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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 20WC006754
Case Name v.
Consolidated Cases
Proceeding Type 19(b) Petition
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 17
Decision Issued By , Arbitrator
Petitioner Attorney Brien DiNella
Respondent Attorney
DATE FILED: 11/16/2023
THE INTEREST RATE FOR THE WEEK OF NOVEMBER 14, 2023 5.27%
/s ,Arbitrator
Signature
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)
Case # 20WC
Employee/Petitioner
v. Consolidated cases:
Monument Real Service, LLC
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 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. 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
ICArbDec19(b) 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 the date of accident, March 5, 2020, 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 $37,274.12; the average weekly wage was $716.81
On the date of accident, Petitioner was 49 years of age, single with 0 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 $0.00.TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 .for for
other benefits, for a total credit of $0.00.
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 $32,047.39 as provided in Section 8(a) of
the Act.
Respondent shall a reasonable and necessary medical services ursuant to the medical fee schedule of
$11 792.90 to , $9,289.36 to Pharmacy, $929.92 to
Clinic, $2,998.83 to $2 500.00 , $1,950.00 to
Imaging, and $2,586.38 to .
Respondent shall be given a credit of an $0.00 for medical benefits that have been paid through its group
medical plan, and Respondent shall hold petitioner harmless from any claims by any providers of the services
for which Respondent is receiving this credit, as provided in Section 8(j) of the Act.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $ 473.09 week for 22.143 weeks
commencing March 6, 2020, through August 8, 2020, as provided in Section 8(b) of the Act.
Permanent Partial Disability with 8.1b Language (For injuries after 9/1/11)
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.
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 leasing agent. The Petitioner testified that she had work in real estate
leasing prior to this position. The Petitioner testified that she has been able to find employment with a company
the awards grants to underprivileged children. She has testified that she has a Bachelor’s degree as her highest
level of education. The arbitrator gives some weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years old at the time of the
accident. The petitioner is currently working, however is still having issues after the accident with pain causing
her to limit some of her activities. The arbitrator gives some weight to this factor
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity. The Petitioner is currently
working has testified that her highest level of education is a Bachelor’s degree. She has been released full duty
and was able to find employment. 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 the Petitioner was shown to have sustained a broad-based posterior hernation of the L5-
S1 disk with annular tear after the accident. The petitioner was not noted to have any consistent medical
treatment prior to the accident. The Petitioner now testified that she has had to have consistent injections and
prescriptions prescribed to her. While the Petitioner was released full duty, it is clear that there is evidence of
disability. 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 first situation is applicable in this case.
The Petitioner was shown to have been working full duty prior to the accident and in spite of a prior
workers compensation claim she sustained, has shown the need for potential follow-up treatment after her
March 5, 2020, accident.
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 7% loss of use of the person as a whole pursuant to §8(d)2 of the ct.
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) NOVEMBER , 2023
_________________________________________________________________________
STATEMENT OF FACTS
Petitioner, (hereinafter referred to as the “Petitioner”) is 52-year-old woman who
worked for Respondent, Real Service, LLC (hereinafter referred to as the
“Respondent”), as a leasing consultant. Recorded transcript of Arbitration October 10, 2023
(hereinafter referred to as “R.”) at 8-9. Petitioner testified that her highest level of education was
a bachelor’s degree and had begun her employment with the Respondent as temporary employee
before being granted full employment. Id. at 9. She noted that her day-to-day job duties would
involve answering emails, getting on phone calls with people calling with inquiries about
apartments, unit tours for prospective leasers, and responding to resident complaints. Id. She
noted that her workstation was a two-person office, and her computer was available to residents
and her fellow co-workers. Id. at 10. She noted that some of her physical responsibilities were to
be cleaning and assisting residents with packages. Id. at10-11.
The Petitioner testified that on March 5, 2020, that she was going through the model units
to make sure that they were clean and noticed some paper on the ground. Id. at 12. As she went
to pick up this trash, she testified that she fell down a flight of stairs and injured her knees and hit
the back rail of the rail of the cement staircase with her lower back. Id. She testified that she
reported the incident to her property manager S after it occurred and that she had to go to
the hospital. Id. at 13. She testified that she left work and went to the Emergency Room at
where she reports that they stated it was a sprain and bruise. Id. at 14.
