Successfully reported this slideshow.
Your SlideShare is downloading. ×

Meat Factory Worker Awarded Surgery and TTD

Ad
Ad
Ad
Ad
Ad
Ad
Ad
Ad
Ad
Ad
Ad
ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 20WC000389
Case Name v. ED MINIAT L.L.C.
Con...
STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF COOK ) Second Injury...
FINDINGS
On the date of accident, October 25, 2019, Respondent was operating under and subject to the provisions of
the Ac...
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

Check these out next

1 of 25 Ad

Meat Factory Worker Awarded Surgery and TTD

Download to read offline

A meat factory worker slipped on a piece of meat and felt a sharp pain in his back. After that incident, he did not feel he needed medical treatment. One week later, as he was lifting a 100-pound steel drum he felt and heard a pop in his low back. This time, the pain was severe and his supervisor took him to the hospital. After several doctor visits, physical therapy, and medications, he still has pain in his back. On the date of the arbitration hearing, he told the arbitrator he would like to proceed with the surgery recommended by his doctor.

A meat factory worker slipped on a piece of meat and felt a sharp pain in his back. After that incident, he did not feel he needed medical treatment. One week later, as he was lifting a 100-pound steel drum he felt and heard a pop in his low back. This time, the pain was severe and his supervisor took him to the hospital. After several doctor visits, physical therapy, and medications, he still has pain in his back. On the date of the arbitration hearing, he told the arbitrator he would like to proceed with the surgery recommended by his doctor.

Advertisement
Advertisement

More Related Content

Slideshows for you (20)

Similar to Meat Factory Worker Awarded Surgery and TTD (20)

Advertisement

More from Ankin Law Office, LLC (20)

Recently uploaded (20)

