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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 22WC0
Case Name v.
DCC Propane, LLC
dba Hicksgas Propane Sales and Service
Consolidated Cases
Proceeding Type 19(b) Petition
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 11
Decision Issued By Arbitrator
Petitioner Attorney Joshua Rudolfi
Respondent Attorney
DATE FILED: 7/17/2023
Signature
THE INTEREST RATE FOR THE WEEK OF JULY 11, 2023 5.27%
STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF WINNEBAGO ) Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)
Shane Kingman Case # 22 WC
Employee/Petitioner
v.
DCC Propane, LLC, d/b/a Hicksgas Propoane Sales and Service
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
Rockford, on May 17, 2023. 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) 4/22 Web site: www.iwcc.il.gov
FINDINGS
On the date of accident, 6/30/2022, 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 $45,760.00; the average weekly wage was $880.00.
On the date of accident, Petitioner was 39 years of age, married 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 $6543.35 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00
for other benefits, for a total credit of $6543.35.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Respondent shall pay reasonable and necessar medical services ursuant to the medical fee schedule,
for treatment administered by , and
, as provided in Sections 8(a) and 8.2 of the Act.
Respondent shall pay Petitioner temporary total disability benefits of $586.67/week for 44 6/7 weeks,
commencing 7/7/2022 through 5/17/2023, as provided in Section 8(b) of the Act.
Respondent shall authorize and pay for the microdiscectomy recommended by Dr. A M , and all
reasonable and necessary related post-operative care.
Petition for penalties is denied.
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.
Signature of Arbitrator
ICArbDec19(b)
July 17, 2023
1
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
)
)
Petitioner, )
)
v. ) Case No. 22 WC
)
DCC Propane, LLC, d/b/a Hicksgas Propane )
Sales and Service, )
)
Respondent. )
STATEMENT OF FACTS
Petitioner has worked for Respondent for four years as a driver/serviceman. Tx6.
Petitioner’s job duties include delivering propane to residential and commercial properties
and servicing tanks. Tx7. On June 30, 2022, Petitioner was lifting a propane cylinder
weighing approximately 80 pounds to place it on a rack when he felt a sharp pain in his lower
back with radiation down his left leg. Tx7. Petitioner testified that the rack was at chin-
level. Tx8. Petitioner reported the incident to the Regional Manager, , and
completed his shift for the day. Tx8.
Petitioner first sought medical care on July 5, 2022 at Medical Center East. Tx8.
Petitioner complained of low back pain with numbness in his left thigh starting 6 days prior
when he was lifting a propane cylinder at work. PX1, p. 11. Petitioner noted that he had
pain in the past with heavy lifting at work, but “not like this”. Id. A CT scan performed at
the emergency room revealed disc bulging from L1-S1 with central and foraminal stenosis.
Id. Petitioner was taken off work. PX1, p. 15.
On July 7, 2022 Petitioner sought treatment with Dr. L , at
. PX2, p. 2. Dr. L noted that Petitioner was injured on June 30, 2022 when he
lifted a propane tank at work and felt pain in his lower back and pain in his leg. Id., at 2-3.
Dr. L prescribed therapy and recommended an MRI of the lumbar spine due to Petitioner’s
2
radicular symptoms and weakness in the leg. Id. at 4-5. Petitioner was taken off work. Id.
at 5. Petitioner underwent a course of physical therapy at Physical Therapy from
July 8, 2022 through October 18, 2022. PX5. An MRI of the lumbar spine performed on July
15, 2022 at MRI that revealed multilevel spondylolisthesis and
herniations at L3-4 through L5-S1 with impingement. PX3, at 4.
On August 8, 2022 Petitioner saw Dr. M (Dr. L partner) who noted
continued low back pain with weakness in the left foot/leg. PX2, at 6. Dr. M
diagnosed lumbar radiculopathy and recommended an ESI while continuing Petitioner off
work. Id. at 8. Petitioner testified that he was not receiving weekly TTD benefits during this
time. Tx9.
Petitioner followed up with Dr. M on September 6, 2022, October 4, 2022,
October 11, 2022 and November 3, 2022. PX2, at 10-27. During this period Petitioner’s
examination and complaints remained unchanged and Dr. M continued to
recommend an ESI and kept Petitioner off work. Id.