The Petitioner testified that she was then seen at . Id. The
medical records from Dr. L notes in the initial history from March 6, 2020, that “She
states yesterday she was walking up stairs where construction had been taking place and noticed
several papers. she bent down to pick up the papers on the platform and as she was walking back
down the stairs, she tripped on several rocks due to the construction and tumbled down
approximately five stairs.” P Ex 1 at 4. Dr. L also notes that she fell onto her knees
bilaterally and onto the right side of her body resulting in neck pain, bi-lateral shoulder pain, mid
thoracic and lower back pain, bilateral knee pain, and bilateral wrist pain. Id. He notes that she
went on to notify her supervisor and she attempted to finish her shift but left at 4 pm. Id. Dr.
L went on to prescribe a physical therapy program and medication of 200 mg of Celebrex
and Medrol Dospak. Id. at 5. He then took the Petitioner off work for four weeks for revaluation.
Id.
On April 1, 2020, it was noted by Dr. L that after attempting physical therapy she
continues to have persistent pain most severe in the cervical spine and lower back. P Ex 1 at 8.
Dr. L proscribed a switch to metzxalone and lidocaine pain patches. Id. He recommend a
MRI of the cervical and lumbar portions of the spine. Id. He additionally kept her off work for an
additional 4 weeks. Id.
On May 14, 2020, the Petitioner followed up with Dr. L and complained of right side
neck pain, he continued to recommend a cervical and lumbar MRI. P Ex 1 at 11. He would
continue to ask for her to remain off work. Id.
On May 20, 2020, the Petitioner followed up with Dr. L and it is noted that
she completed her cervical MRI though she did have a panic attack due to the MRI being closed
and the Petitioner being claustrophobic. P Ex 1 at 14. Dr. L proscribed her Meloxicam 7.5
mg and Lyrica 100 mg twice daily, additionally placed her off work. Id.
On May 28, 2020, the Petitioner followed up with Dr. L and she was able to review
the MRI of her lumbar spine noting a broad-based posterior herniation of L5-S1 disk with
annular tear causing mild narrowing of central canal and neural foramina bilaterally. P Ex 1 at
17. The herniation was noted to be measured approximately 4mm in size with a diffuse disk
protrusion of L4-L5 disc causing mild narrowing of the central canal and neutral foramina
bilaterally. Id. The protrusion measured 3 mm in size, a mild diffuse bulge of L1-L2, L2-L2, and
L3-L4 disks without significant central canal or neural foraminal narrowing with bulges
approximately 2 mm in size. Id. Based on the Petitioner’s complaints, Dr. L recommended
L4-L5 and L5-S1 injections, further physical therapy, and kept her off work. Id. at 18.
On June 8, 2020, Dr. M performed an L5-S1 lumbar epidural steroid
injection with epidurogram and recommended that she should remain off work. P Ex 1 at 21.
On June 22, 2020, Dr. M noted that the Petitioner had pain relief from her
injection and then recommended a home exercise program and for her to start light duty work of
no lifting, carrying, pulling, pushing greater that 20 pounds. P Ex 1 at 24. She was advised to
follow up in four weeks. Id.
On August 7, 2020, Dr. M recommended that the petitioner return to full duty
work and that she should take cyclobenzaprine as needed for her intermediate pain at nighttime,
she was instructed to follow up as need. P Ex 1 at 26.
The Petitioner testified that she was referred to the Clinic. R. at 15.
Petitioner reported for therapy and chiropractic treatment at Clinic on
03/09/2020, 03/11/2020, and 03/12/2020. P Ex 2 at 2-11. It was noted on her initial evaluation,
that she was preparing an apartment and slipped on a slipped on a step then fell hard on her
knees, shoulder, wrist, and full back. Id. at 11. It was noted that she attempted to continue work
but left work early due to pain. Id.
The Petitioner testified that since being released by , she has
continued to get injections through her private insurance. R. at 16. Petitioner testified that she is
still taking a prescription medication “Ketorolac” through her primary care doctor and is
currently working in a position that assists families and children to help find housing for them.
Id. at 18. She testified that she did not continue her employment with momentum after the
accident and still has pains from the accident. Id. at 20-21 She states that she must take
medication at night and has not been able to jog anymore like she used to. Id.
The Respondent offered into evidence an Illinois Workers Compensation settlement
contract, from a previous case which the Petitioner stated that she did not recall settling.
Respondent’s Exhibit 2. R. at 29.
