Opinion
1-21-0965WC
04-22-2022
SERVICE DRYWALL AND DECORATING, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION (Joshua Rominski, Appellee).
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 20L50133 Honorable John J. Curry Jr., Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Barberis concurred in the judgment.
ORDER
CAVANAGH JUSTICE
¶ 1 Held: The Commission's determination that claimant sufficiently proved that his current condition of ill-being was causally related to his work-related accident, entitling him to benefits was not against the manifest weight of the evidence.
¶ 2 Claimant Joshua Rominski filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2014)), seeking benefits for injuries to his lower back sustained during a fall while working for his employer, appellant Service Drywall and Decorating (Service). The disputed issues in this appeal are (1) whether claimant sufficiently proved a causal connection between his current condition of ill-being and his work-related accident and, if so, (2) his entitlement to monetary benefits and medical expenses, including prospective medical expenses.
¶ 3 I. BACKGROUND
¶ 4 At all times relevant, claimant was employed by Service as a journeyman carpenter. On April 22, 2016, claimant filed an application for adjustment of claim pursuant to the Act (820 ILCS 305/1 et seq. (West 2014)), seeking benefits for injuries to his back sustained on February 10, 2016, in Roselle while working for Service. On April 26, 2016, claimant filed his second amended application for adjustment of claim, alleging the injury occurred on February 9, 2016, in Wilmette.
¶ 5 Following an arbitration hearing conducted on April 6, 2018, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2014)), the arbitrator issued a written decision, finding claimant sustained accidental injuries on February 9, 2016, arising out of and in the course of his employment with Service and that his current condition of ill-being in relation to his back pain is, in part, causally related to that accident. Specifically, the arbitrator found no causation beyond a lumbar strain, which resolved as of September 30, 2016. The arbitrator denied claimant an award of temporary total disability (TTD) and prospective medical expenses but found Service liable for medical expenses through September 30, 2016, in the amount of $7150.96.
¶ 6 Claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission). On February 5, 2020, the Commission, in a unanimous decision, reversed the arbitrator, finding claimant's current condition of ill-being is causally related to the work accident, extending beyond September 30, 2016. The Commission found claimant is entitled to medical expenses, including prospective medical expenses, and TTD benefits from November 1, 2016, to April 6, 2018, for a period of 744/7 weeks. The Commission otherwise affirmed the arbitrator's decision and remanded the case for a determination of "a further amount of [TTD] or of compensation for permanent disability, if any, pursuant to Thomas v. Industrial Comm 'n, 78 Ill.2d 327[ ] (1980)."
¶ 7 The following recitation of the facts relevant to a disposition of this appeal is taken from (1) the transcript of the arbitration hearing held on April 6, 2018, (2) the evidence adduced at the hearing, and (3) the decisions that followed. The primary dispute in this case of whether claimant is entitled to benefits beyond September 30, 2016, rests upon a credibility determination of Dr. Andrew Zelby, respondent's requested physician who performed a section 12 (820 ILCS 305/12 (West 2014)) examination of claimant. The arbitrator found Dr. Zelby's opinion persuasive while the Commission found his opinion "wholly unpersuasive." Our review of the evidence is summarized as follows.
¶ 8 Claimant, a 34-year-old journeyman carpenter at the time of the accident, testified that on February 9, 2016, while working for Service at a construction jobsite as a subcontractor in Wilmette, he slipped and fell down approximately nine metal stairs of temporary scaffolding on his "butt and back." Prior to this date, he had no problems with his legs or low back. In 2011, he was involved in a "slight fender bender" and attended approximately six physical-therapy visits for middle-back pain. That pain completely resolved before 2012. He had no problems with and received no medical treatment for his back between 2012 and 2015.
¶ 9 On February 9, 2016, claimant immediately reported his injury to his supervisor and the same day sought medical treatment at an urgent-care facility associated with Northwest Community Hospital (NCH) in Mount Prospect. The treating physician, Dr. Christian Daniels, recommended ibuprofen, muscle relaxers, and ice therapy.
¶ 10 Claimant next followed up with Dr. Daniels at NCH on February 19, 2016, complaining of continued left side and lower back pain. Dr. Daniels ordered physical therapy and an X-ray of claimant's lumbar spine. The X-ray was unremarkable. Claimant began physical therapy on March 10, 2016, and attended three sessions thereafter. In the therapist's progress note dated March 24, 2016, he noted very minimal changes in claimant's mobility or pain.
¶ 11 On April 5, 2016, a lumbar magnetic resonance imaging (MRI) scan showed claimant had degenerative disc disease at L5-S1 and a posterior annular tear, which was more prominent to the right paracentral and foraminal region without significant central canal stenosis.