On November 7, 2022 Respondent sent Petitioner for a Section 12 examination with
Dr. W who testified via deposition. RX1. Dr. is board certified in sports
medicine and is currently attending physician and partner at .
Id. Dr. W reviewed records from along with imaging.
Petitioner gave a consistent history of his injury and stated a 6/10 pain level. Dr. ’s
examination revealed positive bilateral facet loads. Id. Dr. W also reviewed the MRI
images and noted what she described as age-related findings of disc bulging at L5-S1
resulting in mild impingement on the left S1 nerve root but without any evidence of a disc
pushing on the nerve. Id. Dr. W also noted that she had very little records reflecting
his treatment prior to the IME appointment. Id. Dr. W opined that pain medication,
3
MRI and therapy were reasonable and necessary if Petitioner’s pain was not improving. Id.
She opined that his physical examination and Petitioner’s pain complaints did not correlate
with his MRI findings. Id. Dr. believed Petitioner strained his back and had possible
radiculitis, but those conditions had resolved. Id. She believed no further treatment was
necessary and that Petitioner could return to work full duty. She further opined that ESIs
were not indicated, and Petitioner could return to work full duty. Id. Dr. W
acknowledged that she is not a spine surgeon and does not perform spine surgeries. She
testified that she did not review Petitioner’s initial emergency room records from
, or any medical records from prior to his date of accident. She testified
that in order for Petitioner’s complaints to be substantiated he would have to have herniated
discs from L3-S1 with nerve compression. She testified that someone with L5 radiculitis
would have complaints of radiation down the side of the leg, side of the thigh, side of the calf
and into the big toe. RX1
Petitioner followed up with Dr. M on December 13, 2022. PX2 at 28. Dr.
M reviewed the IME report and stated that he disagreed with Dr. W ’s
assessment that Petitioner’s radiculitis had resolved due to his continued complaints of
radicular pain and weakness down the left leg. Id. Dr. M noted 4/5 plantar and
dorsiflexion on the left, and a positive straight leg test on the left. Id. An ESI was still
recommended, and Petitioner continued to be restricted from work. Id. at 31-32.
On January 27, 2023 Petitioner underwent bilateral ESIs at L4-L5 and L5-S1 with
Dr. M . Id. at 39-44. Petitioner testified that the ESI only helped a little bit. R12.
He testified that he still had pain in his lower back and continuing into his left leg. TX13.
4
Petitioner followed up with Dr. M on February 23, 2023 and reported 35%
relief from the ESI, but still complained of low back pain with radiation down the left leg.
PX2 at 45. Petitioner was continued off work and referred to a spine surgeon. Id. at 47.
On March 16, 2023 Petitioner was seen by Dr. Me at Orthopedic
Group. PX6 at 5. Dr. Me noted a consistent mechanism of injury complaints of pain in
the lower back going down the left leg with numbness, tingling and weakness. Id. Dr.
Me noted a positive straight leg test on the left, decreased sensation in the L4-L5
distribution, and weakness in the left foot on testing. Id. Dr. Me indicated that he
wished to see the MRI prior to making any treatment recommendations. Id. at 6.
Petitioner again saw Dr. Me on March 27, 2023 and brought a copy of his MRI
disc. Id. at 3. Petitioner’s physical examination on that day remained unchanged. Id. Dr.
Me reviewed the MRI noted a small herniation at L3-L4 that he did not believe was
causing his symptoms. Id. Dr. Me noted herniated discs at L4-L5 and L5-S1 that
matched his symptoms and explained his S1 radicular symptoms. Id. Based on the physical
examination and the MRI Dr. Me recommended an L4-L5 and L5-S1 microdiscectomy.
Id. Petitioner testified that he would have this surgery performed immediately if the
Arbitrator awarded it. Tx14.
Petitioner saw Dr. M on April 6, 2023 and was continued off work pending
surgery. PX2 at 50.
Petitioner testified that prior to June 30, 2022 he never had any pain or aches in his
lower back requiring medical care. Tx15. He testified that he worked his full duty position
with Respondent for four years prior to this accident without issue. Id. Approximately eight
years prior to this accident Petitioner filed a workers’ compensation claim for a shoulder
injury, which settled. Tx16. Petitioner testified that he has not received weekly workers’
5
compensation checks with the exception of two advances made by Respondent, and never
received written notice of why he was not received benefits. Tx 16-17.
