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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 19WC01
Case Name v.
FedEx Ground Package System Inc
Consolidated Cases
Proceeding Type
Decision Type Corrected Arbitration Decision
Commission Decision Number
Number of Pages of Decision 11
Decision Issued By , Arbitrator
Petitioner Attorney Joshua Rudolfi
Respondent Attorney Timothy
DATE FILED: /2023
Signature
THE INTEREST RATE FOR THE WEEK OF JUNE 13, 2023 5.15%
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
CORRECTED ARBITRATION DECISION
Case # 19 WC 1
Employee/Petitioner
v. Consolidated cases: -----
FedEx Ground Package Systems, 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 July 22, 2022. 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 4/22 Web site: www.iwcc.il.gov
FINDINGS
On 6/27/2019, 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 $56,847.96; the average weekly wage was $1,093.23.
On the date of accident, Petitioner was 38 years of age, married with 4 dependent children.
Petitioner has received all reasonable and necessary medical services.
Respondent has not paid all appropriate charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $39,896.57 for TTD, $0.00 for TPD, $0.00 for maintenance, and
$4,941.46 for other benefits (short term disability), for a total credit of $44,838.03.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Medical bene its
, Respondent shall pay Petitioner for reasonable and necessary medical services, pursuant to the medical fee
schedule: Pain Management Specialists $2,021.50, Win Anesthesia $4,275.00, and Physical Therapy
$15,662.01, as provided in Sections 8(a) and 8.2 of the Act.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $728.82/week for 75 2/7 weeks, commencing
7/1/2019 through 8/29/2019 and from 9/18/2019 through 12/29/2020, as provided in Section 8(b) of the Act. Respondent
shall be given a credit of $44,838.03 (TTD and short-term disability) for temporary total disability benefits that have
already been paid.
Permanent Partial Disability
Considering the evidence and evaluating permanent partial disability in accordance with the five factors pursuant to
Section 8.1b, the Arbitrator finds that Petitioner sustained 25% loss of use of the person as a whole under Section 8(d)(2),
representing 125 weeks of permanent partial disability compensation. See Rider to Decision.
RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a
review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission.
STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of
Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in
either no change or a decrease in this award, interest shall not accrue.
__________________________________________________
Signature of Arbitrator
ICArbDec p. 2
1
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
ILLINOIS WORKERS’ COMPENSATION COMMISSION
)
)
Petitioner, )
)
v. )
) Case No. 19WC1
FedEx Ground Package Systems, Inc., )
)
)
Respondent. )
FINDINGS OF FACT
This matter proceeded to hearing on July 22, 2022 in Chicago, Illinois before Arbitrator
on Respondent’s Request for Hearing. Issues in dispute include Causal
Connection, Medical bills, Temporary Total Disability and Nature and Extent. Arbitrator’s Exhibit
“Ax” 1.
Background
Petitioner, (current surname “ ” following divorce), worked for
Respondent as an operations manager beginning in April 2019. Transcript of Arbitration,
hereinafter referred to as “R.”, 11-12. As an operations manager Petitioner worked on the dock
with the package handlers and loaded and unloaded trailers. R. 12. She testified that she would
assist package handlers in loading packages weighing between 5 and 75 lbs. R. 14-15.
Petitioner’s Current & Prior Medical Conditions
Petitioner denied any medical issues or treatment for her cervical and thoracic spine prior to the
work accident of June 27, 2019. R. 41-42. She denied having any issues performing her full duty
job prior to the accident. R. 42. She testified that as of the date of trial she continues to have pain
in her cervical and thoracic spine and takes over-the-counter medication to help. R. 44. She does
not believe that her medical bills have been paid. R. 45.
Accident
Petitioner was working as an operations manager on June 27, 2019. On the date of accident, she
was standing inside a trailer when a package came off of the loading chute and struck her in the
head. R. 18, 20. The package contained ceramic toilet parts. R. 21. Petitioner testified that she
immediately felt pain in her neck, reported the accident, and went to the on-site nurse. R. 21-22.
Petitioner continued working her shift that day. R. 22.
