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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 19WC006284
Case Name v. HEI Hospitality/Marriott
International Inc.
Consolidated Cases
Proceeding Type
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 18
Decision Issued By , Arbitrator
Petitioner Attorney Brien DiNella
Respondent Attorney
DATE FILED: 7/27/2022
THE INTEREST RATE FOR THE WEEK OF JULY 26, 2022 2.92%
/s ,Arbitrator
Signature
STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF Cook ) Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
Case # WC
Employee/Petitioner
v. Consolidated cases:
HEI Hospitality/ Marriot International Inc.
Employer/Respondent
An Application for Adjustment of Claim was filed in this matter and a Notice of Hearing was mailed to each
party. The matter was heard by the Honorable , Arbitrator of the Commission, in the city of
Chicago, on August 16, 2021. After reviewing all of the evidencepresented, 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. What temporary benefits are in dispute?
TPD Maintenance TTD
L. What is the nature and extent of the injury?
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
O. Other
ICArbDec 2/10 69 W. Washington, 9th
Floor, Chicago, Il 60602 312/814-6611 Toll-free 866/352-3033 Web site: www.iwcc.il.gov
Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
FINDINGS
On August 17, 2018, 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 $29,249.77; the average weekly wage was $696.42.
On the date of accident, Petitioner was 53 years of age, married with 0 dependent children.
Respondent has not paid all appropriate charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $2,822.41 for TTD, $521.04 for TPD, $0 for maintenance, and $0 for
other benefits, for a total credit of $3,343.45.
Respondent is entitled to a credit of $0 under Section 8(j) of the Act.
ORDER
Medical benefits
Respondent shall pay reasonable and necessary medical services of $83,533.86 as provided in Section 8(a) of
the Act.
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of
$60,722.46 to Orland Park Orthopedics Center for Sports Medicine Professional services, and $22,831.40 to
Chicago Surgical Solutions
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $459.63 week for 68.571 weeks
commencing April 15, 2019 through August 7, 2020 as provided in Section 8(b) of the Act.
Permanent Partial Disability with 8.1b Language (For injuries after 9/1/11)
With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial disability
impairment report and/or opinion was submitted into evidence. The Arbitrator therefore gives no weight to this
factor.
With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator notes that the
record reveals that Petitioner was employed as a hotel housekeeper. The petitioner testified that she worked at
her current employer for 18 years. Her job duties included cleaning the guest rooms , cleaning, bathrooms,
stripping the linen on the beds, and taking the towels out of the bathroom. The petitioner testified that she had a
9th grade education. The petitioner was released with permanent restrictions for medium work with occasional
stairs, no climbing ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum
50 pounds. The petitioner testified that she was constantly on her feet and was pushing up to 150 pounds. When
she presented this to her employer, they were unable to accommodate these restrictions. The arbitrator gives
substantial weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 53 years old at the time
of the accident. Petitioner had only worked as a housekeeper in the 24 years prior to the accident. The Arbitrator
finds that the likelihood of Petitioner finding suitable employment with another company given her age,
restrictions, and education level is low. The petitioner would be very limited in finding a job in the
housekeeping field with her age and current restrictions. The arbitrator gives greater weight to this factor
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the arbitrator notes that the
petitioner has a 9th grade education and has worked as a housekeeper for the 24 years prior to the accident.
With her current restrictions not being accommodated by the respondent and being limiting in her bending and
lifting she will be unlikely to find a job similar to the one she has been working. The arbitrator gives more
weight to this factor.
With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical
records, the Arbitrator notes that Petitioner’s medical records document a consistent course of medical care and
consistent complaints from Petitioner. The petitioner had limited and non-mechanical complaints prior to the
date of accident. The review of MRI performed on March 2019 demonstrated a grade 3 signal with a vertical
tear to the medical meniscus. Based upon the fact that the tear pattern was a grade 3 vertical tear and not the
typical complex tear seen in degenerative meniscus tears. The petitioner underwent a knee arthroscopy and a
complete knee replacement after the injury and was discharged with permanent restrictions as it relates to the
right knee including restrictions for medium work with occasional stairs, no climbing ladders, no squatting or
kneeling, and limited bending. She was limited to carry a maximum 50 pounds. Petitioner’s credible testimony
shows her limits in her daily life, including being unable to perform household chores, being unable to go up
and down stairs, and is unable to walk for long periods of time. Petitioner noted that this changes all occurred
after the August 17, 2018 accident. The arbitrator gives substantial weight to this factor.
There are three circumstances where a claimant may be awarded benefits under Section 8(d)(2) of the Act: 1)
where the claimant suffers injuries which are covered by Section 8(c) or Section 8(e); 2) where a claimant
covered by Section 8(c) or Section 8(e) also sustains other injuries which are not covered by those two sections
and such injuries do not incapacitate him from pursuing his employment but would disable him from pursuing
other suitable occupations, or which otherwise have resulted in physical impairment; or, 3) where he suffers
injuries which partially incapacitate him from pursing the duties of his customary employment but do not result
in an impairment of earning capacity. Gallianetti v. Industrial Comm 'n., 315 Ill. App. 3d 721, 728 (3d Dist.
2000) The third situation is applicable in this case.
The petitioner has shown that with her current restrictions for medium work with occasional stairs, no climbing
ladders, no squatting or kneeling, limited bending, and being limited to carry a maximum 50 pounds
occasionally and 25 pounds frequently. She has been unable to be accommodated by her employer with these
restrictions. She has indicated that she has trouble standing for periods and meeting her duties that were
competently testified to at trial.
Therefore she is unable to perform her duties and 8(d)2 applies.
Based on the above factors, and the record taken as a whole, the Arbitrator finds that Petitioner sustained
permanent partial disability to the extent of 40% loss of use of the person as a whole pursuant to §8(d)2 of the
Act.
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.
JULY 27, 2022
__________________________________________________
Signature of Arbitrator
1
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
)
Petitioner, )
) Case No.: 19 WC 06284
v. )
)
)
HEI Hospitality/ Marriot International Inc. )
Respondent.