Advertisement

Meat Factory Worker Awarded Surgery and TTD

  1. 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 20WC000389 Case Name v. ED MINIAT L.L.C. Consolidated Cases Proceeding Type 19(b) Petition Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 25 Decision Issued By , Arbitrator Petitioner Attorney John Powers Respondent Attorney Lloyd McCumber DATE FILED: 4/4/2022 THE INTEREST RATE FOR THE WEEK OF MARCH 29, 2022 1.05% /s Arbitrator Signature
  2. 2. STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF COOK ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION 19(b) Case # 20 WC 000389 Emp oyee Pet t oner v. Consolidated cases: Ed Miniat, L.L.C. Employer/Respondent An Application for Adjustment of Claim was filed in this matter, and a Notice of Hearing was mailed to each party. The matter was heard by the Honorable , Arbitrator of the Commission, in the city of Chicago, on January 26, 2022. After reviewing all of the evidence presented, the Arbitrator hereby makes findings on the disputed issues checked below, and attaches those findings to this document. DISPUTED ISSUES A. Was Respondent operating under and subject to the Illinois Workers' Compensation or Occupational Diseases Act? B. Was there an employee-employer relationship? C. Did an accident occur that arose out of and in the course of Petitioner's employment by Respondent? D. What was the date of the accident? E. Was timely notice of the accident given to Respondent? F. Is Petitioner's current condition of ill-being causally related to the injury? G. What were Petitioner's earnings? H. What was Petitioner's age at the time of the accident? I. What was Petitioner's marital status at the time of the accident? J. Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent paid all appropriate charges for all reasonable and necessary medical services? K. Is Petitioner entitled to any prospective medical care? L. What temporary benefits are in dispute? TPD Maintenance TTD M. Should penalties or fees be imposed upon Respondent? N. Is Respondent due any credit? O. Other ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611 Toll-free 866/352-3033 Web site: www.iwcc.il.gov Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
  3. 3. FINDINGS On the date of accident, October 25, 2019, Respondent was operating under and subject to the provisions of the Act. On this date, an employee-employer relationship did exist between Petitioner and Respondent. On this date, Petitioner did sustain an accident that arose out of and in the course of employment. Timely notice of this accident was given to Respondent. Petitioner's current condition of ill-being is causally related to the accident. In the year preceding the injury, Petitioner earned $39,113.36; the average weekly wage was $752.18. On the date of accident, Petitioner was 47 years of age, single with 2 dependent children. Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical services. Respondent shall be given a credit of $N/A for TTD, $N/A for TPD, $N/A for maintenance, and $N/A for other benefits, for a total credit of $N/A. ORDER Respondent shall pay Petitioner directly for any reasonable and necessary medical services, as provided in Petitioner’s Exhibits 12, 13 and 14, pursuant to Sections 8(a) and 8.2 of the Act. Per stipulation, Respondent is entitled to a credit under Section 8(j) of the Act, for any causally related bills paid by Respondent’s Group Health Insurance plan. (See Ax1 at 13 and Rx3). Respondent is entitled to a credit in the amount of $4,513.10 (2% MAW) for a Permanent Partial Disability advance payment made to Petitioner on or about September 21, 2021, at the time that the nature and extent of the injury is considered and/or addressed. See Rx 2. Respondent shall pay Petitioner temporary total disability benefits of $501.45/week for 79 6/7 weeks, commencing July 17, 2020 through January 26, 2022, as provided in Section 8(b) of the Act. Res ondent shall authorize and is liable for the prospective medical treatment plan recommended b Dr. T , which includes a lumbar fusion revision at L5-S1, and a TLIF procedure at L4-5, if Dr. T finds that the TLIF procedure is necessary, as provided in Section 8(a) and 8.2 of the Act. See Arbitration Decision order for case number 19 WC 036296, incorporated herein by reference. In no instance shall this award be a bar to subsequent hearing and determination of an additional amount of medical benefits or compensation for a temporary or permanent disability, if any. RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission. STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue.
  4. 4. APRIL 4, 2022 __________________________________________________ Signature of Arbitrator ICArbDec19(b)
  5. 5. 20 WC 000389 1 PROCEDURAL HISTORY This matter proceeded to trial on January 26, 2022, pursuant to Sections 19(b) and 8(a) of the Illinois Workers’ Compensation Act (“the Act”). This matter is consolidated with claim number 19 WC 36296, for which a separate decision has been issued. The issues in dispute regarding this claim are: (1) causal connection, (2) unpaid medical bills, (3) temporary total disability benefits for the time period of July 17, 2020 to January 26, 2022; and (4) prospective medical treatment. The Parties stipulated that Respondent is entitled to 8(j) credit for any causally related bills paid by Respondent’s Group Health Insurance Plan. Arbitrator’s Exhibit (“Ax”) 1 at No. 13. All other issues have been stipulated. See Ax1. FINDINGS OF FACT Petitioner began working for Respondent in June 2014 or 2015. Tr. at 7. Respondent is a meat factory company and is in the business of distributing meat for different restaurants. Tr. at 8. Job duties In October 2019, Petitioner was employed as a Sanitation Technician at Respondent. Tr. at 8. His duties included breaking down, cleaning, and reassembling machines that cut, tenderize, season, and cook meat products. Tr. at 8-9. Breaking down machines involved Petitioner loosening screws, removing tooling, and lifting mechanical parts out of a machine in order to clean it entirely. Tr. at 9. The parts that Petitioner lifted out of a machine weighed between 50 and 75 pounds. Tr. at 9. Petitioner worked on approximately seven to eight machines in a workday. Tr. at 9. October 18, 2019 accident On October 18, 2019, Petitioner was transporting meat from one pallet to another, he stepped on a piece of meat, and slipped. Tr. at 10. He managed to catch himself before hitting the ground, but felt a sharp pain. Tr. at 10. Petitioner testified that he went inside on the stairs and gathered himself. Tr. at 10. A coworker came to him and asked Petitioner if he was alright, and Petitioner told the coworker that he was. Tr. at 10. Petitioner reported the accident to the lead that was on the floor, to his manager, and to the back office. Tr. at 10. Petitioner did not seek medical treatment on October 18, 2019. Tr. at 10. He testified that he did not think he needed medical treatment at that time. Tr. at 10. October 25, 2019 accident On October 25, 2019, Petitioner was cleaning a Vemag, which is a steel drum with wheel canisters at the bottom for rolling. Tr. at 11. The Vemag catches meat that spills out from a machine
  6. 6. 20 WC 000389 2 before hitting the floor. Tr. at 11. Respondent was having employees dump the Vemag out and throw the meat away at the end of the workday. Tr. at 11. A Vemag weighs between 150 to 200 pounds and is about four feet tall. Tr. at 11, 12. When Petitioner was pulling the Vemag back up onto its wheels, after rinsing it, he felt and heard a thump, and was stunned. Tr. at 11, 46. A coworker was walking past Petitioner, and Petitioner asked his coworker to get T , his lead. Tr. at 11. While waiting, Petitioner got up off the floor, and then went and told his supervisor what had happened. Tr. at 11. Petitioner’s supervisor took Petitioner to the hospital in the supervisor’s car. Tr. at 11. Petitioner testified that prior to October 25, 2019, he was still seeing his surgeon for “the little pain that [he] was having.” Tr. at 12. Petitioner testified that he sustained a prior back injury while working for Respondent on March 27, 2017. Tr. at 12, 30. Petitioner began treating for the March 27, 2017 accident on June 30, 2017 with Dr. T . Tr. at 12. Petitioner underwent a lumbar fusion on November 20, 2017 in connection with his previous injury. Tr. at 12, 31. Petitioner testified that he did not quit smoking for this lumbar fusion, he did not know that he had to, and he did not recall being told that he had to quit smoking for this procedure. Tr. at 31, 32. Following the lumbar fusion, Petitioner