2
Summary of Medical Records
Petitioner sought medical care with Dr. J with Management Specialists
on July 1, 2019. Px1, p. 10. Dr. J recorded a history of injury consistent with Petitioner’s trial
testimony and noted that she complained of pain in her head, neck, and mid-back following the
accident. Id. Dr. J noted that Petitioner had a positive cervical compression test and limited
range of cervical motion. Id. at 11. Dr. J diagnosed cervical/thoracic strains, cervical facet
syndrome, and post-concussion headache. Id. at 12. He recommended physical therapy, prescribed
meloxicam and cyclobenzaprine and provided work restrictions of no lifting or pushing greater
than 10 lbs. Id. Dr. J addressed causal connection and stated that Petitioner had an underlying
degenerative condition that was silent and asymptomatic but was rendered symptomatic requiring
treatment as a result of the injury. Id. Petitioner testified that Respondent did not accommodate
her restrictions. R. 23. She began receiving TTD benefits at that time. R. 24.
Petitioner underwent a course of physical therapy for her thoracic and cervical conditions with
P Physical Thera from July 2, 2019 through August 13, 2019. Px3, pp. 4-64. Petitioner
followed up with Dr. J on July 15, 2019 where she continued to complain of pain in the neck,
mid-back, and left knee. Px1, p. 13. Dr. J recommended bilateral C4, C5, and C6 medial branch
blocks and bilateral thoracic facet joint injections while placing Petitioners off work. Id. at 16.
Those nerve blocks were not initially approved by the Respondent. R. 25. Petitioner followed up
again with Dr. J on July 29, 2019 wherein the blocks were again recommended and Petitioner
continued off work. Px1, p. 18-21. Petitioner testified that she returned to work on August 30,
2019. R. 25-26.
Petitioner underwent bilateral medial branch blocks at C4, C5, and C6 performed by Dr. J on
September 18, 2019 and was placed off work. Px1, p. 155-156. Petitioner underwent right T3, T4,
and T5 medial branch radiofrequency ablations with Dr. J on September 23, 2019 and was
continued off work. Id. at p. 164-165. Petitioner testified that these blocks provided temporary
relief of her symptoms. R. 26. Petitioner followed up with Dr. J on September 25, 2019 and it
was noted that she had 100% relief from the injections temporarily. Px1, p. 23. Based on these
results Dr. J recommended a second round of cervical blocks in order to increase the efficacy
of radiofrequenc ablations while continuing Petitioner off work. Id. at 25-26. Petitioner followed
up with Dr. J on October 7, 2019 and November 5, 2019 wherein the blocks were still
recommended and Petitioner continued off work. Id. at 28-39.
On December 4, 2019 Petitioner underwent right C4, C5, and C6 radiofrequency ablations with
Dr. J . Id. at 157-159. Petitioner followed up with Dr. J on December 30, 2019 and
complained of a numbing sensation into the neck with continued pain. Px1, p. 40. Dr. J
recommended thoracic nerve block at T3, T4, and T5 due to continued axial pain at those levels
and continued Petitioner off work. Id. at 44. Dr. J also changed Petitioner’s medication to
include Cymbalta. Id.
On January 15, 2020 Petitioner underwent bilateral T3, T4, and T5 medial branch blocks with Dr.
J . Id. at 160-161. On January 22, 2020 those blocks were repeated. Id. at 162-163. Petitioner
testified that these blocks helped her temporarily. R. 29-30. Petitioner followed up with Dr. J
on January 27, 2020 and it was noted that her cervical pain had improved and the thoracic blocks
provided temporary relief. Px1, p. 46. Dr. J recommended T3, T4, and T5 radiofrequency
3
ablations and continued Petitioner off work. Id. at 51. Petitioner testified that Respondent did not
approve these procedures. R. 30. Petitioner followed up with Dr. J on March 6, 2020, April 13,
2020, May 11, 2020, June 8, 2020 and July 6, 2020 wherein Dr. J noted that they were still
awaiting approval for these procedures and Petitioner remained off work. Px1, p. 53-87. Petitioner
followed up with Dr. J on August 11, 2020 and September 10, 2020 when the radiofrequency
ablation was approved. Px1, p. 88-105.
Petitioner underwent right T3, T4, and T5 medial branch radiofrequency ablation with Dr. J .