Petitioner, (hereinafter referred to as the “Petitioner”) is a 56 year-old
woman who worked for Respondent, HEI Hospitality/ Marriot International Inc (hereinafter
referred to as the “Respondent”), as a housekeeper. Recorded transcript of Arbitration August 16,
2021 (hereinafter referred to as “R.”) at 8. Petitioner testified that her highest education level was
9th
grade. In that capacity, the petitioner testified that her job duties would consist of cleaning
bathrooms, stripping the linen on beds, and taking the towels out of bathrooms. Id. She would
do on average 14-15 rooms a day and would be required to lift 100 lbs and push up to 150 lbs.
Id. at 9. The petitioner testified that she entered her their room of the day (room 1114) on August
16, 2021 and was stripping a bed. While she was taking the duvet off and twisted her knee while
stepping back. Id at 10. She noticed that she could not walk on it and she had to hobble to the
phone to call her supervisor . Id. at 10-11. She was then taken by ambulance to
Northwestern Medicine. Id.
Northwestern Memorial Emergency department notes that works in housekeeping and
twisted to put duvet cover on bed and felt a pop on her knee. P Ex. 2 at 25.
2
Petitioner then testified that she was sent to Concentra by her employer on August 21,
2018 where she was diagnosed with a strain of the right knee and given restrictions of squat and
kneeling on occasion, no climbing stairs or ladders. P EX 1 at 16. 8/27/18, Concentra notes
“right knee pain is over the anterior aspect of the knee most notably over the lateral joint line and
over the superior patellar pole with end range knee flexion and petitioner was performing home
exercise program daily. Petitioner was given lifting restrictions of 10 lbs. and may push/pull 20
lbs. Id. Petitioner was seen 9/10/18, continued restrictions and stated “ still has difficulty bending
knee after prolonged sitting. Id. at 49. The petitioner continued treatment with Concentra with at
home exercises, her restrictions where then changed to “standing, walking, and squatting
occasionally.” Id. at 60. The petitioner was seen on 2/15/19 and reported that her knee pain had
become worse after left knee replacement and continued with the previous restrictions. Id. at 70-
71. She continued with those restrictions when she had her final appointment with Concentra on
2/22/19, continues to have trouble meeting the requirements of her job received referral to
orthopedic and was referred to orthopedic. Id. at 74.
Petitioner testified that prior to the accident she was treating with Midwest Orthopedics at
Rush and Dr. N . R at 14. On the petitioner was given her 12/16/2017 MRI of the right
knee which showed “Mild medial osteoarthritis, No significant signal within the medial or lateral
meniscus. Major ligaments are intact. No subchondral changes. No hardware, fracture or
dislocation.” P Ex 3 at 102. Petitioner had an evaluation on 01/12/2018 of her bi-lateral knees
and reported left knee being in extreme pain. R Ex 2. The petitioner had a series of injections
and then surgery on the left knee prior on 05/02/2018, prior to her work injury. Id. 8/16/18, it is
noted that she may have to have a left knee replacement. Id. It is also noted that she has pain in
her right knee which she believes is compensating the left, resulting in an injection for relief, but
3
still able to work full duty. Id. The petitioner followed up with Dr. N after the accident
regarding her right knee and it was noted that on 12/04/18 that the right knee is restricting her in
PT for the left knee. Id.
Petitioner then testified that she began seeing Dr. . R at 15. First visit with
Dr. and B PA, it was noted a mild effusion with evidence of fluid wave, pain
with patellofemoral compression, patient has medial joint line tenderness, a positive McMurray
along the medial joint line with a negative McMurray along the lateral joint line. P. Ex. 3 at 43.
Needs as MRI and will follow up after MRI and to remain off duty. Id. Petitioner presented to
Chicago medical imaging which showed “mild degenerative disease, mainly in medial
compartment with joint effusion. Grave IV chondromalacia at the medial femoral condyle and
medial tibial plateau. Grade I sprain of the anterior cruciate ligament. Grade I sprain of the
medical collateral ligament. Grade III vertical tear in the posterior root of the medical meniscus
with resultant medical extrusion of the body of the meniscus.” Id. at 49., April 9. 2019 Petitioner
had an injection to the right knee which provided petitioner temporary relief and was to remain
off work. Id. at 37-39.
Petitioner presented for IME with Dr. on April 9, 2019. R. Ex 1. Dr.
notes that petitioner did not state that she twisted her knee at the IME. Id. Dr.
then denies causation because a twist or trip is not described. Id. He notes that she likely requires
a total knee arthroplasty, but denies this is related to a work accident. Id.
Dr. reviewed the IME report of Dr. and noted “based upon the fact
that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in
degenerative meniscus tears … this would not support that the medical meniscus tear is a pre-
existing degenerative meniscus tear that arose out of her pre-exiting medial compartment joint
4
disease”. P ex 3 at 35-37. Dr. would go on to state “as her knee went into extension, she
experienced sudden onset medial knee pain” and noted that he believed the petitioner to be
sincere in her description of her mechanism of injury.” He mentions that, “ I would not find it
unlikely that the patient did experience right knee pain on occasions due to medial compartment
degenerative changes. “ Id. He goes on to state that while the mechanism of injury of
hyperextension is a less common cause of medical meniscal pathology, but the symptoms
timeline supports a causative association with the hyperextension event. Id.
Petitioner underwent a Right knee partial medial meniscectomy with Dr. on
7/30/19 with South Suburban surgical solutions, pre-op and post-op diagnosis showed right knee
medial meniscal tear. Id. at 45. Examination showed grade 2 to 4 changes in the patellofemoral
joint. Id. There was a flap tear of the medial meniscus and 50% of the posterior horn of the
medial meniscus was debrided. Id. There were grade 3 to 4 chondral changes in the central
weightbearing partial of femoral condyle. Lateral compartment had no meniscal tear and no
evidence of articular damage. Id. Dr. notes on August 9, 2019 that there are distinctions
on her MRIs before and after her date of accident that are consistent with her work injury. Id. at
29.
On November 1, 2019, Dr. creates an IME addendum after reviewing Dr.
’s updated records. R. Ex 1. In this report his opinions remain unchanged regarding
causation but does note that he has not seen any MRI reports pre-dating the date of accident.
Additionally, he notes, “Dr. lists a twisting injury to her knee, this is different than the
history she gave me that she was stripping a cover off a duvet, stepped back and felt a pop in her
knee, then fell to the ground. Certainly, a history of a twist could be a competent cause for a right
knee meniscal tear..” Id.
