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Workers’ Compensation Law
ILLINOIS STATE BAR ASSOCIATION
The newsletter of the Illinois State Bar Association’s Section on Workers’ Compensation Law
VOL 59 NO. 4
FEBRUARY 2022
Editor’s Notes
BY RICHARD D. HANNIGAN
Continued on next page
Editor’s Notes
1
Despite Conflicting Evidence
on Premises Defect/Arising
Out Of, Injurious Practice, and
Employability/Odd Lot Theory
1
Procedural Fumble Allows
for Punt on Important Issue:
Clifton Armstead v. National
Freight, Inc.
5
Employer’s Arguments
Regarding Notice, Accident,
and Causation Fail in
Employee’s Repetitive Trauma
Claim: Euclid Beverage Ltd. v.
IWCC
6
The Unwritten Rule of Manifest
Weight Cases: Is the Decision
Well Supported in Southern
Glazer’s Wine and Spirits of
Illinois v. IWCC
9
Can a General Contractor
Defend a Third Party Claim
Using the Immunity Afforded
an Employer Under Section
5(a) the WCA?
12
The Respondent Has Paid Only
Part of or None of the Award
or Settlement Contract. What
Are the Petitioner’s Options?
13
Disputed Trip and Fall on
Loose Carpet Strip Trips Up
Employer Despite Conflicting
Evidence on Premises Defect/
Arising Out Of, Injurious
Practice, and Employability/
Odd Lot Theory
BY RICK TURNER
Mt. Vernon School District No. 80
v. Illinois Workers’ Compensation
Commission, 2021 IL App (5th
)
210047WC-U
An employee files a claim for a slip
and fall on what the employee says was a
loose piece of carpet in a hallway on the
employer’s premises. She eventually claims
that she injured her right ankle in this fall;
and then reinjured the same ankle several
months later when a student fell onto the
right ankle. The employer might presume
that the testimony of a supervisor as to an
Continued on page 3
Chair Michael Brennan has maintained
an open-door policy regarding the
pandemic that has affected our practice,
our everyday issues and how we can
continue to practice before the Illinois
Workers’ Compensation Commission. On
November 30, 2021, Brennan announced
to a group of attorneys, representing
employers and employees, that the
procedures currently in place in December
2021 will carry over to 2022. Oral
arguments will continue to be virtual. He
indicated that CompFile will evolve further
with upcoming updates. He indicated
that there were no arbitrator vacancies at
the present time. Some of the downstate
arbitrators will be reassigned in 2022. He
9
testimony establishing a causal connection
between the work performed and the
employee’s disability. Nunn, 157 Ill. App. 3d
at 477.
The court noted Dr. Saleem’s testimony
that there was a causal connection between
Long’s symptoms and his employment.
Dr. Saleem testified that Long’s job duties
included heavy lifting and overhead
lifting. This placed Long at an increased
risk of injury and increased the risk of a
recurrent tear given Long’s prior rotator cuff
repair. Dr. Saleem opined that Long’s job
duties exacerbated his symptoms, and the
Commission found Dr. Saleem’s opinions
credible and persuasive. Based on the record,
the court was unable to conclude that the
Commission’s reliance on Dr. Saleem’s
testimony regarding causation was against
the manifest weight of the evidence. The
court held that Long is entitled to recover
benefits if he can show that his employment
was a cause in aggravating his shoulder
condition. The decision does not reference a
section 12 opinion on behalf of Euclid.
