¶ 41 The claimant is in error when he argues that his testimony regarding the manner and circumstances by which an industrial accident occurred was unrebutted. While it is true that no witness directly contradicted his testimony regarding the three occurrences that he maintained constituted accidental occurrences, there was a great deal of evidence from which the Commission could infer that his testimony was not credible. As the arbitrator pointed out, the claimant's inability to recall specific dates did not defeat his claim, but it did make his testimony generally less credible. Similarly, his testimony regarding the non-functioning heater, shoveling snow for 12 hours, and working in the aftermath of a water main break for over 4 hours, was rebutted by the employer's credible testimony that the events to which the claimant testified would not occur in that manner given the nature of the employer's work. Ultimately, we will
defer to the Commission's credibility determinations in all matters, unless the opposite conclusion is clearly apparent. Gilster Mary Lee Corp. v. Industrial Comm'n, 326 Ill. App. 3d 177, 183 (2001). Given this record, we cannot say that the Commission's finding that the claimant lacked the credibility necessary to prove his case was against the manifest weight of the evidence.
¶ 42 Regarding the claimant's argument that by stipulating to notice the employer was precluded from challenging whether an industrial accident occurred, we find no authority to support that proposition. It is well settled that the elements of notice and accident are distinct elements of a workers' compensation claim and that a claimant bears the burden of proving "all of the elements of his case." Old Ben Coal Co. v Industrial Comm'n, 261 Ill. App. 3d 812, 814 (1994). In addition, there is ample authority supporting the proposition that stipulation to any element of a workers' compensation claim does not preclude an employer from challenging any other element of a claim. See Bray v. Industrial Comm'n, 50 Ill. 2d 262, 265-66 (1972); Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880, 885 (1990); Neal v. Industrial Comm'n, 141 Ill. App. 3d 289, 293 (1986).
¶ 43 2. Causation
¶ 44 As the Commission observed in its decision, its finding that the claimant failed to establish that an employment-related accident occurred is sufficient to deny his claim. By affirming the Commission's determination that the claimant failed to establish than an industrial accident occurred, the issue of causation is moot and need not be addressed by this court. See Old Ben Coal Co., 261 Ill. App. 3d at 814.
¶ 45 CONCLUSION
¶ 46 The judgment of the circuit court of Peoria County, which confirmed the decision of the
Commission is affirmed.
¶ 47 Affirmed.