The Respondent called Ms. as a witness who is the current president of
. Id. at 49. Ms. stated that she was familiar with the Petitioner
working for the company in their Chicago leasing office. Id. at 50. She noted on direct
examination that there was one model unit on the property as of March 2020 and that it was
located on the ground floor. Id. at 51. A video was then shown of a walk to the model unit and
this video was entered at Respondent’s exhibit 8 for identification. Id. at 52. Ms. testified
that there was construction on the property in 2019 and an invoice for construction work was
entered into evidence as Respondent’s Exhibit 6. Id. at 54. Ms. then confirmed that an
investigation was done by the respondent after the reported accident. Id. at 55. The Respondent n
entered into evidence an Email from the company as respondent’s exhibit 7. Id. at 59.
On cross-examination, Ms. testified that manages
approximately 22 properties in 10 different states. Id. at 64. She testified that she would attempt
to visit each property at least once every year. Id. at 65. She went on to testify that they would
renovate unit which “really ranges” since if someone renewed their lease they would generally
not go for a renovation then. Id. at 66. She went on to testify on cross-examination that she
would not be aware of when units would be improved, generally. Id. at 68.
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. To obtain compensation under the Act, a claimant
must show by a preponderance of 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 out of” component refers to the origin of case of
the claimant’s injury and requires that the risk to be connected with, or incidental to, the
employment so as to create connection between the employment and the accidental injury. Id. at
58.
In this case both factors have been met. The petitioner credibility testified regarding her
job duties, which included cleaning up the property and touring the model units for potential
renters. The Arbitrator finds that the fall occurred at Respondent’s property while Petitioner was
doing her job duties of cleaning the property. The petitioner testified that there was some debris
that was on the ground which caused her to slip, thus her activity is a risk that would be considered
connected with her employment.
The petitioner testified that she was reviewing the property and cleaning up prior to anyone
coming in for tours, and while it was said that she would be reviewing the model units to keep
them clean this was not her sole job duty. R. at 1l. She was at all times required to keep the common
areas of the property clean.
The petitioner also testified that there were rocks that were around due to construction,
even though the Respondent presented evidence of construction occurring in 2019. Respondent’s
witness Ms. , on cross-examination, admitted that there was constant construction and
upkeep done on the units to the point where she would not be informed of when and where it was
going to be done and did not have to individually sign off on this.
Therefore, Arbitrator finds that an injury did occur during and the course of the petitioner’s
employment.
D. WITH REGARD TO ITEM (D), WHAT WAS THE DATE OF THE
ACCIDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDING OF
FACT AND CONCLUSIONS OF LAW:
The Arbitrator finds that the date of the accident was on March 5, 2020.
The petitioner credibly testified that she was injured on March 5, 2020. The date is also in the
and Clinic records. The narrative on the date
following the alleged date of accident confirms petitioner’s statement of events.
The Arbitrator finds that March 5, 2020, was the date of accident.
E. W ITH REGARD TO ITEM (E), WAS TIMLEY NOTICE OF THE ACCIDENT
GIVEN TO RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
The Arbitrator finds that notice was provided to Respondent in a timely manner.
Petitioner testified that she provided notice after the accident to “S ” the property manager.
Additionally, here initial Application for the adjustment of claim was filed with the 45 days
required.
Based on Petitioner’s credible testimony, proper oral notice was provided, and constructive
notice was provided by the Commission.
The Arbitrator finds that proper notice was provided.
F. WITH REGARD TO ITEM (F), IS PEITITONER’S CONDITION OF ILL- BEING
CAUSALLY RELEATED TO THE INJURY, THE ARBITATOR 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
March 5, 2020, 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 if 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).
The petitioner testified credibly that she was able to work full duty at her position prior to
March 5, 2020. After this date she was taken off work and began treatment from March to
August with . Petitioner had not been following up with a physician
prior to her accident and experienced relief because of the treatment that was provided.
Arbitrator acknowledges the prior settlement contract which was presented into evidence
showing that there was a previous injury. However, Arbitrator relies on Sisbro, whereby a pre-
existing condition does not preclude recovery for a subsequent injury and as noted in Illinois
Power co, a sudden change in condition after a work accident would be sufficient to establish
causation.
Therefore, the Arbitrator finds that the petitioner’s current condition of ill-being is causally
related to the accident of March 5, 2020.