5
Petitioner notes to Dr. that she continues to ambulate with a can and her pain is
continuing, wishes to proceed with Total knee replacement. P. Ex 3. at 19. Continues to remain
off work and her medial pain continues. January 10, 2020, Dr. performs a total knee
arthroplasty. Id at 47. Post surgery, petitioner continued to follow up with Dr. and remain
off duty until she was released to restrictions that became permeant restrictions on August 10,
2020. Id. 3-10.
Petitioner testified that after the surgery she was not able to return back to work for the
respondent. R at 19. She notes that she cannot go on long walks, ride a bike, or do the laundry.
She states that she requires her husband to assist her with chores around the house and cannot go
up and down the stairs like she used to. Id.
CONCLUSIONS OF LAW
C. WITH REGARD TO ITEM (C), WHETHER AN ACCIDENT OCCURRED THAT
AROSE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT BY
RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF
FACT AND CONCLUSIONS OF LAW:
The Arbitrator finds that the accident arose out of and in the course and scope of the
Petitioner’s employment with the Respondent. In order to obtain compensation under the Act, a
claimant must show by a preponderance of the evidence that he has suffered a disabling injury
arising out of and in the course of his employment. Both elements must be present at the time of
the claimant’s injury in order to justify compensation. IL Bell Telephone Co. v. Indust.
Comm’n., 131 Ill.2d 478, 483 (1989). Injuries sustained on an employer’s premises, or at a place
where the claimant might reasonably have been while performing his duties, and while a
claimant is at work, are generally deemed to have been received “in the course” of the
employment. Caterpillar Tractor Co. v. Indust. Comm’n., 129 Ill.2d 52, 57 (1989). The “arising
6
out of” component refers to the origin of case of the claimant’s injury and requires that the risk
be connected with, or incidental to, the employment so as to create connection between the
employment and the accidental injury. Id. at 58.
Here, both elements have been met. The petitioner testified at the time she was injured
she was within the premise of her place of employment in room 1114 of the hotel she worked in.
R at 10. She testified at the time she was performing her job duties of cleaning the hotel room
and taking the sheets off of a bed. Id. at 8-10. The petitioner’s testimony shows that she was on
the employer’s premise and was performing her job duties, this meets the “in the course” of
employment requirement. The petitioner testified that she was replacing sheets when she injured
her leg. Id. She would do this in multiple rooms a day. This would be a risk directly connected to
her employment.
Therefore, the Arbitrator finds that the August 17, 2018 accident arose out of and was in
the course of Petitioner’s employment.
F. WITH REGARD TO ITEM (F), WHETHER THE PETITIONER’S CURRENT
CONDITION OF ILL-BEING IS CAUSALLY RELATED TO THE WORK INJURY,
THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS OF LAW:
The Arbitrator finds that the Petitioner’s current condition of ill-being is causally related
to her August 17, 2018 work accident. A causal connection between work duties and a condition
may be established by a chain of events including Petitioner’s ability to perform the duties before
the date of the accident, and inability to perform the same duties following that date. Pulliam
Masonry v. Industrial Comm’n., 77 Ill.2d 469, 471 (1979). The Supreme court has determined
that even though a workers’ compensation claimant may have a preexisting condition which may
make him more vulnerable to injury, recovery for an accidental injury will not be denied as long
7
as it can be shown that the employment was also a causative factor. Sisbro, Inc. v. Industrial
Commission, 207 Ill., 2d 193 (2003). A chain of events showing a prior condition of good health,
followed by a sudden change after a work injury can establish causation. Illinois Power Co
Industrial Commission, 278 Ill.App.3d 848,854 (4th
Dist. 1996).
Petitioner testified that on August 17, 2018, she was stripping a bed and twisted her knee
after pulling the duvet cover. R at 8-11. The Concentra records on that same date indicate that
the mechanism of injury was that Petitioner “twisted her right knee when she was making a bed.”
P Ex. 1 at 17. She noted that she was unable to stand and had to crawl over to the phone to call
her manager. R at 8-11. She stated an ambulance took her from the scene to Northwestern
Hospital. The petitioner testified that prior to the accident her work duties consisted of standing
most of the day and pushing 100–150-pound carts during the day. Following the accident, the
Petitioner had consistent complaints of her right knee while she treated with Northwestern and
Concentra. These facts alone are sufficient to support a finding of causation.
The Records of Rush University and Northwestern medicine show that while there was
medical treatment previously done to the bilateral knees, it was concentrated in the left knee
rather than the right. The 12/16/2017 MRI of the right knee showed “Mild medial osteoarthritis,
No significant signal within the medial or lateral meniscus. Major ligaments are intact. No
subchondral changes. No hardware, fracture or dislocation.” P. Ex 3 at 102. The Northwestern
Medicine Emergency room records note that the Petitioner the petitioner was twisting to put a
duvet cover on and felt an acute pop and severe pain in her right knee after the 8/17/18 accident.
(P. Ex 2). The Concentra records of 8/21/18 continue to note the right knee twisting during the
accident, after which she was put on light duty restrictions. P. Ex1. After the accident an MRI
was performed on 3/11/2019 which shows changes with a “grade 3 vertical tear in the posterior
8
root of the medial meniscus with medial extrusion.” P. Ex 3 at 49. Dr. noted “based upon
the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in
degenerative meniscus tears … this would not support that the medical meniscus tear is a pre-
existing degenerative meniscus tear that arose out of her pre-exiting medial compartment joint
disease”. Id. At 37. After reviewing the initial medial in addition to his own treatment records
would later note Dr. “as her knee went into extension, she experienced sudden onset
medial knee pain” and noted that he believed the petitioner to be sincere in her description of her
mechanism of injury.” Id. He goes on to state that while the mechanism of injury of
hyperextension is a less common cause of medical meniscal pathology, but the symptoms
timeline supports a causative association with the hyperextension event. Id. While Dr. ’s
report disputed causation as a of the twisting of the knee was not mentioned during the IME
examination, after reviewing Dr. ’s notes he stated in his November 1 , 2019 exam that
“ Certainly a history of a twist could be a competent cause for a right knee meniscal tear.” R Ex
1 at 31-32. Dr. later confirmed that a twist of the knee was an adequate mechanism of
injury to cause a medial meniscus tear. Id. Additionally, the arbitrator notes the Dr. did
not review any MRI films performed prior to the accident before making his determinations. Id.
at 15.