The decision of the appellate court in
this case shows the difficulty employers face
in contesting repetitive trauma injuries,
especially where the employee performs a
physically demanding job like Long. The
court found that Long provided timely
notice of the accident, albeit defective, and
Euclid was not unduly prejudiced by Long’s
defective notice. The court further found
that Long and Dr. Saleem were credible
witnesses regarding the issues of accident
and causation. Therefore, the Commission’s
decision in favor of Long was not against the
manifest weight of the evidence.n
The Unwritten Rule of Manifest Weight
Cases: Is the Decision Well Supported
in Southern Glazer’s Wine and Spirits
of Illinois v. The Illinois Workers’
Compensation Comm’n
BY HOWARD H. ANKIN
Southern Glazer’s Wine and Spirits of
Illinois v. Illinois Workers’ Compensation
Comm’n, 2021 Il. App (5th) 200418WC-U
In Southern Glazer’s Wine and Spirits
of Illinois v. Illinois Workers’ Compensation
Comm’n, 2021 Il. App (5th) 200418WC-
U the Respondent appealed to the fifth
district a case that was remanded from the
Circuit Court of Williamson County finding
causal connection of repetitive trauma to
the back. The Respondent appealed issues
of manifestation date, notice, and average
weekly wage, in addition to the main issue,
causation. The fifth district upheld the
decision of 25 percent MAW, TTD, and
medical paid. At issue is a district manager
for a liquor distributor who was morbidly
obese at 320 pounds, a smoker, and had
pre-existing degenerative conditions and
treatment to his spine. Respondent defended
under the line of cases following Sisbro,
that the Petitioner’s preexisting condition
and progression of degenerative process
was the cause of Petitioner’s two-level
fusion, as well as the Petitioner did not
prove his case. The Arbitrator denied on
accident. The Commission affirmed the
Arbitrator’s findings as to causation. The
Petitioner’s appeal to the fifth district that
the Commission’s decision was against the
manifest weight of the facts was remanded
to the Commission. The Commission
seemingly thought the fifth district ruled
favorable as to causation and was to rule
on damages issues. The Commission
awarded benefits. Second appeal to the
fifth district confirmed awarded benefits
by the Commission. This award allowed
agreed modifications between the parties on
discrepancies in the Commission decision.
The employer appealed the Commission’s
award of benefits as against the manifest
weight of the facts of the case.
The Commission is the best venue
to decipher disputed facts and make
rulings after weighing those facts. Cases
are first heard by an Arbitrator and then
facts deduced at hearing have a second
opportunity to be reviewed and decided
by the Commission de novo. The volume
of cases heard by the Commission has
it making clear and just decisions. The
Commission is where the facts of work
injuries are weighed and decided and only
when it is clearly apparent the decision of
the Commission is against the manifest
weight of the evidence can a reviewing court
overturn the decision of the Commission.
There are times such as the Southern Wine
case discussed here which have a volume
of paper and detail, and a plethora of facts
where the Commission may not get it right.
The law requires an opportunity when it is
clearly apparent the Commission makes a
wrong decision in weighing facts for justice
to be served and allow appeal to a reviewing
10
Workers’ Compensation Law
▼
FEBRUARY 2022 / VOL 59 / NO. 4
court. However, when stakes are very high
for the parties, such as the case discussed
here where the cost and outcome of a two-
level surgery will have one party suffering
a huge loss appeal indicating the manifest
weight of the evidence should have made
an opposite ruling makes appeal enticing
to the losing party. How does an oversight
court assess a Commission decision to
determine if it was against the manifest
weight and reverse a decision? It looks to
see if the decision was well supported in
its reasoning by the Commission. If the
decision is well supported, it will stand up
on review.
Gary “Scott” Walston is a district
manager for Southern Wine and
Spirits. The business is wine and liquor
distribution. Scott’s job duties included
delivering liquor and wine to stores and
setting up point of sale displays. Scott was
provided an assistant merchandiser and
material handler named Kevin Murphy.
Murphy assisted Scott until July 2013 when
he left for vacation. Murphy did not return
thereafter having a knee surgery. Scott used
the help of Murphy in handling 250 to
300 cases of liquor and wine “a day.” These
cases weighed 40-45 pounds. They also
readjusted shelved product and constructed
point of purchase displays. Scott also kept
and adjusted product in his personal garage.
Scott had a large territory and drove 17
hours a week. When Scott no longer had
Murphy’s assistance, he asked his employer
for help which was not provided. The
holidays were the busiest time of year and
made up 40 percent of the business. Starting
in July of 2013 Scott did all the work himself
when the work was most profound.
Scott underwent a rotator cuff surgery
on November 20, 2012. Scott returned to
work in February 2013 with a 10-pound
lifting restriction. Due to pain and the
lifting restriction, he was lifting closer to
his body in an awkward position. The more
Scott lifted the more his back hurt. Scott
woke up with low back pain radiating into
his legs on February 28, 2013. Scott saw his
primary care physician, Dr. Davis, about 3
weeks later, on March 21, 2013. The medical
notes reported back pain for one month.
Dr. Davis prescribed pain medication,
back exercises and referral for chiropractic
treatment. The medical notes also stated,
“not sure what he has done to aggravate
this again.” In April 2013, Scott treated
with Dr. McGuire, a chiropractic physician.
