Opinion
NO. 1-16-3115 WC
09-29-2017
KATARZYNA WISNIEWSKI, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Jolly Maid, Appellee).
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 Circuit Court of Cook County
No. 16L050160
Honorable Carl A. Walker, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Moore concurred in the judgment.
ORDER
¶ 1 Held: The Commission's decision that the current condition of ill-being in claimant's lumbar spine is not causally related to her work accident is not against the manifest weight of the evidence. The Commission's denial of past and prospective medical care relating to her lumbar spine is not against the manifest weight of the evidence.
¶ 2 On September 3, 2013, claimant, Katarzyna Wisniewski, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), seeking benefits from the employer, Jolly Maid. Following a hearing, the arbitrator determined claimant's condition of ill-being in the lumbar and cervical spine were
causally related to her work accident on August 22, 2013. The arbitrator awarded claimant, in relevant part, 72-4/7 weeks' temporary total disability (TTD) benefits, past medical expenses, and prospective medical expenses as recommended by claimant's orthopedic surgeon.
¶ 3 On review, the Illinois Workers' Compensation Commission (Commission) modified the arbitrator's decision, finding that claimant failed to prove her lumbar injury was causally related to the workplace accident on August 22, 2013. The Commission also vacated the arbitrator's award for (1) past medical expenses related to claimant's lumbar condition of ill-being; and (2) prospective medical expenses for claimant's lumbar post-operative rehabilitation. It otherwise affirmed the arbitrator's decision, including an award for prospective medical care for an anterior cervical discectomy and fusion. The Commission also remanded the matter to the arbitrator for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, N.E.2d 1322 (1980). On judicial review, the circuit court of Cook County confirmed the Commission. Claimant appeals, arguing the Commission erred by (1) finding the current condition of ill-being in her lumbar spine was not causally related to her workplace accident on August 22, 2013; and (2) denying claimant past and prospective medical care for her lumbar spine.
¶ 4 I. BACKGROUND
¶ 5 At arbitration, claimant testified that she worked for the employer, Jolly Maid, for approximately one year cleaning houses. On August 22, 2013, after cleaning the last house for the day, claimant was rear ended when she was driving her co-worker home in a Jolly Maid vehicle. Claimant, who was 23 years old at the time of the accident, described the collision as follows:
"I needed to stop at a gas station to get gas, and while I was waiting to turn
left, I was rear ended by another car. *** I was holding my hands on the *** [s]teering wheel. And I hit my head. I moved backwards, hit my head really hard on the headrest of the car, then went forward, and later I don't remember because I lost consciousness. *** After a few moments, I come [sic] to. My head started to hurt really bad in the back of my head. I was really dizzy. I had a burning feeling in my left arm just above my elbow, and my partner showed me and pointed to my left cheek that I was bleeding on my left cheek, and when I looked in the mirror, I saw it was red and swollen."
¶ 6 Claimant further testified that an ambulance arrived at the scene of the accident. A report from the Summit Fire Department noted claimant complained the back of her head hurt but she "denied any neck or back pain." The report further states claimant "began complaining of dizziness while in [the] ambulance." Shortly thereafter, claimant was seen in the emergency department of MacNeal Hospital. Her chief complaint was listed as "occipital headache radiating upward." The attending physician, Dr. Dawson, noted claimant had a "normal supple neck exam without midline tenderness." Dr. Dawson's primary diagnosis was "injury of head."
¶ 7 The following morning, claimant explained, her "whole body was sore." She further testified that she had headaches, felt dizzy, and she had severe pain in her neck.
¶ 8 On August 24, 2013, claimant sought treatment from Dr. Forys, an internist at Central Medical Clinic of Chicago. In his medical records, Dr. Forys noted that claimant complained of a headache, dizziness, neck pain, and upper back pain. Upon physical exam, he noted tenderness over the facets of the neck and upper spine, tenderness of the sternocleidomastoid and trapezius muscles bilaterally, and decreased range of motion in all planes. Dr. Forys assessed claimant as having a concussion, headache, contusions, abrasions,
whiplash, and situational anxiety due to her motor vehicle accident. He recommended x-rays of her cervical spine, medications, and that claimant not work.
¶ 9 On September 3, 2013, claimant filed an application for adjustment of claim alleging injury only to her "neck, upper back, [and] left arm."
¶ 10 Between August 24, 2013, and September 6, 2013, claimant saw Dr. Forys on three occasions (August 24, 2013; August 30, 2013; and September 6, 2013). Dr. Forys's records show that claimant did not make any lower back-related complaints from August 24, 2013 through September 6, 2013. Further, during the arbitration hearing, claimant confirmed that she did not complain of lower back pain during this time period. She stated as follows:
"Q. [Y]ou didn't complain about low back pain [at the emergency room]?