J. WITH REGARD TO ITEM (J), WERE THE MEDICAL SERVICES THAT
WERE PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND
HAS RESPONDENT PAID ALL APPROPRIATE CHARGE FOR ALL
REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR
RENDERS THE FOLLOWING FINDINGS OF FACT AND CONSLUSIONS OF
LAW:
The Arbitrator finds that the Petitioner’s medical care has been reasonable and necessary and
Respondent has 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, and
physical therapy.
The Arbitrator notes that there was no conflicting medical documentation provided. Dr.
Li and Dr. M felt this treatment was reasonable and necessary for the injuries
that were sustained. (P Ex 1 at 4- 26).
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee
schedule, of $11,792.90 to , $9,289.36 to
Pharmacy, $929.92 to Clinic, $2,998.83 to , $2,500.00
, $1,950.00 to Imaging, and $2,586.38 to
Consultants directly to the Petitioner pursuant to the Act.
K. WITH REGARD TO ITEM (K), WHAT TEMPARY BENEFITS ARE IN
DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF
FACT AND CONLUSIONS OF LAW:
Based on the above findings the Arbitrator awards 22.143 weeks of Temporary Total
Disability benefits, from the date of March 6, 2020, through August 8, 2020.
L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT 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 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.
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 leasing agent. The Petitioner testified
that she had work in real estate leasing prior to this position. The Petitioner testified that she has
been able to find employment with a company the awards grants to underprivileged children. She
has testified that she has a bachelor’s degree as her highest level of education. The arbitrator
gives some weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years old at
the time of the accident. The petitioner is currently working, however is still having issues after
the accident with pain causing her to limit some of her activities. The arbitrator gives some
weight to this factor.
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity. The Petitioner is
currently working has testified that her highest level of education is a bachelor’s degree. She has
been released full duty and was able to find employment. 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 the Petitioner was shown to have sustained a broad-
based posterior hernation of the L5-S1 disk with annular tear after the accident. The petitioner
was not noted to have any consistent medical treatment prior to the accident. The Petitioner
testified that she currently has to have consistent injections and prescriptions prescribed to her. .
The arbitrator gives greater 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 first situation is applicable in this case.
The Petitioner was shown to have been working full duty prior to the accident and in
spite of a prior workers compensation claim she sustained, has shown the need for potential
follow-up treatment after her March 5, 2020, accident.
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 7% loss of use of the person as a
whole pursuant to §8(d)2 of the Act.

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Brien DiNella Receives Favorable Decision for Leasing Agent

  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 20WC006754 Case Name v. Consolidated Cases Proceeding Type 19(b) Petition Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 17 Decision Issued By , Arbitrator Petitioner Attorney Brien DiNella Respondent Attorney DATE FILED: 11/16/2023 THE INTEREST RATE FOR THE WEEK OF NOVEMBER 14, 2023 5.27% /s ,Arbitrator Signature
  • 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) Case # 20WC Employee/Petitioner v. Consolidated cases: Monument Real Service, LLC 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 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. 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 ICArbDec19(b) 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 the date of accident, March 5, 2020, 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 $37,274.12; the average weekly wage was $716.81 On the date of accident, Petitioner was 49 years of age, single with 0 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 $0.00.TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 .for for other benefits, for a total credit of $0.00. 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 $32,047.39 as provided in Section 8(a) of the Act. Respondent shall a reasonable and necessary medical services ursuant to the medical fee schedule of $11 792.90 to , $9,289.36 to Pharmacy, $929.92 to Clinic, $2,998.83 to $2 500.00 , $1,950.00 to Imaging, and $2,586.38 to . Respondent shall be given a credit of an $0.00 for medical benefits that have been paid through its group medical plan, and Respondent shall hold petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit, as provided in Section 8(j) of the Act. Temporary Total Disability Respondent shall pay Petitioner temporary total disability benefits of $ 473.09 week for 22.143 weeks commencing March 6, 2020, through August 8, 2020, as provided in Section 8(b) of the Act. Permanent Partial Disability with 8.1b Language (For injuries after 9/1/11) 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
  • 4. 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. 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 leasing agent. The Petitioner testified that she had work in real estate leasing prior to this position. The Petitioner testified that she has been able to find employment with a company the awards grants to underprivileged children. She has testified that she has a Bachelor’s degree as her highest level of education. The arbitrator gives some weight to this factor. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years old at the time of the accident. The petitioner is currently working, however is still having issues after the accident with pain causing her to limit some of her activities. The arbitrator gives some weight to this factor With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity. The Petitioner is currently working has testified that her highest level of education is a Bachelor’s degree. She has been released full duty and was able to find employment. The arbitrator gives more weight to this factor.