The arbitrator finds the opinions of Dr. to be more persuasive than Dr. ,
the respondent’s section 12 examiner. While the petitioner did have an underlying condition, her
unrebutted testimony showed that there was a sudden and immediate change in her ability do her
regular work duties. The depositions and reports of both Dr. and Dr. show that
the twisting motion described by Petitioner in her initial treatment records would be sufficient to
cause her current condition of ill-being.
9
Therefore, the arbitrator finds that Petitioner’s current condition of ill-being is causally
related to the accident of August 17, 2018.
J. WITH REGARD TO ITEM (J), WHETHER THE MEDICAL SERVICES THAT
WERE PROVIDED TO PETITIONER WERE REASONABLE AND NECESSARY AND
WHETHER THE RESPONDENT PAID ALL APPROPRIATE CHARGES, THE
ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS OF LAW:
The Arbitrator finds that the Petitioner’s medical care has been reasonable and necessary
and Respondent had not paid all appropriate charges. Due to Petitioner’s work-related injuries,
he has required treatment in the form of doctor visits, injections, diagnostic testing, medication,
physical therapy, and surgical intervention.
Here the doctors agree that the treatment for a total knee replacement has been reasonable
and necessary based on the evidence presented. Dr. in his deposition and in his IME
addendum found that a total knee replacement of the right knee to be the appropriate treatment
for the petitioner’s medical condition. R. Ex 1 at 27.
The Arbitrator find the following medical charges for reasonable and necessary treatment
have not been paid by the Respondent.
1. Orland Park Orthopedics Center for Sports Medicine Professional balance:
$60,722.46
2. Chicago Surgical Solutions: $22,831.40
The Arbitrator awards $83,553.86 in medical bills to be paid by respondent, pursuant to
the fee schedule, directly to Petitioner pursuant to the Act.
10
K. WITH REGARD TO ITEM (K), WHAT TEMPORARY BENEFITS ARE IN
DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT
AND CONCLUSIONS OF LAW:
The Arbitrator find that the petitioner was placed off work then was put on permanent
restrictions which were not accommodated by the respondent. Therefore, the arbitrator awards
temporary total disability benefits from April 15, 2019-August 7, 2020 representing 68.571
weeks at a rate of $459.63 per week.
L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTEND OF
THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF
FACT AND CONCLUSIONS OF LAW:
Pursuant to Section 8.1(b) of the Act, the following criteria and factors must be weighed in
determining the level of permanent partial disability for accidental injuries occurring on or after
September 1, 2011:
a) A physician licensed to practice medicine in all of its branches preparing a permanent
partial disability impairment report shall report the level of impairment in writing. The
report shall include an evaluation of medically defined and professionally appropriate
measurements of impairment that include, but are not limited to: loss of range of motion;
loss of strength; measured atrophy of tissue mass consistent with the injury; and any other
measurements that establish the nature and extent of the impairment. The most current
edition of the American Medical Association's "Guides to the Evaluation of Permanent
Impairment" shall be used by the physician in determining the level of impairment.
b) In determining the level of permanent partial disability, the Commission shall base its
determination on the following factors;
(i) the reported level of impairment pursuant to subsection (a);
(ii) the occupation of the injured employee;
(iii) the age of the employee at the time of the injury;
(iv) the employee's future earning capacity; and
(v) evidence of disability corroborated by the treating medical records. No single
enumerated factor shall be the sole determinant of disability. In determining the level
of disability, the relevance and weight of any factors used in addition to the level of
impairment as reported by the physician must be explained in a written order.
11
With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial
disability impairment report and/or opinion was submitted into evidence. The Arbitrator
therefore gives no weight to this factor.
With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator
notes that the record reveals that Petitioner was employed as a hotel housekeeper. The petitioner
testified that she worked at her current employer for 18 years. Her job duties included cleaning
the guest rooms, cleaning, bathrooms, stripping the linen on the beds, and taking the towels out
of the bathroom. The petitioner testified that she had a 9th
grade education. The petitioner was
released with permanent restrictions for medium work with occasional stairs, no climbing
ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50
pounds. The petitioner testified that she was constantly on her feet and was pushing up to 150
pounds. When she presented this to her employer, they were unable to accommodate these
restrictions. The arbitrator gives substantial weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 53 years
old at the time of the accident. Petitioner had only worked as a housekeeper in the 24 years prior
to the accident. The Arbitrator finds that the likelihood of Petitioner finding suitable employment
with another company given her age, restrictions, and education level is low. The petitioner
would be very limited in finding a job in the housekeeping field with her age and current
restrictions. The arbitrator gives greater weight to this factor
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the arbitrator
notes that the petitioner has a 9th
grade education and has worked as a housekeeper for the 24
years prior to the accident. With her current restrictions not being accommodated by the
12
respondent and being limiting in her bending and lifting she will be unlikely to find a job similar
to the one she has been working. The arbitrator gives more weight to this factor.
With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating
medical records, the Arbitrator notes that Petitioner’s medical records document a consistent
course of medical care and consistent complaints from Petitioner. The petitioner had limited and
non-mechanical complaints prior to the date of accident. The review of MRI performed on
March 2019 demonstrated a grade 3 signal with a vertical tear to the medical meniscus. Based
upon the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear
seen in degenerative meniscus tears. The petitioner underwent a knee arthroscopy and a complete
knee replacement after the injury and was discharged with permanent restrictions as it relates to
the right knee including restrictions for medium work with occasional stairs, no climbing
ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50
pounds. Petitioner’s credible testimony shows her limits in her daily life, including being unable
to perform household chores, being unable to go up and down stairs, and is unable to walk for
long periods of time. Petitioner noted that this changes all occurred after the August 17, 2018
accident. The arbitrator gives substantial weight to this factor.