Id. at 164-165. Petitioner followed up with Dr. J on October 7, 2020 and it was noted that she
had mild improvement following the ablation and that her neck pain was recurring. Id. at 106. Dr.
J recommended cervical ablations and continued Petitioner off work. Id. at 112. Dr. J noted
at the next office visit on November 4, 2020 that they were giving more time for the ablation to
take effect and continued Petitioner off work. Id. at 121.
On December 2, 2020 Dr. J recommended that Petitioner undergo a functional capacity
evaluation in order to attempt to return Petitioner to work. Id. at 129. Petitioner underwent a
functional capacity evaluation at A Physical Therapy on December 22, 2020. Px4, p. 100-106.
The FCE revealed that Petitioner could return to work in a Sedentary/Light level. Id.
Petitioner followed up with Dr. J on December 28, 2020 and Dr. J recommended that
Petitioner undergo a course of physical therapy and return to work pursuant to the FCE restrictions.
Px1, p. 138. Petitioner returned to work in an accommodated position for Res ondent on
December 29, 2020. R. 36. Petitioner underwent a course of physical therapy at A Physical
Therapy from January 7, 2021 through March 19, 2021. Px4.
Petitioner followed up with Dr. J on January 27, 2021 and February 24, 2021 and was
discharged with restrictions per the FCE. Px1, p. 139-154.
Petitioner’s New Position with Respondent
Petitioner testified that when she returned to work on December 29, 2020 it was in an
accommodated position that was different from her previous one. R. 38. Petitioner was removed
from the dock so she would not be required to lift or load/unload trailers. R. 39. Petitioner testified
that she performs no lifting whatsoever and performs more office type work despite her job title
remaining the same. R. 39. She receives her job assignments from the area manager and does not
perform any work outside of a seated setting. R. 40-41. Petitioner testified that she is making the
same amount of money as she was making prior to the accident, with yearly increases. R. 41, 62.
Testimony of Respondent’s Witness C B
Respondent called Mr. C B to testify. R. 67. Mr. B is the assistant senior
manager of the Chicago hub for Respondent. R. 67. Mr. B is Petitioner’s supervisor, with
other managers in between in rank. R. 68. Mr. B identified the job offer made to Petitioner in
April 2019 for the position of operations manager and the job duties of an operations manager.
Rx2 and Rx11. He confirmed that Petitioner continues to work in an accommodated position with
Respondent and that Respondent intends to permanently accommodate Petitioner’s restrictions. R.
73-74. Mr. B completed a reasonable accommodation assessment with Petitioner on
September 30, 2021. Rx4.
4
Mr. B testified on direct examination that Petitioner’s current job duties are primarily
administrative, while an operations manager would be primarily on the dock and around packages
and trailers. R. 78-79. Petitioner’s current job title is operations engagement manager. R. 79. Mr.
B testified that Petitioner is not precluded from promotions due to her restrictions, however,
Mr. B was unaware of any individuals working for Respondent in permanently
accommodated positions ever being promoted. R. 83, 87.
On cross-examination Mr. B testified that Petitioner’s job description (Rx11) does not
demonstrate what Petitioner currently does for Respondent. R. 91. He testified that Petitioner does
not perform any lifting contained in the job description. R. 91.
Section 12 Examiner- Dr.
Res ondent sent Petitioner for an IME with Dr. G on August 5, 2020. R. 32. Dr.
G opined that Petitioner sustained cervical and thoracic strains and cervical thoracic facet
joint syndrome as a result of her work accident. Rx5, p. 2. Dr. G believed these conditions
were causally related to her June 27, 2019 work accident. Id. He further opined that she required
an FCE for her cervical condition and radiofrequency ablation for her thoracic condition, the need
for which was causally related to the work accident. Id. Dr. G stated that the treatment
Petitioner had received to date had been reasonable, appropriate, and causally related to the
accident. Id. He believed Petitioner capable of working with a 10 lb. lifting restriction. Id.
On August 18, 2021 Dr. G authored an addendum IME report and opined that all
treatment had been reasonable and necessary, and due to the accident. Rx6, p. 2. Dr. G
recommended an FCE to see whether Petitioner could return to work as an operations manager.