was prescribed Tramadol and Norco. Tr. at 37. Petitioner testified that “[t]he pills didn’t work,” the Tramadol injection did work, and that he had to take more of the Norco because it began to not work. Tr. at 37, 38. On April 11, 2018, Petitioner was examined by Dr. V M at Respondent’s request. Tr. at 13. Petitioner agreed that Dr. M ’s report indicated that Petitioner could return to work full duty as of June 1, 2018. Tr. at 13. Petitioner continued to treat with Dr. T after returning to work for Respondent in June 2018, had continued pain complaints, and underwent a CT scan on August 8, 2018 to determine whether his fusion was solid. Tr. at 13-14. Petitioner agreed that he continued to have chronic back pain following the November 2017 lumbar fusion. Tr. at 42. Following his return to work at Respondent in June 2018, Petitioner was initially shredding paper and applying stickers to chemical containers. Tr. at 15. Petitioner then began a BioMist program, where he would BioMist the handles and panel boxes for the machines. Tr. at 15. Sometimes, Petitioner would be called to the floor, when they were short, to break down and clean machines, which became his regular job duties. Tr. at 15, 47. Petitioner worked full duty, breaking down and cleaning machines, from June 1, 2018 through October 25, 2019. Tr. at 15, 48-49. Petitioner testified that Respondent was not honoring the work restrictions given to him by Dr.
  7. 7. 20 WC 000389 3 T , pursuant to the FCE, and which were still in place when he returned to work. Tr. at 47- 48. Treatment following October 25, 2019 accident Following the October 25, 2019 accident, Petitioner sought initial treatment at the Emergency Room of Ingalls Memorial Hospital. Tr. at 16, Petitioner’s Exhibit (“Px”) 4 at 1. Petitioner presented with complaints of sudden onset low back pain, and reported that he felt and heard a pop in his low back while lifting a steel drum weighing over 100 pounds back onto its wheels, after rinsing it. Px4 at 7, 11. X-rays revealed (1) posterior spinal fusion and intervertebral body device at L5-S1; (2) no acute fracture, dislocation, or destructive osseous process in the lumbar spine; (3) mild facet sclerosis at L4-L5; and (4) the sacroiliac joints were unremarkable. Px4 at 9, 23-24. Petitioner was diagnosed with acute low back pain. Px4 at 9. Petitioner was discharged and was released to return to work with a 10-pound lifting and carrying restriction, as well as the restrictions of limited standing and bending, alternating sitting and standing, and no overhead work, pulling or pushing, or forceful gripping and grasping, kneeling, squatting, stooping or bending, stairs or inclines, or ladders. Tr. at 16; Px4 at 31. On October 28, 2019, Petitioner reported to Dr. for follow up. Px5 at 1. Petitioner reported a work incident occurring on October 18, 2019, where he slipped on a piece of meat. Px5 at 1. Petitioner reported a second incident occurring on October 25, 2019, while he rinsed a heavy “Vmac.” Px5 at 1. Dr. noted that Petitioner could barely transfer from sitting to standing, had difficulty walking, and was standing in forward flexion supported by his upper extremities and was leaning on the examining table. Px5 at 1. Petitioner had tightness in the left and right thoracic and lumbar areas. Px5 at 1. X-rays revealed minimal degenerative joint disease above a stable fusion at L5-S1 with no obvious shift in hardware on flexion/extension and minimal spondylolisthesis at L4-5. Px5 at 4. Petitioner’s diagnoses included lumbar myofascial pain syndrome. Px5 at 4. Petitioner was provided with additional Norco in addition to Topamax and physical therapy was ordered. Px5 at 6. Dr. continued Petitioner’s 10-pound restriction. Px5 at 6. Petitioner underwent an initial physical therapy examination at Ingalls Center for Outpatient Rehabilitation at South Holland on November 5, 2019. Px6 at 2. Petitioner was discharged on December 24, 2019, with two visits noted. Px6 at 2. The discharge note indicated
  8. 8. 20 WC 000389 4 that the primary therapist had put Petitioner’s therapy on hold due to him being unable to tolerate treatment. Px6 at 9. On November 21, 2019, Petitioner saw Dr. T and provided consistent histories of the October 18, 2019 and October 25, 2019 work incidents. Px5 at 8-9. Petitioner reported that he attempted physical therapy, however, “that made things worse” and that was the reason he presented for exam. Px5 at 9. Petitioner reported that the majority of his pain was in his back, which radiated into his right leg with numbness, tingling, and weakness. Px5 at 9. X-rays were taken on this date and demonstrated suspicion for a broken S1 screw and degenerative change at the L4-5 level, which was unchanged from previous films. Px5 at 9. On exam, Dr. T noted that Petitioner had some stiffness and discomfort almost immediately upon lumbar flexion and extension. Px5 at 9. Petitioner also had diffuse give-way in his right leg when compared to his left leg. Px5 at 9. Petitioner described some altered sensation down into his distal right leg and foot. Px5 at 9. Dr. T ’s impressions were acute flare up of low back pain with right leg radiculopathy with previous L5 to sacrum fusion and L4-5 disk degeneration. Px5 at 9. Dr. T recommended a CT scan of Petitioner’s lumbar spine to assess his fusion status and whether Petitioner had a broken screw, as well as an MRI to assess Petitioner’s radicular symptoms. Px5 at 9. Dr. T maintained Petitioner’s light duty restrictions. Px5 at 9. Petitioner followed up with Dr. on November 25, 2019. Px5 at 10. Dr. continued Petitioner’s 10-pound restriction. Px5 at 15. On November 27, 2019, Petitioner underwent an MRI of his lumbar spine, with impressions being (1) L4-5 right paramedian inferiorly migrated extrusion impinging upon right lateral recess and right L5 nerve root and (2) L5-S1 postoperative changes but no stenosis. Px7 at 3. On November 30, 2019, Petitioner underwent a CT scan of his lumbar spine, with impressions being (1) postsurgical changes of posterior spinal fusion and decompressive laminectomy at L5-S1 without evidence for hardware failure, no appreciable bony bridging across the L5-S1 disc space; (2) right paracentral disc extrusion at L4-5 along its effect on the right lateral recess and spinal canal better seen on comparison MRI exam; (3) moderate disc dessication with height loss at L4-5; and (4) mild bilateral neural foraminal stenosis at L4-5 and mild-moderate bilateral neural foraminal stenosis at L5-S1. Px8 at 3. Petitioner returned to Dr. T on December 10, 2019. Px5 at 17. Dr. T noted that Petitioner had re-aggravation of his back pain extending into the right leg after a work injury and was having continued reports of pain from the back and into the right leg. Px5 at 17. Petitioner
  9. 9. 20 WC 000389 5 reported that Respondent was not adherent to his restrictions, and that he continued to smoke cigarettes. Px5 at 17. On exam, Petitioner had pain with flexion and extension through the lumbar spine. Px5 at 18. Dr. T noted that the CT scan showed that there was instrumented fusion of L5-S1, the cage was appropriately positioned, there was good disc height, and there was no severe or significant foraminal stenosis. Px5 at 18. There appeared to be some loosening to the right-sided S1 screw, which was a new finding. Px5 at 18. Dr. T was unable to determine whether the screws were fractured, though the x-rays indicated that the screws were at least fractured on the right side. Px5 at 18. There was also evidence of a significant loss of disc height at L4-5 with a new herniation extending posterolaterally into the right lateral recess. Px5 at 18. The MRI showed the same as the CT scan, a herniation at L4, L5 and Modic endplate change in the L5-S1 endplates. Px5 at 18. Dr. T ’s assessment was suspected pseudoarthrosis, with adjacent segment degeneration at L4-5 with a herniated disk. Px5 at 18. Dr. T noted that he discussed with Petitioner that he could attempt to treat the herniated disk nonoperatively with an injection, but since Dr. T believed Petitioner had a nonunion at L5-S1, Petitioner would require a revision posterolateral fusion. Px5 at 18. Dr. T noted that he would perform a posterolateral fusion with iliac crest bone graft, as well as revision instrumentation to the ilium given the fractured screws, if he was unable to retrieve them. Px5 at 18. Dr. T further noted that Petitioner would also undergo a TLIF procedure at the L4-5 level given the significant degenerative change and herniated disk with radiculopathy. Px5 at 18. Dr. T also noted that he discussed with Petitioner that he would need to stop smoking as he did the previous surgery and would have to continue not smoking throughout the postoperative period, as smoking was a significant risk factor for him developing a nonunion. Px5 at 18. Dr. T continued Petitioner’s 10-pound lifting restriction and noted bending and twisting to tolerance. Px5 at 18. On December 2, 2019, at Respondent’s request, Dr. M examined Petitioner for a third time. Tr. at 23. Petitioner testified that Dr. M indicated Petitioner could return to work with a 15-pound restriction, and Petitioner returned to work with that restriction. Tr. at 23. Petitioner testified that while under this restriction, he initially worked in the frock room passing out frocks and gloves, and then he was moved to the cafeteria, because he had a cane, where he wiped tables and lockers. Tr. at 23. Petitioner testified that following his return to work with the 15-pound restriction, he continued to experience pain and spasming, and the pain continued to worsen. Tr. at 24, 25.