¶ 12 Claimant received no medical treatment between April 5, 2016, and May 13, 2016, when he began treatment with Dr. Samir Sharma at the Pain and Spine Institute. According to Dr. Sharma, claimant presented with low back pain radiating to his left thigh. Dr. Sharma's review of the MRI showed evidence of disc herniation at the left L5-S1 level with neural foraminal narrowing of the left L5-S1 vertebral levels. He referred claimant to physical therapy and imposed work restrictions of maximum lift/carry load of 10 pounds and limited any push/pull/lifting over shoulders time to four hours.
¶ 13 Claimant participated in physical therapy at ATI Physical Therapy from May 19, 2016, through July 25, 2016, when he was discharged after 19 sessions. Yet, claimant had continued to experience low back pain throughout his therapy sessions.
¶ 14 When claimant saw Dr. Sharma on July 15, 2016, he rated his lower back pain as an 8 on a 10-point scale. Dr. Sharma noted conservative treatment was not alleviating claimant's pain. He recommended a steroid injection for therapeutic purposes, and he continued claimant on the same work restrictions.
¶ 15 In a September 16, 2016, visit, Dr. Sharma noted the injection provided a 60% relief of claimant's pain for one week. Claimant received his second injection on September 27, 2016. Claimant returned to sedentary work following each injection.
¶ 16 On September 30, 2016, claimant presented to Dr. Zelby for an employer-requested medical examination. In his report of that examination, Dr. Zelby diagnosed claimant with (1) mild lumbar spondylosis without radiculopathy and (2) a lumbar strain. Dr. Zelby could find nothing in claimant's medical records that would support his reported symptoms. In Dr. Zelby's opinion, claimant sustained a lumbar strain as a result of his February 9, 2016, work accident. He believed his treatment thus far had been excessive and unnecessary, as claimant had no condition in his spine for which the injections would have been helpful.
¶ 17 On October 28, 2016, claimant reported 50% relief for two weeks following his last injection, approximately four weeks earlier, with overall leg improvement.
¶ 18 Dr. Sharma referred claimant to Dr. Cary Templin at Hinsdale Orthopaedics for a surgical consult. Claimant saw Dr. Templin on November 29, 2016, with complaints of low back pain into his left leg. Dr. Templin, after reviewing the X-rays and MRI, noted a large annular tear at L5-S1, mild degenerative changes in the lumbar spine, and a small disc protrusion into the left L4-L5 foramen. Dr. Templin recommended another course of physical therapy, a subsequent course of work conditioning, and a left joint injection. He kept claimant on a 20-pound lifting restriction.
¶ 19 On December 15, 2016, Dr. Sharma performed a lumbar diagnostic medial nerve branch block and a joint injection. In a follow-up visit on January 13, 2017, Dr. Sharma noted claimant's "symptoms are improved since last visit," noting the block "provided a 90% relief of pain 2 wks; overall still 40% improved."
¶ 20 However, upon a return visit to Dr. Templin on January 10, 2017, claimant reported no significant relief. (We note though, the arbitrator in his decision stated "petitioner reported improvement" when discussing claimant's visit with Dr. Templin on this date.) Rather, he continued to have low back pain radiating into his left buttock and leg.
¶ 21 Claimant received another injection from Dr. Sharma on February 1, 2017, and reported to Dr. Templin on February 21, 2017, that his pain intensity was a 3 on a 10-point scale. According to Dr. Templin's notes, claimant reported that the last injection was "the most relief that he has had from inj ections to date." Claimant advised he had not been back to physical therapy, as that request was denied by Service. Dr. Templin advised claimant that, if he wanted to pursue surgical intervention, a discogram would be required. The discogram would indicate whether L5-S1 was causative of his pain.
¶ 22 On March 27, 2017, Dr. Sharma performed the discogram. The results indicated positive for pain at L5-S1. Dr. Sharma referred claimant to Dr. Krzysztof Siemionow, an orthopedic surgeon, for evaluation and a second opinion regarding surgery.
¶ 23 On April 4, 2017, claimant returned to Dr. Templin, who reviewed the discogram and the accompanying computerized tomography (CT) portions of the discogram. In his office note, Dr. Templin recorded that since claimant's fall, he has had extensive medical care including therapy, joint inj ections, epidurals, and medications, all of which have failed to significantly reduce his pain to allow him to return to work. Dr. Templin noted the scans show "significant degenerative change to the L5-S1 disc with normal appearing L4-L5." The doctor believed claimant's condition necessitated fusion surgery for any relief. Dr. Templin further noted he had reviewed the independent medical examination (IME) report of Dr. Zelby, "who indicated that [claimant] suffered a lumbar strain with mild spondylosis, which certainly[, ] given the continued pain after a year of conservative treatment, does not seem to be the case."
