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Scott Goldstein Helps Chicago Forestry Worker Get Surgeries

A City of Chicago Department of Forestry worker was awarded cervical and knee replacement surgery as well as medical and ttd benefits. Attorney Scott Goldstein of Ankin Law Office also ensured that the City of Chicago pay penalties for the way they handled the respondent's case.

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Scott Goldstein Helps Chicago Forestry Worker Get Surgeries

  1. 1. ILLINOIS WORKERS' COMPENSATION COMMISSION NOTICE OF 19(b)/8(a) ARBITRATOR DECISION Case# 15WC011389 DACIOLAS, KENNETH Employee/Petitioner 15WC032525 17WC015385 17WC015386 CITY OF CHICAGO. DEPT OF FORESTRY Employer/Respondent On 12/20/2019, an arbitration decision on this case was filed with the Illinois Workers' Compensation Commission in Chicago, a copy of which is enclosed. If the Commission reviews this award, interest of 1.55% shall accrue from the date listed above 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. A copy of this decision is mailed to the following parties: 1067 ANKIN LAW OFFICE LLC SCOTT GOLDSTEIN 10 N DEARBORN ST SUITE 500 CHICAGO, IL 60602 0010 CITY OF CHICAGO DONALD TAYLOR CHITTICK 30 NLASALLE ST SUITE 800 CHICAGO, IL 60602 STATE OF ILLINOIS SS. COUNTY OF Cook Injured Workers' Benefit Fund ($4(d)) Rate Adjustment Fund ($8(g)) Second Injury Fund ($8(e)18) None of the above ht
  2. 2. ILLINOIS WORKERS' COMPENSATION COMMISSION · ARBITRATION DECISION 19(b), 8(a) . . . . . . . . .: Kenneth Daciolas Employee Petitioner Case # 15 WC 11389, 15 WC 32525, 17 WC 15385, 17 WC 15386 Consolidated cases: N/A ..: :::::::::: V.; City of Chicago - Department of Forestry 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 Charles Watts, Arbitrator of the Commission, in the city of Chicago, on 10/4/19. 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. .. . . . : ::: : . . . .
  3. 3. .... .. ... ... + 11 ' · ' . . . . . . 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? 1. What was Petitioner's marital status at the time of the accident? J. X 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? : : DTPD D Maintenance TTD M. Should penalties or fees be imposed upon
  4. 4. Respondent? N. O is Respondent due any credit? 0. 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 Downstaie offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084 . . TTT IV FINDINGS On the date of accidents, 3/10/14, 6/3/15, 3/15/17, 4/3/17 Respondent was operating under and subject to the provisions of the Act. On these dates, an employee-employer relationship did exist between Petitioner and Respondent. On these dates, Petitioner did sustain accidents that arose out of and in the course of employment. Timely notice of the accidents 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 various amounts; the average weekly wage was $1,380.86 (3/10/14 injury), $1,415,58 (6/3/15 injury), $1,465.52 (3/15/17 injury), $1,468.00 (4/3/17 injury). On the date of accident, Petitioner was 44 years of age, married with 1 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 $110,352.84 for TTD, $0 for TPD, $0 for maintenance, and $0 for other benefits, for a total credit of $110,352.84 Respondent is entitled to a credit of $0 under Section 8(j) of the Act. ORDER