  10. 10. 20 WC 000389 6 Petitioner returned to Dr. T on December 24, 2019. Px5 at 19. Dr. T noted that his concern was of a nonunion at L5-S1. Px5 at 19. He also noted that Petitioner was having worsening pain in the right leg because of the herniated disc at L4-5. Px5 at 19. Dr. T further noted that Petitioner tried to return to work, but he was unable to tolerate same. Px5 at 19. On exam, Dr. T noted that Petitioner’s sensation was diminished over the right dorsum of his foot. Px5 at 19. Petitioner’s straight leg raise was positive on the right and Petitioner had pain with flexion and extension through the lumbar spine. Px5 at 19. Dr. T ’s assessment was that Petitioner had fractured screws at S1 with an L5-S1 nonunion and a herniated disk at L4-5. Px5 at 20. Dr. T ’s plan was to proceed with a fusion of L4 to S1. Petitioner was kept off work. Px5 at 20. Petitioner testified that he recalled Dr. T telling him about injections for treatment of the herniated disk, but he told Dr. T that he “[didn’t] think that that was good for [him] because it didn’t work the second time. Tr. at 46. Petitioner explained that the second injection he underwent following the November 2017 fusion provided him no relief. Tr. at 46. Petitioner testified that he was last physically examined by Dr. T in December 2019. Tr. at 47. Petitioner agreed that Dr. T recommended a revision of his lumbar fusion and that Petitioner wanted to hold off on that surgery until he quit smoking for some time. Tr. at 26. Petitioner followed-up with Dr. on January 6, 2020, February 14, 2020, and March 16, 2020. Px5 at 22-39. Petitioner reported continued pain, with increased symptoms, including pain in his buttocks and both legs, as well as difficulty standing from a seated position. Px5 at 28, 34. On March 16, 2020, Dr. Kirincic noted that Petitioner’s attempts to stop smoking had been slow and unsuccessful. Px5 at 34. She also noted that Petitioner had started self-using a cane. Px5 at 34. On this date, Dr. noted that Petitioner was released to work per previous restrictions, as Petitioner was not trying hard to quit smoking and had been court ordered to return to work prior to March 31, 2020. Px5 at 39. On April 10, 2020, Petitioner presented to Dr. T via telehealth visit. Px5 at 40. Petitioner reported continued pain extending from his back and into his right leg. Px5 at 40. Dr. T noted that a surgical recommendation had been made, Petitioner had been instructed to stop smoking, and that Petitioner had stopped smoking as of February 17, 2020. Px5 at 40-41. Dr. T noted that Petitioner had returned to work as of March 30, 2020 with restrictions. Px5. Petitioner reported that Respondent was not affording him a chair with back support and therefore,
  11. 11. 20 WC 000389 7 he was straining “things.” Px5 at 41. Dr. T ’s diagnoses and treatment recommendations were unchanged. Px5 at 41. Dr. T noted that a 10-pound lifting restriction was reasonable and recommended a chair with back support be used, and that Petitioner be allowed to use his cane for support as well. Px5 at 41. Petitioner was examined again by Dr. M on May 29, 2020. Tr. at 25. Petitioner testified that following this exam, Dr. M recommended an injection at L4-L5, otherwise he was at maximum medical improvement. Tr. at 25. Petitioner agreed that Dr. M did not comment on his work restrictions at that time. Tr. at 25. Petitioner testified that he believed he had the same conversation with Dr. M regarding injections that he had had with Dr. T , and ultimately declined injections. Tr. at 47. Petitioner again saw Dr. on June 15, 2020, August 17, 2020, September 28, 2020, October 5, 2020 (via telehealth), December 7, 2020, January 12, 2021 (via telehealth), and February 1, 2021. Px5 at 42, 47, 53, 58, 64, 71, 77. Petitioner’s low back pain persisted and symptoms increased. Px5 at 42, 47, 53, 58, 77. On August 17, 2020, Petitioner reported having experienced several spasms. Px5 at 47. On this date, Dr. also noted that Petitioner’s attempts to quit smoking since he last saw Dr. T in April 2020 were “useless” and that Petitioner had “no drive to quit smoking to proceed with surgery.” Px5 at 47. She also ordered a new FCE. Px5 at 51. Petitioner underwent an FCE at Associated Medical Centers of Illinois on September 23, 2020. Px9. On September 28, 2020, Dr. noted that Petitioner stated that he had not tried to stop smoking and wanted to undergo surgery while still smoking. Px5 at 53. On October 5, 2020, Dr. noted that Petitioner had completed an FCE. Px5 at 58. Dr. further noted that the FCE was valid and Petitioner was able to push 80 pounds occasionally, 40 pounds frequently and 16 pounds constantly. Px5 at 62. Petitioner was able to carry 20 pounds occasionally, 10 pounds frequently, and four pounds constantly. Px5 at 62. Petitioner was able to safely lift 24 pounds occasionally, 15 pounds frequently, and six pounds constantly. Px5 at 62, Px9 at 6. On February 1, 2021, Dr. noted that she was able to wean Petitioner off of pain medications and that Petitioner had lost approximately 40 pounds in weight. Px5 at 77. Dr. further noted that Petitioner had reportedly been terminated on October 26, 2020, as his restrictions could not be accommodated. Px5 at 77. Petitioner was placed at maximum medical improvement from
  12. 12. 20 WC 000389 8 conservative treatment by Dr. on February 1, 2021 and was released from her care. Px5 at 81. Dr. noted that Petitioner’s restrictions were permanent. Px5 at 82. Petitioner’s current condition Petitioner testified that on July 16, 2020, Respondent informed him that his restrictions could no longer be accommodated and as a result, Petitioner was terminated. Tr. at 26. The parties, however, stipulated that Petitioner was terminated pursuant to a letter dated October 16, 2020, but that the last date worked by Petitioner was July 16, 2020. Tr. at 29. Petitioner began a self-directed job search in December 2020. Px11. Tr. at 27. Petitioner testified that he was not working as of the date of arbitration and that he had quit smoking on or about February 11, 2021. Tr. at 28. Petitioner testified that from June 2018 to prior to the October 25, 2019 incident, he was still having pain and spasms all over his back and legs, but they were not as consistent as they were at the time of arbitration. Tr. at 17. Petitioner testified that prior to the incidents in October 2019, he was having daily spasms that were sporadic and lasted between 15 minutes and 20 minutes, they occurred one to five times per day, and he had difficulty walking and standing. Tr. at 18, 19. Petitioner testified that following the October 25, 2019 incident, the pain and spasms are stronger, more frequent, last 45 minutes, and occur when he does anything, including laughing and standing up. Tr. at 17-18, 19. Petitioner deals with the spasms by going out into the cold, putting his head in the freezer, or standing in front of air conditioning. Tr. at 20. Petitioner testified that after the October 25, 2019 incident, he walks with a cane and “It hurts moving. It hurts moving it all over my legs all the way down to my knees.” Tr. at 21. Petitioner did not walk with a cane prior to October 25, 2019. Tr. at 21. Petitioner testified that he sometimes loses his balance while trying to wash up or cook while having a spasm. Tr. at 27. He described the spasms as being painful. Tr. at 27. Petitioner testified that he is in constant pain and is taking Hydrocodone and Flexeril, and that his doctor had prescribed medical marijuana. Tr. at 28. Petitioner testified that he takes Hydrocodone up to three times per day and takes Flexeril up to twice a day. Tr. at 28. Petitioner testified that he wants to proceed with the surgery that has been recommended by Dr. T . Tr. at 28. Pre-accident treatment Petitioner presented to Dr. T on June 30, 2017 for follow up of a March 27, 2017 work injury. Px1 at 1. Petitioner complained of lower back pain that extended into the left and right leg, with pain more predominant on the left. Px1 at 1. Petitioner reported an injury that
