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Town & Country Distribs. v. Ekberg

APPELLATE COURT OF ILLINOIS FIRST DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION
Dec 26, 2014
2014 Ill. App. 130610 (Ill. App. Ct. 2014)

Opinion

No. 1-13-0610WC

12-26-2014

TOWN & COUNTRY DISTRIBUTORS, Plaintiff-Appellee, v. ARTHUR EKBERG & THE ILLINOIS WORKERS' COMPENSATION COMMISSION, Defendants-Appellants.


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. No. 12-L-50841 Honorable Margaret Brennan, Judge, Presiding. JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart concurred in the judgment.

ORDER

¶ 1 Held: The Commission's finding that claimant established a causal connection between his undisputed work accident of June 5, 2007, and his need for a total right hip arthroplasty is not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court setting aside the decision of the Commission would be reversed, the decision of the Commission would be reinstated, and the cause would be remanded for further proceedings. ¶ 2 Claimant, Arthur Ekberg, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) alleging that he injured his right hip while working for respondent, Town & Country Distributors. Following a hearing pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)), the arbitrator determined that the causal connection between claimant's current condition of ill-being and his work accident was broken by an unrelated illness. The Illinois Workers' Compensation Commission (Commission) modified the decision of the arbitrator, finding that claimant's current condition of ill-being as it relates to his right hip was causally related to the work accident. On judicial review, the circuit court of Cook County set aside the decision of the Commission. On appeal, claimant argues that the Commission's finding that his current condition of ill-being was causally related to his employment is not against the manifest weight of the evidence and the trial court therefore erred in setting aside the Commission's decision. We conclude that the Commission's decision that claimant's right-hip condition is causally related to his employment with respondent is not against the manifest weight of the evidence. Accordingly, we reverse the judgment of the circuit court, reinstate the decision of the Commission, and remand the matter for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On January 29, 2008, claimant filed an application for adjustment of claim alleging he injured his "[l]eft hip" on June 5, 2007, while working for respondent. Claimant later amended the application to reflect that the injury pertained to his "[r]ight hip and entire person." The matter proceeded to arbitration on August 23, 2010, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)). The following evidence relevant to this appeal was presented at the arbitration hearing. ¶ 5 Claimant has worked for respondent since 1981, delivering bottles and cans of beer to customers. Claimant's duties involve driving a truck to the customer locations, unloading beer from the truck, bringing beer into the customers' stores, and collecting money. Claimant would haul the beer with a two-wheeled hand truck. Claimant testified that a full load of bottles weighs between 150 and 160 pounds and a full load of cans weighs about 200 pounds. ¶ 6 On June 5, 2007, claimant made a delivery to the American Legion Hall in Palatine. According to claimant, deliveries to that location were particularly difficult because he had to guide a full load of beer up and down multiple stairs. After claimant completed the delivery that day, he noticed a "catch" in his right hip. Claimant denied experiencing any pain in or receiving any treatment for the right hip prior to this date. ¶ 7 Claimant initially presented to his family physician, Dr. Mark Charman of Affinity Healthcare. On June 6, 2007, claimant underwent an X ray of the right hip which revealed mild degenerative changes and a cystic lesion of the lateral margin of the left femoral neck. A bone scan showed a bony lesion in the right femoral head. Dr. Charman referred claimant to Dr. Eduard Sladek, an orthopaedic surgeon. Claimant saw Dr. Sladek on June 13, 2007. Dr. Sladek ordered an MRI of