Scott explained that his job requires him to
lift and bend while stacking and shelving
alcohol. Scott indicated that the back and
leg pain was not due to an accident but
increased over time. Specifically on the
chiropractors intake form it stated, back
condition not due to a work accident. Dr.
McGuire diagnosed a lumbar sprain/strain
and left S1 joint sprain. A lumbar MRI was
performed on April 23, 2013 based on the
temporary relief provided with chiropractic
treatment. Dr. McGuire diagnosed L3-5 disc
bulges with L5 left side nerve impingement,
and L5/S1 disc herniation with S1 left side
nerve impingement. On April 28, 2013, “Dr.
McGuire noted that the claimant’s lumbar
condition was ‘complicated by his obesity
and job that requires him to drive several
hours a day.’” Claimant was a smoker who
weighed approximately 320 pounds in 2013.
On August 7, 2013 Dr. McGuire
documented the increased lifting and
increased low back stability. As a result,
he referred Scott to Dr. Kennedy, a
neurosurgeon. On September 24, 2013,
Dr. Kennedy noted degenerative changes
at multiple levels including L4/5 and L5/
S1. Dr. Kennedy testified that smoking
alone would not cause claimant’s pain. In
addition, the doctor opined “degenerative
disc disease or pain from such condition
is independent of a person’s obesity.” Dr.
Kennedy noted the altered lift and increased
lifting progressively worsened the low back
and leg pain. Dr. Kennedy referred claimant
to Dr. Feinberg for pain management.
Despite injections, the pain and numbness
progressed. Light duty restrictions were
prescribed but not accommodated by the
employer. In November 2013, claimant
was directed to return to work when
he was capable of performing full duty
work of lifting 100 pounds. Dr. Kennedy
acknowledged that degenerative disc
disease identified in Scott’s diagnostic
studies would progress on its own, and
the type of pain Scott experienced could
be brought about by sleeping in the wrong
position or twisting and turning at night.
On November 21, 2013, claimant
reported his work related degenerative low
back condition to the company in an Email
to Susan Drury, the benefits administrator
for the employer. He requested another
merchandiser to assist him and was rejected
again.
A lumbar myelogram performed on
January 28, 2014 showed “compression,
significant instability at Levels L4-5 and L5-
S1, and spinal cord stenosis.” Dr. Kennedy
opined “the spinal instability was of a
more recent vintage than the degenerative
changes and was the major cause of the
claimant’s stenosis.” Injections with Dr.
Feinberg were continued through April
2014 with no improvement. Dr. Kennedy
performed a bilateral lumbar laminectomy
and foraminotomy with fusion on March
17, 2014 based on his belief the spinal
instability was causing the low back and leg
pain. On April 24, 2014, claimant returned
to full duty work. in June 2014 he was
prescribed a bone stimulator. On September
5, 2014, a right-side screw fracture was
found on a CT scan. The fusion was found
to be stable on October 27, 2016. Claimant
was released from medical treatment
February 16, 2016.
Dr. Kennedy opined that the daily
repetitive twisting, bending, lifting and
driving were causative factors in his lumbar
instability. He further opined that the
twisting, bending and lifting with his arms
closer to his chest placed undue stress on
claimant’s lumbar spine. As such, his job
duties “aggravated his lumbar condition to
the point it became unstable and constantly
symptomatic. He explained that a “spine –
particularly a degenerative spine – poorly
tolerates excessive bending and twisting
while loaded with weight, because the
rotational movement puts excess force on
the structures of the lumbar spine.”
Claimant was examined by Dr. Fletcher,
his AMA examiner on June 6, 2014, prior
to his reaching MMI. Scott had been
diagnosed two days prior as having the
screw broken in his back. Dr. Fletcher did
not find the claimant’s lifting had been
“frequent or continuous” based upon the
fact that he did not lift more than 2/3 of the
workday. Dr. Fletcher was not informed of
the increased lifting from July 2013 through
November 2013. Dr. Fletcher provided
11
an impairment rating of 15 percent, on a
scale of 15 percent to 24 percent, because
Scott was morbidly obese, answered his
own question for Scott on an unanswered
question on his patient form concerning
pain, and that Scott did not report that he
got better on weekends or became worse
while working.
Scott eventually returned to full duty
work wearing a corset, taking narcotic
drugs, and testified that he had altered
lifestyle and reduced ability to enjoy
activities.