A. No.
Q. Because it didn't hurt?
A. Well, I was in shock. *** I felt my head really. It was real painful. I couldn't feel pain in my lower back.
* * *
Q. Then you returned to the doctor on August 30, 2013. *** [Y]ou didn't have any low back complaints?
A. No.
* * *
Q. [On] September 6, 2013[,] [a]pproximately a week later[,] *** you complained only of neck pain, upper back, and the trapezius area and concussion symptoms, whiplash symptoms?
A. Yes.
Q. No low back pain?
A. No."
Claimant further testified that she was in good health prior to her work-related accident in August 2013, and after her accident, she was confined to bed rest. Claimant explained that her lower back pain developed "one day all of a sudden."
¶ 11 On September 13, 2013, claimant followed up with Dr. Forys. His notes state that claimant "has developed lower back pain w/ paresthesia of R LE." Dr. Forys diagnosed claimant as suffering from cervical radiculopathy and sciatica.
¶ 12 On October 9, 2013, claimant underwent a magnetic resonance imaging (MRI) scan of her lumbar spine, which revealed a "subligamentous posterior disk herniation" at L4-L5. Dr. Forys reviewed the MRI and referred claimant for a consult with Dr. Mark Sokolowski, an orthopedic surgeon.
¶ 13 On October 14, 2013, Dr. Sokolowski met with claimant. Dr. Sokolowski's medical records indicate claimant complained of "neck pain with radiation to periscapular regions, bilateral upper extremity numbness and tingling, lumbar pain with radiation to right buttock and right lower extremity, symptoms subsequent to work-related motor vehicle collision." Claimant rated her back pain as 7-8/10, neck pain as 7-8/10, arm pain as 4/10, and right leg pain as 4/10. Dr. Sokolowski documented a similar history as claimant reported at arbitration. He diagnosed claimant as having "(1) lumbar pain; (2) lumbar radiculopathy; (3) cervical pain; (4) cervical radiculopathy."
¶ 14 On October 24, 2013, claimant followed up with Dr. Sokolowski and reported continued pain. She rated her neck and back pain as 6-7/10, and her leg and arm pain as 3-4/10. Dr. Sokolowski recommended MRIs of the thoracic and cervical spine, in addition to lumbar
epidural steroid injections. Claimant testified that the steroid injections helped ease her lower back pain but eventually the "pain started to come back." She also explained that while physical therapy diminished the soreness in her spine, it did not provide lasting relief.
¶ 15 On January 7, 2014, Dr. Thomas Gleason performed an independent medical examination. Dr. Gleason's report states that he reviewed claimant's medical records and conducted an examination (IME). According to Dr. Gleason, claimant complained of, among other things, "[c]onstant low back pain with radiation down into both legs with associated tingling/numbness in both legs and feet." Claimant reported that she did not sustain any injuries to the neck, mid-back, or lower back after her work-related accident in August 2013. Following an examination, Dr. Gleason diagnosed claimant with "mild degenerative disc disease[,] L4-L5 with disc space narrowing." Dr. Gleason also opined that claimant had "no positive objective findings on physical examination related to the spine." According to Dr. Gleason, claimant had "at most a soft tissue strain and or a temporary aggravation of her pre-existing condition." With respect to causation, Dr. Gleason noted that claimant's "injury of August 22, 2013[,] is not a contributing factor to any current physical complaints." Instead, Dr. Gleason concluded that "MRI findings appear consistent with normal age related changes reflecting structural diagnosis within normal limits and suggesting clinically insignificant degenerative changes." Dr. Gleason noted that claimant was capable of returning to her regular full-time work without restrictions.
¶ 16 Dr. Sokolowski's records show he reviewed Dr. Gleason's IME report. Dr. Sokolowski's medical records state, in pertinent part:
"The patient underwent an independent medical examination in which the examiner attributed the patient's symptoms to a temporary aggravation of a pre-existing degenerative condition. To be clear, the patient was 23 years old at the
time of injury and IME. She has no history of any pre-existing lumbar pathology. I am unaware of any data in any peer-reviewed journal which would suggest the routine presence of degenerative pathology in a 23 year old population."
¶ 17 Following the IME, claimant attempted to return to work; however, the employer informed her that they had filled her job. Claimant testified that she secured new employment with another cleaning service and she "tried to do dusting, vacuuming, and mopping" when she returned to work in January 2014. She explained that she experienced a "burning sensation" and "lots of pain in [her] lower back[,] *** legs and shoulder blades." Claimant stated that she had to take breaks and rest due to her pain. Claimant called her new employer and explained that she could not return to work because of her severe pain.