the right hip which showed: (1) bone edema in the lateral femoral head and lateral femoral neck; (2) subchondral cyst formation in the acetabulum indicating degenerative joint disease; (3) tear or degeneration of the hip labrum; (4) T2 hyperintensity involving the greater trochanter suggesting tendinitis, tendon strain, or enthesopathy; (5) tendinitis, strain or partial tear involving the iliopsoas insertion on the lesser trochanter; and (6) synovial herniation pit versus subchondral cyst of left femoral head and neck laterally. Dr. Sladek diagnosed right hip internal derangement suggestive of a stress fracture. He authorized claimant off work and placed him on crutches. By August 2007, claimant had shown only minimal improvement, so Dr. Sladek referred him to Dr. Steven Gitelis, an oncologist, to rule out an underlying tumorous condition to the proximal femur. ¶ 8 Claimant saw Dr. Gitelis on August 20, 2007. Dr. Gitelis reviewed claimant's diagnostic films and ordered a CT scan. After reviewing the CT scan, Dr. Gitelis concluded claimant did not have a stress fracture, but instead had an arthritic hip condition. On August 27, 2007, Dr. Gitelis wrote to Dr. Sladek regarding claimant's condition. Dr. Gitelis stated, "my final impression is that his work stirred up an arthritic hip process, and that is why he has pain and disability." Dr. Gitelis recommended a conservative course of treatment consisting of nonsteroidal medication and physical therapy. If therapy was unsuccessful, an injection would be administered. If none of these modalities of treatment provided relief, Dr. Gitelis stated that claimant would need to consider a total hip arthroplasty. ¶ 9 Claimant began physical therapy, but was still having pain. On October 8, 2007, claimant was again seen by Dr. Sladek. At that time, Dr. Sladek decided upon a course of cortisone injections. Even so, Dr. Sladek was convinced that claimant would eventually need surgery, stating, "I think he is ultimately going to need to have a hip replacement in time; however, I think his x-rays and symptoms certainly are not warranting enough at this juncture." ¶ 10 At respondent's request, claimant saw Dr. Charles Mercier on October 11, 2007, for an independent medical examination (IME). See 820 ILCS 305/12 (West 2006). Dr. Mercier examined claimant and reviewed his medical records, including the diagnostic films. Dr. Mercier concluded claimant's June 5, 2007, injury resulted in iliopsoas tendinitis with a very remote possibility of acute bone bleeding in the femoral head and neck secondary to a non-visualized stress reaction. However, Dr. Mercier determined that both of these conditions had resolved by the time of the examination. Moreover, according to Dr. Mercier, there was no acute pathology associated with claimant's pre-existing degenerative arthritis indicating that the arthritis was not caused or aggravated by the event of June 5, 2007. Based on these findings, Dr. Mercier concluded that claimant was not a surgical candidate, he was at maximum medical improvement requiring no further medical care, and he could return to work at his regular job activities without restrictions. Based on Dr. Mercier's report, respondent terminated claimant's benefits. ¶ 11 Meanwhile, on October 29, 2007, claimant returned to Dr. Sladek with complaints of pain in his right hip. Dr. Sladek agreed that claimant's iliopsoas tendinitis had resolved, and he recommended claimant return to light duty with a 50-pound weight restriction. However, Dr. Sladek remained convinced this would cause further injury, stating, "I think he is going to exacerbate his underlying condition at work." Dr. Sladek also recommended a functional capacity evaluation (FCE) and work hardening to transition claimant from his current state to full activities. Respondent did not approve the FCE or work hardening. On November 5, 2007, claimant underwent a cortisone injection. Four days later, claimant reported that the injection improved his pain by sixty to seventy percent. In December 2007, claimant told Dr. Sladek that his hip was doing better. Upon examination, Dr. Sladek noted full range of motion of the hip. There was no pain with internal or external rotation and no tenderness in the iliopsoas