Opinion
No. 2-16-1054WC
12-21-2017
VICTOR R. SCIMECA, Plaintiff-Appellee, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and VILLAGE OF HEBRON, Defendants-Appellants.
Appeal from the Circuit Court of McHenry County
No. 13-MR-150
Honorable Michael T. Caldwell, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Overstreet concurred in the judgment.
ORDER
¶ 1 Held: The trial court correctly determined that the decision of the Illinois Workers' Compensation Commission awarding benefits to claimant was contrary to the manifest weight of the evidence where opinions of respondent's experts lacked a reasonable foundation.
¶ 2 I. INTRODUCTION
¶ 3 Respondent, the Village of Hebron, appeals an order of the circuit court of McHenry County that set aside a decision of the Illinois Workers' Compensation Commission (Commission) as contrary to the manifest weight of the evidence. The trial court further ordered
that the decision of the arbitrator be reinstated in its entirety. For the reasons that follow, we affirm the trial court. We also remand for further proceedings, if any, in accordance with Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980).
¶ 4 III. BACKGROUND
¶ 5 The following evidence was presented at the arbitration hearing. Claimant testified that he was employed by respondent as a patrol officer. His duties included those of a "traditional police officer." On February 3, 2011, he was working for respondent. His shift started the night before. There was a snowstorm, and an order was in effect closing all roads. Claimant was dispatched to assist a stranded motorist. He located the motorist after checking on another vehicle that was on the side of the road. As he walked around the first vehicle, he was struck by a passing truck and thrown over the hood of the parked vehicle. Visibility was limited, and claimant could not see what the truck was doing before it struck him. Claimant stated that he was "a little sore," but, as he was cold and numb, he did not appreciate the extent of his injuries. He then located and assisted the stranded motorist and finished his shift.
¶ 6 Claimant subsequently notified his supervisor and sought medical care at the Condell Acute Care Center (February 6, 2011). He reported that he was having problems with his lower back and ribs. He was evaluated and X rays were taken. Claimant was given medication and a shot. He was also taken off work and told to follow-up in a few days. On February 8, 2011, he returned to Condell and reported numbness in his left leg in addition to his back pain. He further stated that "it felt like the rib was pushing out of [his] chest, and [he] could actually see it push the skin forward." However, X rays did not show a break. Claimant underwent an MRI on February 9, 2011. He was then advised to see a neurosurgeon.
¶ 7 Accordingly, claimant sought care from Dr. Jonathan Citow. He first saw Citow on February 25, 2011. Citow recommended "an injection and some medication." On May 6, 2011, claimant again saw Citow. Citow recommended surgery on claimant's lumbar spine. While claimant was waiting for respondent's workers' compensation carrier to approve the surgery, claimant was asked to be evaluated by a doctor on respondent's behalf. He was directed to see Dr. Sean Salehi. Claimant underwent surgery on June 6, 2011.
¶ 8 Claimant next saw Citow on June 29, 2011. Citow directed claimant to continue taking anti-inflammatory medication and muscle-relaxers. He also ordered physical therapy. Claimant started physical therapy at Colletti Physical Therapy. Claimant only went to Colletti three to five times, as he felt they were too aggressive. Claimant contacted Citow, and Citow referred him to Alliant Physical Therapy. He completed the prescribed four weeks of therapy, but did not have "good relief" from his pain and numbness. He reported this to Citow. Citow re-evaluated claimant on August 31, 2011. Citow recommended an orthopedic evaluation of claimant's ribs. Citow also wanted claimant to undergo a second MRI, but claimant could not obtain approval to get one. The second MRI was not performed until May 2012. Claimant also could not obtain approval to see an orthopedic specialist, as recommended by Citow. Instead, respondent's worker's compensation carrier sent claimant for a second evaluation by a doctor acting on respondent's behalf—Dr. J.S. Player. Claimant saw Player in December. As of the time of the arbitration hearing, claimant had not been evaluated by an orthopedic specialist.