¶ 18 On January 17, 2014, claimant saw Dr. Sokolowski for an emergency appointment. Dr. Sokolowski's records note that claimant attempted to return to work but her pain was "altogether unbearable." Dr. Sokolowski opined that claimant is "persistently symptomatic" "even with Norco, Dendracin, and Pantoprazole." Dr. Sokolowski's records further state:
"To be clear, the specific findings of lumbar radiculopathy on examinations, over the course of my visits with her are *** positive sagittal profile and antalgic gait pattern, and reproduction of concordant pain to right buttock and right leg (and no bilateral lower extremities) with restoration to neutral. *** She has clear evidence of radiculopathy, which corresponds with the MRI finding of L4-5 disc herniation with resultant neural impingement."
¶ 19 On June 24, 2014, claimant saw Dr. Sokolowski again. His records reflect that claimant had exhausted conservative measures, yet her symptoms remained severe. Dr.
Sokolowski recommended an L4-5 lumbar surgical decompression.
¶ 20 On October 7, 2014, Dr. Sokolowski performed surgery on claimant. Claimant testified that, prior to surgery, she experienced difficulty with simple tasks such as washing and brushing her hair; she had to depend on other people to help her around her home; and she could not sit or lie in one place for a long period of time due to her pain. Claimant explained that her pain significantly diminished after her surgery.
¶ 21 According to Dr. Sokolowski's notes dated December 30, 2014, claimant's lower back pain "definitely improved relative to her preoperative state." Claimant rated her lower back pain as 2-3/10 with leg/buttock pain as 1-2/10. Dr. Sokolowski opined that claimant's "cervical symptoms provide the biggest impediment to functional progress for her at this point." He further explained that he would "continue therapy for one additional month for the lumbar spine with some modalities directed to the cervical spine as well. *** [I]f she is persistently symptomatic with respect to her cervical spine at the next visit, we anticipate seeking approval for an anterior cervical discectomy and fusion at C5-6."
¶ 22 Claimant testified that, at the time of the arbitration hearing, she had not worked since January 2014 because of her continued symptoms from her August 2013 work accident.
¶ 23 On January 8, 2015, the arbitrator issued a decision in the matter, finding that claimant's condition of ill-being in the lumbar and cervical spine with accompanying radicular symptoms were causally related to the work accident in August 2013. The arbitrator noted that "Dr. Sokolowski credibly relates [claimant's] current conditions of ill-being to the work-injury based on the mechanism of injury as well as the temporal onset of pain. *** [A] rear end collision, and resulting whiplash type injury to the cervical and lumbar spine, combined with the onset of continuous pain is consistent with [claimant's] symptoms and pathology found on
imaging." The arbitrator also agreed with Dr. Sokolowski's assessment that claimant's "temporary relief of pain and radicular symptoms following epidural injections was diagnostically valuable and positively prognostic; especially given [claimant's] testimony of further improvement after surgery." As stated, the arbitrator awarded claimant 72-4/7 weeks' TTD benefits. The arbitrator also awarded past and prospective medical expenses, and denied penalties and attorney fees.
¶ 24 On review, the Commission modified the arbitrator's decision. The Commission stated, in pertinent part, as follows:
"The Commission is unable to reconcile [claimant's] testimony regarding a low back injury at the time of her August 22, 2013[,] motor vehicle accident with the significant lack of any lower back symptoms, examination findings, or diagnoses from the date of injury until September 19, 2013. The Commission concludes the overwhelming evidence supports a finding that [claimant] failed to prove her current condition of ill-being with regard to her lumbar spine is causally related to her August 22, 2013[,] work-related injury. Accordingly, the Commission reverses the Arbitrator's finding of a causal connection between the work injury and her lumbar spine condition, vacates the Arbitrator's award of medical expenses related to the lumbar spine *** and vacates the Arbitrator's award of prospective medical, post-operative rehabilitation, related to the lumbar spine."
The Commission otherwise affirmed the arbitrator's decision. On October 27, 2016, the circuit court confirmed the Commission's decision.
¶ 25 This appeal followed.
¶ 26 II. ANALYSIS
¶ 27 On appeal, claimant argues the Commission erred in finding no causal connection between her August 22, 2013, work accident and the condition of ill-being in her lumbar spine. Specifically, claimant maintains the Commission's decision was contrary to the manifest weight of the evidence in light of the opinions of her treating physicians, her lack of lower back symptoms prior to her work accident, the ongoing symptoms she experienced following her accident, and the objective evidence of a herniated disk at L4-5 found by Dr. Sokolowski during claimant's October 2014 surgery.