  5. 5. Medical benefits Respondent shall pay reasonable and necessary medical services of $33,120.19, as provided in Section 8(a) of the Act. Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $33,120.19 See Petitioner's Exhibit #1 , as provided in Sections 8(a) and 8.2 of the Act. 1 Respondent shall pay reasonable and necessary medical services of $33,120.19, as provided in Sections 8(a) and 8.2 of the Act. Respondent shall be given a credit of $0.00 for medical benefits that have been paid, and Respondent shall hold petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit, as provided in Section 8() of the Act. Temporary Total Disability Respondent shall pay Petitioner temporary total disability benefits of (1) $920.57 for dates 3/14/14 to 3/20/14 for a period of 1 week, (2) $943.72 for dates 6/4/15 to 12/23/16 for a period of 81 2/7 weeks, and (3) $978.67 for dates 4/5/17 to 10/4/19 for a period of 130 3/7 weeks as provided in Section 8(b) of the Act. Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 3/14/14 through 10/4/19, and shall pay the remainder of the award, if any, in weekly payments. Respondent shall be given a credit of $110,352.84 for temporary total disability benefits that have been paid. Penalties Respondent shall pay to Petitioner penalties of $25,610.23, as
  6. 6. provided in Section 16 of the Act; $64,02 as provided in Section 19(k) of the Act; and $10,000.00, as provided in Section 19(1) of the Act. Prospective Medical Care The Arbitrator awards Petitioner the cervical (C5-6) posterior foraminotomy surgery prescribed by Dr. Sean Salehi on March 1, 2019. :::::::::::::: The Arbitrator awards Petitioner the right knee total knee replacement surgery consultation with Dr. Dennis Nam. If Dr. Nam agrees with Dr. Bush-Joseph that the total knee replacement surgery is warranted, the right knee total knee replacement surgery is awarded. : : : The Arbitrator further awards Petitioner all post-surgical care following his surgeries required for him to achieve Maximum Medical Improvement (MMI) status pursuant to Section 8(a) of the Act.
  7. 7. 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. A T ... . .. . . .. . ... . . .. 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. ... . .. . ,:. .:: Chala H Wat ..
  8. 8. . ..::: .. . December 20, 2019 Signature of Arbitrator Date ICArbDec 19(b) DEC 2 0 2019 Kenneth Daciolas 15 WC 11389 15 WC 32525 17.WC 15385 17 WC 15386 ON City of Chicago STATEMENTS OF FACTS . . 3/10/14 Injury (15 WC 11389) ...... .. . .... Petitioner was working for the City of Chicago - Department of Forestry on the injury date. Petitioner lacerated his left index finger while cutting a tree branch. A gas powered saw lacerated
  9. 9. his left index finger and Petitioner was sent to Presence Medical Group for treatment 1 (Pet. Ex. #4). 6/3/15 Injury (15 WC 32525) V Petitioner was working for the City of Chicago - Department of Forestry on the injury date. Petitioner injured his left shoulder on that date when the saw he was using got stuck in a tree branch. The weight of the branch pulled on Petitioner's left arm causing injury to Petitioner's left . shoulder. The Petitioner injured his left shoulder rotator cuff on the 6/3/15 injury date. Petitioner EL 1 treated with Dr. Bernard Bach at Midwest Orthopedics at Rush for his left shoulder work injury
  10. 10. (Pet. Ex. #6). Dr. Bach performed two surgeries on Petitioner's left shoulder (11/3/15 and 6/2/16). Petitioner was released to return to work by Dr. Bach with no restrictions on December 20, 2016 and Petitioner returned to work for Respondent. 3/15/17 Injury (17 WC 15385) Petitioner was working for the City of Chicago - Department of Forestry on the injury date. Petitioner was pulling on a tree branch on that day when he injured his neck and his left thumb. On March 1, 2017 Petitioner was working in a bucket attached to a truck when the bucket suddenly dropped jarring the Petitioner's body. However, Petitioner clarified at trial that his significant symptoms did not start until after the March 15, 2017 incident. Both incidents were in March of 2017. The Respondent sent Petitioner for medical care for his injury to U.S. Health Works on the injury date (Pet. Ex. #3). Petitioner sought follow up care for his neck injury with Dr. Gary Shapiro (Pet. Ex. # 5). The Petitioner saw Dr. Shapiro on October 24, 2017. Dr.