Id.
On September 2, 2021 Dr. G authored a second IME addendum report and confirmed that
he believes that Petitioner’s cervical and thoracic strains and facet syndromes were related to the
accident. Rx7, p. 2. He opined that Petitioner was at maximum medical improvement and could
continue to work pursuant to her FCE. Id.
CONCLUSIONS OF LAW
The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set forth
below. Section 1(b)3(d) of the Act provides that, in order to obtain compensation under the Act,
the employee bears the burden of showing, by a preponderance of the evidence, that he or she has
sustained accidental injuries arising out of and in the course of the employment. 820 ILCS
305/1(b)3(d). To obtain compensation under the Act, Petitioner has the burden of proving, by a
preponderance of the evidence, all of the elements of his claim O’Dette v. Industrial Comm’n, 79
Ill. 2d 249, 253 (1980) including that there is some causal relationship between his employment
and his injury. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 63 (1989) It is well
established that the Act is a humane law of remedial nature and is to be liberally construed to
effect the purpose of the Act - that the burdens of caring for the casualties of industry should be
borne by industry and not by the individuals whose misfortunes arise out of the industry, nor by
the public. Shell Oil v. Industrial Comm’n, 2 Ill.2nd
590, 603 (1954).
5
Decisions of an arbitrator shall be based exclusively on the evidence in the record of the
proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The Arbitrator, as
the trier of fact in this case, has the responsibility to observe the witnesses testify, judge their
credibility, and determine how much weight to afford their testimony and the other evidence
presented. Walker v. Chicago Housing Authority, 2015 IL App (1st
) 133788, ¶ 47. Credibility is
the quality of a witness which renders his evidence worthy of belief. The Arbitrator, whose
province it is to evaluate witness credibility, evaluates the demeanor of the witness and any
external inconsistencies with his/her testimony. Where a claimant’s testimony is inconsistent with
his/her actual behavior and conduct, the Commission has held that an award cannot stand.
McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968); Swift v. Industrial Commission, 52 Ill.
2d 490 (1972).
The Arbitrator observed Petitioner during the hearing and finds her to be a credible witness. The
Arbitrator compared Petitioner’s testimony with the totality of the evidence submitted and did not
find any material contradictions that would deem the witness unreliable. None of the physicians
who treated or examined her noted any symptom magnification. The Arbitrator finds Petitioner’s
testimony to be straight forward, truthful, and consistent with the records as a whole.
Issue F, whether Petitioner’s current condition of ill-being is causally related to the injury, the
Arbitrator finds as follows:
To obtain compensation under the Act, a claimant must prove that some act or phase of his
employment was a causative factor in his ensuing injuries. It is not necessary to prove that the
employment was the sole causative factor or even that it was the principal causative factor, but
only that it was a causative factor. Tolbert v. Ill. Workers' Comp. Comm'n, 2014 IL App (4th)
130523WC, ¶ 1, 11 N.E.3d 453. A work-related injury need not be the sole or principal causative
factor, as long as it was a causative factor in the resulting condition of ill-being. Even if the
claimant had a preexisting degenerative condition which made him more vulnerable to injury,
recovery for an accidental injury will not be denied as long as he can show that his employment
was also a causative factor. Thus, a claimant may establish a causal connection in such cases if
he can show that a work-related injury played a role in aggravating his preexisting
condition. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 278 Ill. Dec.
70 (2003). “A chain of events which demonstrates a previous condition of good health, an
accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence
to prove a causal nexus between the accident and the employee’s injury.” International Harvester
v. Industrial Com., 93 Ill. 2d 59, 63 442 N.E.2d 908 (1982).
The Arbitrator finds that it is unrebutted that Petitioner’s thoracic and cervical conditions are
causally related to the 6/27/19 accident and that Respondent’s dispute per Arbitrator’s Exhibit 1,
hereinafter “Ax1” was subject to testimony. Ax1. Given Petitioner’s testimony that she is not
claimin that any lumbar condition is causally related to the 6/27/19 accident and per Dr.
G ’s IME opinions that no such condition is, the Arbitrator finds accordingly.