There are three circumstances where a claimant may be awarded benefits under Section
8(d)(2) of the Act: 1) where the claimant suffers injuries which are covered by Section 8(c) or
Section 8(e); 2) where a claimant covered by Section 8(c) or Section 8(e) also sustains other
injuries which are not covered by those two sections and such injuries do not incapacitate him
from pursuing his employment but would disable him from pursuing other suitable occupations,
or which otherwise have resulted in physical impairment; or, 3) where he suffers injuries which
partially incapacitate him from pursing the duties of his customary employment but do not result
13
in an impairment of earning capacity. Gallianetti v. Industrial Comm 'n., 315 Ill. App. 3d 721,
728 (3d Dist. 2000) The third situation is applicable in this case
Petitioner has shown that with her current restrictions for medium work with occasional
stairs, no climbing ladders, no squatting or kneeling, limited bending, and being limited to carry
a maximum 50 pounds occasionally and 25 pounds frequently. She has been unable to be
accommodated by her employer with these restrictions. She has indicated that she has trouble
standing for periods and meeting her duties that were competently testified to at trial. Therefore
she is unable to perform her duties and 8(d)2 applies.
Based on the above factors, and the record taken as a whole, the Arbitrator finds that
Petitioner sustained permanent partial disability to the extent of 40% loss of use of the person as
a whole pursuant to §8(d)2 of the Act.

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Brien DiNella Helps Hotel Housekeeper With Knee Injury

  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 19WC006284 Case Name v. HEI Hospitality/Marriott International Inc. Consolidated Cases Proceeding Type Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 18 Decision Issued By , Arbitrator Petitioner Attorney Brien DiNella Respondent Attorney DATE FILED: 7/27/2022 THE INTEREST RATE FOR THE WEEK OF JULY 26, 2022 2.92% /s ,Arbitrator Signature
  • 2. STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF Cook ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION Case # WC Employee/Petitioner v. Consolidated cases: HEI Hospitality/ Marriot International Inc. Employer/Respondent An Application for Adjustment of Claim was filed in this matter and a Notice of Hearing was mailed to each party. The matter was heard by the Honorable , Arbitrator of the Commission, in the city of Chicago, on August 16, 2021. After reviewing all of the evidencepresented, 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. What temporary benefits are in dispute? TPD Maintenance TTD L. What is the nature and extent of the injury? M. Should penalties or fees be imposed upon Respondent? N. Is Respondent due any credit? O. Other ICArbDec 2/10 69 W. Washington, 9th Floor, Chicago, Il 60602 312/814-6611 Toll-free 866/352-3033 Web site: www.iwcc.il.gov Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
  • 3. FINDINGS On August 17, 2018, 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 $29,249.77; the average weekly wage was $696.42. On the date of accident, Petitioner was 53 years of age, married with 0 dependent children. Respondent has not paid all appropriate charges for all reasonable and necessary medical services. Respondent shall be given a credit of $2,822.41 for TTD, $521.04 for TPD, $0 for maintenance, and $0 for other benefits, for a total credit of $3,343.45. Respondent is entitled to a credit of $0 under Section 8(j) of the Act. ORDER Medical benefits Respondent shall pay reasonable and necessary medical services of $83,533.86 as provided in Section 8(a) of the Act. Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $60,722.46 to Orland Park Orthopedics Center for Sports Medicine Professional services, and $22,831.40 to Chicago Surgical Solutions Temporary Total Disability Respondent shall pay Petitioner temporary total disability benefits of $459.63 week for 68.571 weeks commencing April 15, 2019 through August 7, 2020 as provided in Section 8(b) of the Act. Permanent Partial Disability with 8.1b Language (For injuries after 9/1/11) With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial disability impairment report and/or opinion was submitted into evidence. The Arbitrator therefore gives no weight to this factor. With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator notes that the record reveals that Petitioner was employed as a hotel housekeeper. The petitioner testified that she worked at her current employer for 18 years. Her job duties included cleaning the guest rooms , cleaning, bathrooms, stripping the linen on the beds, and taking the towels out of the bathroom. The petitioner testified that she had a 9th grade education. The petitioner was released with permanent restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50 pounds. The petitioner testified that she was constantly on her feet and was pushing up to 150 pounds. When she presented this to her employer, they were unable to accommodate these restrictions. The arbitrator gives substantial weight to this factor.
  • 4. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 53 years old at the time of the accident. Petitioner had only worked as a housekeeper in the 24 years prior to the accident. The Arbitrator finds that the likelihood of Petitioner finding suitable employment with another company given her age, restrictions, and education level is low. The petitioner would be very limited in finding a job in the housekeeping field with her age and current restrictions. The arbitrator gives greater weight to this factor With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the arbitrator notes that the petitioner has a 9th grade education and has worked as a housekeeper for the 24 years prior to the accident. With her current restrictions not being accommodated by the respondent and being limiting in her bending and lifting she will be unlikely to find a job similar to the one she has been working. The arbitrator gives more weight to this factor. With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical records, the Arbitrator notes that Petitioner’s medical records document a consistent course of medical care and consistent complaints from Petitioner. The petitioner had limited and non-mechanical complaints prior to the date of accident. The review of MRI performed on March 2019 demonstrated a grade 3 signal with a vertical tear to the medical meniscus. Based upon the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in degenerative meniscus tears. The petitioner underwent a knee arthroscopy and a complete knee replacement after the injury and was discharged with permanent restrictions as it relates to the right knee including restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50 pounds. Petitioner’s credible testimony shows her limits in her daily life, including being unable to perform household chores, being unable to go up and down stairs, and is unable to walk for long periods of time. Petitioner noted that this changes all occurred after the August 17, 2018 accident. The arbitrator gives substantial weight to this factor. There are three circumstances where a claimant may be awarded benefits under Section 8(d)(2) of the Act: 1) where the claimant suffers injuries which are covered by Section 8(c) or Section 8(e); 2) where a claimant covered by Section 8(c) or Section 8(e) also sustains other injuries which are not covered by those two sections and such injuries do not incapacitate him from pursuing his employment but would disable him from pursuing other suitable occupations, or which otherwise have resulted in physical impairment; or, 3) where he suffers injuries which partially incapacitate him from pursing the duties of his customary employment but do not result in an impairment of earning capacity. Gallianetti v. Industrial Comm 'n., 315 Ill. App. 3d 721, 728 (3d Dist. 2000) The third situation is applicable in this case. The petitioner has shown that with her current restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, limited bending, and being limited to carry a maximum 50 pounds occasionally and 25 pounds frequently. She has been unable to be accommodated by her employer with these restrictions. She has indicated that she has trouble standing for periods and meeting her duties that were competently testified to at trial. Therefore she is unable to perform her duties and 8(d)2 applies. Based on the above factors, and the record taken as a whole, the Arbitrator finds that Petitioner sustained permanent partial disability to the extent of 40% loss of use of the person as a whole pursuant to §8(d)2 of the Act. 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.