  • 5. With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical records, the Arbitrator notes that the Petitioner was shown to have sustained a broad-based posterior hernation of the L5- S1 disk with annular tear after the accident. The petitioner was not noted to have any consistent medical treatment prior to the accident. The Petitioner now testified that she has had to have consistent injections and prescriptions prescribed to her. While the Petitioner was released full duty, it is clear that there is evidence of disability. 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 first situation is applicable in this case. The Petitioner was shown to have been working full duty prior to the accident and in spite of a prior workers compensation claim she sustained, has shown the need for potential follow-up treatment after her March 5, 2020, accident. 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 7% loss of use of the person as a whole pursuant to §8(d)2 of the ct. 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.
  • 7. _________________________________________________________________________ STATEMENT OF FACTS Petitioner, (hereinafter referred to as the “Petitioner”) is 52-year-old woman who worked for Respondent, Real Service, LLC (hereinafter referred to as the “Respondent”), as a leasing consultant. Recorded transcript of Arbitration October 10, 2023 (hereinafter referred to as “R.”) at 8-9. Petitioner testified that her highest level of education was a bachelor’s degree and had begun her employment with the Respondent as temporary employee before being granted full employment. Id. at 9. She noted that her day-to-day job duties would involve answering emails, getting on phone calls with people calling with inquiries about apartments, unit tours for prospective leasers, and responding to resident complaints. Id. She noted that her workstation was a two-person office, and her computer was available to residents and her fellow co-workers. Id. at 10. She noted that some of her physical responsibilities were to be cleaning and assisting residents with packages. Id. at10-11. The Petitioner testified that on March 5, 2020, that she was going through the model units to make sure that they were clean and noticed some paper on the ground. Id. at 12. As she went to pick up this trash, she testified that she fell down a flight of stairs and injured her knees and hit the back rail of the rail of the cement staircase with her lower back. Id. She testified that she reported the incident to her property manager S after it occurred and that she had to go to the hospital. Id. at 13. She testified that she left work and went to the Emergency Room at where she reports that they stated it was a sprain and bruise. Id. at 14. The Petitioner testified that she was then seen at . Id. The medical records from Dr. L notes in the initial history from March 6, 2020, that “She states yesterday she was walking up stairs where construction had been taking place and noticed
  • 8. several papers. she bent down to pick up the papers on the platform and as she was walking back down the stairs, she tripped on several rocks due to the construction and tumbled down approximately five stairs.” P Ex 1 at 4. Dr. L also notes that she fell onto her knees bilaterally and onto the right side of her body resulting in neck pain, bi-lateral shoulder pain, mid thoracic and lower back pain, bilateral knee pain, and bilateral wrist pain. Id. He notes that she went on to notify her supervisor and she attempted to finish her shift but left at 4 pm. Id. Dr. L went on to prescribe a physical therapy program and medication of 200 mg of Celebrex and Medrol Dospak. Id. at 5. He then took the Petitioner off work for four weeks for revaluation. Id. On April 1, 2020, it was noted by Dr. L that after attempting physical therapy she continues to have persistent pain most severe in the cervical spine and lower back. P Ex 1 at 8. Dr. L proscribed a switch to metzxalone and lidocaine pain patches. Id. He recommend a MRI of the cervical and lumbar portions of the spine. Id. He additionally kept her off work for an additional 4 weeks. Id. On May 14, 2020, the Petitioner followed up with Dr. L and complained of right side neck pain, he continued to recommend a cervical and lumbar MRI. P Ex 1 at 11. He would continue to ask for her to remain off work. Id. On May 20, 2020, the Petitioner followed up with Dr. L and it is noted that she completed her cervical MRI though she did have a panic attack due to the MRI being closed and the Petitioner being claustrophobic. P Ex 1 at 14. Dr. L proscribed her Meloxicam 7.5 mg and Lyrica 100 mg twice daily, additionally placed her off work. Id.