¶ 28 The claimant has the burden of establishing a causal connection between her employment and her condition of ill-being. ABF Freight System v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 141306WC, ¶ 19, 45 N.E.3d 757, 762. "Whether a causal connection exists between a claimant's condition of ill-being and her work related accident is a question of fact to be resolved by the Commission, and its resolution of the matter will not be disturbed on review unless it is against the manifest weight of the evidence." University of Illinois v. Industrial Comm'n, 365 Ill. App. 3d 906, 913, 851 N.E.2d 72, 79 (2006). "For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent." Mansfield v. Illinois Workers' Compensation Comm'n, 2013 IL App (2d) 120909WC, ¶ 28, 999 N.E.2d 832. On review, "[t]he relevant inquiry is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other might reach an opposite conclusion." Westin Hotel v. Industrial Comm'n, 372 Ill App. 3d 527, 538-39, 865 N.E.2d 342, 353 (2007).
¶ 29 Additionally, "[a]s the trier of fact, the Commission is primarily responsible for resolving conflicts in the evidence, assessing the credibility of witness[es], assigning weight to
evidence, and drawing reasonable inferences from the record." ABF Freight System, 2015 IL App (1st) 141306WC, ¶ 19, 45 N.E.3d 757, 762. "This is especially true regarding medical matters, where we owe great deference to the Commission due to its long-recognized expertise with such issues." Id.
¶ 30 Here, the Commission found that claimant failed to prove a causal connection between the condition of ill-being in her lumbar spine and her work accident in August 2013. While the record might have supported a contrary conclusion, there is sufficient factual evidence in the record to support the Commission's determination.
¶ 31 Specifically, Dr. Gleason opined that relative to her lumbar spine, claimant's "injury of August 22, 2013[,] is not a contributing factor to any current physical complaints." This evidence directly supports the Commission's finding of a lack of a causal connection between the current condition of ill-being in claimant's lumbar spine and her work accident in August 2013. In addition, the Commission found significant claimant's testimony that she did not report any lower back pain until approximately three weeks after her motor vehicle accident. According to the emergency medical support technician's report, claimant "denied any *** back pain" at the scene of the accident. In fact, the first documentation of claimant's lower back pain is contained in Dr. Forys's September 13, 2013, report. After the accident but prior to September 13, 2013, claimant met with Dr. Forys on three separate occasions and did not complain of lower back pain. Additionally, claimant failed to allege any condition of ill-being in her lower back in her application for adjustment of claim, which she filed on September 3, 2013. In her application, she only cited injuries to her "neck, upper back, [and] left arm." Accordingly, we cannot say the Commission's finding that claimant failed to prove a causal connection between her accident in August 2013 and the current condition of ill-being in her lower back was against
the manifest weight of the evidence.
¶ 32 Claimant further argues, however, that the Commission lacked "evidence of a reasonable alternative explanation" to establish that claimant's lower back condition was not causally related to her work accident. In support of her argument, claimant relies on Heston v. Industrial Com'n, 164 Ill. App. 3d 178, 517 N.E.2d 632 (1987). In that case, the claimant alleged he injured his back while lifting 100 pound molds for his employer. Id. at 179, 517 N.E.2d at 633. The day after the alleged injury at work, claimant helped a friend move a 100-200 pound desk up and down stairs apparently without difficulty or complaints of pain. Id. at 179-80, 517 N.E.2d at 633-34. The appellate court concluded that the Commission was entitled to find that the claimant failed to prove causation between his back injury and his work related accident. Id. at 181, 517 N.E.2d at 635. It reasoned that because the claimant was able to lift and carry the heavy desk, the Commission could reasonably infer he suffered from "no significant back pain that day," and thus had suffered no injury at work the prior day. Id. at 181-82, 517 N.E.2d at 635.
¶ 33 We find that claimant's reliance on Heston is misplaced. Although the court in that case found the alternative explanation for claimant's back injury to be persuasive, the court did not hold that an employer must provide an alternative explanation for the cause of an injury. Id. To the contrary, the court in Heston acknowledged that "[t]he burden of establishing the elements of a claim is on the employee, not the employer." Id. at 181, 517 N.E.2d at 634.
¶ 34 Here, like the court in Heston, we find that evidence supports the Commission's finding that claimant failed to prove causation where she did not report any lower back pain for three weeks or provide any medical evidence to explain her delay in reporting symptoms. As the court in Heston explained, "[t]he fact that other inferences could be drawn does not require us to reject permissible inferences drawn by the Commission." Id. at 182, 517 N.E.2d at 635.
¶ 35 Finally, claimant challenges the Commission's decision regarding past medical expenses and prospective medical care relating to claimant's lumbar injury. Her arguments are based on the assertion that the Commission erred with respect to its causal connection findings. As discussed, the Commission's finding that claimant failed to prove a causal connection between her current condition of ill-being in her lumbar spine and her work accident is not against the manifest weight of the evidence. Accordingly, the Commission did not err by vacating the award of past and prospective medical expenses associated with claimant's lumbar condition.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the circuit court's judgment and remand the matter for further proceedings pursuant to Thomas, 78 Ill. 2d 327, 399 N.E.2d 1322.
¶ 38 Affirmed and remanded.