On cross-examination Petitioner testified repeatedly that Respondent never offered
him a light duty position. Tx18, 19, 32, 33. Petitioner testified that he was off work for
approximately a year and a half but did not return to work for his previous employer because
they filled his position. Tx21-22. Petitioner testified that his pain his not gotten better since
June 30, 2022 (and likely worse) and that he continues to have radiation down the left leg.
Tx23-34. Petitioner testified that he discussed returning to work light duty with his doctors,
but they did not feel he was able to. Tx28. 32. On re-direct Petitioner testified that his
treating doctors, including the ER, never provided him with an order to return to work. Tx34-
35.
CONCLUSIONS OF LAW
Regarding Issue (F), whether Petitioner’s current condition of ill-being is causally
related to his injury, the Arbitrator finds as follows:
With regard to causal connection, the Arbitrator finds that Petitioner’s current
condition of ill-being is causally related to his undisputed June 30, 2022 work accident. The
Arbitrator finds Petitioner’s testimony to be credible. Petitioner denied any back issues prior
to his accident and has consistently complained of pain in his lower back with radiation down
his left leg. This is noted in his initial ER records and follow up records with his pain
management physician and spine surgeon. The Arbitrator notes that Dr. W opined that
Petitioner’s back issues and L5 radiculitis had resolved but testified that she would expect
someone with L5 radiculitis to have complaints of radiation down the side of the leg, side of
the thigh, side of the calf and into the big toe. This seems to be similar to the Petitioner’s
consistent complaints since his accident. Further, Petitioner’s physical examinations (with
the exception of that with Dr. W ) indicate weakness in the left foot. The Arbitrator does
6
not find a mild and diffuse difference in subjective complaints to be compelling evidence
against a causation finding.
Accordingly, the Arbitrator, based on the record as a whole, finds that Petitioner’s
current condition of ill-being is causally related to his June 30, 2022 work accident.
Regarding Issue (J), whether the medial services provided were reasonable and
necessary and whether Respondent has paid for all reasonable and necessary
medical services, the Arbitrator finds as follows:
The Arbitrator finds that Petitioner’s medical care has been both reasonable and
necessary and that Respondent has not paid all appropriate charges. There is no dispute
that the doctor’s visits that Petitioner had, along with his physical therapy, MRI and
medication was reasonable and necessary as Respondent’s IME doctor, Dr. W , conceded
that it was in her IME report. Dr. W testified that Petitioner did not require an ESI.
The Arbitrator finds that the ESI was also reasonable and necessary as Petitioner was
undergoing a course of conservative care that was not successful in alleviating his symptoms.
The ESI only provided partial relief. The Arbitrator finds that Petitioner’s conservative
course of care has been both reasonable and necessary and that Respondent is responsible
for payment of those charges claimed in Petitioner’s Exhibits 1-6.
Regarding Issue (L), the temporary benefits in dispute, the Arbitrator finds as
follows:
The Arbitrator finds that Petitioner is entitled to TTD benefits from July 5, 2022
through May 17, 2023, a period of 44 6/7 weeks. Petitioner was taken off of work on July 5,
2022 following his visit to . PX1, p. 15. That notes indicates that
Petitioner can return to work on July 9, 2022, but the ER also advised Petitioner to seek
treatment with a spine surgeon. Id. at 13. Petitioner then sought treatment with
and has remained in an off-work status since that time and
7
continuing pending spine surgery. PX2. The only doctor who has opined that Petitioner can
return to work in any capacity is Respondent’s Section 12 examiner, Dr. . The
Arbitrator does not find Dr. W ’s opinion to be more persuasive that Petitioner’s treating
medical records. The Arbitrator finds the opinions of the treating physicians to be more
credible. Petitioner is awarded 44 6/7 weeks of TTD representing benefits from July 5, 2022
through the May 17, 2023 trial date.
Regarding Issue (K), whether Petitioner is entitled to any prospective medical
care, the Arbitrator finds as follows:
The Arbitrator awards the L4-L5 and L5-S1 discectomy surgery recommended by Dr.