The Arbitrator therefore finds that Petitioner’s current condition of ill-being is causally related to
Petitioner June 27, 2019 work accident. Dr. J and Dr. G both opine in their records and
6
reports that Petitioner’s condition is causally related to the undisputed work accident. There are
no opinions to the contrary, thus causal connection is clearly established.
Issue J, whether the medical services that were provided to Petitioner were reasonable and
necessary and whether Respondent has paid all appropriate charges for all reasonable and
necessary medical services, the Arbitrator finds as follows:
Dr. J state’s specifically in each office note that Petitioner’s medical care has been reasonable
and necessary. He states this in the final office note of February 24, 2021. Px1, p. 154.
Likewise, Dr. G states specifically in each one of his reports that Petitioner’s medical
care been both reasonable and necessary. The only opinions as to the necessity of medical care
are the three utilization review reports produced by Respondent. Rx8, Rx9, Rx10. These reports
dispute the need for Lidozen patches, ondansetron, and fexmid. The Arbitrator finds the
opinions of both the treating physician and IME physician to be more credible. Accordingly, the
Arbitrator finds at Petitioner’s medical care mentioned above was also reasonable and necessary.
Petitioner roduced outstandin medical bills from P P Mana ement S ecialists,
W C Anesthesia, and A Physical Therapy. The bills from P e P Management
Specialists are for office visits with Dr. J . Px1, p. 2-9. The bills from W C Anesthesia
are for the in ections received on September 16, 2020 and September 23, 2020. Px2, p. 3, 6. The
bills from A Physical Therapy are for therapy visits and the FCE. Px4, p. 5-8, 99. None of
these bills are for disputed medical care. Therefore, these bills are awarded to Petitioner and are
to be adjudicated pursuant to the Illinois Medical Fee Schedule.
Overall, the Arbitrator finds Petitioner’s treatment to be reasonable and necessary and finds that
Respondent has not paid for all of said treatment. As such, the Arbitrator orders Respondent to
pay Petitioner directly for the following outstanding medical services, pursuant to the medical fee
schedule and Sections 8(a) and 8.2 of the Act:
• P P Management Specialists $2,021.50
• W C Anesthesia $4,275.00
• A Physical Therapy $15,662.01
Issue K, whether Petitioner is entitled to temporary total disability benefits, the Arbitrator finds
as follows:
A claimant is temporarily totally disabled from the time an injury incapacitates him from work
until such time as he is as far recovered or restored as the permanent character of his injury will
permit. Westin Hotel v. Indus. Comm’n, 372 Ill.App.3d 527, 542 (1st Dist. 2007). In determining
whether a claimant remains entitled to receiving TTD benefits, the primary consideration is
whether the claimant’s condition has stabilized and whether she is capable of a return to the
workforce. Interstate Scaffolding, Inc. v. Illinois Workers’ Comp. Comm’n, 236 Ill.2d 132, 148
(2010). Once an injured employee's physical condition stabilizes, she is no longer eligible for TTD
benefits. Archer Daniels Midland Co. v. Indus. Comm’n, 138 Ill.2d 107, 118 (1990).
7
The Arbitrator finds that Petitioner is entitled to TTD benefits from July 1, 2019, through August
29, 2019 and from September 18, 2019 through December 29, 2020, a period of 75 2/7 weeks.
Petitioner’s medical records and testimony establish that she was either in an off-work capacity
during these periods or had work restrictions that could not be accommodated. Respondent paid
these periods but stopped TTD effective August 5, 2020. Ax1, p. 2. The Arbitrator finds no basis
for the stoppage of benefits on this date as Petitioner was still in an off-work status on that date.
Further, while Respondent’s IME doctor, Dr. G , opined in his August 5, 2020 IME report
that Petitioner could return to work with restrictions, there was no evidence introduced that an
accommodated position was available nor offered at that time. The evidence introduced however
does establish that a permanent, accommodated position was eventually offered to and accepted
by Petitioner, effective December 30, 2020. Accordingly, the Arbitrator finds that Petitioner is
entitled to these two periods of TTD benefits, totaling 75 2/7 weeks, less Respondent’s stipulated
credit for benefits already paid. Respondent’s credit totals $44,838.03: $39,896.57 in TTD paid
and $4,941.46 in short term disability paid, covering from 7/1/19-8/29/19 and from 9/21/19-
8/5/20. Ax1.
