Opinion
Appeal No. 3-17-0032WC
02-20-2018
RICHARD GLAS, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Harrah's Casino, 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 Twelfth Judicial Circuit Will County, Illinois Circuit No. 16-MR-653 Honorable John C. Anderson, Judge, Presiding. PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Hoffman, Hudson, Harris, and Overstreet concurred in the judgment.
ORDER
¶ 1 Held: The Commission's finding that the claimant failed to prove that he sustained an accident arising out of and in the course of his employment was not against the manifest weight of the evidence. ¶ 2 The claimant, Richard Glas, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)), seeking benefits for knee injuries which he claimed were causally connected to a work-related accident he sustained while he was employed by respondent Harrah's Casino (employer). After conducting a hearing, an arbitrator found that the claimant had failed to prove that he sustained an accident arising out of and in the course of his employment with the employer. The arbitrator found that the mechanism of injury described by the claimant (planting his right foot while twisting his body and his right leg to the right) did not subject the claimant to any risk greater than that faced by members of the general public. Moreover, the arbitrator found that surveillance video taken of the claimant performing his duties around the time of his alleged accident did not suggest that any accident occurred, and the claimant's inability to recall the time of the alleged accident undermined the credibility of his claim. Accordingly, the arbitrator denied the claimant's claim for benefits and found all other issues raised by the claimant to be moot. ¶ 3 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission). The Commission unanimously affirmed and adopted the arbitrator's decision. ¶ 4 The claimant then sought judicial review of the Commission's decision in the circuit court of Will County. The circuit court confirmed the Commission's ruling. ¶ 5 This appeal followed.
¶ 6 FACTS
¶ 7 The following factual recitation is taken from the evidence presented at the March 20, 2014, arbitration hearing. ¶ 8 The claimant worked for the employer as a security guard. His job responsibilities included assisting casino patrons through turnstiles as they entered and exited the casino floor and checking "re-entry" hand stamps. In order to check a person's hand stamp, the claimant had to turn to his right and open a gate to let the person pass though the entrance. The claimant stood for his entire shift. Because he was required to watch people enter and exit the casino floor from a single location, the claimant had to turn back and forth repeatedly for a good part of his shift. The claimant testified that, while performing his job duties, he twisted and turned on a regular basis, and he regularly undid cables to allow people to pass through on foot or in wheelchairs. ¶ 9 On July 11, 2011, the claimant began his regular shift at 1:00 p.m. He worked alone for the most part that day, although he checked in with other security guards at times. The claimant testified that, early in his shift that day, he felt pain in his right knee when he turned to open the gate and scan in a person who was entering the casino in a wheelchair. The claimant stated that his right foot was "anchored into the carpet" and remained stationary as he twisted his body and swiveled his right knee. As he turned, he felt "pain like an electrical shock to [his] knee." The claimant testified that he "winced" when he felt this pain, but he did not grab his knee or fall to the ground. ¶ 10 Later that day, the claimant told Matthew Martinez, a fellow employee, about the alleged accident. He did not report the accident to the employer until the next day. The claimant testified that he waited a day to report the accident because he "didn't think much of the accident" and did not feel that it was a "big thing" that would "require [him] to go to medical." ¶ 11 On July 19, 2011, the claimant reported the accident to his supervisor, Dickson Amoah. Amoah prepared an accident report which was introduced into evidence during the arbitration proceeding. The report indicates that the claimant's accident occurred at "1345 hours," or 1:45 p.m., on July 18, 2011. The report also notes that the claimant was "observed favoring his right knee (lifting his leg up and shifting weight to his left side)." Neither the claimant nor Amoah signed the accident report. The claimant testified that he was never given any forms to review, complete, or sign in connection with the accident, and he never saw the accident report prior to the arbitration hearing. Amoah did not testify. ¶ 12 On July 20, 2011, the claimant went to Physician's Immediate Care, the company clinic, seeking treatment for right knee pain with persistent swelling and pain. The claimant reported that he was injured at work two days earlier when he pivoted to the right while his right foot was planted. He reported feeling sharp pain in the medial aspect of his right knee at the time of the accident. The claimant was diagnosed with a right knee sprain/strain, given a knee sleeve, and released to return to work full duty without restrictions. ¶ 13 The claimant returned to