¶ 9 The second MRI was performed on May 18, 2012. Citow reviewed it. Citow recommended further treatment (a hearsay objection was sustained as to the nature of that treatment and a copy of Citow's report was admitted into evidence), but it was never approved
by respondent's workers' compensation carrier. Citow has never released claimant to return to full-duty employment.
¶ 10 On cross-examination, claimant testified that, in August 2011, he told a therapist he needed to take frequent breaks to alleviate pain in his hips. Claimant acknowledged that in September 2011, he helped his neighbor transport two jet skis to a service shop. Claimant denied climbing onto the trailer. He stated he did not attempt to move them around. He assisted his neighbor unhitch the trailer. He has refused requests to assist others due to his medical condition. On redirect-examination, claimant explained that unhitching the trailer did not require any lifting. Claimant does not own a jet ski or a trailer.
¶ 11 Mark T. Drong, a private investigator, testified for respondent. He was hired by respondent to surveil claimant. In September 2011, he was watching claimant at claimant's home. On September 10, 2011, he followed claimant to a nearby resort (claimant lives in a lake community). He pulled in, and a trailer was hitched up to claimant's vehicle. Someone was with claimant in the vehicle. Claimant bent over to hitch the trailer to his vehicle. They then proceeded to a mechanic's shop. Unhitching the trailer involved further bending. He also observed claimant adjusting the jet skis on the trailer. The trailer was left at the shop. Drong did not recall claimant actually getting onto the trailer. During the time he surveilled claimant, Drong did not observe claimant having problems moving about. Drong authenticated a video recording of claimant assisting transporting the jet skis. Drong testified that the video shows, at one point, claimant easing himself down from the truck bed, rather than jumping from it.
¶ 12 Claimant was then recalled and testified that one of the jet skis did not have a motor in it. On cross-examination, claimant testified that he did not load the jet skis onto the trailer. No further witnesses testified.
¶ 13 The parties submitted various medical records and reports. Respondent submitted a report from Dr. J.S. Player, who examined claimant on respondent's behalf on December 6, 2011. Player stated that claimant was a "good historian" who provided information that "was consistent with the medical records provided." Player opined that claimant's rib complaints were "not supported with positive objective findings." He added that he did not believe there was a causal relationship between claimant's at-work accident and his rib complaints. Relying heavily on the surveillance video, Player opined that claimant required no further medical treatment. Player added that claimant was at maximum-medical improvement (MMI) regarding both his back and ribs and could return to work without restriction as of the date of the examination.
¶ 14 Respondent also submitted two reports from Dr. Salehi, who examined claimant on respondent's behalf on April 5, 2011, and September 15, 2011. Regarding the first examination, Salehi first reported that claimant was injured when he was helping a person out of a car in a snowstorm and another car came "close to him causing him to quickly move out of the way and fall back on his squad car." Salehi also noted an incident where claimant slipped on ice and fell. Salehi recommended that, given claimant's level of pain, he bypass conservative care and undergo a L5-S1 microdiscectomy followed by physical therapy and a work-hardening program.
¶ 15 Salehi's second report, dated September 15, 2011, documents that claimant experienced some, though not total, improvement after his microdiscectomy in June 2011. Salehi opined that the course of treatment claimant received was appropriate. He further stated that he had "no good explanation" for claimant's "ongoing subjective complaints, especially given the significant discrepancy between the surveillance video and the findings on the physical examination." Based on "this discrepancy," Salehi opined that claimant had reached MMI and
could return to work without restrictions. Salehi clarified that his opinion was limited to claimant's lumbar condition, as claimant's ribs were outside Salehi's area of expertise.