  11. 11. Shapiro ordered Petitioner off work pending a cervical MRI test that he ordered. The Petitioner's cervical MRI was not authorized initially. Petitioner did have the cervical MRI on July 28, 2018 (Pet. Ex. #8). Petitioner testified Respondent would not authorize follow up care with Dr. Shapiro so he switched physician's to Dr. Sunavo Dasgupta at Elmwood Park Medical (Pet. Ex. #9, #10). Dr. Dasgupta referred Petitioner for follow up orthopedic care for his cervical spine to Vd Dr. Sean Salehi. Dr. Salehi initially evaluated the Petitioner on December 10, 2018. Dr. Salehi diagnosed Petitioner with work related cervical spondylosis (Pet. Ex. #2). Petitioner saw Dr. Salehi in follow up on March 1, 2019 (Pet. Ex. #2). Dr. Salehi recommended cervical spine surgery for Petitioner at the March 1, 2019 appointment (Pet. Ex. #2). The Petitioner has not had the surgery but he testified he wished to have the surgery when it is authorized so his neck can get better and he can get back to work (TR. at 17). Respondent did not call any witnesses at trial to rebut Petitioner's testimony. Respondent sent Petitioner for an IME with Dr. Rahul Gokhale on August 2, 2017. Dr. Gokhale agrees
  12. 12. Petitioner's cervical symptoms are a work related aggravation of a prior condition. 4/3/17 Injury (17 WC 15386) Petitioner was working for the City of Chicago - Department of Forestry on the injury date. Petitioner twisted his right knee while stepping over tree branches while working for Respondent on April 3, 2017. Petitioner testified he stepped on some tree brush causing his foot to slide forward and his right knee to twist (TR. at 19). Petitioner testified to two prior ACL surgeries on his right knee. Petitioner was evaluated at US Healthworks for his right knee injury on April 4, 2017 (Pet. Ex. #3). Petitioner followed up with Dr. Charles Bush- Joseph for evaluation of his 1 right knee injury on August 1, 2017 (Pet. Ex. # 11). Petitioner was familiar with Dr. Bush Joseph from prior right knee injuries that he treated with Dr. Bush-Joseph for. Dr.
  13. 13. Bush-Jospeh . C . evaluated Petitioner and noted that the only indicated surgical procedure for Petitioner's injury is right knee total knee replacement (Pet. Ex. #11). Dr. Bush-Joseph kept Petitioner in a sedentary . . .: work capacity as of August 1, 2017 (Pet. Ex. #11). Dr. Bush-Joseph referred Petitioner for a surgical consultation with Dr. Dennis Nam on January 31, 2018 for consideration of a right knee total knee replacement surgery (Pet. Ex. #11). Petitioner has not had the right knee surgical . . .. 1 no 11TA 1 . 1 consultation with Dr. Nam or right knee total knee replacement surgery to date. Petitioner is waiting for authorization to be evaluated by Dr. Nam and to proceed with surgery. . . . . . ..
  14. 14. Respondent sent Petitioner for an IME for his right knee injury with Dr. Pietro Tonino on July 31, 2017. Dr. Tonino does feel that Petitioner aggravated his prior knee condition with his April 3, 2017 work injury. Dr. Tonino recommended further treatment and a light duty restriction for Petitioner at the time of the IME. CONCLUSIONS OF LAW The Arbitrator adopts the Finding of Facts in support of the Conclusions of Law. . Section 1(b)3(d) of the Act provides that, in order to obtain compensation under the Act, the employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment. 820 ILCS
  15. 15. 305/1(b)3(d). To obtain compensation under the Act, Petitioner has the burden of proving, by a preponderance of the evidence, all of the elements of his claim (O'Dette v. Industrial Commission, 79 11. 2d 249, 253 (1980)), including that there is some causal relationship between his employment and his injury. Caterpillar Tractor Co. v. Industrial Commission, 129 IlI. 2d 52,63 (1989). An injury is accidental within the meaning of the Act when it is traceable to a definite time, place, and cause and occurs in the course of employment, unexpectedly and without affirmative act or design of the employee. Mathiessen & Hegeler Zinc. Co. V. Industrial Board, 284 Ill. 378 (1918). 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