  13. 13. 20 WC 000389 9 occurred on March 27, 2017 while he was lifting and pushing a conveyor belt to remove a pin. Px1 at 1. At that time, he felt severe pain in his back that extended into his buttock. Px1 at 1. Petitioner also reported a similar injury that occurred in July 2016, where he felt similar pain while lifting. Px1 at 1. Petitioner, however, reported that the pain from the July 2016 incident had abated until the March 27, 2017 incident. Px1 at 1. Petitioner reported that he was able to ambulate. Px1 at 1. The pain was reduced by taking muscle relaxants, pain medication and anti-inflammatories, including Norco and cyclobenzaprine. Px1 at 1. Petitioner reported that he had completed a course of therapy and was enrolled in work conditioning, however, he continued to report significant pain. Px1 at 1. Dr. T noted that the MRI revealed evidence of trace anterolisthesis at L5-S1, bilateral foraminal stenosis due to the uncovering of the disc, and a small rightward disc protrusion at the L4-L5 level with degenerative change, but with no significant stenosis or neural impingement at that level. Px1 at 2. Dr. T diagnosed Petitioner with an L5-S1 spondylolisthesis and foraminal stenosis and L4-L5 degeneration, which were aggravated by the lifting injury. Px1 at 2. Dr. T recommended Petitioner undergo an injection, bilaterally, in the L5 nerve root, and found him to be an excellent candidate for an L5-S1 transforaminal lumbar interbody fusion. Px1 at 2. Petitioner underwent two injections prior to his follow up appointment with Dr. T on September 8, 2017. Px1 at 6. Dr. T noted that the first injection had provided Petitioner “significant benefit,” while the second injection provided him with one day of relief. Px1 at 2. On November 20, 2017, Petitioner underwent (1) L5-S1 combined transforaminal lumbar interbody fusion, posterolateral fusion; (2) application of posterior spinal instrumentation L5-S1 using the Spine Wave Sniper System; (3) application of interbody cage device at L5-S1 using the Globus system; and (4) application of local autograft and allograft bone for fusion. Px2 at 1. Petitioner’s postoperative diagnoses were (1) L5-S1 spondylolisthesis, foraminal stenosis, radiculopathy; and (2) morbid obesity. Px2 at 1. Petitioner followed up with Dr. T on December 27, 2017, February 8, 2018, and March 22, 2018. Px1 at 12-19. On February 8, 2018 and March 22, 2018, Dr. T noted that x-rays of the lumbar spine demonstrated proper position, healing and alignment of Petitioner’s L5 to sacrum fusion. Px1 at 16. No evidence of loosening, subsidence, or migration was noted. Px1 at 16, 19. There was no adjacent segment problems other than preexisting degeneration noted. Px1 at 19.
  14. 14. 20 WC 000389 10 On May 10, 2018, Petitioner returned for follow-up with Dr. T . Px1 at 20. Dr. T noted that Petitioner was doing better, but had “had an episode where he was admitted to the hospital after straining his back.” Px1 at 20. X-rays were read as showing no change in alignment with 100% reduction of spondylolisthesis with good disc height, and no loosening, subsidence or migration noted. Px1 at 21. Dr. T noted in his assessment that Petitioner was having some residual pain and he would have Petitioner continue sedentary restrictions. Px1 at 21. On June 14, 2018, Petitioner reported that the pain in his lower back had increased. Px1 at 22. Petitioner was progressing through work conditioning and was working in a sedentary capacity. Px1 at 23. Petitioner returned to Dr. T on July 5, 2017. Px1 at 25. Petitioner reported that he continued to experience daily pain and felt that he could not return to work regular duty. Px1 at 23. Petitioner reported that he was working light duty, was experiencing spasms, and was having difficulty working light duty because of repetitive bending and reaching. Px1 at 25. Dr. T ’s impression noted that Petitioner had ongoing low back pain with radiculopathy and a new CT scan was ordered to better assess whether Petitioner was solidly fused due to Petitioner’s ongoing pain. Px1 at 26. On August 8, 2018, Petitioner underwent a CT scan of his lumbar spine, which revealed (1) status post fusion of the L5-S1 vertebral bodies with no significant abnormality in the hardware. No pseudoarthrosis or loosening was seen; and (2) multilevel spondylosis, which was incompletely characterized on CT, and a follow up MRI was clinically indicated. Px3 at 2. Petitioner underwent an FCE on August 30, 2018. Rx5. Petitioner presented for follow up with Dr. T on November 29, 2018. Px1 at 27. Petitioner reported spasms in his back with twisting, turning, and with increase in activity. Px1 at 27. X-rays taken on that date showed a stable construct at L5-S1, and no loosening, subsidence, or migration was noted. Px1 at 28. Dr. T noted that review of the August 2018 MRI showed that there was no loosening of the screws, the cage was appropriately positioned, and there appeared to be fusion through the interbody cage device. Px1 at 28. At that time, Petitioner had completed therapy, and Dr. T recommended an FCE, if one had not already been done. Px1 at 28. Dr. T released Petitioner to work with a 10-pound lifting restriction. Px1 at 28. Petitioner returned to Dr. T on February 7, 2019, with reports of continued pain and spasms, which had taken him to the emergency room several times. Px1 at 29. Petitioner reported that since his November 2018 appointment, he had been working, however, “they” were making
  15. 15. 20 WC 000389 11 him work regular duty although he was on work restrictions. Px1 at 29. Petitioner reported that he was repetitively having to mop and clean toilets and bend and lift more than he was supposed to, which was aggravating his pain. Px1 at 29. Petitioner described the pain as radiating all the way up to his neck and down his legs. Px1 at 29. On exam, Petitioner transitioned positions slowly and moved in an antalgic fashion with pain almost immediately upon flexion and extension. Px1 at 30. Dr. T referred Petitioner to Dr. for further conservative care due to his ongoing pain and noted that Petitioner was capable of returning to work per his FCE. Px1 at 30. On February 25, 2019, Petitioner presented to Dr. with complaints of constant pain that originated in his low back and radiated to his neck. Px1 at 31. He reported that he used hot water baths and Norco for pain relief. Px1 at 31. He further reported that sometimes the pain was so significant that it caused him nausea and vomiting. Px1 at 31. Petitioner also reported a history of spasms that lowered his self-esteem and made him feel uncomfortable in public. Px1 at 31. Dr. noted that there had not been bad flare ups since 2018, and that Petitioner had “increased work demands with taking care of 24 tanks etc…dumping, scrubbing, lifting, etc.” Px1 at 31. Dr. ’s diagnoses were (1) contracture of muscle, multiple sites; (2) chronic pain; (3) lumbar fusion post interbody technique; (4) therapeutic drug monitoring; (5) morbid obesity due to excess calories; (6) body mass index 40.0-44.9; (7) nicotine dependence; (8) acquired lumbar spondylolisthesis; (9) connective tissue and disc stenosis of intervertebral foramina of lumbar region; and (10) degenerative disc disease, lumbosacral spine with radiculopathy. Px1 at 31-32. Dr. prescribed CBD oil, Norco, and Flexeril; and she returned Petitioner to work at a medium physical demand level. Px1 at 32. On March 25, 2019, Petitioner returned to Dr. complaining of sharp, stabbing pain with radiation to the bilateral buttocks and calves. Px1 at 35. Dr. noted that Petitioner had been in the ER one week prior due to pain. Px1 at 35. On exam, Petitioner ambulated without assistance. Px1 at 37. Petitioner’s diagnoses remained unchanged. Px1 at 37. Petitioner underwent a 15-minute acupuncture session, Duexis was prescribed in addition to previously prescribed medications, and his restrictions remained unchanged. Px1 at 38. On April 22, 2019, Petitioner presented to Dr. with complaints of continued sharp, stabbing pain, similar in intensity, with radiation to the bilateral buttocks and calves. Px1 at 38. Petitioner reported that he felt that he was working above and beyond restrictions and wanted Dr. to specify his permanent FCE-based restrictions on work status for HR. Px1 at 41.