The Commission was confronted with a
fact pattern in which the first two treating
physicians identified non-work related
histories and a long-standing degenerative
condition of Scott. This was compounded
by Scott being a smoker and weighing 320
pounds. Further, the employer retained an
expert who opined there was no objective
evidence that the condition changed
between the onset in February 2013 and the
reported date of accident and this repetitive
trauma case when Scott went off work in
November 2013. The expert opined that
Scott had a degenerative disc disease which
is a progressive, age related condition and
that Scott’s morbid obesity was a risk factor
that accelerated the progression of the
disease. The Commission weighed these
facts next to the opinions of Dr. Kennedy,
a neurosurgeon, who provided clear causal
connection that peer reviewed medical
literature shows the spine poorly tolerates
excessive bending and twisting while the
loaded weight places excessive force during
rotational movement. The lifting of 350
cases, weighing 45 pounds each, while
driving 17 hours a week, plus additional
lifting of readjusted displays, and at home
in the work garage, caused the need for the
two level surgery. Also, the neurosurgeon
returned Scott to full duty work.
This was a difficult set of facts for the
Commission to weigh, and one can only
imagine the volume of medical records
which included pre-existing medical
records the Commission was required to
view. The decision in Scott’s case could
possible change based on the decider of
fact. However, overruling a decision by
the Commission is not based whether
another reviewing body would have ruled
differently. The only way to overturn the
Commission’s decision is when it gets it
clearly wrong. How does the Commission
get its clearly wrong; when it does not
support the facts of its decision clearly and
properly.
In Scott’s case the Arbitrator found and
the Commission affirmed the arbitrator’s
decision that Scott was not credible because
he was only lifting 350 cases of product
a WEEK, not a Day, which was clearly
supported by the record. Further, the
decision stated the Scott had the help of
an assistant into October when the record
was clear Scott lost assistance in July. The
Commission decision stated that there
was no objective change in Scott’s medical
condition between February and November,
when he went off of work. The Commission
justified it’s decision that Scott’s condition
was a degenerative progressive condition
based on facts totally unsupported by the
record. On remand the Commission read
the fifth district’s clear assessment that
Scott was credible in his testimony that
he lifted 350 cases a day by himself and
that his condition changed drastically on
the loss of an assistant, and that Scott’s
condition became progressively worse
not because of a degenerative condition
but because the work during the busiest
season became progressively trying on
Scott’s back. Further, there was no medical
testimony contradicting the opinions of the
neurosurgeon.
Medical was awarded. TTD benefits
awarded between 11/18/13 and the release
to work full duty on 4/28/14, and 25
percent MAW. The original decision of the
Commission was not well- supported. It
made a decision based on significant facts
which is why the decision was overturned
by the reviewing fifth district as against the
manifest weight of the evidence. Had the
Commission decision correctly weighed
the facts and noted in its decision that it
had weighed all the positive facts for Scott,
arguably the decision for Scott would not be
overturned as against the manifest weight.
Commission decisions need to be well
supported and that is what lawyers need to
assess when determining whether to seek
further appeal as to the manifest weight of
the facts of the case being decided as wrong
by the Commission.
As to causation the Commission did not
specifically review this issue as accepting
this was decided by the fifth district. The
fifth district in its province, specifically
found the repetitive lifting in the summer
and fall of 2013 as the causative factor and
did not remand the case again.
As this was a repetitive trauma case
repetitive trauma is liberally construed. The
manifestation of injury is either when the
Petitioner requires medical treatment or
can longer work. Scott stopped working on
11/18/13 and used this as his manifestation
date which was affirmed as not against the
manifest weight of the evidence.
Notice is also very liberally construed.
Scott wrote an email to his employer
indicating his medical condition and
requesting support help on 11/21/13 or
3 days after his manifestation date. This
notice 3 days post manifestation date was
affirmed as not against the manifest weight
of the evidence.
Average weekly wage was questioned
because it included ranking and incentive
pools as negotiated in the union contract.
Suppliers provided bonuses for employees
such as Scott. These bonuses were not
provided by the employer and were
contingent on whether they were paid.
The employer argued on this basis ranking
and incentive pool income should not be
included in the calculation of TTD because
they were not a guaranteed contingent
bonus provided by other than the employer.
The fifth district ruled that this pay was
called for in the union work contract and
affirmed the average weekly wage as not
against the manifest weight of the evidence.