  • 5. 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. JULY 27, 2022 __________________________________________________ Signature of Arbitrator
  • 6. 1 BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION ) Petitioner, ) ) Case No.: 19 WC 06284 v. ) ) ) HEI Hospitality/ Marriot International Inc. ) Respondent. Petitioner, (hereinafter referred to as the “Petitioner”) is a 56 year-old woman who worked for Respondent, HEI Hospitality/ Marriot International Inc (hereinafter referred to as the “Respondent”), as a housekeeper. Recorded transcript of Arbitration August 16, 2021 (hereinafter referred to as “R.”) at 8. Petitioner testified that her highest education level was 9th grade. In that capacity, the petitioner testified that her job duties would consist of cleaning bathrooms, stripping the linen on beds, and taking the towels out of bathrooms. Id. She would do on average 14-15 rooms a day and would be required to lift 100 lbs and push up to 150 lbs. Id. at 9. The petitioner testified that she entered her their room of the day (room 1114) on August 16, 2021 and was stripping a bed. While she was taking the duvet off and twisted her knee while stepping back. Id at 10. She noticed that she could not walk on it and she had to hobble to the phone to call her supervisor . Id. at 10-11. She was then taken by ambulance to Northwestern Medicine. Id. Northwestern Memorial Emergency department notes that works in housekeeping and twisted to put duvet cover on bed and felt a pop on her knee. P Ex. 2 at 25.
  • 7. 2 Petitioner then testified that she was sent to Concentra by her employer on August 21, 2018 where she was diagnosed with a strain of the right knee and given restrictions of squat and kneeling on occasion, no climbing stairs or ladders. P EX 1 at 16. 8/27/18, Concentra notes “right knee pain is over the anterior aspect of the knee most notably over the lateral joint line and over the superior patellar pole with end range knee flexion and petitioner was performing home exercise program daily. Petitioner was given lifting restrictions of 10 lbs. and may push/pull 20 lbs. Id. Petitioner was seen 9/10/18, continued restrictions and stated “ still has difficulty bending knee after prolonged sitting. Id. at 49. The petitioner continued treatment with Concentra with at home exercises, her restrictions where then changed to “standing, walking, and squatting occasionally.” Id. at 60. The petitioner was seen on 2/15/19 and reported that her knee pain had become worse after left knee replacement and continued with the previous restrictions. Id. at 70- 71. She continued with those restrictions when she had her final appointment with Concentra on 2/22/19, continues to have trouble meeting the requirements of her job received referral to orthopedic and was referred to orthopedic. Id. at 74. Petitioner testified that prior to the accident she was treating with Midwest Orthopedics at Rush and Dr. N . R at 14. On the petitioner was given her 12/16/2017 MRI of the right knee which showed “Mild medial osteoarthritis, No significant signal within the medial or lateral meniscus. Major ligaments are intact. No subchondral changes. No hardware, fracture or dislocation.” P Ex 3 at 102. Petitioner had an evaluation on 01/12/2018 of her bi-lateral knees and reported left knee being in extreme pain. R Ex 2. The petitioner had a series of injections and then surgery on the left knee prior on 05/02/2018, prior to her work injury. Id. 8/16/18, it is noted that she may have to have a left knee replacement. Id. It is also noted that she has pain in her right knee which she believes is compensating the left, resulting in an injection for relief, but
  • 8. 3 still able to work full duty. Id. The petitioner followed up with Dr. N after the accident regarding her right knee and it was noted that on 12/04/18 that the right knee is restricting her in PT for the left knee. Id. Petitioner then testified that she began seeing Dr. . R at 15. First visit with Dr. and B PA, it was noted a mild effusion with evidence of fluid wave, pain with patellofemoral compression, patient has medial joint line tenderness, a positive McMurray along the medial joint line with a negative McMurray along the lateral joint line. P. Ex. 3 at 43. Needs as MRI and will follow up after MRI and to remain off duty. Id. Petitioner presented to Chicago medical imaging which showed “mild degenerative disease, mainly in medial compartment with joint effusion. Grave IV chondromalacia at the medial femoral condyle and medial tibial plateau. Grade I sprain of the anterior cruciate ligament. Grade I sprain of the medical collateral ligament. Grade III vertical tear in the posterior root of the medical meniscus with resultant medical extrusion of the body of the meniscus.” Id. at 49., April 9. 2019 Petitioner had an injection to the right knee which provided petitioner temporary relief and was to remain off work. Id. at 37-39. Petitioner presented for IME with Dr. on April 9, 2019. R. Ex 1. Dr. notes that petitioner did not state that she twisted her knee at the IME. Id. Dr. then denies causation because a twist or trip is not described. Id. He notes that she likely requires a total knee arthroplasty, but denies this is related to a work accident. Id. Dr. reviewed the IME report of Dr. and noted “based upon the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in degenerative meniscus tears … this would not support that the medical meniscus tear is a pre- existing degenerative meniscus tear that arose out of her pre-exiting medial compartment joint
  • 9. 4 disease”. P ex 3 at 35-37. Dr. would go on to state “as her knee went into extension, she experienced sudden onset medial knee pain” and noted that he believed the petitioner to be sincere in her description of her mechanism of injury.” He mentions that, “ I would not find it unlikely that the patient did experience right knee pain on occasions due to medial compartment degenerative changes. “ Id. He goes on to state that while the mechanism of injury of hyperextension is a less common cause of medical meniscal pathology, but the symptoms timeline supports a causative association with the hyperextension event. Id. Petitioner underwent a Right knee partial medial meniscectomy with Dr. on 7/30/19 with South Suburban surgical solutions, pre-op and post-op diagnosis showed right knee medial meniscal tear. Id. at 45. Examination showed grade 2 to 4 changes in the patellofemoral joint. Id. There was a flap tear of the medial meniscus and 50% of the posterior horn of the medial meniscus was debrided. Id. There were grade 3 to 4 chondral changes in the central weightbearing partial of femoral condyle. Lateral compartment had no meniscal tear and no evidence of articular damage. Id. Dr. notes on August 9, 2019 that there are distinctions on her MRIs before and after her date of accident that are consistent with her work injury. Id. at 29. On November 1, 2019, Dr. creates an IME addendum after reviewing Dr. ’s updated records. R. Ex 1. In this report his opinions remain unchanged regarding causation but does note that he has not seen any MRI reports pre-dating the date of accident. Additionally, he notes, “Dr. lists a twisting injury to her knee, this is different than the history she gave me that she was stripping a cover off a duvet, stepped back and felt a pop in her knee, then fell to the ground. Certainly, a history of a twist could be a competent cause for a right knee meniscal tear..” Id.