  16. 16. 20 WC 000389 12 Petitioner’s diagnoses were unchanged. Px1 at 44. Petitioner received acupuncture, trigger point injections, and continued prescriptions for pain management. Px1 at 44-45. Petitioner followed up with Dr. on June 24, 2019, July 22, 2019, August 19, 2019, and September 30, 2019. Px1 at 44-68. Similar complaints of pain persisted throughout Petitioner’s treatment with Dr. until September 30, 2019. Px1 at 47-68. Petitioner also continued to report that he was not working within his restrictions. Px1 at 50, 52, 57, 63. On June 24, 2019, Petitioner filled out a THC card application, but it was not submitted. Px1 at 47, 52. Petitioner’s diagnoses included neuropathic pain beginning on June 24, 2019; and swelling of bilateral fingers and long-term use of NSAIDs beginning on August 19, 2019. Px1 at 49, 54, 60, 66. Petitioner continued with acupuncture treatment and underwent additional trigger point injections. Px1 at 50, 55. Petitioner was given a lumbar brace on September 30, 2019. Px1 at 67. Evidence deposition testimony of Respondent’s Section 12 Examiner, Dr. Dr. M testified by way of evidence deposition on August 13, 2021, and the transcript of testimony was admitted as Respondent’s Exhibit (“Rx”) 6, without objection. Dr. M testified as to his education and credentials as an orthopedic spine surgeon. Rx6 at 5-7. Dr. M saw Petitioner for independent medical examinations related to Petitioner’s July 6, 2016 accident and issued two narrative reports dated April 11, 2018 and July 11, 2018. Rx6 at 7. Dr. M testified that at the time of his July 11, 2018 report, Petitioner was six months post lumbar fusion and Petitioner still had pain in the middle of his back and his neck. Rx6 at 8-9. Dr. M ’s diagnosis at that time was status post lumbar fusion with continued pain, and Dr. M also noted that Petitioner was still smoking. Rx6 at 9-10. At that time, Dr. M found Petitioner to be at maximum medical improvement and did not recommend any further treatment. Rx6 at 24- 25. Dr. M allowed Petitioner to return to work full duty at that time and this opinion was based on Dr. M ’s exam. Rx6 at 12, 25. Dr. M testified that he was suspicious of a failed fusion or nonunion at the time of his July 11, 2018 exam because Petitioner was still having significant pain. Rx6 at 24. Dr. M , however, then testified that he did not suspect a nonunion when he was asked why he did not recommend further treatment or additional diagnostic testing on July 11, 2018. Rx6 at 28. Dr. M testified that his concern was that Petitioner was going into a nonunion at some point because Petitioner continued to smoke. Rx6 at 28-29.
  17. 17. 20 WC 000389 13 Dr. M next examined Petitioner on December 12, 2019. Rx6 at 12. Petitioner reported both the October 18, 2019 and the October 25, 2019 incidents. Rx6 at 13. At that time, Petitioner reported to Dr. M that he was having significant pain in his lower back and trouble sitting or standing for prolonged periods of time. Rx6 at 13. Petitioner complained of tightness, more on the right side, and that the pain had worsened following the October 25, 2019 incident. Rx6 at 13. Dr. M reviewed the MRI of November 27, 2019, which showed the prior L5-S1 fusion, but also a new L4-5 right-sided disc herniation impinging on the right L5 nerve root. Rx6 at 15. Dr. M reviewed the CT scan of November 30, 2019, which showed no clear evidence of hardware failure or fracture and also no appreciable bony fusion in the disc space. Rx6 at 15. This finding showed that there was pseudoarthrosis or a failure to heal from the prior fusion. Rx6 at 15. The CT scan also showed the L4-5 disc protrusion on the right side. Rx6 at 15. Dr. M did not review the CT scan of August 2018. Rx6 at 30. Dr. M ’s diagnoses at that time were L4-5 disc herniation on the right side and lumbar pseudoarthrosis with radiculopathy at the L5-S1 level. Rx6 at 17. At the time of his December 12, 2019 exam, Dr. M opined that the October 18, 2019 incident did not cause any significant or permanent injury nor any injury that was pertinent to the L4-5 disc herniation or pseudoarthrosis at the L5-S1 level. Rx6 at 18. He further opined that the October 25, 2019 incident caused the L4-5 disc protrusion and onset of worsening symptoms in Petitioner’s lower back with radicular symptoms on the right side. Rx6 at 18. Dr. M recommended that Petitioner undergo injections for pain control for the L4-5 disc herniation, as the injections would alleviate some of the pain. Rx6 at 20. Dr. M testified that there was no evidence that the October 25, 2019 incident caused, contributed, or aggravated the preexisting pseudoarthrosis at the L5-S1 level. Rx6 at 18. The pseudoarthrosis was already present because there was no evidence of healing at all on the CT scan. Rx6 at 18. The failure of a fusion is long- term process and not the result of a sudden trauma. Rx6 at 18. Dr. M testified that the significance of Petitioner’s smoking is that smoking cigarettes and any use of nicotine inhibits vasculature and bony ingrowth at the fusion site. Rx6 at 19. Lumbar fusions may still not heal without smoking. Rx6 at 18. The healing rate in an ideal patient that is healthy and does not smoke is in the 90th or 95th percentile, whereas the fusion rate decreases to 40 to 50 percent once an individual smokes. Rx6 at 19. Dr. M examined Petitioner again on May 29, 2020. Rx6 at 20. Petitioner still had back pain and right leg pain, he could not walk for any distances, and was off work because of significant
  18. 18. 20 WC 000389 14 pain. Rx6 at 20. Petitioner reported that he had recently stopped smoking completely. Rx6 at 21. Petitioner had quit smoking in April with the use of nicotine patches. Rx6 at 21. Petitioner also reported that his back and left buttock were bothering him more than the right at that time. Rx6 at 21. This complaint was more significant of the L5-S1 level being the more predominant cause of pain and the L4-5 disc protrusion had improved. Rx6 at 21. Petitioner had a cane with him on this day. Rx6 at 22. Dr. M ’s diagnoses were that the L4-5 disc protrusion and nerve pain had essentially resolved, as there was no evidence of radiculopathy and Petitioner had normal strength and no nerve tension signs; and Petitioner’s primary issue at that time was the L5-S1 nonunion, which was taking a significant toll on his back and was related to his prior 2016 work injury. Rx6 at 23. At that time, Dr. M opined that the L4-5 disc herniation was not causing or contributing to Petitioner’s symptoms, and his primary complaints, which were left-sided, were related to L5- S1 nonunion, which was related to the prior injury of March 27, 2017. Rx6 at 23. Dr. M did not recommend any further treatment for the L4-5 disc protrusion because it had improved. Rx6 at 24. Dr. M opined that any treatment for the L5-S1 level was not related to the October 18, 2019 or October 25, 2019 incidents. Rx6 at 24. Dr. M testified that he believed that Dr. T diagnosed the broken screw in November 2019, which was when the nonunion was officially diagnosed. Rx6 at 31. Dr. M testified that there is no evidence of the nonunion on an MRI, CT scan, or x-rays before November 2019. Rx6 at 31. Dr. M testified that from a medical standpoint, and without consideration of causation, Petitioner would need surgery to address the L5-S1 issue and work restrictions before and after surgery. Rx6 at 32. Petitioner did not require any further restrictions in relation to the L4-5 disc herniation. Evidence deposition of Dr. Dr. T testified by way of evidence deposition on July 9, 2021 and the transcript of testimony was admitted as Petitioner’s Exhibit 10 (Px10), without objection. Dr. T testified as to his education and credentials as an orthopedic spine surgeon. Px10 at 5-6. Dr. T testified that Petitioner is his patient. Px10 at 7. He has performed surgery on Petitioner and has recommended that Petitioner have a revision surgery and an extension of his fusion. Px10 at 7. Dr. T began treating Petitioner on June 30, 2017. Px10 at 7. He performed a L5-S1 transforaminal lumbar interbody fusion on Petitioner on November 20, 2017. Px10 at 7.