The employer indicated that 15
percent MAW should be awarded and
not 25 percent MAW as awarded by the
Commission. The employer sought to
substantiate that Dr. Fletcher’s report based
on AMA guidelines supported this result
as the manifest weight. The fifth district
reviewed Scott’s age, occupation, earnings
capacity, medical records, and also the
AMA impairment rating. 25 percent MAW
was not against the manifest weight. The
fifth district clearly ruled as a matter of law
and fact that the AMA guidelines are only
one factor to be considered in determining
permanency and clearly denied the
employers attempt to have AMA guidelines
to have more weight in consideration of
permanency. n

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The Unwritten Rule of Manifest Weight Cases

  • 1. Workers’ Compensation Law ILLINOIS STATE BAR ASSOCIATION The newsletter of the Illinois State Bar Association’s Section on Workers’ Compensation Law VOL 59 NO. 4 FEBRUARY 2022 Editor’s Notes BY RICHARD D. HANNIGAN Continued on next page Editor’s Notes 1 Despite Conflicting Evidence on Premises Defect/Arising Out Of, Injurious Practice, and Employability/Odd Lot Theory 1 Procedural Fumble Allows for Punt on Important Issue: Clifton Armstead v. National Freight, Inc. 5 Employer’s Arguments Regarding Notice, Accident, and Causation Fail in Employee’s Repetitive Trauma Claim: Euclid Beverage Ltd. v. IWCC 6 The Unwritten Rule of Manifest Weight Cases: Is the Decision Well Supported in Southern Glazer’s Wine and Spirits of Illinois v. IWCC 9 Can a General Contractor Defend a Third Party Claim Using the Immunity Afforded an Employer Under Section 5(a) the WCA? 12 The Respondent Has Paid Only Part of or None of the Award or Settlement Contract. What Are the Petitioner’s Options? 13 Disputed Trip and Fall on Loose Carpet Strip Trips Up Employer Despite Conflicting Evidence on Premises Defect/ Arising Out Of, Injurious Practice, and Employability/ Odd Lot Theory BY RICK TURNER Mt. Vernon School District No. 80 v. Illinois Workers’ Compensation Commission, 2021 IL App (5th ) 210047WC-U An employee files a claim for a slip and fall on what the employee says was a loose piece of carpet in a hallway on the employer’s premises. She eventually claims that she injured her right ankle in this fall; and then reinjured the same ankle several months later when a student fell onto the right ankle. The employer might presume that the testimony of a supervisor as to an Continued on page 3 Chair Michael Brennan has maintained an open-door policy regarding the pandemic that has affected our practice, our everyday issues and how we can continue to practice before the Illinois Workers’ Compensation Commission. On November 30, 2021, Brennan announced to a group of attorneys, representing employers and employees, that the procedures currently in place in December 2021 will carry over to 2022. Oral arguments will continue to be virtual. He indicated that CompFile will evolve further with upcoming updates. He indicated that there were no arbitrator vacancies at the present time. Some of the downstate arbitrators will be reassigned in 2022. He
  • 2. 9 testimony establishing a causal connection between the work performed and the employee’s disability. Nunn, 157 Ill. App. 3d at 477. The court noted Dr. Saleem’s testimony that there was a causal connection between Long’s symptoms and his employment. Dr. Saleem testified that Long’s job duties included heavy lifting and overhead lifting. This placed Long at an increased risk of injury and increased the risk of a recurrent tear given Long’s prior rotator cuff repair. Dr. Saleem opined that Long’s job duties exacerbated his symptoms, and the Commission found Dr. Saleem’s opinions credible and persuasive. Based on the record, the court was unable to conclude that the Commission’s reliance on Dr. Saleem’s testimony regarding causation was against the manifest weight of the evidence. The court held that Long is entitled to recover benefits if he can show that his employment was a cause in aggravating his shoulder condition. The decision does not reference a section 12 opinion on behalf of Euclid. The decision of the appellate court in this case shows the difficulty employers face in contesting repetitive trauma injuries, especially where the employee performs a physically demanding job like Long. The court found that Long provided timely notice of the accident, albeit defective, and Euclid was not unduly prejudiced by Long’s defective notice. The court further found that Long and Dr. Saleem were credible witnesses regarding the issues of accident and causation. Therefore, the Commission’s decision in favor of Long was not against the manifest weight of the evidence.n The Unwritten Rule of Manifest Weight Cases: Is the Decision Well Supported in Southern Glazer’s Wine and Spirits of Illinois v. The Illinois Workers’ Compensation Comm’n BY HOWARD H. ANKIN Southern Glazer’s Wine and Spirits of Illinois v. Illinois Workers’ Compensation Comm’n, 2021 Il. App (5th) 200418WC-U In Southern Glazer’s Wine and Spirits of Illinois v. Illinois Workers’ Compensation Comm’n, 2021 Il. App (5th) 200418WC- U the Respondent appealed to the fifth