  16. 16. Commission, 44 I11. 2d 214 (1969). Credibility is the quality of a witness which renders his evidence worthy of belief. The arbitrator, whose province it is to evaluate witness credibility, evaluates the demeanor of the witness and any external inconsistencies with his testimony. 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, 52 111. 2d 490 (1972). While it is true that an employee's uncorroborated testimony will not bar a recovery under the Act, it does not mean that the employee's testimony will always support an award of benefits when considering all the testimony and circumstances shown by the totality of the evidence. Caterpillar Tractor Co. v. Industrial Commission, 83 I11, 2d 213 (1980). Internal inconsistencies in a claimant's testimony, as well as conflicts between the claimant's .:i.' testimony and medical records, may be taken to indicate unreliability. Gilbert v. Martin &
  17. 17. Bayley/Hucks, 08 ILWC 004187 (2010). The Arbitrator finds, after observing Petitioner testify at trial, that Petitioner was entirely credible. He testified in a manner consistent with the medical records, incident reports and all other documentary evidence admitted as exhibits. Petitioner's demeanor at trial and the manner in which he answered questions was entirely sincere. There were no witnesses offered by Respondent to refute any testimony given by Petitioner. - .''; IN REGARD TO (F), WHETHER PETITIONER'S CURRENT CONDITION OF ILL BEING IS CAUSALLY RELATED TO HIS WORK INJURIES, THE ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER: ..... .. ... - - - - . .. - Petitioner bears the burden of proving by a preponderance of the evidence all of the :::.. ..... elements of his claim. R & D Thiel y. Workers' Compensation Comm'n, 398 Ill. App. 3d 858, .. ....,'
  18. 18. .:.: . : .: . : . . : ::::::::: ' 867 (2010). Among the elements that the Petitioner must establish is that his condition of ill being is causally connected to his employment. Elgin Bd. of Education U-46 v. Workers' Compensation Comm'n, 409 Ill. App. 3d 943, 948 (2011). The workplace injury need not be the sole factor, or even the primary factor of an injury, as long as it is a causative factor. Sisbro, Inc. v. Indus. Comm'n, 207 111. 2d 193, 205 (2003). "A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in a disability may be sufficient circumstantial evidence to prove a causal connection between the accident and the employee's injury.” Int'l Harvester v. Industrial Comm'n, 93 I11. 2d 59, 63-64 (1982). If a claimant is in a certain condition, an accident occurs, and following the accident, the claimant's
  19. 19. condition has deteriorated, it is plainly inferable that the intervening accident caused the deterioration. Schroeder v. Ill. Workers' Comp. Comm'n, 79 N.E.3d 833, 839 (I11. App. 4th 2017). All of Petitioner's injuries are causally related to his work injuries for the Respondent as follows: 1. Petitioner injured his left index finger on March 10, 2014 when a work saw lacerated his left index finger. Petitioner was sent to Presence Medical Group for treatment (Pet. Ex. #4). Respondent did not contest causation for this injury at trial. Accordingly, the Arbitrator finds Petitioner's current condition of ill being in his left index finger causally related to his March 10, 2014 work accident. 2. Petitioner injured his left shoulder on June 3, 2015 cutting a branch when his saw got stuck, Petitioner testified that the weight of the branch pulled his arm and causing a tear in his shoulder. Petitioner underwent two surgeries on his left shoulder performed by Dr. Bernard Bach (Pet. Ex. #6). Respondent
  20. 20. did not contest causation for this injury at trial. Accordingly, the Arbitrator finds Petitioner's current condition of ill being in his left shoulder causally related to his June 3, 2015 work accident. 3. Petitioner injured his cervical spine on March 15, 2017. Petitioner was pulling on a tree branch on that day when he injured his neck and his left thumb. On March 1, 2017 Petitioner was working in a bucket attached to a truck when the bucket suddenly dropped jarring the Petitioner's body. However, Petitioner clarified at trial that his significant symptoms did not start until after the March 15, 2017 incident. Both incidents were in March of 2017. Petitioner sought treatment on the date of his injury, March 15, 2017 at U.S. Healthworks, a facility he was sent to by Respondent (Pet. Ex. #3). The records from U.S. Healthworks document the March 1, 2017 incident, but confirm that Petitioner's cervical symptoms started on March 15, 2017 (Pet. Ex. #3). This is consistent with Petitioner's trial testimony. Petitioner sought follow up