  19. 19. 20 WC 000389 15 Dr. T testified to his continued follow-up with Petitioner through November 21, 2018, which included x-ray and CT evaluation of the results of the fusion. Px10 at 7-8. X-rays taken on December 27, 2017 showed that everything was in good alignment and there was not any loosening of screws. Px10 at 8. The CT scan of April 2018 was unremarkable and showed that the screws were solid and that there was progressive fusion. Px10 at 8-9. The CT scan of August 2018 showed that the cage was well positioned, Dr. T did not appreciate any loosening of the screws, and he thought that there was evidence of fusion through the cage. Px10 at 9. Dr. T testified that when he saw Petitioner on November 21, 2019, he was complaining of worsening back pain and reported that he slipped on a piece of meat and strained his back on October 18, 2019 and that he was then reinjured when he had low back pain when he went to pull a steel drum back up after rinsing it. Px10 at 11. X-rays were taken that day, which showed degenerative change at L4-5 with loss of disc height and a fractured S1 screw. Px10 at 11- 12, 27. A fractured S1 screw had not been revealed on x-ray prior to November 21, 2019. Px10 at 12. Dr. T testified that the significance of a broken screw was that it would be a fatigue fracture of the screw which would indicate that there was likely not a solid fusion. Px10 at 12. Dr. T explained that what he meant by a fatigue fracture was that as the body loads, bending, twisting, lifting, walking, or applying any weight to the body puts stress on the screws and over time, the repetitive stress will cause any metal object to fail or break and is not necessarily a post- traumatic finding. Px10 at 12, 22, 23. A fracture of a screw can also be caused by a specific trauma through lifting. Px10 at 12. Dr. T ’s concern at that time was for a pseudoarthrosis given the broken screw. Px10 at 12-13. Dr. T ordered an MRI and CT scan. Px10 at 13. The CT scan determined a pseudoarthrosis of L5-S1 and a herniated disc at L4-5, with loss of disc height and degenerative change. Px10 at 13, 24-25. Dr. T testified that he felt the fracture was more compelling on the right side and did not rule out the left side being fractured as well. Px10 at 26. Dr. T testified that he imposed additional work restrictions on Petitioner and recommended a revision fusion at L5-S1 and a fusion at L4-5 to remove the disc and revise the pseudoarthrosis. Px10 at 14. Dr. T testified that it was important to remove the disc at L4- 5 because it was causing radiculopathy extending into Petitioner’s right leg because of the pinched nerve. Px10 at 14-15. There was not ever any recommendation of a revision of Petitioner’s lumbar fusion prior to the October 18, 2019 and October 25, 2019 incidents. Px10 at 20. At the time of his deposition, Dr. T continued to recommend a revision fusion of L5-S1 and a fusion of L4-5,
  20. 20. 20 WC 000389 16 with excision of the disc herniation at L4-5; and he recommended Petitioner be off work pending surgical intervention. Px10 at 20-21. Dr. T opined that since October 2019, Petitioner has not ever been able to return to work at full capacity. Px10 at 37. Dr. T testified that the nonunion was present prior to October of 2019. Px10 at 16. He explained that CT scans are not a perfect indicator of a solid fusion, but if a patient appears to be fused and eventually breaks screws, then there was likely no fusion there. Px10 at 17. Dr. T further testified that although there was no evidence of nonunion before October 2019, it became evident after the fact. Px10 at 17, 21. Dr. T testified that the October 18, 2019 or October 25, 2019 incidents could have permanently aggravated Petitioner’s condition of ill-being and either one could have caused the S1 screw to break. Px10 at 18. The need for the revision surgery was related to those two incidents, as well as the previous fusion surgery and the initial event. Px10 at 19. Dr. T explained that the herniated disc at L4-5 was directly related to the October 2019 incidents, and the pseudoarthrosis was permanently aggravated by those incidents as well. Px10 at 19. Dr. T explained that Petitioner likely had a stable pseudoarthrosis which became permanently aggravated, in addition to the development of a herniated disc at L4-5. Px10 at 19. The fractured S1 screw was a consequence of the pseudoarthrosis. Px10 at 29. Dr. T testified that he could not say whether the S1 screw fractured at the time of Petitioner’s fall on October 25, 2019 or had been fractured and became aggravated at that time. Px10 at 29, 36. Dr. T testified that the pseudoarthrosis likely preexisted and his opinion as to aggravation after the October 2019 incidents was based on Petitioner’s self-reported worsening of his pain and the veracity of Petitioner’s complaints relative to an increase in his symptoms. Px10 at 34-35. At the time of his deposition, Dr. T testified that he was aware that Petitioner was no longer smoking cigarettes. Px10 at 19. Petitioner was smoking in 2019, which had an impact on Dr. T ’s recommendation for surgery. Px10 at 20. Dr. T testified that Petitioner was informed that he needed to quit smoking before undergoing surgery and that smoking was likely a large factor in the pseudoarthrosis that he developed. Px10 at 20. Dr. T testified that smoking inhibits bone growth by inhibiting the generation of vasculature which is required for new bone growth. Px10 at 20. The exposure to nicotine inhibits the formation of new bone which is required to form a fusion Px10 at 20. Dr. T testified that the incident which Petitioner described as involving a “popping” sensation was consistent with the diagnosis of the L4-5 disc herniation. Px10 at 30. Dr. T
  21. 21. 20 WC 000389 17 testified that he told Petitioner that he could try to treat the L4-5 disc herniation nonoperatively, but Dr. T felt that because of the nonunion, he needed a revision and “so if we were going in there we talked about doing the disc as well.” Px10 at 27-28. Dr. T agreed that the inclusion of the L4-5 in the revision procedure was in part due to the presence of significant degenerative changes above the prior fusion. Px10 at 28. The degenerative changes at the L4-5 level could have been a result of Petitioner’s obese stature, but were at least in part due to the adjacent segment fusion with instrumentation, which would put more strain on that level as well. Px10 at 29. Dr. T agreed that the 2017 fusion was not a successful surgery to the extent that it did not produce the desired outcome, which is primarily pain relief. Px10 at 30. Dr. T testified that he was not sure if Petitioner continued to regularly treat for chronic pain following the 2017 fusion through October 2019. Px10 at 30. Dr. T explained that he knew that Petitioner was seeing Dr. during that time, so there was some treatment, but he was not sure if it was for back pain or for leg pain. Px10 at 30. He believed it was for back pain. Px10 at 30. Dr. T testified that he believed that Petitioner’s pain complaints since October 2019 were similar to his complaints since the FCE of 2018, and were not less severe. Px10 at 38. Dr. T agreed that it was a fair statement that Petitioner’s continuing pain complaints following the 2017 fusion surgery could have been an indication of a symptomatic and unstable nonunion, despite the x-rays and CT scan showing that there was more stability than there was. Px10 at 31. Dr. T testified that radiculopathy from a herniated disk could resolve spontaneously. Px10 at 33. Dr. T testified that, as of the date of his deposition, he had not physically examined Petitioner since late December 2019. Px10 at 33. Dr. T had no personal knowledge at that time as to whether the L4-5 disc herniation remained symptomatic. Px10 at 34. Dr. T agreed that if the L4-5 disc was no longer symptomatic, there would not be the same level of indication for an extension of the fusion. Px10 at 34. He explained that if Petitioner did not have degenerative change or continued impingement of the nerve root, then he would not likely extend the fusion. Px10 at 34. CONCLUSIONS OF LAW The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set forth below.
