Opinion
Appeal No. 1-17-1655WC
03-23-2018
DAVID ANGUIANO, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Klein Tools, Inc., 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 Cook County Illinois
Circuit No. 16-L-50574
Honorable Daniel J. Kubasiak, 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 under a repetitive trauma theory was not against the manifest weight of the evidence.
¶ 2 The claimant, David Anguiano, filed two applications for adjustment of claims under the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) seeking benefits
for injuries allegedly incurred while employed by Klein Tools, Inc. (the employer). One claim sought benefits for alleged repetitive trauma injuries to his cervical spine manifesting on July 11, 2009, and a second claim sought benefits for alleged repetitive trauma injuries to his lumbar spine manifesting on May 6, 2011. The two claims were consolidated for a hearing before Arbitrator Kurt Carlson on August 13, 2015, who issued a separate written award for each claim. Regarding the alleged cervical spinal injury, the arbitrator found that the claimant sustained an accident arising out of and in the course of his employment on July 11, 2009, and his condition of ill-being was causally related to the accident. The arbitrator awarded the claimant permanent partial disability (PPD) benefits of $450.15 per week for a period of 62.5 weeks, representing a 12.5% loss of the use of the person as a whole pursuant to section 8(d)(2) of the Act. 820 ILCS 305/8(d)(2) (West 2008). Regarding the alleged lumbar spinal injury, the arbitrator found that the claimant had established that the repetitive nature of his work over a period of 22 years caused injuries to his lumbar spine that manifested on May 6, 2011. The arbitrator awarded the claimant temporary total disability (TTD) benefits of 500.15 per week for 28 1/7 weeks and PPD benefits of 450.15 per week for 166.5 weeks, representing a 33.33% loss of the use of the person as a whole. 820 ILCS 305/8(d)(2) (West 2010). The claim for lumbar injuries also resulted in an award for medical expenses of $39,021.34 pursuant to section 8(a) of the Act. 820 ILCS 305/8(a) (West 2008).
¶ 3 The employer and the claimant sought review of the arbitrator's decisions before the Illinois Workers' Compensation Commission (Commission). The Commission affirmed and adopted the arbitrator's award regarding the cervical injury, but reversed the award on the lumbar injury, finding that the claimant had failed to establish that he suffered an industrial accident on May 6, 2011, and thus had also failed to establish a causal connection between his employment
and the condition of ill-being of his lumbar spine. The claimant then sought judicial review of the Commission's decision regarding the lumbar spinal injury claim in the circuit court of Cook County, which confirmed the Commission's decisions as not being against the manifest weight of the evidence. The claimant then filed this timely appeal.
¶ 4 The employer did not seek review of the cervical spinal injury claim.
¶ 5 BACKGROUND
¶ 6 The following factual recitation is taken from the evidence presented at the consolidated arbitration hearing on August 13, 2015. The claimant testified that on May 6, 2011, he was working as a machine operator for the employer. His duties as a machine operator included standing for long periods of time and operating machines that produced and assembled parts for tools. The claimant further testified that he also had to occasionally carry, lift, and push heavy pans filled with parts. He testified that he began to experience acute pain in his lower back on May 6, 2011. He was working at a specific machine (number 292), and while he was pulling a skid, he noticed pain developing in his low back. The claimant also testified that he had worked as a machine operator for the employer for 22 years. He testified that he had worked at least 40 hours a week and usually picked up as much overtime as he could throughout his years of working for the employer.
¶ 7 The claimant testified that he immediately reported his pain to the employer's occupational health nurse, Alexa Geeza, who noted the claimant's report and informed him that he would be instructed to report for treatment on Monday (May 6, 2011, was a Friday). The claimant noted more defined pain while he continued working, and decided to seek treatment that same day from his primary care physician at the Galilee Medical Center. The claimant testified that he reported his back pain occurring while he was at work that day. He further
testified that the doctors at Galilee recommended that he pursue physical therapy for his back pain.
¶ 8 On July 6, 2011, the claimant sought treatment at Northwestern Memorial Hospital in Chicago, complaining of back and bilateral leg pain, which he reported experiencing for the prior two months. The claimant was seen by Kristen Smith, nurse practitioner for Dr. Tyler Koski. The claimant was diagnosed with lumbago, cervicalgia, and lumbar radicular pain. The claimant told Smith that he engaged in repetitive tasks at work and believed that his pain in his back and legs was caused by his employment. Smith recommended that the claimant undergo physical therapy.
¶ 9 In October 2011, the claimant then began a regimen of physical therapy at AthleticoPT. On December 15, 2011, the claimant completed the physical therapy and was reexamined at Northwestern, where he reported continuing pain in his neck and back. A second round of physical therapy was ordered.