  • 9. On May 28, 2020, the Petitioner followed up with Dr. L and she was able to review the MRI of her lumbar spine noting a broad-based posterior herniation of L5-S1 disk with annular tear causing mild narrowing of central canal and neural foramina bilaterally. P Ex 1 at 17. The herniation was noted to be measured approximately 4mm in size with a diffuse disk protrusion of L4-L5 disc causing mild narrowing of the central canal and neutral foramina bilaterally. Id. The protrusion measured 3 mm in size, a mild diffuse bulge of L1-L2, L2-L2, and L3-L4 disks without significant central canal or neural foraminal narrowing with bulges approximately 2 mm in size. Id. Based on the Petitioner’s complaints, Dr. L recommended L4-L5 and L5-S1 injections, further physical therapy, and kept her off work. Id. at 18. On June 8, 2020, Dr. M performed an L5-S1 lumbar epidural steroid injection with epidurogram and recommended that she should remain off work. P Ex 1 at 21. On June 22, 2020, Dr. M noted that the Petitioner had pain relief from her injection and then recommended a home exercise program and for her to start light duty work of no lifting, carrying, pulling, pushing greater that 20 pounds. P Ex 1 at 24. She was advised to follow up in four weeks. Id. On August 7, 2020, Dr. M recommended that the petitioner return to full duty work and that she should take cyclobenzaprine as needed for her intermediate pain at nighttime, she was instructed to follow up as need. P Ex 1 at 26. The Petitioner testified that she was referred to the Clinic. R. at 15. Petitioner reported for therapy and chiropractic treatment at Clinic on 03/09/2020, 03/11/2020, and 03/12/2020. P Ex 2 at 2-11. It was noted on her initial evaluation, that she was preparing an apartment and slipped on a slipped on a step then fell hard on her
  • 10. knees, shoulder, wrist, and full back. Id. at 11. It was noted that she attempted to continue work but left work early due to pain. Id. The Petitioner testified that since being released by , she has continued to get injections through her private insurance. R. at 16. Petitioner testified that she is still taking a prescription medication “Ketorolac” through her primary care doctor and is currently working in a position that assists families and children to help find housing for them. Id. at 18. She testified that she did not continue her employment with momentum after the accident and still has pains from the accident. Id. at 20-21 She states that she must take medication at night and has not been able to jog anymore like she used to. Id. The Respondent offered into evidence an Illinois Workers Compensation settlement contract, from a previous case which the Petitioner stated that she did not recall settling. Respondent’s Exhibit 2. R. at 29. The Respondent called Ms. as a witness who is the current president of . Id. at 49. Ms. stated that she was familiar with the Petitioner working for the company in their Chicago leasing office. Id. at 50. She noted on direct examination that there was one model unit on the property as of March 2020 and that it was located on the ground floor. Id. at 51. A video was then shown of a walk to the model unit and this video was entered at Respondent’s exhibit 8 for identification. Id. at 52. Ms. testified that there was construction on the property in 2019 and an invoice for construction work was entered into evidence as Respondent’s Exhibit 6. Id. at 54. Ms. then confirmed that an investigation was done by the respondent after the reported accident. Id. at 55. The Respondent n entered into evidence an Email from the company as respondent’s exhibit 7. Id. at 59.
  • 11. On cross-examination, Ms. testified that manages approximately 22 properties in 10 different states. Id. at 64. She testified that she would attempt to visit each property at least once every year. Id. at 65. She went on to testify that they would renovate unit which “really ranges” since if someone renewed their lease they would generally not go for a renovation then. Id. at 66. She went on to testify on cross-examination that she would not be aware of when units would be improved, generally. Id. at 68. 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. To obtain compensation under the Act, a claimant must show by a preponderance of 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 out of” component refers to the origin of case of the claimant’s injury and requires that the risk to be connected with, or incidental to, the employment so as to create connection between the employment and the accidental injury. Id. at 58. In this case both factors have been met. The petitioner credibility testified regarding her job duties, which included cleaning up the property and touring the model units for potential
  • 12. renters. The Arbitrator finds that the fall occurred at Respondent’s property while Petitioner was doing her job duties of cleaning the property. The petitioner testified that there was some debris that was on the ground which caused her to slip, thus her activity is a risk that would be considered connected with her employment. The petitioner testified that she was reviewing the property and cleaning up prior to anyone coming in for tours, and while it was said that she would be reviewing the model units to keep them clean this was not her sole job duty. R. at 1l. She was at all times required to keep the common areas of the property clean. The petitioner also testified that there were rocks that were around due to construction, even though the Respondent presented evidence of construction occurring in 2019. Respondent’s witness Ms. , on cross-examination, admitted that there was constant construction and upkeep done on the units to the point where she would not be informed of when and where it was going to be done and did not have to individually sign off on this. Therefore, Arbitrator finds that an injury did occur during and the course of the petitioner’s employment. D. WITH REGARD TO ITEM (D), WHAT WAS THE DATE OF THE ACCIDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDING OF FACT AND CONCLUSIONS OF LAW: The Arbitrator finds that the date of the accident was on March 5, 2020. The petitioner credibly testified that she was injured on March 5, 2020. The date is also in the and Clinic records. The narrative on the date following the alleged date of accident confirms petitioner’s statement of events. The Arbitrator finds that March 5, 2020, was the date of accident.