Me along with all reasonable and necessary post-operative care. Dr. Me believes
that Petitioner has failed conservative care. PX6 at 3. He further opines that because of
Petitioner’s positive straight leg test, positive femoral stretch, and pain in the back of the
thigh as well as the anteromedial leg, he is a candidate for a left L4-L5 foraminal discectomy
and a left L5-S1 posterolateral microdiscectomy. Id. Dr. W opines that Petitioner’s L5
radiculitis has resolved but, as mentioned above, the record reflects otherwise. Petitioner’s
consistent pain complaints are thoroughly noted in the medical records. Accordingly, the
Arbitrator awards the L4-L5 and L5-S1 diskectomy surgery recommended by Dr. Me
along with all reasonable and necessary post-operative care.
Regarding Issue (M), whether penalties and fees should be imposed on Respondent,
the Arbitrator finds as follows:
The standard for determining whether an employer has good and just cause for a
delay in payment is defined in terms of reasonableness. Jacobo v. Illinois Workers’
Compensation Comm’n, 2011 IL App (3d) 100807WC. When an employer acts in reliance
upon responsible medical opinion or where there are conflicting medical opinions, penalties
8
are not normally imposed. O’Neal Bros. Constr. Co. v. Industrial Comm’n 93 Ill.2d 30, 41
(1982). The test is whether the employer’s conduct in relying on the medical opinion to
contest liability is reasonable under the circumstances presented. Consolidated
Freightways v. Industrial Comm’n 136 Ill.App. 3d 630, 633 (1985).
The Arbitrator has found the evidence in the record to favor Petitioner on the above-
mentioned issues. Specifically, the Arbitrator finds the medial records more persuasive than
the opinions of Dr. W . The medical opinions in this matter, as is custom on disputed
matters, are conflicting. Again, while the Arbitrator acknowledges that Dr. W ’s opinion
is given lesser weight than that of the treating records, the Arbitrator does not find the
opinion of Dr. W to be entirely without application. The Arbitrator finds that the
Respondent acted in reliance on the medical opinion of Dr. W and that such reliance was
not unreasonable or vexatious.
Accordingly, the Arbitrator denies Petitioner’s request for penalties.

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Arbitrator Awards TTD and Surgery for Work Injury

  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 22WC0 Case Name v. DCC Propane, LLC dba Hicksgas Propane Sales and Service Consolidated Cases Proceeding Type 19(b) Petition Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 11 Decision Issued By Arbitrator Petitioner Attorney Joshua Rudolfi Respondent Attorney DATE FILED: 7/17/2023 Signature THE INTEREST RATE FOR THE WEEK OF JULY 11, 2023 5.27%
  • 2. STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF WINNEBAGO ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION 19(b) Shane Kingman Case # 22 WC Employee/Petitioner v. DCC Propane, LLC, d/b/a Hicksgas Propoane Sales and Service 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 Rockford, on May 17, 2023. 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) 4/22 Web site: www.iwcc.il.gov
  • 3. FINDINGS On the date of accident, 6/30/2022, 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 $45,760.00; the average weekly wage was $880.00. On the date of accident, Petitioner was 39 years of age, married 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 $6543.35 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 for other benefits, for a total credit of $6543.35. Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act. ORDER Respondent shall pay reasonable and necessar medical services ursuant to the medical fee schedule, for treatment administered by , and , as provided in Sections 8(a) and 8.2 of the Act. Respondent shall pay Petitioner temporary total disability benefits of $586.67/week for 44 6/7 weeks, commencing 7/7/2022 through 5/17/2023, as provided in Section 8(b) of the Act. Respondent shall authorize and pay for the microdiscectomy recommended by Dr. A M , and all reasonable and necessary related post-operative care. Petition for penalties is denied. 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. Signature of Arbitrator ICArbDec19(b) July 17, 2023