  21. 21. care with Dr. Gary Shapiro for his cervical injury. Petitioner then sought a second opinion for his cervical injury at Elmwood Park Medical Center and the physician at that facility, Dr. Sunavo Dasgupta, referred Petitioner to Dr. Sean Salehi, an orthopedic spine surgeon (Pet. Ex. #9,10). Petitioner has a cervical MRI that demonstrates stenosis at the C5-6 level with corresponding nerve root impingement (Pet. Ex. #8). On December 10, 2018 Dr. Salehi personally reviewed Petitioner's MRI films and felt the MRI demonstrated bilateral foraminal stenosis at C5-6 (Pet. . . - Ex. #2). Dr. Salehi diagnosed
  22. 22. Petitioner with cervical spondylosis (Pet. Ex. #2). Dr. DE 12 Salehi’s notes indicate that Petitioner's cervical condition is secondary to Petitioner's described work injury (Pet. Ex. #2). Petitioner previously had a neck injury years ago 1 7+ 'VA . T 11U V LLLL but did not have the symptoms he currently does prior to his March 15, 2017 work injury (TR. at 26). Petitioner testified that he currently has stiffness, pain, and some numbness in his arm that he did not have prior to his March 15, 2017 work injury (TR. at 26). Petitioner testified that he has had those
  23. 23. symptoms consistently in his argil . . . :. .: C . . neck since the March 15, 2017 work injury (TR. at 26). Petitioner's trial testimony was unrebutted as Respondent did not call any witnesses at trial. Respondent did send Petitioner for an IME on August 2, 2017 with Dr. Rahul Gokahle. Dr. Gokhale opined that Petitioner's cervical injury is work related by way of an aggravation of a pre-existing condition. Accordingly, all of the medical evidence points to a causal connection between
  24. 24. Petitioner's current condition of ill being in his cervical spine and his March 15, 2017 P.11 III work injury. The Arbitrator finds Petitioner's current condition of ill being in his cervical spine is causally connected to his March 15, 2017 work injury with the Responden t. 4. Petitioner's current condition of ill being in his right knee is causally connected to his April 3, 2017 work injury with the Respondent. Petitioner twisted his right knee while stepping over tree branches while working for Respondent on April 3, 2017. Petitioner testified he stepped on some tree brush causing his foot to slide forward and his right knee to twist (TR. at 19). Petitioner testified to two prior ACL surgeries on his right knee. Petitioner was evaluated at US Healthworks for his right knee injury on April 4, 2017 (Pet. Ex. #3). Petitioner followed up with Dr. Charles Bush
  25. 25. Joseph for evaluation of his right knee injury on August 1, 2017 (Pet. Ex. # 11). Petitioner was familiar with Dr. Bush-Joseph from prior right knee injuries that he treated with Dr. Bush-Joseph for. Petitioner testified to having no pain in his right knee prior to his April 3, 2017 work injury (TR. at 26). Petitioner testified to consistent pain and numbness in his right knee since his April 3, 2017 work injury (TR. at 27). Petitioner did testify candidly about prior surgeries that he had, in the past, on his right knee. However, the prior surgeries were years ago and Petitioner was back to working on a full duty basis prior to his April 3, 2017 work injury. Petitioner's testimony in regards to his right knee injury was unrebutted. Respondent sent Petitioner to an IME for his April 3, 2017 work injury with Dr. Pietro Tonino. In the July 31, 2017 IME report, Dr. Tonino agrees that Petitioner's right knee injury is causally related to his April 3, 2017 work accident. Accordingly, all of the medical evidence points to
  26. 26. a causal connection between Teen Petitioner's current condition of ill being in his right knee and his April 3, 2017 work injury. The Arbitrator finds Petitioner's current condition of ill being in his right knee is causally connected to his April 3, 2017 work injury with the Respondent. 17 I IN REGARD TO (J), WHETHER PETITIONER'S MEDICAL TREATMENT WAS REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL. APPROPRIATE CHARGES FOR THE REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER: . Petitioner's medical for his injuries was