Physician's Immediate Care on July 25, 2011. His treaters prescribed an MRI of the right knee, which was performed on July 29, 2011. The MRI revealed a right medial meniscal tear, a strain or partial tear of the anterior cruciate ligament, and an acute sprain of the tibial and fibular collateral ligaments. The MRI also showed degenerative changes of the posterior horn of the medial meniscus and tendon with chondromalacia of the medial joint space and patella along with patella tendinitis and tendinitis about the iliotibial band. The claimant was referred to a specialist for additional treatment. ¶ 14 On August 18, 2011 the claimant was evaluated by Dr. Anuj Puppala, an orthopedic surgeon, at Hinsdale Orthopaedics. Dr. Puppala's medical record of that visit indicates that the claimant was complaining of right knee pain "that he sustained while at work approximately a month ago." The claimant described "feeling a pop" when he twisted his right knee while working. He was complaining of ongoing popping and clicking in his right knee. Dr. Puppala administered a steroid injection and recommended arthroscopic surgery to repair the claimant's medial meniscal tear. ¶ 15 On September 7, 2011, the claimant was evaluated by Dr. Timothy Payne, an orthopedic surgeon who served as the employer's independent medical examiner. Dr. Payne examined the claimant, reviewed the claimant's treatment records, and reviewed the employer's surveillance video of the claimant working on the date of the alleged accident. Dr. Payne acknowledged that the claimant had sustained a medial meniscal tear in his right knee for which he had not yet reached maximum medial improvement (MMI), and he concluded that the claimant's subjective complaints correlated with the objective medical findings. However, Dr. Payne opined that the claimant's meniscal tear was is caused by a preexisting degenerative condition and not by his work duties. Although Dr. Payne acknowledged that claimant's degenerative condition "could be potentially aggravated by a work-related injury," he opined that the surveillance video did not support the conclusion that the claimant's injury was causally related to his work. Dr. Payne concluded that "[t]here [was] no mechanism of injury [shown] on the videotape," which showed the claimant working from 1:03 p.m. through 2:09 p.m. on July 18, 2011. Based on the videotape, Dr. Payne "[did] not believe that the [claimant's] injury was caused by him standing and working the turnstile." Dr. Payne opined that the claimant's knee injury was "most likely due to his degenerative condition that has developed over time." ¶ 16 On November 8, 2011, the claimant saw Dr. Michael Durkin at Hinsdale Orthopaedics. The claimant told Dr. Durkin that he injured his right knee and felt something "pop" when he twisted his leg while standing at work. Dr. Durkin interpreted the claimant's MRI as showing a horizontal tear in the posterior horn of the medical meniscus and a partial tear of the anterior cruciate ligament. Dr. Durkin opined that the work injury described by the claimant was the "cause of [his] medial meniscus tear and his current debility and pains in his knee." Dr. Durkin took the claimant off work. ¶ 17 Shortly thereafter, the claimant underwent arthroscopic surgery to repair his right knee. At the time of the surgery, the claimant also received a steroid injection in his left knee, which he claimed had been bothering him since the July 18, 2011, work accident. The claimant was released to return to work with no restrictions on December 19, 2011. ¶ 18 On February 10, 2012, the claimant returned to Dr. Durkin for a postsurgical checkup. Although the claimant reported that he was still experiencing some aching in his right knee, his chief complaint at that time was his left knee. Dr. Durkin noted in his medical record that the claimant had been "compensating for the injury to the right knee by overloading [his] left side." Dr. Durkin opined that the claimant's left knee condition was "an exacerbation of arthritis secondary to overuse with compensation for the right knee injury." He prescribed an unloader brace and Synvisc injections for the left knee. On March 6, 2012, Dr. Durkin found the claimant to be at MMI for the right knee condition and released him from care as to that condition only (although the claimant underwent at least one more steroid injection in his right knee thereafter). The claimant continued to undergo treatments for his left knee condition through August 2012. ¶ 19 Prior to the arbitration hearing, the claimant amended his application for adjustment of claim to allege work-related injuries to both his right and left legs. He sought medical expenses for treatments to both knees and TTD benefits from November 8, 2011, through December 31, 2012, the date he returned to work following surgery on his right knee. ¶ 20 During the arbitration hearing, the claimant testified that he could not remember exactly when the accident occurred on July 18, 2011. He could recall only that it happened early in his shift, sometime between 1:30 p.m. and 5:30 p.m. He stated that the accident occurred before he had lunch, and that he usually took his lunch break at approximately 5 or 5:30 p.m. ¶ 21 The claimant testified that he was still experiencing stiffness in both knees upon waking