  • 4. 1 BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION ) ) Petitioner, ) ) v. ) Case No. 22 WC ) DCC Propane, LLC, d/b/a Hicksgas Propane ) Sales and Service, ) ) Respondent. ) STATEMENT OF FACTS Petitioner has worked for Respondent for four years as a driver/serviceman. Tx6. Petitioner’s job duties include delivering propane to residential and commercial properties and servicing tanks. Tx7. On June 30, 2022, Petitioner was lifting a propane cylinder weighing approximately 80 pounds to place it on a rack when he felt a sharp pain in his lower back with radiation down his left leg. Tx7. Petitioner testified that the rack was at chin- level. Tx8. Petitioner reported the incident to the Regional Manager, , and completed his shift for the day. Tx8. Petitioner first sought medical care on July 5, 2022 at Medical Center East. Tx8. Petitioner complained of low back pain with numbness in his left thigh starting 6 days prior when he was lifting a propane cylinder at work. PX1, p. 11. Petitioner noted that he had pain in the past with heavy lifting at work, but “not like this”. Id. A CT scan performed at the emergency room revealed disc bulging from L1-S1 with central and foraminal stenosis. Id. Petitioner was taken off work. PX1, p. 15. On July 7, 2022 Petitioner sought treatment with Dr. L , at . PX2, p. 2. Dr. L noted that Petitioner was injured on June 30, 2022 when he lifted a propane tank at work and felt pain in his lower back and pain in his leg. Id., at 2-3. Dr. L prescribed therapy and recommended an MRI of the lumbar spine due to Petitioner’s
  • 5. 2 radicular symptoms and weakness in the leg. Id. at 4-5. Petitioner was taken off work. Id. at 5. Petitioner underwent a course of physical therapy at Physical Therapy from July 8, 2022 through October 18, 2022. PX5. An MRI of the lumbar spine performed on July 15, 2022 at MRI that revealed multilevel spondylolisthesis and herniations at L3-4 through L5-S1 with impingement. PX3, at 4. On August 8, 2022 Petitioner saw Dr. M (Dr. L partner) who noted continued low back pain with weakness in the left foot/leg. PX2, at 6. Dr. M diagnosed lumbar radiculopathy and recommended an ESI while continuing Petitioner off work. Id. at 8. Petitioner testified that he was not receiving weekly TTD benefits during this time. Tx9. Petitioner followed up with Dr. M on September 6, 2022, October 4, 2022, October 11, 2022 and November 3, 2022. PX2, at 10-27. During this period Petitioner’s examination and complaints remained unchanged and Dr. M continued to recommend an ESI and kept Petitioner off work. Id. On November 7, 2022 Respondent sent Petitioner for a Section 12 examination with Dr. W who testified via deposition. RX1. Dr. is board certified in sports medicine and is currently attending physician and partner at . Id. Dr. W reviewed records from along with imaging. Petitioner gave a consistent history of his injury and stated a 6/10 pain level. Dr. ’s examination revealed positive bilateral facet loads. Id. Dr. W also reviewed the MRI images and noted what she described as age-related findings of disc bulging at L5-S1 resulting in mild impingement on the left S1 nerve root but without any evidence of a disc pushing on the nerve. Id. Dr. W also noted that she had very little records reflecting his treatment prior to the IME appointment. Id. Dr. W opined that pain medication,
  • 6. 3 MRI and therapy were reasonable and necessary if Petitioner’s pain was not improving. Id. She opined that his physical examination and Petitioner’s pain complaints did not correlate with his MRI findings. Id. Dr. believed Petitioner strained his back and had possible radiculitis, but those conditions had resolved. Id. She believed no further treatment was necessary and that Petitioner could return to work full duty. She further opined that ESIs were not indicated, and Petitioner could return to work full duty. Id. Dr. W acknowledged that she is not a spine surgeon and does not perform spine surgeries. She testified that she did not review Petitioner’s initial emergency room records from , or any medical records from prior to his date of accident. She testified that in order for Petitioner’s complaints to be substantiated he would have to have herniated discs from L3-S1 with nerve compression. She testified that someone with L5 radiculitis would have complaints of radiation down the side of the leg, side of the thigh, side of the calf and into the big toe. RX1 Petitioner followed up with Dr. M on December 13, 2022. PX2 at 28. Dr. M reviewed the IME report and stated that he disagreed with Dr. W ’s assessment that Petitioner’s radiculitis had resolved due to his continued complaints of radicular pain and weakness down the left leg. Id. Dr. M noted 4/5 plantar and dorsiflexion on the left, and a positive straight leg test on the left. Id. An ESI was still recommended, and Petitioner continued to be restricted from work. Id. at 31-32. On January 27, 2023 Petitioner underwent bilateral ESIs at L4-L5 and L5-S1 with Dr. M . Id. at 39-44. Petitioner testified that the ESI only helped a little bit. R12. He testified that he still had pain in his lower back and continuing into his left leg. TX13.