  27. 27. reasonable and necessary and Respondent has .:7 ; . . not paid all appropriate charges. Petitioner's treatment has consisted of doctor's visits, physical therapy, diagnostic testing, injections, and surgeries. All of these treatment measures are standard, reasonable and necessary medical treatments required for Petitioner to achieve . Maximum Medical Improvement (MMI) for his injuries. Petitioner has $33,120.19 in TTT II TTTA 11 I YELL . ... ::: 1 . . . outstanding medical bills related to his work injuries (Pet. Ex. #1). The Arbitrator awards Tu UIT
  28. 28. :.. . : Petitioner payment of the $33,120.19 in outstanding medical bills to be paid to Petitioner direct, as part of the trial award, pursuant to the Illinois Fee Schedule, IN REGARD TO (K), IS PETITIONER ENTITLED TO ANY PROSPECTIVE MEDICAL CARE, THE ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER: . . . . . . .. .. The Arbitrator awards Petitioner the cervical surgery prescribed by Dr. Sean Salehi on March 1, 2019 and the right knee total knee
  29. 29. replacement surgery consultation with Dr. Dennis Nam prescribed by Dr. Charles Bush-Joseph (Pet. Ex. #2, #11). If Dr. Nam agrees with his partner, Dr. Bush-Joseph, that the total knee replacement surgery is warranted, the Arbitrator ам awards the right knee total knee replacement surgery. In addition, the Arbitrator awards all post surgical medical care, including physical therapy, required for Petitioner to achieve Maximum Medical Improvement (MMI) pursuant to Section 8(a) of the Act. IN REGARD TO (L), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER: 2 1 1 The Arbitrator awards Petitioner TTD benefits for three time periods totaling 212 5/7 weeks: (1) 3/14/14- 3/20/14, (2) 6/4/15-12/23/16, and (3) 4/5/17- 10/4/19. The TTD periods of
  30. 30. 3/14/14-3/20/14 and 6/4/15- 12/23/16 were stipulated to by the parties at trial. The third period of TTD from April 5, 2017 to the trial date of October 4, 2019 is aw awarded by the Arbitrator as well. This is the TTD period following Petitioner's March 2017 neck injury and April 2017 right knee injury. Respondent stipulated at trial that Petitioner should be paid TTD from April 5, 2017 to November 24, 2017 only. Respondent stopped paying Petitioner TTD as of November 24, 2017 with no legal basis for termination of his TTD benefits. Petitioner was still actively treating for his right knee injury and his neck injury. On August 1, 2017 Petitioner's orthopedic knee physician, Dr. Charles Bush-Joseph provided Petitioner a light duty work restriction indicating Petitioner can only work in a sedentary duty capacity (Pet. Ex. #11). This restriction is pending a visit with Dr. Dennis Nam for an evaluation for a right knee total knee replacement surgery which Respondent has not authorized the visit with Dr. Nam to date so the sedentary work restriction for Petitioner's right knee remains in place. Petitioner
  31. 31. testified that he remains under the light duty restriction for his right knee prescribed by Dr. Bush Joseph on August 1, 2017. Respondent has not accommodated Petitioner with light duty work. VUI Petitioner has also been in an off work or light duty status for his neck beginning October 24, 2017 by Dr. Gary Shapiro, continuing with Dr. Sunavo Dasgupta at Elmwood Park Medical, 2 and at present by Dr. Sean Salehi (Pet. Ex. #2, #5, #9, #10). Respondent has not accommodated Petitioner with light duty work for his neck injury (TR. at 18). Respondent presented no witnesses to rebut Petitioner's testimony of no light duty work available for him. Further, Respondent's IME physicians both agreed Petitioner's injuries are work related and Dr. Tonino agreed Petitioner should only work in a light duty capacity. Accordingly, the Arbitrator awards Petitioner TTD benefits for three time periods totaling
  32. 32. 212 5/7 weeks: (1) 3/14/14-3/20/14, (2) 6/4/15-12/23/16, and (3) 4/5/17-10/4/19, IN REGARD TO M, SHOULD PENALTIES OR FEES BE IMPOSED UPON RESPONDENT, THE ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER: The unreasonable and vexatious nature of the Respondent's conduct warrants the payment of 20% attorney's fees under Section 16 of the Act and penalties under Section 19(k). : ; In determining whether to impose penalties and assess attorney fees under Workers' YYY u . ... .. .: .. . Compensation Act for an employer's nonpayment of workers' compensation benefits, the test is whether an employer's conduct is reasonable under the circumstances presented. Miller v. Industrial Com'n, App., 255 111. App.3d 974, 979-80 (1993). A higher standard is required for the