district a case that was remanded from the Circuit Court of Williamson County finding causal connection of repetitive trauma to the back. The Respondent appealed issues of manifestation date, notice, and average weekly wage, in addition to the main issue, causation. The fifth district upheld the decision of 25 percent MAW, TTD, and medical paid. At issue is a district manager for a liquor distributor who was morbidly obese at 320 pounds, a smoker, and had pre-existing degenerative conditions and treatment to his spine. Respondent defended under the line of cases following Sisbro, that the Petitioner’s preexisting condition and progression of degenerative process was the cause of Petitioner’s two-level fusion, as well as the Petitioner did not prove his case. The Arbitrator denied on accident. The Commission affirmed the Arbitrator’s findings as to causation. The Petitioner’s appeal to the fifth district that the Commission’s decision was against the manifest weight of the facts was remanded to the Commission. The Commission seemingly thought the fifth district ruled favorable as to causation and was to rule on damages issues. The Commission awarded benefits. Second appeal to the fifth district confirmed awarded benefits by the Commission. This award allowed agreed modifications between the parties on discrepancies in the Commission decision. The employer appealed the Commission’s award of benefits as against the manifest weight of the facts of the case. The Commission is the best venue to decipher disputed facts and make rulings after weighing those facts. Cases are first heard by an Arbitrator and then facts deduced at hearing have a second opportunity to be reviewed and decided by the Commission de novo. The volume of cases heard by the Commission has it making clear and just decisions. The Commission is where the facts of work injuries are weighed and decided and only when it is clearly apparent the decision of the Commission is against the manifest weight of the evidence can a reviewing court overturn the decision of the Commission. There are times such as the Southern Wine case discussed here which have a volume of paper and detail, and a plethora of facts where the Commission may not get it right. The law requires an opportunity when it is clearly apparent the Commission makes a wrong decision in weighing facts for justice to be served and allow appeal to a reviewing
  • 3. 10 Workers’ Compensation Law ▼ FEBRUARY 2022 / VOL 59 / NO. 4 court. However, when stakes are very high for the parties, such as the case discussed here where the cost and outcome of a two- level surgery will have one party suffering a huge loss appeal indicating the manifest weight of the evidence should have made an opposite ruling makes appeal enticing to the losing party. How does an oversight court assess a Commission decision to determine if it was against the manifest weight and reverse a decision? It looks to see if the decision was well supported in its reasoning by the Commission. If the decision is well supported, it will stand up on review. Gary “Scott” Walston is a district manager for Southern Wine and Spirits. The business is wine and liquor distribution. Scott’s job duties included delivering liquor and wine to stores and setting up point of sale displays. Scott was provided an assistant merchandiser and material handler named Kevin Murphy. Murphy assisted Scott until July 2013 when he left for vacation. Murphy did not return thereafter having a knee surgery. Scott used the help of Murphy in handling 250 to 300 cases of liquor and wine “a day.” These cases weighed 40-45 pounds. They also readjusted shelved product and constructed point of purchase displays. Scott also kept and adjusted product in his personal garage. Scott had a large territory and drove 17 hours a week. When Scott no longer had Murphy’s assistance, he asked his employer for help which was not provided. The holidays were the busiest time of year and made up 40 percent of the business. Starting in July of 2013 Scott did all the work himself when the work was most profound. Scott underwent a rotator cuff surgery on November 20, 2012. Scott returned to work in February 2013 with a 10-pound lifting restriction. Due to pain and the lifting restriction, he was lifting closer to his body in an awkward position. The more Scott lifted the more his back hurt. Scott woke up with low back pain radiating into his legs on February 28, 2013. Scott saw his primary care physician, Dr. Davis, about 3 weeks later, on March 21, 2013. The medical notes reported back pain for one month. Dr. Davis prescribed pain medication, back exercises and referral for chiropractic treatment. The medical notes also stated, “not sure what he has done to aggravate this again.” In April 2013, Scott treated with Dr. McGuire, a chiropractic physician. Scott explained that his job requires him to lift and bend while stacking and shelving alcohol. Scott indicated that the back and leg pain was not due to an accident but increased over time. Specifically on the chiropractors intake form it stated, back condition not due to a work accident. Dr. McGuire diagnosed a lumbar sprain/strain and left S1 joint