  22. 22. 20 WC 000389 18 Decisions of an arbitrator shall be based exclusively on the evidence in the record of the proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The burden of proof is on a claimant to establish the elements of his right to compensation, and unless the evidence considered in its entirety supports a finding that the injury resulted from a cause connected with the employment, there is no right to recover. Board of Trustees v. Industrial Commission, 44 Ill. 2d 214 (1969). Credibility is the quality of a witness which renders his evidence worthy of belief. It is the function of the Commission to judge the credibility of the witnesses and to resolve conflicts in the medical evidence and assign weight to witness testimony. O’Dette v. Industrial Commission, 79 Ill.2d 249, 253, 403 N.E.2d 221, 223 (1980); Hosteny v. Workers’ Compensation Commission, 397 Ill. App. 3d 665, 674 (2009). Where a claimant’s testimony is inconsistent with his actual behavior and conduct, the Commission has held that an award cannot stand. McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968); Swift v. Industrial Commission, 52 Ill. 2d 490 (1972). In the case at hand, the Arbitrator observed Petitioner during the hearing and finds him to be a credible witness. Petitioner was calm, composed, and well-mannered. The Arbitrator also observed Petitioner ambulating with the use of a cane. The Arbitrator compared Petitioner’s testimony with the totality of the evidence submitted and did not find any material contradictions that would deem the witness unreliable. Issue F, whether Petitioner's current condition of ill-being is causally related to the injury, the Arbitrator finds as follows: To obtain compensation under the Act, a claimant must prove that some act or phase of his employment was a causative factor in his ensuing injuries. 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. v. Industrial Comm’n, 207 Ill. 2d 193, 205 (2003). Even if the claimant had a preexisting degenerative condition which made him more vulnerable to injury, recovery for an accidental injury will not be denied if the claimant can show that a work-related injury played a role in aggravating his preexisting condition. Id. A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient to prove a causal connection between the accident and the claimant’s injury. International Harvester v. Industrial Com., 93 Ill. 2d 59, 63 (1982).
  23. 23. 20 WC 000389 19 The Arbitrator finds that Petitioner established a causal connection between the work accident of October 25, 2019 and his current lumbar spine conditions of ill-being. The Arbitrator relies on the following in support of her findings: (1) Petitioner’s credible testimony regarding the worsening of his low back symptoms following the October 25, 2019 work accident; (2) Dr. ’s treatment records, and (3) Dr. T ’s treatment records and testimony. The Arbitrator notes that while Petitioner’s pseudoarthrosis may have developed prior to the October 25, 2019 work accident, the record supports Dr. T ’s opinion that the pseudoarthrosis was stable until permanently aggravated by the October 25, 2019 work accident. Both Dr. T and Dr. M agree that there was no evidence of a nonunion prior to October 25, 2019 and that both the nonunion and fractured S1 screw were diagnosed subsequent to the October 25, 2019 accident. More convincingly, Dr. T opined that the S1 screw was either fractured at the time of the October 25, 2019 accident or it was present prior to October 25, 2019 and aggravated by the accident. Px10 at 29, 36. The Arbitrator notes that both Dr. T and Dr. M agree that the disc herniation at the L4-5 level was a new finding and causally related to the October 25, 2019 work accident. The Arbitrator further notes and considers that although Petitioner continued to treat for low back pain and spasms following the November 20, 2017 fusion, Petitioner returned to work in June 2018 and had been working full duty for an extended period of time prior to the October 25, 2019 work accident. Petitioner also credibly testified that his low back symptoms significantly worsened following the October 25, 2019 work accident, and his testimony is corroborated by the medical records. Based on the record as a whole, including Petitioner’s testimony, medical records, and the medical opinions of Petitioner’s treating physicians over those of Dr. M , the Arbitrator finds that Petitioner has met his burden in proving a causal connection between his October 25, 2019 accident and his current lumbar spine conditions of ill-being. Issue J, whether the medical services that were provided to Petitioner were reasonable and necessary and whether Respondent has paid all appropriate charges for all reasonable and necessary medical services, the Arbitrator finds as follows: Consistent with the Arbitrator’s finding as to causal connection, the Arbitrator finds that the medical treatment Petitioner has had for his lumbar spine conditions is reasonable, necessary, and related to the work accident of October 25, 2019. Petitioner claims Respondent is liable for
  24. 24. 20 WC 000389 20 unpaid medical bills from Hinsdale Orthopaedic Association ($8,481.00), AMCI ($711.00), and Injured Workers’ Pharmacy ($31.11). See Px12, Px13, and Px14. The Arbitrator further finds that Respondent shall pay Petitioner directly for the outstanding medical bills for treatment of Petitioner’s lumbar spine conditions, as provided in Px12, Px13, and Px14, pursuant to the medical fee schedule and Sections 8(a) and 8.2 of the Act. Respondent is entitled to a credit for any payments made towards the awarded outstanding expenses and shall hold Petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit. Issue K, whether Petitioner is entitled to any prospective medical care, the Arbitrator finds as follows: Consistent with the Arbitrator’s prior findings, the Arbitrator finds that Petitioner is entitled to prospective medical care, as recommended by Dr. T . The Arbitrator considers the opinions of Dr. M , but finds that they do not outweigh the opinions of Dr. T . As such, the Arbitrator relies on the opinions and treatment recommendations of Dr. T , noting that Dr. T has treated Petitioner since 2017, whereas Dr. M has seen Petitioner on only four occasions, two of which followed the October 25, 2019 work accident. The Arbitrator notes that despite multiple medical exams, a recommendation for a revision of Petitioner’s L5-S1 lumbar fusion or a TLIF procedure at the L4-5 level had not been made prior to October 25, 2019. Regarding the recommended TLIF procedure, the Arbitrator further notes that such procedure may not be necessary, per Dr. T ’s testimony, if Dr. T finds that the L4-5 disc is no longer symptomatic or if Petitioner does not have degenerative change or continued impingement of the nerve root. Px10 at 34. Additionally, the Arbitrator notes that Petitioner credibly testified that he stopped smoking in February 2021 and there is no evidence to rebut his testimony. Tr. at 28. Further, Dr. noted in her February 1, 2021 treatment record that Petitioner had been weaned off pain medications and had lost 40 pounds in weight. Px5 at 77. Thus, the Arbitrator finds Petitioner to be compliant with Dr. T ’s recommendation that Petitioner stop smoking prior to proceeding with the recommended surgical treatment. Based on the Arbitrator’s prior findings and the record as a whole, the Arbitrator finds that Petitioner is entitled to the lumbar fusion revision at L5-S1, as well as the TLIF procedure at the
  25. 25. 20 WC 000389 21 L4-5 level, if Dr. T finds that the TLIF procedure is necessary, and all reasonable and necessary preoperative clearance, imaging, and postoperative care. Issue L, whether Petitioner is entitled to temporary total disability, the Arbitrator finds as follows: Consistent with the Arbitrator’s prior findings, the Arbitrator finds that Petitioner is entitled to temporary total disability benefits. At issue is the claimed TTD period of July 17, 2020 to January 26, 2022. (See Ax1, No. 8). Per the Parties’ stipulation, Petitioner last worked on July 16, 2020. Tr. at 29. Petitioner credibly testified that on July 16, 2020, Respondent informed him that his restrictions could no longer be accommodated, and Petitioner’s testimony was unrebutted. Tr. at 26. The Arbitrator notes that subsequent to July 16, 2020, Petitioner underwent an FCE on September 23, 2020, which Dr. found valid and noted those restrictions as permanent. Px5 at 62, 82. Dr. T has also kept Petitioner on restrictions, while continuing to recommend surgical treatment for Petitioner’s condition. Px5 at 41, Px10 at 7, 37. Dr. M has also recommended a 10-pound lifting restriction along with light duty status. Rx6 at Respondent’s Deposition Exhibits 4 and 5. There is no evidence in the record that Respondent accommodated Petitioner’s restrictions after July 16, 2020. Based on the Arbitrator’s prior findings and the record as a whole, the Arbitrator finds that Petitioner is entitled to temporary total disability benefits from July 17, 2020 through the date of arbitration, January 26, 2022. Issue N, whether Respondent is due any credit, the Arbitrator finds as follows: Per the Parties’ stipulation, the Respondent is entitled to a credit under Section 8(j) of the Act for any medical paid by Respondent’s group health plan and for any medical bills paid by Respondent’s workers’ compensation carrier and/or administrator. See Ax1 at 13, Rx3. , ARBITRATOR

×