  33. 33. imposition of section 19(k) penalties and section 16 attorney fees than an award of additional compensation under section 19(1). McMahan v. Industrial Comm'n, 183 111.2d 499, 514 (1998). Where, however, the overwhelming weight of the evidence supports a finding of causal :::: connection, refusal to pay benefits is unreasonable and vexatious. General Refractories v. Indus, Comm’n, 55 Ill.App.3d 925, 931 (Ill. App.3d 1994). ). HA WEITE! .:: In General Refractories, the Court affirmed the imposition of penalties under Section 19(1) and Section 16 attorneys' fees where the overwhelming weight of the evidence supported a finding that the injury was an exacerbation of a preexisting condition rather than a product of the natural degeneration process. General Refractories, 55 I11.App.3d at 932. The respondent relied upon the fact that the Petitioner was a candidate for back surgery prior to his work
  34. 34. accident in refusing to pay benefits. Id. at 931. The appellate court affirmed the award of penalties because there was direct medical evidence identifying the work injury as the exacerbating force. Id. d ! IUSO ere YV In this case, the Respondent has no medical evidence to rely on in refusing to pay Petitioner TTD or authorize and pay for his medical treatment. In fact, both of Respondent's Section 12 physicians agree: (1) that Petitioner sustained a work related injury, (2) that Petitioner was not at MMI as of the date of the IME exam, and (3) Petitioner warranted further medical care for his injuries. Further, Respondent presented no witnesses at trial to rebut the Petitioner's credible testimony. Respondent could have ordered follow up Section 12 examinations for Petitioner to address his current work restrictions and medical treatment recommendations but chose not to do so. While it appears that Respondent made a mistake when it failed to look at Petitioner's medical condition and four separate workers' compensation claims as a whole when making decisions to cut off TTD, that cannot save Respondent from penalties. Simply put, if Petitioner
  35. 35. cannot return to work because of one claimed injury, Respondent cannot take the position that Petitioner could return to work because with regard to a separate injury there was a dispute. was Accordingly, all of the evidence in this case weights in Petitioner's favor and in favor of penalties and attorney's fees being awarded against Respondent for unreasonable and vexatious conduc t. There is 97 weeks of unpaid TTD benefits to Petitioner based on a TTD rate of $978.67 (AWW on 4/3/17 injury date is $1,468.00) for a total of $94,930.99 in unpaid TTD benefits. In addition, there is $33,120.19 in unpaid medical bills. The total trial award is $128,051.18. The Arbitrator awards the 19(k) penalty of 50% of the total trial award or $64,025.59. The Arbitrator awards Section 16 attorney's fees at 20% of the total trial award or $25,610.23 In addition, penalties under Section 19(1) are awarded. Section 19(1) is awarded at $30.00 per day for late payment of TTD up to a maximum of
  36. 36. $10,000.00. Pursuant to Section 19(1), a delay in payment of TTD for more than 14 days creates a rebuttable presumption of unreasonable delay in payment of TTD benefits. In this case, Respondent was 679 days late (November 25, . T 2017 to October 4, 2019) in paying Petitioner's TTD benefits. The 19(1) penalty for 679 days of VLLL late TTD payment ($20,370.00) is reduced to the statutory maximum of $10,000.00. The Arbitrator awards the maximum $10,000.00 penalty against Respondent pursuant to Section 19(1). ....

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A City of Chicago Department of Forestry worker was awarded cervical and knee replacement surgery as well as medical and ttd benefits. Attorney Scott Goldstein of Ankin Law Office also ensured that the City of Chicago pay penalties for the way they handled the respondent's case.

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