¶ 16 Citow's records were submitted into evidence. Claimant first saw Citow on February 25, 2011. Citow examined claimant's first MRI, which had been ordered while claimant was treating at Condell. Citow also examined claimant. He diagnosed "left S1 radiculopathy secondary to [] acute disc herniation." Citow recommended epidural steroid injections and, if they failed, a minimally invasive microdiscectomy. In a letter authored on May 6, 2011, Citow notes that claimant remained symptomatic, so he recommended proceeding with the surgery. The surgery was performed on June 6, 2011. On June 29, 2011, Citow wrote that claimant "is now three weeks status-post his left sided L5-S1 microdiskectomy [sic]" and that claimant was being sent to physical therapy and kept on medications. Claimant followed up with Citow on August 31, 2011. Claimant had completed six weeks of physical therapy at that time, but he was still experiencing "back pain without proximal leg pain but some pain extending from his left knee to toes with numbness and paresthesias." Further, during a physical examination, Citow noted claimant's back was tender. Claimant still had significant pain around his ribs; therefore, Citow recommended he see an orthopedic surgeon. A letter dated October 7, 2011, states that Citow was ordering a lumbar MRI. Another letter dated November 4, 2011, noted claimant had "similar" rib and back pain.
¶ 17 The second MRI was finally performed on May 18, 2012. A report of the MRI states under a section titled "findings," inter alia:
"At L5-S1 level there is loss of disc signal as well as disc space height consistent with disc degeneration, this is associated with changes of a left sided hemi-laminectomy with enhancing granulation tissue seen with the laminectomy bed and into the left lateral
aspect of the spinal canal abutting the left sided exiting nerve root. This is associated with a diffuse broad base disc protrusion without central canal stenosis although there does appear to be a recurrent left paracentral and foraminal disc protrusion with minimal peripheral enhancing granulation tissue noted. This causes slight mass effect on the anterior left paracentral portion of the thecal sac and does impinge in the left sided exiting nerve root and left intervertebral foramina."
The impression section of the report (authored by Dr. David Foosaner) states, in pertinent part:
"Changes of left sided hemi-laminectomy at L5-S1 with enhancing granulation tissue within the laminectomy bed as well as extending into the left lateral aspect of the spinal canal at this level. This is associated with a recurrent or persistent diffuse broad base disc protrusion although there is a more pronounced left paracentral and foraminal protrusion which has minimal peripheral enhancing granulation tissue which causes mass effect on the anterior left paracentral portion on the thecal sac and impinges on the left intervertebral foramina."
Based on the MRI, Citow believed that further injections were likely warranted. Citow's recommended course has not been approved.
¶ 18 The arbitrator awarded benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)). He first found that claimant had undisputedly suffered a work-related accident when struck by a pickup truck. An MRI confirmed a L5-S1 disc protrusion, and a microdiscectomy was performed. Salehi, respondent's examiner, agreed with this course of treatment. Claimant underwent physical therapy, but continued to be symptomatic. However, Salehi opined that claimant reached MMI in September 2011, limiting his opinion to
claimant's back and not his ribs. Player offered a similar opinion, placing claimant at MMI in December 2011.
¶ 19 Meanwhile, Citow ordered an additional MRI in October 2011. The MRI was not approved and performed until May 18, 2012. This MRI, in fact, showed a "recurrent or persistent disc protrusion at L5-S1." Citow thought epidural steroid injections would be the likely proper course.
¶ 20 The arbitrator first addressed claimant's back condition. He found Salehi and Player to be unpersuasive. He noted both relied heavily on the surveillance video. The arbitrator then found that nothing in the video of claimant assisting in the transport of two jet skis (one without an engine) showed claimant was capable of full-time, unrestricted employment. More importantly, Salehi and Player both indicated that there was no objective basis for claimant's subjective complaints. However, neither had the benefit of seeing the May 2012 MRI, which showed a persistent or recurrent disc protrusion, which provides an objective basis for those complaints.