in the morning and was still having difficulty with both legs while going downstairs. He still experienced "intense pain" in both knees, and he wore a brace on each knee because his knees tended to give out on him. The claimant stated that he never injured his right leg or knee prior to the July 18, 2011, work accident, but he did injury his left knee approximately 18 years before that date. ¶ 22 The employer presented a 23-minute surveillance video of the claimant working on the date of the alleged accident, which was shown during the arbitration hearing. The video showed the claimant working from 1:46 p.m. through 2:09 p.m. on July 18, 2011. The claimant admitted that the video was a "true and accurate depiction" of him working at his assigned location on the date of the alleged incident. However, in response to questioning by the arbitrator, the claimant testified that the accident did not occur during the timeframe shown in the video and that it "had to" have happened "afterward." ¶ 23 When confronted with Amoah's accident report during cross-examination, the claimant admitted that he had reported the accident to Amoah on the day after the alleged accident, and he acknowledged that the report accurately described the accident as he had related it to Amoah (including both the mechanism of injury and the fact that the injury occurred while the claimant was standing at the turnstiles hand stamping patrons' hands and readmitting patrons to the casino floor). The claimant also admitted telling Amoah that he did not report the incident at the time it occurred because he thought his knee would improve if he iced it, as reflected in the accident report. However, the claimant denied telling Amoah that the accident had occurred at 1:45 p.m. He testified that he never gave Amoah a specific time and told him only that the accident had happened "early" in his shift. He did not recall telling Amoah that he was not seeking medical attention, but his attorney stipulated that the claimant did not seek any medical attention until July 20, 2011 (the day after he reported the accident to Amoah and two days after the accident allegedly occurred). ¶ 24 The arbitrator found that the claimant had failed to prove that he sustained an accident arising out of and in the course of his employment with the employer on July 18, 2011. The arbitrator reached this conclusion for two reasons. First, the arbitrator found that "the claimant's description of his accident in which he was in the act of pivoting his body to the right, [was] not in and of itself an accident." In support of this finding, the arbitrator noted that: (1) the claimant "was at not at an increased risk any greater than that of the general public when he pivoted his body"; (2) "[t]here was no evidence of any defect in the floor or carpet when the accident allegedly occurred"; (3) "[t]here was no evidence of any trauma to the [claimant's] leg"; and (4) "[t]here was no evidence that the [claimant] was running or walking, nor was the [claimant] carrying anything or wearing special clothing or gear that could have contributed to the incident." Rather, the claimant was merely "standing in one position and moved his leg to the right when he claims to have sustained an injury." The arbitrator found that this alleged mechanism of injury did not constitute a compensable accident. ¶ 25 Second, the arbitrator found that the surveillance video, which "was taken during the time listed on the incident report filed by Mr. Amoah," did not appear to show "anything to even suggest that an accident occurred." The arbitrator noted that: (1) the claimant admitted reporting the alleged accident to Amoah the day after it occurred; and (2) Amoah prepared an accident report that same day which included details of the alleged accident, including a statement that the accident was alleged to have taken place at 1:45 p.m.. The arbitrator found it significant that the claimant had "testified to all material aspects of the report including the exact wording used in the report to describe the accident," but denied telling Amoah that the accident had occurred at 1:45 p.m. The arbitrator found that the claimant's testimony at trial that he could not remember at what time the accident occurred but was able to recall the other details of his initial accident report "belie[d] the credibility of [his] claim." ¶ 26 Upon finding that the claimant had failed to prove a compensable accident, the arbitrator found all remaining issues moot and denied the claimant's claim for benefits. ¶ 27 The claimant appealed the arbitrator's decision to the Commission. The Commission unanimously affirmed and adopted the arbitrator's decision. The claimant then sought judicial review of the Commission's decision in the circuit court of Will County, which confirmed the Commission's ruling. ¶ 28 This appeal followed.
"Chondromalacia" is an abnormal softening or degeneration of cartilage.
The "iliotibial band" is a fibrous thickening of connective tissue that extends from the lateral part of the thigh to the tibia which provides stability to the knee and assists with flexion and extension of the knee.
A "Synvisc" injection supplements the fluid in the knee to help lubricate and cushion the joint. It can provide temporary relief from knee pain due to osteoarthritis.