sprain. A lumbar MRI was performed on April 23, 2013 based on the temporary relief provided with chiropractic treatment. Dr. McGuire diagnosed L3-5 disc bulges with L5 left side nerve impingement, and L5/S1 disc herniation with S1 left side nerve impingement. On April 28, 2013, “Dr. McGuire noted that the claimant’s lumbar condition was ‘complicated by his obesity and job that requires him to drive several hours a day.’” Claimant was a smoker who weighed approximately 320 pounds in 2013. On August 7, 2013 Dr. McGuire documented the increased lifting and increased low back stability. As a result, he referred Scott to Dr. Kennedy, a neurosurgeon. On September 24, 2013, Dr. Kennedy noted degenerative changes at multiple levels including L4/5 and L5/ S1. Dr. Kennedy testified that smoking alone would not cause claimant’s pain. In addition, the doctor opined “degenerative disc disease or pain from such condition is independent of a person’s obesity.” Dr. Kennedy noted the altered lift and increased lifting progressively worsened the low back and leg pain. Dr. Kennedy referred claimant to Dr. Feinberg for pain management. Despite injections, the pain and numbness progressed. Light duty restrictions were prescribed but not accommodated by the employer. In November 2013, claimant was directed to return to work when he was capable of performing full duty work of lifting 100 pounds. Dr. Kennedy acknowledged that degenerative disc disease identified in Scott’s diagnostic studies would progress on its own, and the type of pain Scott experienced could be brought about by sleeping in the wrong position or twisting and turning at night. On November 21, 2013, claimant reported his work related degenerative low back condition to the company in an Email to Susan Drury, the benefits administrator for the employer. He requested another merchandiser to assist him and was rejected again. A lumbar myelogram performed on January 28, 2014 showed “compression, significant instability at Levels L4-5 and L5- S1, and spinal cord stenosis.” Dr. Kennedy opined “the spinal instability was of a more recent vintage than the degenerative changes and was the major cause of the claimant’s stenosis.” Injections with Dr. Feinberg were continued through April 2014 with no improvement. Dr. Kennedy performed a bilateral lumbar laminectomy and foraminotomy with fusion on March 17, 2014 based on his belief the spinal instability was causing the low back and leg pain. On April 24, 2014, claimant returned to full duty work. in June 2014 he was prescribed a bone stimulator. On September 5, 2014, a right-side screw fracture was found on a CT scan. The fusion was found to be stable on October 27, 2016. Claimant was released from medical treatment February 16, 2016. Dr. Kennedy opined that the daily repetitive twisting, bending, lifting and driving were causative factors in his lumbar instability. He further opined that the twisting, bending and lifting with his arms closer to his chest placed undue stress on claimant’s lumbar spine. As such, his job duties “aggravated his lumbar condition to the point it became unstable and constantly symptomatic. He explained that a “spine – particularly a degenerative spine – poorly tolerates excessive bending and twisting while loaded with weight, because the rotational movement puts excess force on the structures of the lumbar spine.” Claimant was examined by Dr. Fletcher, his AMA examiner on June 6, 2014, prior to his reaching MMI. Scott had been diagnosed two days prior as having the screw broken in his back. Dr. Fletcher did not find the claimant’s lifting had been “frequent or continuous” based upon the fact that he did not lift more than 2/3 of the workday. Dr. Fletcher was not informed of the increased lifting from July 2013 through November 2013. Dr. Fletcher provided
  • 4. 11 an impairment rating of 15 percent, on a scale of 15 percent to 24 percent, because Scott was morbidly obese, answered his own question for Scott on an unanswered question on his patient form concerning pain, and that Scott did not report that he got better on weekends or became worse while working. Scott eventually returned to full duty work wearing a corset, taking narcotic drugs, and testified that he had altered lifestyle and reduced ability to enjoy activities. The Commission was confronted with a fact pattern in which the first two treating physicians identified non-work related histories and a long-standing degenerative condition of Scott. This was compounded by Scott being a smoker and weighing 320 pounds. Further, the employer retained an expert who opined there was no objective evidence that the condition changed between the onset in February 2013 and the reported date of accident and this repetitive trauma case when Scott went off work in November 2013. The expert opined that Scott had a degenerative disc disease which is a progressive, age related condition and that Scott’s morbid obesity was a risk factor that accelerated the progression of the disease. The Commission weighed these facts next to the opinions of Dr. Kennedy, a neurosurgeon, who provided clear causal connection that peer reviewed medical literature shows the spine poorly