¶ 21 Turning to claimant's ribs, the arbitrator first observed that rib complaints were documented back to the time claimant was treating at Condell. Claimant continued to complain of rib pain during his treatment with Citow, and Citow attempted to refer him to an orthopedic surgeon. However, the evaluation was never approved, and, instead, respondent sent claimant to be evaluated by Player, who is a general practitioner with an occupational background. The arbitrator recognized the possibility that claimant was exaggerating his symptoms to a degree; however, he also noted that claimant consistently complained of pain from the time of the accident to the time of the arbitration hearing. The arbitrator further noted that the only medical evidence weighing against a finding of causation regarding claimant's ribs was Player's opinion,
which was not persuasive. Though Citow did not make a diagnosis himself, he believed an examination by an orthopedic surgeon was warranted.
¶ 22 The arbitrator then awarded claimant medical expenses, prospective medical care as recommended by Citow, and TTD dating back to December 13, 2011, when respondent stopped paying it based on the opinions of Salehi and Player.
¶ 23 The Commission modified the arbitrator's decision (affirming in the aspects it did not modify). It acknowledged the arbitrator's finding that the disc protrusion shown in the May 2012 MRI provided an objective basis for claimant's subjective complaints. However, it concluded that the MRI did not show a significant injury, noting that the report of the MRI states that claimant's "protrusion had 'minimal peripheral enhancing granulation tissue which causes mass effect on the anterior left paracentral portion of the thecal sac and impinges on the left intervertebral foramina.' " According to the Commission, this showed that the disc protrusion had a "minimal effect" on claimant's condition.
¶ 24 The Commission further characterized the video as showing claimant "hop out of the back of his pickup truck." In finding Player and Salehi credible, the Commission noted their reliance on the video recording. Further, it echoed their statements that they could find no objective basis for claimant's subjective complaints. It also noted the arbitrator's observation that claimant may be exaggerating some of his symptoms.
¶ 25 Therefore, the Commission modified the arbitrator's award. It concluded claimant reached MMI and was not entitled to TTD after December 13, 2011. It further held that claimant was not entitled to prospective medical care. The Commission remanded for further proceedings, if any, in accordance with Thomas, 78 Ill. 2d 327. The trial court found the
Commission's decision to be contrary to the manifest weight of the evidence, and this appeal followed. We agree with the trial court.
¶ 26 III. ANALYSIS
¶ 27 The outcome of this appeal turns on the issue of whether the Commission correctly determined claimant reached MMI on December 13, 2011. Issues concerning prospective medical care and TTD are entirely derivative of the first issue. Quite simply, if claimant's current condition of ill-being is causally related to his at-work accident, those awards, as made by the arbitrator, are appropriate.
¶ 28 Of course, a claimant must prove his or her condition of ill-being is causally related to an at-work accident. Westinghouse Electric Co. v. Industrial Comm'n, 64 Ill. 2d 244, 249 (1976). It is axiomatic that employment need only be a cause, and not the sole or primary cause, of an injury for a claimant to recover under the Act. Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n, 386 Ill. App. 3d 779, 784 (2008). Causation presents a question of fact. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. 2d 288, 293 (1992). We review such issues using the manifest-weight standard of review and will reverse only if an opposite conclusion is clearly apparent. Mobile Oil Corp. v. Industrial Comm'n, 327 Ill. App. 3d 778, 778-79 (2002). Though we owe great deference to the Commission regarding factual matters, it remains our duty to conduct meaningful review and reverse where its decision is against the manifest weight of the evidence. Kochilas v. Industrial Comm'n, 274 Ill. App. 3d 1088, 1092 (1995).