The claimant did not claim that the accident occurred prior to the time depicted in the video. His counsel admitted that the claimant arrived at his workstation "right around" 1:46 p.m. on July 18, 2011, i.e., at the time the video started. --------
¶ 29 ANALYSIS
¶ 30 On appeal, the claimant argues that the Commission's finding that he failed to prove that he sustained an accident arising out of and in the course of his employment with the employer on July 18, 2011, was against the manifest weight of the evidence. ¶ 31 The claimant has the burden of establishing, by a preponderance of the evidence, that his injury arose out of and in the course of his employment. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980); Shafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 35. Whether an injury arose out of and in the course of one's employment is a question of fact. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill. App. 3d 665, 674 (2009). It is the function of the Commission to decide questions of fact, judge the credibility of witnesses, determine the weight that their testimony is to be given, draw reasonable inferences from the evidence, and resolve conflicts in the evidence. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 206-07 (2003); O'Dette, 79 Ill. 2d at 253. The Commission's credibility determinations and other factual findings will not be disturbed on review unless they are against the manifest weight of the evidence. Shafer, 2011 IL App (4th) 100505WC at ¶¶ 35-36. ¶ 32 For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be "clearly apparent." Id. at ¶ 35; see also Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291 (1992). The appropriate test is whether the record contains sufficient evidence to support the Commission's decision, not whether this court might have reached the same conclusion. Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Comm'n, 407 Ill. App. 3d 1010, 1013 (2011). ¶ 33 In this case, the Commission found that the claimant failed to prove a compensable accident on two separate, independent grounds. One of those grounds was the Commission's finding that the claimant lacked credibility. Amoah's accident report indicates that the claimant told Amoah that the accident occurred at 1:45 p.m. on July 18, 2011. During his trial testimony, the claimant admitted reporting the alleged accident to Amoah the day after it happened. He also admitted that Amoah's report accurately recorded almost all of the details of the accident as the claimant had reported them to Amoah, including where and how the accident happened and the specific mechanics of the alleged injury. The Commission found that the surveillance video, which the claimant admitted accurately depicted him working from 1:46 to 2:09 p.m. on the date of the alleged accident, contained no evidence that the claimant had sustained any type of accident or injury while working. Based on this evidence, the Commission could have reasonably inferred that the claimant's account of the alleged accident was not credible, and that no work-related accident had occurred. ¶ 34 The claimant argues that the Commission erred by relying upon the accident report to determine the time of the accident. He suggests that the accident report was "inherently unreliable" because it was neither signed nor dated. Moreover, the claimant denied telling Amoah that the accident had occurred at 1:45 p.m. (or at any other specific time), and he surmised that the accident "must have" occurred after the time frame shown in the video. The claimant contends that the Commission erred by crediting the accident report over the claimant's sworn testimony. ¶ 35 We disagree. Although the claimant's testimony contradicted the accident report's account of the time of the accident, the Commission found that the claimant's credibility was undermined by the fact that he had corroborated other material aspects of Amoah's accident report (including the details of the accident and the mechanics of injury identified in the report). The Commission found it suspect that the claimant was able to recall virtually every detail of the alleged accident aside from the time of its occurrence. Moreover, it was not unreasonable for the Commission to rely upon the contents of Amoah's accident report given that the report was entered into evidence without any objection after (1) the claimant admitted reporting the alleged accident to Amoah the day after its occurrence; and (2) the claimant corroborated the report's description of the accident in almost every material respect. Under these circumstances, we cannot say that the Commission's credibility determination or its decision to credit Amoah's report over the claimant's self-serving trial testimony (which was presented approximately three and a half years after the alleged incident) was against the manifest weight of the evidence. It is the Commission's province to determine the credibility of witnesses, assign weight to the evidence, and resolve conflicts in the evidence. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 206 (2003); O'Dette, 79 Ill. 2d at 253. ¶ 36 The claimant argues that we should review the Commission's decision de novo because the relevant facts are undisputed. In support of this argument, the claimant notes that the employer "specifically adopted the statement of facts as stated in [the] Statement of Exceptions" the claimant filed to the arbitrator's decision. Contrary to the claimant's argument, however, the parties dispute several relevant and material facts. Most importantly, they dispute whether the claimant sustained an accidental injury while working for the employer on July 18, 2011. By adopting the statement of facts contained in the claimant's Statement of Exceptions, the employer merely adopted the claimant's characterization of his trial testimony regarding the accident; it did not concede the truth of that testimony or the existence of an accident. Moreover, different reasonable inferences can be drawn from the record evidence and from the undisputed facts, including whether the claimant told Amoah that the alleged accident had occurred at 1:45 p.m., and whether the claimant's testimony regarding the accident was credible in light of the other record evidence. Accordingly, we review the Commission's decision under the manifest weight standard of review. Gilster Mary Lee Corp. v. Industrial Comm'n, 326 Ill. App. 3d 177, 182 (2001). ¶ 37 The claimant also contends that the trial court held him to a higher standard than the law prescribes by requiring him to prove the specific time of the accident, instead of merely the date of the accident. We disagree. Contrary to the claimant's suggestion, the Commission did not reject his claim because he failed to prove exactly when the accident occurred. Rather, it rejected his claim because, for the reasons discussed above, it found that the claimant lacked credibility. ¶ 38 The claimant also raises arguments regarding causation and his entitlement to temporary total disability benefits, permanent partial disability benefits, and medical expenses. The Commission did not address these issues because it found them moot in light of its finding that the claimant had failed to prove a work-related accident. Having affirmed the Commission's finding of no accident, we need not address the remaining issues raised by the claimant.
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Will County, which confirmed the Commission's decision. ¶ 41 Affirmed.