¶ 24 On April 26, 2017, Dr. Siemionow, of Illinois Spine & Scoliosis Center, after his evaluation and review of claimant's medical history, including the images, also recommended anterior lumbar interbody fusion.
¶ 25 On September 6, 2017, Dr. Templin performed claimant's fusion surgery, and on October 17, 2017, he took claimant off work completely until and through January 16, 2018.
¶ 26 On December 4, 2017, at Service's request, claimant returned to Dr. Zelby, who reported that his opinions remained unchanged. Dr. Zelby opined that claimant's reported symptoms of pain were not inconsistent with a lumbar strain and were not supported by any objective medical finding. He further opined that the fusion surgery exceeded medical treatment guidelines.
¶ 27 Service introduced into evidence numerous utilization reviews in which other physicians evaluated the treatments provided to claimant. Service refused to certify the reviewed treatments, including surgery, as reasonable and necessary, with the exception of one L5-S1 injection and two physical therapy visits.
¶ 28 On December 5, 2017, Dr. Templin noted claimant was doing better than he was prior to surgery. Current X-rays revealed proper position, healing, and alignment of the lumbar spine. He recommended claimant begin physical therapy with the goal of advancing toward a work conditioning program.
¶ 29 Claimant attended 35 therapy sessions between December 2017 and March 2018 and testified his back was "significantly better."
¶ 30 When asked his dates of employment with Service, claimant testified his last day of work was in October 2016 after his IME with Dr. Zelby. He had not received any payments from Service since that time. He stated he continued to work for Service in a sedentary-type position between the date of the accident on February 9, 2016, and "sometime in October 2016." He also testified to his involvement in a small family "hobby-type" firewood operation. After the accident, his involvement in the physical part of the job decreased, although he testified he had "done it a couple of times, bundling it, maybe approximately five to six times."
¶ 31 Claimant testified that, as of the date of the hearing, he had participated in approximately two weeks of work conditioning as recommended by Dr. Templin. He anticipated the doctor would recommend further work-conditioning therapy at his future appointment.
¶ 32 Following the arbitration hearing, the arbitrator found claimant's current condition of low back ill-being is not causally related to the accident beyond a lumbar strain, which resolved as of September 30, 2016. The arbitrator found Dr. Zelby's opinions "persuasive" and noted they "best comport with the evidence and do make the most sense in this case." The arbitrator denied claimant an award of TTD and prospective medical care but awarded claimant medical expenses in the amount of $7150.96, representing the amount of reasonable and necessary expenses claimant incurred prior to September 30, 2016.
¶ 33 The Commission issued a unanimous decision finding claimant had proved by a preponderance of the "credible evidence that his current condition of ill-being relative to his lower back is causally related to the accident." The Commission found the opinions of Dr. Zelby and the non-certified utilization reviews to be unsupported by the evidence. Specifically, the Commission found Dr. Zelby's opinion "wholly unpersuasive given the totality of the evidence." As for the opinions of the various utilization review doctors, the Commission found them to be "similarly unpersuasive."
¶ 34 The Commission's decision was based on claimant's complete lack of symptoms prior to the accident and the manifestation of "debilitating symptoms" immediately following the accident. Accordingly, the Commission determined claimant was entitled to (1) all reasonable and necessary medical expenses, (2) prospective medical expenses resulting from the work conditioning as prescribed by Dr. Templin, and (3) TTD benefits in the amount of $1062, based on claimant's average weekly wage of $1593.01, from November 1, 2016, through April 6, 2018, for a period of 744/7 weeks. The Commission found claimant had "waived" his request related to "wages" and "rate" for not addressing those issues in his brief. In all other respects, the Commission affirmed the arbitrator's decision.
¶ 35 Service sought judicial review of the Commission's decision in the circuit court of Cook County. On July 14, 2021, the circuit court confirmed the Commission's decision.
¶ 36 This appeal followed.
¶ 37 II. ANALYSIS
¶ 38 Service contends the Commission's finding that claimant's current condition of ill-being, beyond September 30, 2016, was caused by his work-related accident was against the manifest weight of the evidence. We disagree.