¶ 29 We first note that the evidence supporting the Commission's decision is flawed in several respects. Most importantly, when the Commission considered the report of the May 2012 MRI, it seized upon a phrase, taken out of context, and used it to turn this item of evidence from one
favoring claimant into one favoring respondent. Specifically, the Commission stated, "However, * * * while the May 18, 2012[,] MRI showed a recurrent disc protrusion at L5-S1, the MRI report explained that the protrusion had 'minimal peripheral enhancing granulation tissue which causes mass effect on the anterior left paracentral portion of the thecal sac and impinges on the left intervertebral foramina.' " After noting that it also showed some degenerative changes but no significant stenosis, the Commission concluded that the MRI showed only a "minimal effect of the disc protrusion on [claimant's] condition." Thus, the Commission found the phrase "minimal peripheral enhancing granulation tissue which causes mass effect on the anterior left paracentral portion of the thecal sac and impinges on the left intervertebral foramina" the key to interpreting the MRI.
¶ 30 Placed in context, it is difficult to see how the Commission could attribute such significance to this phrase. In context, the report of the MRI reads: "This is associated with a recurrent or persistent diffuse broad base disc protrusion although there is a more pronounced left paracentral and foraminal protrusion which has minimal peripheral enhancing granulation tissue which causes mass effect on the anterior left paracentral portion on the thecal sac and impinges on the left intervertebral foramina." The word "minimal" clearly only applies to the presence of granulation tissue and not the subsequently described effects of the protrusion. Indeed, the only doctor to review the report of the MRI, Citow, recommended further treatment based on its contents. Moreover, in a letter Citow authored dated May 25, 2012, Citow states that the MRI "demonstrat[ed] [a] recurrent left sided L5-S1 herniation."
¶ 31 Having dismissed the significance of the report of the MRI, the Commission compounded its error by failing to take into account the fact that neither Salehi nor Player ever reviewed it. Both cited the lack of objective findings as bases of their opinions. Such findings
are exactly what the report of the MRI provides. Conversely, Citow's opinion that further treatment was warranted was formed after reviewing the report. Of course, "An expert's opinion is only as valid as the bases and reasons for the opinion." Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000).
¶ 32 Indeed, the Commission's reliance on the surveillance video is questionable as well. The Commission characterized the manner in which claimant descended from the back of his pickup truck as a "hop." Drong, who shot the video, testified that it shows claimant easing himself down from the truck bed rather than jumping from it. After reviewing the recording, we find ourselves in agreement with Drong. Further, to the extent the video formed a part of the bases of the opinions of Salehi and Player, we note that very little foundation had been laid regarding the circumstances under which the video was made. It is unknown, for example whether claimant was taking any pain medication—much less what kind—during the time recorded on the video. It is axiomatic that "[a] medical expert witness may not base his opinion on guess, conjecture, or speculation." Soto, 313 Ill. App. 3d at 146.
¶ 33 We further note that the Commission never expressly finds claimant to lack credibility, though it does note the arbitrator's observation that claimant could be exaggerating his symptoms. It refers to this as evidence of "symptom magnification." However, no one ever found that claimant was fabricating his symptoms. As such, even the Commission recognizes the fact that claimant was continuing to experience symptoms.
¶ 34 In sum, the evidence relied upon by the Commission was flawed, while the evidence relied upon by the arbitrator was sound. Clearly, neither Salehi nor Player ever saw the May 2012 MRI, which would have provided the objective basis for claimant's symptoms that the Commission claimed did not exist. This provided a sound reason to reject Salehi's and Player's
opinions. We further agree with the arbitrator that the video recording shows nothing that would indicate claimant was capable of full-time, unrestricted work. Moreover, the fact remains that the May 2012 MRI actually showed a recurrent or persistent disc protrusion. As for claimant's ribs, the medical records substantiate a clear line of complaints leading back to the injury and Citow believed claimant required the aid of an orthopedic surgeon.
¶ 35 In short, an opposite conclusion to the Commission's is clearly apparent.
¶ 36 IV. CONCLUSION
¶ 37 Accordingly, we affirm the decision of the circuit court of McHenry County that reinstated the decision of the arbitrator. This cause is remanded for further proceedings, if any, in accordance with Thomas, 78 Ill. 2d 327.
¶ 38 Affirmed.