region. At that time, Dr. Sladek released claimant to full-duty work. Claimant returned to work on December 3, 2007. ¶ 12 Claimant next saw Dr. Sladek on January 7, 2008. At that time, claimant reported that his hip was not 100%, but he was able to perform full work duty. Dr. Sladek released claimant from his care, but noted, "I think the underlying degenerative changes are still bothering him to a slight degree." Claimant performed his regular job duties as a route delivery driver for respondent from January 2008 through February 26, 2009, without seeing Dr. Sladek or Dr. Gitelis for his right hip condition. According to claimant, he continued to have hip pain during this time, and he took pain medication regularly in an effort to control his symptoms. ¶ 13 On February 15, 2008, claimant went to the emergency room and was admitted with complaints of swelling involving the hands, scalp, and neck. Claimant was suspected of having urticarial vasculitis. Upon discharge, claimant was referred to Dr. Kenneth Crane, a rheumatologist, to wean him off prednisone, a drug prescribed to treat his urticarial vasculitis. On February 19, 2008, claimant was examined by Dr. Crane. As part of the examination, Dr. Crane ordered a series of X rays, including one of claimant's right hip. Upon review of the right-hip X ray, Dr. Crane noted "marked narrowing of the joint space superiorly with lateral migration of the femoral head." ¶ 14 On February 28, 2008, Dr. Crane wrote a letter to Dr. Charman regarding claimant's condition. Dr. Crane stated claimant had an episode of urticarial vasculitis for which he was taking prednisone. Dr. Crane proposed slowly weaning claimant from the prednisone. Dr. Crane also noted osteoarthritis, predominantly in claimant's right hip. Dr. Crane allowed that claimant's right hip condition was not "terribly symptomatic" at the time of the examination, but opined that "the amount of articular damage in the right hip is significant" and that, eventually, claimant "may need total hip arthroplasty." Claimant discontinued using prednisone by May 2008. He eventually recovered from his urticarial vasculitis and returned to work for respondent. ¶ 15 On February 26, 2009, claimant returned to Dr. Sladek with complaints of increasing right hip pain. At that time, claimant reported missing four to five days of work each month because of the hip pain. X rays of claimant's right hip taken that day revealed "obliteration of [the] joint space" and "significant changes within the femoral head *** consistent with advanced degenerative changes." Dr. Sladek reiterated claimant would need a hip replacement, stating, "given his age and his level of activity *** a hip replacement will be necessary in time." He issued a prescription for Norco and advised claimant to return to work with activities as tolerated. ¶ 16 Claimant testified that his pain continued to worsen. As a result, claimant followed up with Dr. Sladek on March 23, 2009. At that time, Dr. Sladek assessed degenerative changes of the right hip. Dr. Sladek advised claimant to undergo a total right hip arthroplasty, but claimant opted for more conservative treatment. To this end, Dr. Sladek opined that a cortisone injection could probably give claimant some relief and allow him to remain active. Over the months that followed, claimant periodically saw Dr. Sladek with continued complaints of right hip pain. In June 2009, Dr. Sladek recommended that claimant be placed on light duty at work. In August 2009, Dr. Sladek repeated his recommendation for a total hip replacement, noting, "[t]he situation is very bad for [claimant]. He needs to have a hip replacement which is plain and simple." ¶ 17 In August of 2009, claimant returned to Dr. Mercier for a second IME. At that time, Dr. Mercier agreed claimant needed a right hip replacement, but he adhered to his previous opinion that claimant's work injury was unrelated to this condition. Dr. Mercier explained that claimant had preexisting osteoarthritis and a large bone cyst. He anticipated that claimant's arthritic changes in the right hip would progress over time as a result of the normal aging process. Dr. Mercier stated that if claimant sustained a stress fracture in June 2007, it had