  • 10. 5 Petitioner notes to Dr. that she continues to ambulate with a can and her pain is continuing, wishes to proceed with Total knee replacement. P. Ex 3. at 19. Continues to remain off work and her medial pain continues. January 10, 2020, Dr. performs a total knee arthroplasty. Id at 47. Post surgery, petitioner continued to follow up with Dr. and remain off duty until she was released to restrictions that became permeant restrictions on August 10, 2020. Id. 3-10. Petitioner testified that after the surgery she was not able to return back to work for the respondent. R at 19. She notes that she cannot go on long walks, ride a bike, or do the laundry. She states that she requires her husband to assist her with chores around the house and cannot go up and down the stairs like she used to. Id. CONCLUSIONS OF LAW C. WITH REGARD TO ITEM (C), WHETHER AN ACCIDENT OCCURRED THAT AROSE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT BY RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Arbitrator finds that the accident arose out of and in the course and scope of the Petitioner’s employment with the Respondent. In order to obtain compensation under the Act, a claimant must show by a preponderance of the evidence that he has suffered a disabling injury arising out of and in the course of his employment. Both elements must be present at the time of the claimant’s injury in order to justify compensation. IL Bell Telephone Co. v. Indust. Comm’n., 131 Ill.2d 478, 483 (1989). Injuries sustained on an employer’s premises, or at a place where the claimant might reasonably have been while performing his duties, and while a claimant is at work, are generally deemed to have been received “in the course” of the employment. Caterpillar Tractor Co. v. Indust. Comm’n., 129 Ill.2d 52, 57 (1989). The “arising
  • 11. 6 out of” component refers to the origin of case of the claimant’s injury and requires that the risk be connected with, or incidental to, the employment so as to create connection between the employment and the accidental injury. Id. at 58. Here, both elements have been met. The petitioner testified at the time she was injured she was within the premise of her place of employment in room 1114 of the hotel she worked in. R at 10. She testified at the time she was performing her job duties of cleaning the hotel room and taking the sheets off of a bed. Id. at 8-10. The petitioner’s testimony shows that she was on the employer’s premise and was performing her job duties, this meets the “in the course” of employment requirement. The petitioner testified that she was replacing sheets when she injured her leg. Id. She would do this in multiple rooms a day. This would be a risk directly connected to her employment. Therefore, the Arbitrator finds that the August 17, 2018 accident arose out of and was in the course of Petitioner’s employment. F. WITH REGARD TO ITEM (F), WHETHER THE PETITIONER’S CURRENT CONDITION OF ILL-BEING IS CAUSALLY RELATED TO THE WORK INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Arbitrator finds that the Petitioner’s current condition of ill-being is causally related to her August 17, 2018 work accident. A causal connection between work duties and a condition may be established by a chain of events including Petitioner’s ability to perform the duties before the date of the accident, and inability to perform the same duties following that date. Pulliam Masonry v. Industrial Comm’n., 77 Ill.2d 469, 471 (1979). The Supreme court has determined that even though a workers’ compensation claimant may have a preexisting condition which may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long
  • 12. 7 as it can be shown that the employment was also a causative factor. Sisbro, Inc. v. Industrial Commission, 207 Ill., 2d 193 (2003). A chain of events showing a prior condition of good health, followed by a sudden change after a work injury can establish causation. Illinois Power Co Industrial Commission, 278 Ill.App.3d 848,854 (4th Dist. 1996). Petitioner testified that on August 17, 2018, she was stripping a bed and twisted her knee after pulling the duvet cover. R at 8-11. The Concentra records on that same date indicate that the mechanism of injury was that Petitioner “twisted her right knee when she was making a bed.” P Ex. 1 at 17. She noted that she was unable to stand and had to crawl over to the phone to call her manager. R at 8-11. She stated an ambulance took her from the scene to Northwestern Hospital. The petitioner testified that prior to the accident her work duties consisted of standing most of the day and pushing 100–150-pound carts during the day. Following the accident, the Petitioner had consistent complaints of her right knee while she treated with Northwestern and Concentra. These facts alone are sufficient to support a finding of causation. The Records of Rush University and Northwestern medicine show that while there was medical treatment previously done to the bilateral knees, it was concentrated in the left knee rather than the right. The 12/16/2017 MRI of the right knee showed “Mild medial osteoarthritis, No significant signal within the medial or lateral meniscus. Major ligaments are intact. No subchondral changes. No hardware, fracture or dislocation.” P. Ex 3 at 102. The Northwestern Medicine Emergency room records note that the Petitioner the petitioner was twisting to put a duvet cover on and felt an acute pop and severe pain in her right knee after the 8/17/18 accident. (P. Ex 2). The Concentra records of 8/21/18 continue to note the right knee twisting during the accident, after which she was put on light duty restrictions. P. Ex1. After the accident an MRI was performed on 3/11/2019 which shows changes with a “grade 3 vertical tear in the posterior
  • 13. 8 root of the medial meniscus with medial extrusion.” P. Ex 3 at 49. Dr. noted “based upon the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in degenerative meniscus tears … this would not support that the medical meniscus tear is a pre- existing degenerative meniscus tear that arose out of her pre-exiting medial compartment joint disease”. Id. At 37. After reviewing the initial medial in addition to his own treatment records would later note Dr. “as her knee went into extension, she experienced sudden onset medial knee pain” and noted that he believed the petitioner to be sincere in her description of her mechanism of injury.” Id. He goes on to state that while the mechanism of injury of hyperextension is a less common cause of medical meniscal pathology, but the symptoms timeline supports a causative association with the hyperextension event. Id. While Dr. ’s report disputed causation as a of the twisting of the knee was not mentioned during the IME examination, after reviewing Dr. ’s notes he stated in his November 1 , 2019 exam that “ Certainly a history of a twist could be a competent cause for a right knee meniscal tear.” R Ex 1 at 31-32. Dr. later confirmed that a twist of the knee was an adequate mechanism of injury to cause a medial meniscus tear. Id. Additionally, the arbitrator notes the Dr. did not review any MRI films performed prior to the accident before making his determinations. Id. at 15. The arbitrator finds the opinions of Dr. to be more persuasive than Dr. , the respondent’s section 12 examiner. While the petitioner did have an underlying condition, her unrebutted testimony showed that there was a sudden and immediate change in her ability do her regular work duties. The depositions and reports of both Dr. and Dr. show that the twisting motion described by Petitioner in her initial treatment records would be sufficient to cause her current condition of ill-being.