  • 7. 4 Petitioner followed up with Dr. M on February 23, 2023 and reported 35% relief from the ESI, but still complained of low back pain with radiation down the left leg. PX2 at 45. Petitioner was continued off work and referred to a spine surgeon. Id. at 47. On March 16, 2023 Petitioner was seen by Dr. Me at Orthopedic Group. PX6 at 5. Dr. Me noted a consistent mechanism of injury complaints of pain in the lower back going down the left leg with numbness, tingling and weakness. Id. Dr. Me noted a positive straight leg test on the left, decreased sensation in the L4-L5 distribution, and weakness in the left foot on testing. Id. Dr. Me indicated that he wished to see the MRI prior to making any treatment recommendations. Id. at 6. Petitioner again saw Dr. Me on March 27, 2023 and brought a copy of his MRI disc. Id. at 3. Petitioner’s physical examination on that day remained unchanged. Id. Dr. Me reviewed the MRI noted a small herniation at L3-L4 that he did not believe was causing his symptoms. Id. Dr. Me noted herniated discs at L4-L5 and L5-S1 that matched his symptoms and explained his S1 radicular symptoms. Id. Based on the physical examination and the MRI Dr. Me recommended an L4-L5 and L5-S1 microdiscectomy. Id. Petitioner testified that he would have this surgery performed immediately if the Arbitrator awarded it. Tx14. Petitioner saw Dr. M on April 6, 2023 and was continued off work pending surgery. PX2 at 50. Petitioner testified that prior to June 30, 2022 he never had any pain or aches in his lower back requiring medical care. Tx15. He testified that he worked his full duty position with Respondent for four years prior to this accident without issue. Id. Approximately eight years prior to this accident Petitioner filed a workers’ compensation claim for a shoulder injury, which settled. Tx16. Petitioner testified that he has not received weekly workers’
  • 8. 5 compensation checks with the exception of two advances made by Respondent, and never received written notice of why he was not received benefits. Tx 16-17. On cross-examination Petitioner testified repeatedly that Respondent never offered him a light duty position. Tx18, 19, 32, 33. Petitioner testified that he was off work for approximately a year and a half but did not return to work for his previous employer because they filled his position. Tx21-22. Petitioner testified that his pain his not gotten better since June 30, 2022 (and likely worse) and that he continues to have radiation down the left leg. Tx23-34. Petitioner testified that he discussed returning to work light duty with his doctors, but they did not feel he was able to. Tx28. 32. On re-direct Petitioner testified that his treating doctors, including the ER, never provided him with an order to return to work. Tx34- 35. CONCLUSIONS OF LAW Regarding Issue (F), whether Petitioner’s current condition of ill-being is causally related to his injury, the Arbitrator finds as follows: With regard to causal connection, the Arbitrator finds that Petitioner’s current condition of ill-being is causally related to his undisputed June 30, 2022 work accident. The Arbitrator finds Petitioner’s testimony to be credible. Petitioner denied any back issues prior to his accident and has consistently complained of pain in his lower back with radiation down his left leg. This is noted in his initial ER records and follow up records with his pain management physician and spine surgeon. The Arbitrator notes that Dr. W opined that Petitioner’s back issues and L5 radiculitis had resolved but testified that she would expect someone with L5 radiculitis to have complaints of radiation down the side of the leg, side of the thigh, side of the calf and into the big toe. This seems to be similar to the Petitioner’s consistent complaints since his accident. Further, Petitioner’s physical examinations (with the exception of that with Dr. W ) indicate weakness in the left foot. The Arbitrator does