¶ 10 On January 10, 2012, the claimant was examined at the request of the employer by Dr. Douglas L. Johnson, a board certified specialist in neurosurgery. After examining the claimant, reviewing his employment history, and reviewing medical test results, Dr. Johnson opined that the claimant likely suffered from an autoimmune disorder, which might have been aggravated by his employment.
¶ 11 On February 11, 2012, the claimant sought treatment with Dr. Ajmani Harpinder, a rheumatology specialist. The claimant reported pain in his back and legs beginning on May 6, 2011. After reviewing the claimant's blood and other tests, Dr. Harpinder opined that the claimant was likely suffering from Scleroderma Limited Disease with Raynaud's Syndrome. Dr. Harpinder ordered additional biometric testing. He instructed the claimant to follow up in three months after the test results were available. On March 3, and March 24, 2012, the claimant had
follow up appointments with Dr. Harpinder. After these appointments, the claimant was given pain medication with instructions to use as needed.
¶ 12 On April 24, 2012, the claimant was again treated by Dr. Koski at Northwestern Memorial Hospital. The claimant reported low back pain with pain radiating into the bilateral lower extremities. Dr. Koski recommended over the counter pain medication and suggested the claimant follow up with his primary care doctor for further pain management and physical therapy.
¶ 13 On November 14, 2012, the claimant sought treatment from Kristen Smith, RN at Northwestern Memorial Hospital. Smith noted a six-month absence from treatment at Northwestern Memorial Hospital. The treatment notes indicated that the claimant reported increased neck pain, neck stiffness, occasional shooting arm pain, and persistent low back pain.
¶ 14 On October 24, 2012, the claimant reported for physical therapy at AthleticoPT pursuant to a referral by Dr. Koski. The claimant noted headaches, dizziness, double vision at times, as well as dysarthria and vertigo. The claimant also noted neck pain, numbness and tingling in his arms, and pain in his middle and upper back. He also presented with limited cervical rotation range of motion. On November 20, 2012, the claimant was again treated at AthleticoPT, where he reported that the headaches, dizziness, and neck pain had subsided. He continued to report pain in his middle and upper back with aggravating factors such as prolonged positioning at work. Dr. Marti Ebert, the treating physical therapist, opined that physical therapy was medically necessary to improve the claimant's condition and would allow for a full return to his prior ability to push, carry, lift and tolerate prolonged positioning at work. The claimant continued physical therapy at AthleticoPT until he was discharged to a home exercise program on December 5, 2012.
¶ 15 On January 23, 2013, the claimant once again returned to AthleticoPT for physical therapy. He reported continuing back pain, left posterior high and lateral leg pain, and tingling in his left posterior and lateral leg. The claimant attended seven physical therapy sessions at AthleticoPT over the next few weeks during which his pain and numbness was reported to have improved. On February 28, 2013, the claimant discontinued physical therapy at AthleticoPT because "his insurance company was not paying for it."
¶ 16 On March 27, 2013, the claimant sought treatment from Dr. Francisco Espinosa, a neurosurgeon. The claimant reported low back pain with radiation down the left lower extremity and intermittent neck pain. Dr. Espinosa opined that the claimant suffered from low back pain and left lower extremity pain and paresthesias. Dr. Espinosa noted a large left L4-5 herniation visible on an MRI dated November 12, 2012. Dr. Espinosa recommended lumbar spinal surgery since the claimant's conservative treatment had not been successful in alleviating the pain the claimant had been experiencing during the prior two years. The claimant elected to pursue surgery on Dr. Espinosa's recommendation.
¶ 17 On April 1, 2013, Dr. Espinosa performed a microdiscectomy at L4-L5.
¶ 18 On April 16, 2013, the claimant was examined postoperatively by Dr. Espinosa, who reported that the claimant's condition had improved. The claimant reported no leg pain but did have residual numbness in his left big toe. The claimant testified that the surgery increased his level of functioning, but did not bring him all the way back to his pre injury state. Dr. Espinosa ordered a regime of postoperative physical therapy with a follow up examination in 6 weeks. The claimant was examined by Dr. Espinosa for a final time on June 26, 2013. The treatment notes from that examination reported complaints of mild low back pain with no pain radiation into the lower extremities. Dr. Espinosa ordered an additional five weeks of physical therapy. The record
indicates that the claimant completed physical therapy on October 9, 2013.