completely healed by February 2009 and did not change the shape of claimant's femoral head. As such, Dr. Mercier opined that the work accident did not cause or aggravate claimant's arthritis. Further, Dr. Mercier believed that claimant's current work restrictions were "related to his non-work-related right hip arthritis." ¶ 18 Following his examination by Dr. Mercier, claimant continued to see Dr. Sladek. By October 7, 2009, claimant had regressed from using a cane to using crutches. Claimant reported a significant increase in discomfort and the inability to perform his job. Dr. Sladek noted further degeneration of claimant's hip, especially over the previous six to eight weeks. Dr. Sladek attributed the deterioration to "some type of cyst" and bony degeneration. Dr. Sladek recommended a hip replacement "as soon as possible," noting "this most likely is similar to collapse secondary to avascular necrosis." Dr. Sladek authorized claimant off work. In November 2009, Dr. Sladek noted further deterioration of the hip and referred claimant to Dr. Scott Sporer. Dr. Sporer diagnosed right hip degenerative joint disease secondary to avascular necrosis. Claimant underwent a right hip arthroplasty on December 7, 2009. ¶ 19 Dr. Sladek testified by evidence deposition taken in October 2009. Dr. Sladek stated that claimant "never had complete relief of his pain from the initial [June 5, 2007] injury." Dr. Sladek further stated that claimant's work duties "certainly exacerbated his underlying condition." Dr. Sladek explained that claimant's job was "very labor[]intensive," involving manually pushing hundreds of cases of beer each week and walking up and down stairs. Dr. Sladek also opined that claimant's work injury "brought the arthritic condition to the forefront and *** really started his pain." Dr. Sladek further noted that daily living activities can lead to degenerative joint disease and the need for joint replacement. On cross-examination, Dr. Sladek allowed that between June 2007 and January 2008, he did not note any progression of claimant's degenerative joint disease on X rays. However, he did note progression when he next saw claimant in February 2009. He also admitted that prednisone could lead to avascular necrosis, but stated that it takes "months or years" to occur. Dr. Sladek did not recall claimant telling him that he was on prednisone. ¶ 20 Dr. Mercier testified by evidence deposition on January 14, 2010. Dr. Mercier opined that claimant's symptoms were related to an iliopsoas tendinitis. He further opined that the arthritis and the cyst claimant had in the right hip were pre-existing and not work related. Dr. Mercier did not believe that claimant's pre-existing conditions were aggravated by the work injury. In this regard, Dr. Mercier interpreted an aggravation to be "a new injury on an old problem." Dr. Mercier stated that the diagnostic films "did not define a new injury to [claimant's] articular cartilage in the joint." While claimant did have some pain, Dr. Mercier felt that it was related to a pre-existing, non-work-related issue. Moreover, Dr. Mercier explained that by October 2007, the tendinitis, which was related to the work injury, had resolved as a result of conservative treatment and claimant was left with pain in his hip secondary to arthritis, which was a preexisting problem. Dr. Mercier further testified that, as of October 2007, claimant required no further medical care related to his work injury and he was ready to return to work. ¶ 21 Dr. Mercier noted that claimant's right-hip arthritis had gotten worse by the time he examined him again in August 2009. Dr. Mercier allowed that claimant "probably did need a total hip arthroplasty," but he attributed the condition to the normal aging process and not to anything related to claimant's work. Dr. Mercier further noted that claimant's arthritis would have progressed regardless of the event at work in June 2007. On cross-examination, Dr. Mercier acknowledged that there was no evidence that claimant's arthritic condition was symptomatic prior to June 5, 2007. ¶ 22 In February 2010, Dr. Crane wrote a letter to claimant's attorney regarding claimant's right hip condition. That letter provides in relevant part as follows:

"With respect to [claimant's] hip, I believe that he had osteoarthritis of his hip. It is my medical opinion that the symptoms of the osteoarthritis were exacerbated by the reported injury that he sustained [on June 5, 2007]. The natural history of osteoarthritis of the hip is difficult to predict, however, in some patients this problem can result in progressive loss of the articular cartilage and damage to the femoral head requiring total hip arthroplasty.



After the onset of [claimant's] symptoms and prior to the right hip surgery, he was treated with prednisone for a rash. Prednisone has been associated with an abnormality called avascular necrosis which can in many patients result in damage to the femoral head, ultimately requiring total hip arthroplasty. I believe, however, that the problem in [claimant's] case was due to osteoarthritis however, it is possible that the use of prednisone added to the osteoarthritis by producing avascular necrosis of the femoral head.



It is my medical opinion that [claimant] had osteoarthritis of the right hip that was exacerbated by his injury and possibly made worse by avascular necrosis. As a result of this problem, he required total hip arthroplasty."
¶ 23 At respondent's request, Dr. Mark Levin conducted an independent medical records review. In accordance with this review, Dr. Levin wrote a letter in April 2010 regarding claimant's condition. Dr. Levin stated as follows:
"Based on [claimant's medical records], it appears that [claimant's] avascular necrosis of the hip is directly related to his medical condition of urticarial vasculitis and secondary PREDNISONE use which is a natural progression of the loss of blood supply to the hip causing hip pathology.
In regards to his work injury dating back to June of 2007, it appears that he had underlying, pre-existing hip arthritis, which at that time was worked up and improved. The work injury did not cause or aggravate his hip to develop avascular necrosis. Clearly, when one looks through the medical records, one sees that he has had multiple medical problems which are all related to an underlying urticarial vasculitis and secondary steroid use which in this gentleman's case would have been directly causing an avascular necrosis of the hip requiring him to go on to need surgical intervention."
¶ 24 Based on the foregoing evidence, the arbitrator determined that claimant's current condition of ill-being as it related to his right hip is not causally related to the work accident of June 5, 2007. Significantly, the arbitrator reasoned that the causal connection between claimant's current condition of ill-being and the accident on June 5, 2007, was broken by the urticarial vasculitis for which claimant began treating on February 15, 2008. As a result of this finding, the arbitrator concluded that only the treatment received by claimant prior to February 15, 2008, was reasonable and necessary to cure or relieve claimant from the effects of the injury he sustained on June 5, 2007. The arbitrator also awarded temporary total disability (TTD) benefits for the periods of time claimant was off work prior to December 3, 2007. ¶ 25 The Commission modified the decision of the arbitrator, finding that claimant's current state of ill-being was causally related to the June 5, 2007, accident. The Commission explained that, prior to claimant's hospitalization on February 15, 2008, for urticarial vasculitis, both Dr. Gitelis and Dr. Sladek opined that claimant would ultimately require a right total hip replacement. The Commission also pointed out that an X ray taken on February 19, 2008, just four days after claimant began taking prednisone, showed marked narrowing of the joint space in claimant's right hip, leading Dr. Crane to opine that claimant would ultimately require right hip replacement surgery. Lastly, the Commission drew a "reasonable inference" that claimant's work activities continued to exacerbate his arthritic condition, further accelerating the timeline for the right total hip arthroplasty. In this regard, the Commission noted that when Dr. Sladek released claimant to work in December 2007, he was pessimistic about claimant's ability to work. Further, claimant took large doses of pain medication on a daily basis to control his pain at work. In light of these findings, the Commission awarded medical costs involving claimant's right-hip arthroplasty and ongoing treatment, additional TTD benefits, and temporary partial disability benefits. The Commission also remanded the matter for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980). ¶ 26 On judicial review, the circuit court of Cook County set aside the decision of the Commission, finding it was against the manifest weight of the evidence. The court explained its decision as follows:
"The Commission's decision fails to properly take in to [sic] account the significant evidence in the record that demonstrated that [claimant's] first period of ill-being was caused by the performance of his job duties, resulting in a diagnosis of iliopsoas tendonitis. After a course of treatment, on October 11, 2007, Dr. Mercier found that [claimant] had reached maximum medical improvement and should return to work. [Citation.] Dr. Sladek opined that [claimant's] osteoarthritis had stabilized.



In February 2008, when [claimant] was diagnosed with urticorial [sic] vasculitis, a completely different medical condition that was treated with prednisone [sic]. Multiple physicians in the record opined that a course of prednisone treatment can cause avascular necrosis, and this Court finds the causation for [claimant's] current condition began with that treatment. [Emphasis in original.]
Then in 2009, when [claimant] presented with increased right hip pain, he was diagnosed with avascular necrosis. This diagnosis was notable after his history of prednisone treatment, perfectly consistent with Dr. Sladek and Dr. Sporer's medical opinions. There was no contrary medical opinion in the record to support the Commission's finding that [claimant's] job duties would cause avascular necrosis. Further, there was no direct medical evidence that avascular necrosis was an underlying pre-existing condition that was aggravated by the June 5, 2007, work accident. Rather, the medical record evidences osteoarthritis with normal wear and tear on the right hip joint. While the medical record does reference 'other abnormalities' in earlier diagnostic testing, there is nothing to suggest these abnormalities were indicative of avascular necrosis."
Claimant then initiated the present appeal.