¶ 39 To obtain compensation under the Act, the claimant must establish by a preponderance of the evidence that he suffered a disabling injury that arose out of and in the course of his employment. Land & Lakes Co. v. Industrial Comm 'n, 359 Ill.App.3d 582, 591-92 (2005). Whether a causal relationship exists between claimant's employment and his injury is a question of fact to be resolved by the Commission, and its resolution of the issue will not be disturbed on review unless it is against the manifest weight of the evidence. Certi-Serve, Inc. v. Industrial Comm'n, 101 Ill.2d 236, 244 (1984). For the Commission's resolution of a fact question to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Tolbert v. Illinois Workers' Compensation Comm 'n, 2014 IL App (4th) 130523WC, ¶ 39. Whether a reviewing court might reach the same conclusion is not the test of whether the Commission's determination of a question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission's determination. Benson v. Industrial Comm 'n, 91 Ill.2d 445, 450 (1982).
¶ 40 Here, the issue is not whether claimant's work-related accident caused his condition of ill-being. Rather, the issue is whether his work-related accident caused his current condition of ill-being-beyond September 30, 2016. In making the determination that claimant's ill-being extended beyond September 30, 2016, the Commission relied on claimant's lack of injury or symptoms prior to February 9, 2016 (the date of the accident), and the "manifestation of debilitating symptoms immediately thereafter." The Commission considered this timeline and the supporting medical records "taken as a whole."
¶ 41 Indeed, the evidence demonstrates that claimant sought extensive medical treatment for pain in his lower back extending to his left upper leg after the accident and well beyond September 30, 2016. His complaints of pain only waned after receiving injections and then only temporarily, until after his surgery, at which time he described his pain as "significantly better."
¶ 42 Claimant admitted he reported to work after his accident. Then, beginning on May 13, 2016, Dr. Sharma imposed light-duty restrictions. So, although claimant returned to work after the accident, he did so at less-than-full capacity. Service accommodated and paid claimant until the date of his IME with Dr. Zelby on September 30, 2016, wherein Dr. Zelby opined that claimant had suffered only a lumbar strain, which had, by that time, resolved. At that point, Service no longer accommodated claimant's work restrictions.
¶ 43 Claimant's April 5, 2016, MRI revealed evidence of disc herniation and a large annular tear. Dr. Sharma's interpretation of the MRI noted a disc protrusion that abutted, but did not displace, the neural elements. Drs. Templin and Siemionow agreed. However, Dr. Zelby, who indicated he reviewed this MRI as well, stated there was nothing on this scan that would result in claimant's reported symptoms. In his opinion, claimant's treatment was excessive and protracted for no identifiable medical reason.
¶ 44 Dr. Zelby's opinion is isolated when compared to Drs. Sharma and Templin. In fact, claimant sought a second opinion on his need for surgery and, that surgeon, Dr. Siemionow, agreed with the latter two. Dr. Zelby's opinion is supported only by the utilization-review physicians, who neither examined nor treated claimant.
¶ 45 In addition to the MRI, further objective evidence seemed to support claimant's reported symptoms. The CT portion of the April 2017 discogram showed significant degenerative change to L5-S1. The interpretation of the discogram itself showed concordant pain at L5-S1. According to claimant's testimony, after all of claimant's injections, epidurals, nerve blocks, medication, and physical therapy, claimant reported the most significant improvement after his fusion surgery.
¶ 46 In this case, the Commission was faced with conflicting medical evidence and opinions. Based on its review of the totality of the evidence, it resolved the conflict in favor of claimant's treatment providers and found the employer's physician's opinion "wholly unpersuasive." In resolving disputed issues of fact, it is the Commission's province to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine what weight to give testimony, and resolve conflicts in the evidence, particularly medical opinion evidence. Hosteny v. Illinois Workers' Compensation Comm 'n, 397 Ill.App.3d 665, 674 (2009). We cannot say the Commission's determination of credibility, the inferences drawn by the Commission, the weight it gave to any particular testimony, or its resolution of the presented conflicts was unreasonable based upon this record. Likewise, we cannot say that an opposite conclusion is clearly apparent. See Tolbert, 2014 IL App (4th) 130523WC, ¶ 39.
¶ 47 Finding no error in the Commission's rejection of Dr. Zelby's causation opinion, we conclude that claimant's testimony as to the circumstances of his injury and the lack of any sustained prior injury to his lower back is more than sufficient to support the Commission's finding of a causal connection between claimant's work-related accident and his current condition of lower-back ill-being, even after September 30, 2016.
¶ 48 Relying upon Dr. Zelby's opinions, Service also argues that the Commission erred in ordering it to pay claimant's medical expenses after September 30, 2016, including prospective medical care, and in awarding claimant TTD benefits. Its arguments are based solely upon the assertion that the Commission erred in finding causation. Having found that the Commission's determinations as to causation are not against the manifest weight of the evidence, it follows that we also reject Service's arguments as to medical expenses and TTD.
¶ 49 III. CONCLUSION
¶ 50 Based on the above, we affirm the circuit court's judgment, which confirmed the Commission's decision.
¶ 51 Affirmed.