tolerates excessive bending and twisting while the loaded weight places excessive force during rotational movement. The lifting of 350 cases, weighing 45 pounds each, while driving 17 hours a week, plus additional lifting of readjusted displays, and at home in the work garage, caused the need for the two level surgery. Also, the neurosurgeon returned Scott to full duty work. This was a difficult set of facts for the Commission to weigh, and one can only imagine the volume of medical records which included pre-existing medical records the Commission was required to view. The decision in Scott’s case could possible change based on the decider of fact. However, overruling a decision by the Commission is not based whether another reviewing body would have ruled differently. The only way to overturn the Commission’s decision is when it gets it clearly wrong. How does the Commission get its clearly wrong; when it does not support the facts of its decision clearly and properly. In Scott’s case the Arbitrator found and the Commission affirmed the arbitrator’s decision that Scott was not credible because he was only lifting 350 cases of product a WEEK, not a Day, which was clearly supported by the record. Further, the decision stated the Scott had the help of an assistant into October when the record was clear Scott lost assistance in July. The Commission decision stated that there was no objective change in Scott’s medical condition between February and November, when he went off of work. The Commission justified it’s decision that Scott’s condition was a degenerative progressive condition based on facts totally unsupported by the record. On remand the Commission read the fifth district’s clear assessment that Scott was credible in his testimony that he lifted 350 cases a day by himself and that his condition changed drastically on the loss of an assistant, and that Scott’s condition became progressively worse not because of a degenerative condition but because the work during the busiest season became progressively trying on Scott’s back. Further, there was no medical testimony contradicting the opinions of the neurosurgeon. Medical was awarded. TTD benefits awarded between 11/18/13 and the release to work full duty on 4/28/14, and 25 percent MAW. The original decision of the Commission was not well- supported. It made a decision based on significant facts which is why the decision was overturned by the reviewing fifth district as against the manifest weight of the evidence. Had the Commission decision correctly weighed the facts and noted in its decision that it had weighed all the positive facts for Scott, arguably the decision for Scott would not be overturned as against the manifest weight. Commission decisions need to be well supported and that is what lawyers need to assess when determining whether to seek further appeal as to the manifest weight of the facts of the case being decided as wrong by the Commission. As to causation the Commission did not specifically review this issue as accepting this was decided by the fifth district. The fifth district in its province, specifically found the repetitive lifting in the summer and fall of 2013 as the causative factor and did not remand the case again. As this was a repetitive trauma case repetitive trauma is liberally construed. The manifestation of injury is either when the Petitioner requires medical treatment or can longer work. Scott stopped working on 11/18/13 and used this as his manifestation date which was affirmed as not against the manifest weight of the evidence. Notice is also very liberally construed. Scott wrote an email to his employer indicating his medical condition and requesting support help on 11/21/13 or 3 days after his manifestation date. This notice 3 days post manifestation date was affirmed as not against the manifest weight of the evidence. Average weekly wage was questioned because it included ranking and incentive pools as negotiated in the union contract. Suppliers provided bonuses for employees such as Scott. These bonuses were not provided by the employer and were contingent on whether they were paid. The employer argued on this basis ranking and incentive pool income should not be included in the calculation of TTD because they were not a guaranteed contingent bonus provided by other than the employer. The fifth district ruled that this pay was called for in the union work contract and affirmed the average weekly wage as not against the manifest weight of the evidence. The employer indicated that 15 percent MAW should be awarded and not 25 percent MAW as awarded by the Commission. The employer sought to substantiate that Dr. Fletcher’s report based on AMA guidelines supported this result as the manifest weight. The fifth district reviewed Scott’s age, occupation, earnings capacity, medical records, and also the AMA impairment rating. 25 percent MAW was not against the manifest weight. The fifth district clearly ruled as a matter of law and fact that the AMA guidelines are only one factor to be considered in determining permanency and clearly denied the employers attempt to have AMA guidelines to have more weight in consideration of permanency. n