  • 14. 9 Therefore, the arbitrator finds that Petitioner’s current condition of ill-being is causally related to the accident of August 17, 2018. J. WITH REGARD TO ITEM (J), WHETHER THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER WERE REASONABLE AND NECESSARY AND WHETHER THE RESPONDENT PAID ALL APPROPRIATE CHARGES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Arbitrator finds that the Petitioner’s medical care has been reasonable and necessary and Respondent had not paid all appropriate charges. Due to Petitioner’s work-related injuries, he has required treatment in the form of doctor visits, injections, diagnostic testing, medication, physical therapy, and surgical intervention. Here the doctors agree that the treatment for a total knee replacement has been reasonable and necessary based on the evidence presented. Dr. in his deposition and in his IME addendum found that a total knee replacement of the right knee to be the appropriate treatment for the petitioner’s medical condition. R. Ex 1 at 27. The Arbitrator find the following medical charges for reasonable and necessary treatment have not been paid by the Respondent. 1. Orland Park Orthopedics Center for Sports Medicine Professional balance: $60,722.46 2. Chicago Surgical Solutions: $22,831.40 The Arbitrator awards $83,553.86 in medical bills to be paid by respondent, pursuant to the fee schedule, directly to Petitioner pursuant to the Act.
  • 15. 10 K. WITH REGARD TO ITEM (K), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Arbitrator find that the petitioner was placed off work then was put on permanent restrictions which were not accommodated by the respondent. Therefore, the arbitrator awards temporary total disability benefits from April 15, 2019-August 7, 2020 representing 68.571 weeks at a rate of $459.63 per week. L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTEND OF THE INJURY, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: Pursuant to Section 8.1(b) of the Act, the following criteria and factors must be weighed in determining the level of permanent partial disability for accidental injuries occurring on or after September 1, 2011: a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" shall be used by the physician in determining the level of impairment. b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors; (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.
  • 16. 11 With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial disability impairment report and/or opinion was submitted into evidence. The Arbitrator therefore gives no weight to this factor. With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator notes that the record reveals that Petitioner was employed as a hotel housekeeper. The petitioner testified that she worked at her current employer for 18 years. Her job duties included cleaning the guest rooms, cleaning, bathrooms, stripping the linen on the beds, and taking the towels out of the bathroom. The petitioner testified that she had a 9th grade education. The petitioner was released with permanent restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50 pounds. The petitioner testified that she was constantly on her feet and was pushing up to 150 pounds. When she presented this to her employer, they were unable to accommodate these restrictions. The arbitrator gives substantial weight to this factor. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 53 years old at the time of the accident. Petitioner had only worked as a housekeeper in the 24 years prior to the accident. The Arbitrator finds that the likelihood of Petitioner finding suitable employment with another company given her age, restrictions, and education level is low. The petitioner would be very limited in finding a job in the housekeeping field with her age and current restrictions. The arbitrator gives greater weight to this factor With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the arbitrator notes that the petitioner has a 9th grade education and has worked as a housekeeper for the 24 years prior to the accident. With her current restrictions not being accommodated by the
  • 17. 12 respondent and being limiting in her bending and lifting she will be unlikely to find a job similar to the one she has been working. The arbitrator gives more weight to this factor. With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical records, the Arbitrator notes that Petitioner’s medical records document a consistent course of medical care and consistent complaints from Petitioner. The petitioner had limited and non-mechanical complaints prior to the date of accident. The review of MRI performed on March 2019 demonstrated a grade 3 signal with a vertical tear to the medical meniscus. Based upon the fact that the tear pattern was a grade 3 vertical tear and not the typical complex tear seen in degenerative meniscus tears. The petitioner underwent a knee arthroscopy and a complete knee replacement after the injury and was discharged with permanent restrictions as it relates to the right knee including restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, and limited bending. She was limited to carry a maximum 50 pounds. Petitioner’s credible testimony shows her limits in her daily life, including being unable to perform household chores, being unable to go up and down stairs, and is unable to walk for long periods of time. Petitioner noted that this changes all occurred after the August 17, 2018 accident. The arbitrator gives substantial weight to this factor. There are three circumstances where a claimant may be awarded benefits under Section 8(d)(2) of the Act: 1) where the claimant suffers injuries which are covered by Section 8(c) or Section 8(e); 2) where a claimant covered by Section 8(c) or Section 8(e) also sustains other injuries which are not covered by those two sections and such injuries do not incapacitate him from pursuing his employment but would disable him from pursuing other suitable occupations, or which otherwise have resulted in physical impairment; or, 3) where he suffers injuries which partially incapacitate him from pursing the duties of his customary employment but do not result
  • 18. 13 in an impairment of earning capacity. Gallianetti v. Industrial Comm 'n., 315 Ill. App. 3d 721, 728 (3d Dist. 2000) The third situation is applicable in this case Petitioner has shown that with her current restrictions for medium work with occasional stairs, no climbing ladders, no squatting or kneeling, limited bending, and being limited to carry a maximum 50 pounds occasionally and 25 pounds frequently. She has been unable to be accommodated by her employer with these restrictions. She has indicated that she has trouble standing for periods and meeting her duties that were competently testified to at trial. Therefore she is unable to perform her duties and 8(d)2 applies. Based on the above factors, and the record taken as a whole, the Arbitrator finds that Petitioner sustained permanent partial disability to the extent of 40% loss of use of the person as a whole pursuant to §8(d)2 of the Act.