Illinois Supreme Court Rule 342(a) (eff. Jan. 1, 2005) requires the appellant's brief to include an appendix containing, inter alia, a copy of the decision of the arbitrator. In this case, the appendix to claimant's brief does not have a copy of the arbitrator's decision. We admonish counsel for claimant to comply with this rule in future submissions to this court.

¶ 27 II. ANALYSIS

¶ 28 On appeal, claimant argues that the Commission's finding that his right hip condition is causally related to the work accident of June 5, 2007, is not against the manifest weight of the evidence. According to claimant, the Commission had before it evidence from his treating physicians that the work injury of June 5, 2007, aggravated an underlying arthritic condition resulting in the need for hip replacement. Thus, claimant maintains, the trial court erred in setting aside the decision of the Commission. In contrast, respondent urges this court to uphold the trial court's determination. According to respondent, claimant's need for a hip replacement was not caused by his employment or any work accident. Rather, respondent contends, the need for surgical intervention was due exclusively to the diagnosis of avascular necrosis brought on by the use of prednisone for claimant's urticarial vasculitis. ¶ 29 An employee seeking workers' compensation benefits has the burden of proving all elements of his claim. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 449 (1995). Among other things, the employee must establish a causal connection between the employment and the injury for which he seeks benefits. Boyd Electric v. Dee, 356 Ill. App. 3d 851, 860 (2005). In cases involving a preexisting condition, recovery will depend on the employee's ability to establish that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee's current condition of ill-being can be said to be causally connected to the work-related injury. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 204-05 (1993); Elgin Board of Education School District U-46 v. Illinois Workers' Compensation Comm'n, 409 Ill. App. 3d 943, 949 (2011). A work-related injury need not be the sole or principal causative factor, as long as it was a causative factor in the resulting condition of ill-being. Sisbro, Inc., 207 Ill. 2d at 205. ¶ 30 Causation presents an issue of fact. Bernardoni v. Industrial Comm'n, 362 Ill. App. 3d 582, 597 (2005); Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 293 (1992). In resolving factual matters, it is within the province of the Commission to assess the credibility of the witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from the evidence. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill. App. 3d 665, 674 (2009). A reviewing court may not substitute its judgment for that of the Commission on such issues merely because other inferences from the evidence may be drawn. Berry v. Industrial Comm'n, 99 Ill. 2d 401, 407 (1984). We review the Commission's factual determinations under the manifest-weight-of-the-evidence standard. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Mlynarczyk v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 120411WC, ¶ 17. Stated another way, if there is sufficient factual evidence in the record to support the Commission's decision, we must uphold it, regardless of whether this court, or any other tribunal, might reach an opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 833 (2002). ¶ 31 Based on the record before us, we cannot say that the Commission's finding that claimant's need for a right-hip replacement is causally connected to the work accident of June 5, 2007, is against the manifest weight of the evidence. The Commission was presented with conflicting medical testimony regarding the relationship between claimant's work injury and his need for surgical intervention. Dr. Mercier opined that claimant's work injury resulted in iliopsoas tendinitis which resolved by October 2007, leaving claimant with pain in his hip secondary to his preexisting arthritis. By August 2009, claimant's right-hip condition had worsened, and Dr. Mercier admitted that claimant probably required a total hip arthroplasty at that time. However, Dr. Mercier attributed the need for surgical intervention to the normal aging process and not anything related to his employment. Similarly, Dr. Levin did not believe that claimant's hip pathology was related to his employment. According to Dr. Levin, claimant's need for a hip replacement was the result of avascular necrosis brought on by the use of prednisone for