  • 9. 6 not find a mild and diffuse difference in subjective complaints to be compelling evidence against a causation finding. Accordingly, the Arbitrator, based on the record as a whole, finds that Petitioner’s current condition of ill-being is causally related to his June 30, 2022 work accident. Regarding Issue (J), whether the medial services provided were reasonable and necessary and whether Respondent has paid for all reasonable and necessary medical services, the Arbitrator finds as follows: The Arbitrator finds that Petitioner’s medical care has been both reasonable and necessary and that Respondent has not paid all appropriate charges. There is no dispute that the doctor’s visits that Petitioner had, along with his physical therapy, MRI and medication was reasonable and necessary as Respondent’s IME doctor, Dr. W , conceded that it was in her IME report. Dr. W testified that Petitioner did not require an ESI. The Arbitrator finds that the ESI was also reasonable and necessary as Petitioner was undergoing a course of conservative care that was not successful in alleviating his symptoms. The ESI only provided partial relief. The Arbitrator finds that Petitioner’s conservative course of care has been both reasonable and necessary and that Respondent is responsible for payment of those charges claimed in Petitioner’s Exhibits 1-6. Regarding Issue (L), the temporary benefits in dispute, the Arbitrator finds as follows: The Arbitrator finds that Petitioner is entitled to TTD benefits from July 5, 2022 through May 17, 2023, a period of 44 6/7 weeks. Petitioner was taken off of work on July 5, 2022 following his visit to . PX1, p. 15. That notes indicates that Petitioner can return to work on July 9, 2022, but the ER also advised Petitioner to seek treatment with a spine surgeon. Id. at 13. Petitioner then sought treatment with and has remained in an off-work status since that time and
  • 10. 7 continuing pending spine surgery. PX2. The only doctor who has opined that Petitioner can return to work in any capacity is Respondent’s Section 12 examiner, Dr. . The Arbitrator does not find Dr. W ’s opinion to be more persuasive that Petitioner’s treating medical records. The Arbitrator finds the opinions of the treating physicians to be more credible. Petitioner is awarded 44 6/7 weeks of TTD representing benefits from July 5, 2022 through the May 17, 2023 trial date. Regarding Issue (K), whether Petitioner is entitled to any prospective medical care, the Arbitrator finds as follows: The Arbitrator awards the L4-L5 and L5-S1 discectomy surgery recommended by Dr. Me along with all reasonable and necessary post-operative care. Dr. Me believes that Petitioner has failed conservative care. PX6 at 3. He further opines that because of Petitioner’s positive straight leg test, positive femoral stretch, and pain in the back of the thigh as well as the anteromedial leg, he is a candidate for a left L4-L5 foraminal discectomy and a left L5-S1 posterolateral microdiscectomy. Id. Dr. W opines that Petitioner’s L5 radiculitis has resolved but, as mentioned above, the record reflects otherwise. Petitioner’s consistent pain complaints are thoroughly noted in the medical records. Accordingly, the Arbitrator awards the L4-L5 and L5-S1 diskectomy surgery recommended by Dr. Me along with all reasonable and necessary post-operative care. Regarding Issue (M), whether penalties and fees should be imposed on Respondent, the Arbitrator finds as follows: The standard for determining whether an employer has good and just cause for a delay in payment is defined in terms of reasonableness. Jacobo v. Illinois Workers’ Compensation Comm’n, 2011 IL App (3d) 100807WC. When an employer acts in reliance upon responsible medical opinion or where there are conflicting medical opinions, penalties
  • 11. 8 are not normally imposed. O’Neal Bros. Constr. Co. v. Industrial Comm’n 93 Ill.2d 30, 41 (1982). The test is whether the employer’s conduct in relying on the medical opinion to contest liability is reasonable under the circumstances presented. Consolidated Freightways v. Industrial Comm’n 136 Ill.App. 3d 630, 633 (1985). The Arbitrator has found the evidence in the record to favor Petitioner on the above- mentioned issues. Specifically, the Arbitrator finds the medial records more persuasive than the opinions of Dr. W . The medical opinions in this matter, as is custom on disputed matters, are conflicting. Again, while the Arbitrator acknowledges that Dr. W ’s opinion is given lesser weight than that of the treating records, the Arbitrator does not find the opinion of Dr. W to be entirely without application. The Arbitrator finds that the Respondent acted in reliance on the medical opinion of Dr. W and that such reliance was not unreasonable or vexatious. Accordingly, the Arbitrator denies Petitioner’s request for penalties.