¶ 19 On April 9, 2014, the claimant was examined at the request of the employer by Dr. Jesse P. Butler, a board certified orthopedic spinal surgeon. In addition to examining the claimant, Dr. Butler reviewed all relevant medical records and reviewed the claimant's job description. Dr. Butler opined that the claimant suffered no injury in 2011 that was a causal factor in his disc herniation. He relied largely on the fact that the claimant's MRIs from 2008 and 2012 were essentially unchanged, with the herniation being clearly present in the 2008 MRI.
¶ 20 On November 4, 2014, Dr. Espinosa gave an evidence deposition in which he observed that the claimant was asymptomatic prior to 2011. He opined that the claimant's employment likely increased and aggravated the symptoms in the lower back and left leg. Dr. Espinosa further opined that, even if there was a prior finding of a herniated disc in the 2008 MRI, it would be a common finding in asymptomatic patients. He also opined that the disc herniation may have been present, but was obviously asymptomatic prior to May 2011. Dr. Espinosa further opined that the claimant's work as a machine operator increased and aggravated his low back symptoms.
¶ 21 The claimant testified that he first found employment working part-time after his surgery. In February 2014, he found full-time employment at O'Hare Airport restocking cleaning supplies for airplane servicing.
¶ 22 The Arbitrator found that the claimant suffered a repetitive-trauma type injury caused "by his twenty two years of work for [the employer] as a machine operator." The arbitrator determined that the claimant's description of his job duties "includ[ing] working on machines, moving metal parts, and sometimes carrying heavy pans with metal parts" was sufficient to establish the repetitive nature of his employment. The arbitrator further found that the claimant
gave a consistent history of feeling a "sharper more pronounced pain in his lower back while working on a machine and pulling a skid" on May 6, 2011. The arbitrator noted that it "was the twenty second year that [the claimant] had been working as a machine operator for [the employer]." This fact was sufficient, according to the arbitrator, to establish that the claimant suffered a repetitive-type trauma injury on May 6, 2011 when "his back pain became much more acute at work and it became apparent to him that the pain was a result of the work he was doing."
¶ 23 In a unanimous decision, the Commission reversed the Arbitrator's finding of accident. The Commission found that the claimant had failed to allege and prove any specific mechanism of injury. It further determined that the claimant merely alleged that he injured his back on May 6, 2011, while working on the machine, but failed to establish what repetitive act or movement caused the condition of his lumbar spine to deteriorate. Additionally, the Commission noted that the medical records did not provide a basis upon which to establish that the onset of his symptoms were attributable to any repetitive motion or trauma. The claimant merely stated that he performed repetitive tasks at work that led to his injury, without any description of the mechanics of the injury. Moreover, the Commission noted that the claimant had not described to any physician "what those tasks were, nor did he describe the tasks that he was performing at the time of injury." With no specific mechanism of injury provided, the Commission reversed and vacated the Arbitrator's finding of accident. The Commission further noted that, with no accident, there could be no causal connection.
¶ 24 The claimant sought judicial review of the Commission's decision. The circuit court of Cook 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.
¶ 25 ANALYSIS
¶ 26 The sole issue raised in this appeal by the claimant is whether the Commission erred in finding that he had failed to prove that he suffered an accidental 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).
¶ 27 In the instant case, the claimant seeks to establish his claim to compensation under a repetitive-trauma theory. More specifically, he maintains that the condition of ill-being of his lumbar spine (disc herniation resulting in surgery) was not caused by a traumatic injury on May 6, 2011, but rather by "the repetitive tasks he performed in his employment over the twenty years preceding that day." A claimant who seeks an award of benefits under a repetitive-trauma theory will be held to the same standard of proof as a claimant seeking benefits for a sudden traumatic
injury. Durand v. Industrial Comm'n, 224 Ill. 2d 53, 64 (2006). As with any work-related injury, the claimant's employment need only be a cause of the claimant's condition of ill-being, it need not be the sole or primary cause. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 205 (2003).
¶ 28 An employee who alleges an injury based upon repetitive trauma must "show [ ] that the injury is work-related and not the result of a normal degenerative aging process." Peoria County Bellwood Nursing Home v. Industrial Comm'n, 115 Ill. 2d 524, 530 (1987); Glister Mary Lee Corp. v. Industrial Comm'n, 326 Ill. App. 3d 177, 182 (2001). It is well-settled that there is no legal requirement that a certain percentage of the workday be spent on repetitive tasks in order to establish the repetitive nature of a claimant's job duties. Edward Hines Precision Components v. Industrial Comm'n, 356 Ill. App. 3d 186, 194 (2005). However, the Commission is allowed to consider evidence, or the lack thereof, of the repetitive "manner and method" of a claimant's job duties. Williams v. Industrial Comm'n, 244 Ill. App. 3d 204, 211 (1993) citing Perkins Product Co. v. Industrial Comm'n, 379 Ill. 115, 120 (1942) (claimant's injury "was directly connected with the method and manner in which she was required to do her work, and to use her arm in the discharge of her duties"). The question of whether a claimant's work activities are sufficiently repetitive in nature as to establish a compensable accident under a repetitive trauma theory will be decided based upon the particular facts in each case, and it is the province of the Commission to resolve this factual issue. Williams, 244 Ill. App. 3d at 210-11.