claimant's urticarial vasculitis. ¶ 32 In contrast to the opinions of Dr. Mercier and Dr. Levin is evidence that claimant's June 5, 2007, work injury aggravated an underlying arthritic condition and was a cause for the right-hip replacement. Dr. Sladek, claimant's principal treating physician, noted that claimant's job duties were "very labor[]intensive," involving manually pushing hundreds of cases of beer each week and walking up and down stairs. Dr. Sladek testified that these duties "certainly exacerbated [claimant's] underlying condition" and that claimant's work injury "brought the arthritic condition to the forefront and *** really started his pain." Similarly, Dr. Gitelis opined that claimant's work accident "stirred up an arthritic hip process, and that is why he has pain and disability." Further, Dr. Crane opined that claimant had preexisting osteoarthritis of the right hip that was exacerbated by the injury he sustained on June 5, 2007. Dr. Crane also opined that the use of prednisone was, at most, a secondary causative factor in the need for a hip replacement. Indeed, Dr. Sladek anticipated that claimant would need a hip replacement as early as October 2007, well before claimant began taking prednisone for his urticarial vasculitis. Dr. Gitelis also opined that, in the absence of relief from conservative treatment, claimant would need a total hip replacement. ¶ 33 Also noteworthy is claimant's testimony regarding the history of the injury. Claimant's preexisting arthritic condition was asymptomatic prior to the work event. However, claimant began to experience pain following the accident up until the hip replacement surgery. As noted above, Dr. Mercier stated that the symptoms related to claimant's work accident subsided by October 2007. However, the record does not support this testimony. It is true that claimant initially experienced significant relief from the conservative treatment he was administered following the work accident, that Dr. Sladek did not note any progression of claimant's joint disease on X rays between June 2007 and January 2008, and that Dr. Sladek released claimant from his care in January 2008. However, the record clearly shows that claimant's symptoms never completely subsided. Claimant testified that he continued to have hip pain after January 2008, and he took pain medication regularly in an effort to control his symptoms. Moreover, an X ray of the right hip taken in February 2008, just one month after Dr. Sladek released claimant from his care, was interpreted by Dr. Crane as showing "marked narrowing of the joint space superiorly with lateral migration of the femoral head." Although claimant was not "terribly symptomatic" at that time, Dr. Crane described the amount of articular damage in claimant's right hip as "significant" and opined that, eventually, claimant "may need total hip arthroplasty." ¶ 34 The testimony of Drs. Sladek, Gitelis, and Crane, claimant's three treating physicians, is especially significant because it establishes the progression of claimant's right hip condition prior to the time claimant was diagnosed with prednisone-related avascular necrosis. It is undisputed that the use of prednisone can lead to avascular necrosis. However, claimant did not began taking prednisone until about February 15, 2008, and Dr. Sladek testified that it takes "months or years" for prednisone use to result in avascular necrosis. Both Dr. Sladek and Dr. Gitelis initially examined claimant well before claimant began using prednisone. Moreover, Dr. Crane initially examined claimant just days after claimant began taking prednisone. Thus, claimant could not have been suffering from prednisone-related avascular necrosis at the time Dr. Sladek, Dr. Gitelis, and Dr. Crane developed their diagnoses and opinions. ¶ 35 Respondent insists that the Commission's decision as to causation of claimant's current condition of ill-being links his need for hip-replacement surgery to the wrong injury. According to respondent, claimant had two diagnoses of significance: (1) iliopsoas tendinitis following the June 5, 2007, accident; and (2) prednisone-related avascular necrosis following a separate, unrelated illness in 2008. Respondent asserts that claimant fully recovered from the former condition in 2007 and returned to work without restrictions. Respondent further asserts that it is the latter, unrelated avascular necrosis condition from which claimant's current state of ill-being stems. As noted above, however, there was sufficient evidence from which the Commission could