  • 13. E. W ITH REGARD TO ITEM (E), WAS TIMLEY NOTICE OF THE ACCIDENT GIVEN TO RESPONDENT, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Arbitrator finds that notice was provided to Respondent in a timely manner. Petitioner testified that she provided notice after the accident to “S ” the property manager. Additionally, here initial Application for the adjustment of claim was filed with the 45 days required. Based on Petitioner’s credible testimony, proper oral notice was provided, and constructive notice was provided by the Commission. The Arbitrator finds that proper notice was provided. F. WITH REGARD TO ITEM (F), IS PEITITONER’S CONDITION OF ILL- BEING CAUSALLY RELEATED TO THE INJURY, THE ARBITATOR 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 March 5, 2020, 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 if 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).
  • 14. The petitioner testified credibly that she was able to work full duty at her position prior to March 5, 2020. After this date she was taken off work and began treatment from March to August with . Petitioner had not been following up with a physician prior to her accident and experienced relief because of the treatment that was provided. Arbitrator acknowledges the prior settlement contract which was presented into evidence showing that there was a previous injury. However, Arbitrator relies on Sisbro, whereby a pre- existing condition does not preclude recovery for a subsequent injury and as noted in Illinois Power co, a sudden change in condition after a work accident would be sufficient to establish causation. Therefore, the Arbitrator finds that the petitioner’s current condition of ill-being is causally related to the accident of March 5, 2020. J. WITH REGARD TO ITEM (J), WERE THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGE FOR ALL REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONSLUSIONS OF LAW: The Arbitrator finds that the Petitioner’s medical care has been reasonable and necessary and Respondent has 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, and physical therapy. The Arbitrator notes that there was no conflicting medical documentation provided. Dr. Li and Dr. M felt this treatment was reasonable and necessary for the injuries that were sustained. (P Ex 1 at 4- 26).
  • 15. Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $11,792.90 to , $9,289.36 to Pharmacy, $929.92 to Clinic, $2,998.83 to , $2,500.00 , $1,950.00 to Imaging, and $2,586.38 to Consultants directly to the Petitioner pursuant to the Act. K. WITH REGARD TO ITEM (K), WHAT TEMPARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR RENDERS THE FOLLOWING FINDINGS OF FACT AND CONLUSIONS OF LAW: Based on the above findings the Arbitrator awards 22.143 weeks of Temporary Total Disability benefits, from the date of March 6, 2020, through August 8, 2020. L. WITH REGARD TO ITEM (L), WHAT IS THE NATURE AND EXTENT 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 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
  • 16. 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. 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 leasing agent. The Petitioner testified that she had work in real estate leasing prior to this position. The Petitioner testified that she has been able to find employment with a company the awards grants to underprivileged children. She has testified that she has a bachelor’s degree as her highest level of education. The arbitrator gives some weight to this factor. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years old at the time of the accident. The petitioner is currently working, however is still having issues after the accident with pain causing her to limit some of her activities. The arbitrator gives some weight to this factor. With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity. The Petitioner is currently working has testified that her highest level of education is a bachelor’s degree. She has been released full duty and was able to find employment. 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 the Petitioner was shown to have sustained a broad-
  • 17. based posterior hernation of the L5-S1 disk with annular tear after the accident. The petitioner was not noted to have any consistent medical treatment prior to the accident. The Petitioner testified that she currently has to have consistent injections and prescriptions prescribed to her. . The arbitrator gives greater 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 first situation is applicable in this case. The Petitioner was shown to have been working full duty prior to the accident and in spite of a prior workers compensation claim she sustained, has shown the need for potential follow-up treatment after her March 5, 2020, accident. 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 7% loss of use of the person as a whole pursuant to §8(d)2 of the Act.