¶ 29 In the instant matter, the claimant gave no testimony regarding the repetitive nature of his specific job duties. The only evidence regarding the specific nature of the claimant's job duties to be found in the record was his testimony that he "stood for long periods of time" while operating machines and he had to "occasionally carry, lift, and push heavy pans filled with parts." While the record indicates that the claimant described his work as "repetitive" when initially seeking
treatment at Northwestern Memorial Hospital, there is no indication that he gave specifics as to the method or manner in which he performed his duties. Moreover, a review of the medical records show references to the claimant's work duties as including "standing," "lifting" and "pulling" without any indication as to the repetitive method or manner in which he performed those duties. There was no evidence to establish how "standing" in front of a machine was a repetitive motion giving rise to a lumbar spinal injury, nor was there any evidence regarding the claimant's "lifting and pulling" heavy trays. There was no testimony regarding the weight of the trays, the number of trays lifted on an hourly, daily, weekly, or annual basis, and there was no testimony regarding the repetitive motions such as flexing, extending, bending or twisting his back.
¶ 30 We also note that, in repetitive trauma cases, a claimant generally relies upon medical expert opinion testimony to establish as causal connection between his job duties and his disability. Nunn v. Industrial Comm'n, 157 Ill. App. 3d 470, 477 (1987). In the instant matter, the Commission addressed the issue as one of whether an accident occurred, rather than a question of causation. Nevertheless, the medical opinion evidence regarding whether the claimant's lumbar disc hernia was causally related to the alleged repetitive nature of his employment is relevant. The claimant's treating physician, Dr. Espinosa, opined that the claimant's job duties could have been a causative factor with regard to his disc herniation. This opinion is certainly relevant, not only to the question of causation, but also as to the accidental nature of the claimant's injury. However, the weight accorded Dr. Espinosa's opinion is diminished by the fact that he did not have any information regarding the repetitive nature of the claimant's job duties. Moreover, Dr. Espinosa's opinion is directly contradicted by Dr. Butler's opinion that the claimant's condition was not causally related to his employment. Viewing the record as a whole,
the Commission rejected the arbitrator's conclusion that the claimant satisfied his burden of proving repetitive trauma by merely referring to his 22 years of working at his vaguely described job duties. Based upon our review of the record, we cannot say that the Commission's finding that the claimant failed to establish entitlement to benefits under a repetitive trauma theory was against the manifest weight of the evidence.
¶ 31 The claimant also maintains that the Commission's rejection of his repetitive trauma claim regarding his lumbar spine is factually inconsistent with the Commission's finding regarding the injury to his cervical spine. He argues that the Commission's decision must be reversed based upon that inconsistency. The employer, to the contrary, maintains that the issues of accident and causation were not contested in the cervical injury case and therefore that case has no relevance to the case at bar. We note that neither party has cited to authority in support of its position on this issue. While failure to cite to authority can result in the issue being waived (Service Adhesive Co. v. Industrial Comm'n, 226 Ill. App. 3d 356, 366 (1992)), we have discretion to address the issue.
¶ 32 Illinois courts have held that logically inconsistent verdicts may stand, but legally inconsistent verdicts must be reversed. In re Donald R., 343 Ill. App. 237, 243 (2003). Verdicts are legally inconsistent only where the same element is found to exist and not exist for causes of action arisong from the same set of facts. Id. Here, what caused the claimant's cervical injury is not the same element of the claim as what caused his lumbar injury, thus the findings were not legally inconsistent. Assuming that the findings of the Commission regarding the claimant's cervical and lumbar spine were logically inconsistent, such an inconsistency is not the basis for reversal. Id. Moreover, to the extent that the purported logical inconsistency might be evidence that the Commission's finding in the case at bar is against the manifest weight of the evidence,
i.e., that the opposite conclusion is clearly apparent, we note that the claimant had failed to establish that the issue of accident and causation was disputed in the companion case.
¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court of Cook County, which confirmed the decision of the Commission, is affirmed.
¶ 35 Affirmed.