reasonably infer that claimant had not fully recovered from the symptoms caused by the work accident of June 5, 2007. Claimant became symptomatic following the accident, he continued to experience pain even after he was released by Dr. Sladek in January 2008, and Dr. Crane noted the progression of claimant's right-hip condition on an X ray taken in February 2008. Clearly, the degeneration of the hip seen in the February 2008 X ray and the associated symptoms could not have been the result of claimant's prednisone use, which began, at most, four days prior to the date the diagnostic films were taken. Respondent insists that the Commission engaged in speculation in finding that there was a progression in claimant's condition from when he treated with Dr. Sladek to when he treated with Dr. Crane. We disagree and find that the Commission made a reasonable inference based on the evidence before it. ¶ 36 The trial court stated "[m]ultiple physicians in the record opined that a course of prednisone treatment can cause avascular necrosis, and this Court finds the causation for [claimant's] current condition [the need for a hip replacement] began with that treatment." (Emphasis in original.) To be sure, there is medical evidence in the record that taking prednisone can result in avascular necrosis. However, the law only requires that the aggravation of claimant's degenerative hip condition by the work injury of June only be a cause of the hip replacement. See Sisbro, Inc., 207 Ill. 2d at 205. As noted above, there is medical evidence in the record that the aggravation of claimant's degenerative hip condition by the work injury of June 5, 2007, was a cause of the hip replacement. Indeed, in finding that claimant's need for hip replacement was triggered by his use of prednisone and that it had nothing to do with the aggravation of his degenerative hip condition, the trial court ignored the tenet that it is the province of the Commission to determine the weight to assign testimony and to resolve any conflicts in the medical evidence. See Hosteny, 379 Ill. App. 3d at 674. ¶ 37 The trial court also stated, "there was no contrary medical opinion in the record to support the Commission's finding that [claimant's] job duties would cause avascular necrosis. Further, there was no direct medical evidence that avascular necrosis was an underlying preexisting condition that was aggravated by the June 5, 2007 work accident." Respondent also emphasizes that claimant offered no medical evidence to demonstrate how his work activities led to or aggravated a condition of avascular necrosis. However, these arguments miss the mark. The Commission never determined that claimant's job duties for respondent caused avascular necrosis and it never found that claimant had avascular necrosis when claimant sustained his work accident. Rather, the Commission determined that claimant's work injury aggravated an underlying arthritic hip condition and this aggravation was a cause of claimant's need for a right-hip replacement. This was all that was required. See Sisbro, Inc., 207 Ill. 2d at 205 ("Accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being."). ¶ 38 In short, the Commission found that claimant's work injury of June 5, 2007, aggravated claimant's underlying arthritic degenerative hip condition and thus was a cause of his need for a right hip replacement. There is sufficient factual evidence in the record to support the Commission's decision. Therefore, we conclude that the Commission's finding is not contrary to the manifest weight of the evidence and that the trial court erroneously set aside the decision of the Commission.

¶ 39 III. CONCLUSION

¶ 40 For the reasons set forth above, we reverse the judgment of the trial court, which set aside the decision of the Commission. The decision of the Commission is hereby reinstated and the cause is remanded to the Commission for further proceedings pursuant to Thomas, 78 Ill. 2d 327. ¶ 41 Circuit court reversed, Commission decision reinstated, and cause remanded.


Summaries of

Town & Country Distribs. v. Ekberg

APPELLATE COURT OF ILLINOIS FIRST DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION
Dec 26, 2014
2014 Ill. App. 130610 (Ill. App. Ct. 2014)
Case details for

Town & Country Distribs. v. Ekberg

Case Details

Full title:TOWN & COUNTRY DISTRIBUTORS, Plaintiff-Appellee, v. ARTHUR EKBERG & THE…

Court:APPELLATE COURT OF ILLINOIS FIRST DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Date published: Dec 26, 2014

Citations

2014 Ill. App. 130610 (Ill. App. Ct. 2014)