Issue L, the nature and extent of the injury, the Arbitrator finds as follows:
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 an operations manager at the time of the
accident and that she is not able to return to work in her same prior capacity as a result of said
injury. Despite having the same job, the function of her new position is administrative now. The
Arbitrator notes that Petitioner is presently in a permanent accommodated position with the job
title of Operations Engagement Mana er. Respondent’s witness, assistant senior manager for
FedEx Ground’s Chicago Hub, Mr. B , testified that Petitioner’s current primary job duties
consist of administrative tasks, rather than working on the dock as she did before the accident. R.
78 He testified (which was corroborated by Petitioner that now she does not perform any
lifting. R. 93. Further, the Arbitrator notes that Mr. B personally conducts reasonable
accommodation requests for FedEx employees but is not aware of any employees in permanently
accommodated positions ever being promoted. R. 86-87. Because of Petitioner’s inability to
perform lifting in her new accommodated position and the inability to be promoted due to this
accommodated position, the Arbitrator therefore gives greater weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 38 years old at
the time of the accident. Because of Petitioner’s young age and likelihood that she will work for
a number of decades with permanent lifting restrictions, the Arbitrator therefore gives significant
weight to this factor.
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the Arbitrator
notes that Petitioner does not have a loss of wages. Because of Petitioner’s ability to earn the
same wage with meritorious increases, the Arbitrator therefore gives some weight to this factor.
8
With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating
medical records, the Arbitrator notes Petitioner had an FCE performed on December 22, 2020
that was conditionally valid and placed Petitioner in the Sedentary-Light demand level. Px4, p.
100. Petitioner’s treating physician, Dr. J , released Petitioner with these permanent
restrictions on February 24, 2021. Px1, p. 154. Respondent’s IME physician, Dr.
G , agreed with Petitioner’s permanent restrictions in his September 2, 2021 addendum
report. Rx7, p. 2. Because of Petitioner’s undisputed permanent work restrictions that do not
allow her to perform the essential functions of her pre-accident position, the Arbitrator therefore
gives greater weight to this factor.
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 25% loss to the Person as a Whole pursuant
to §8(d)(2) of the Act.
It is so ordered:
Arbitrator
/23
Date
15, 2023

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Disability Awarded for Neck and Back Injury

  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 19WC01 Case Name v. FedEx Ground Package System Inc Consolidated Cases Proceeding Type Decision Type Corrected Arbitration Decision Commission Decision Number Number of Pages of Decision 11 Decision Issued By , Arbitrator Petitioner Attorney Joshua Rudolfi Respondent Attorney Timothy DATE FILED: /2023 Signature THE INTEREST RATE FOR THE WEEK OF JUNE 13, 2023 5.15%
  • 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 CORRECTED ARBITRATION DECISION Case # 19 WC 1 Employee/Petitioner v. Consolidated cases: ----- FedEx Ground Package Systems, 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 July 22, 2022. 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 4/22 Web site: www.iwcc.il.gov
  • 3. FINDINGS On 6/27/2019, 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 $56,847.96; the average weekly wage was $1,093.23. On the date of accident, Petitioner was 38 years of age, married with 4 dependent children. Petitioner has received all reasonable and necessary medical services. Respondent has not paid all appropriate charges for all reasonable and necessary medical services. Respondent shall be given a credit of $39,896.57 for TTD, $0.00 for TPD, $0.00 for maintenance, and $4,941.46 for other benefits (short term disability), for a total credit of $44,838.03. Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act. ORDER Medical bene its , Respondent shall pay Petitioner for reasonable and necessary medical services, pursuant to the medical fee schedule: Pain Management Specialists $2,021.50, Win Anesthesia $4,275.00, and Physical Therapy $15,662.01, as provided in Sections 8(a) and 8.2 of the Act. Temporary Total Disability Respondent shall pay Petitioner temporary total disability benefits of $728.82/week for 75 2/7 weeks, commencing 7/1/2019 through 8/29/2019 and from 9/18/2019 through 12/29/2020, as provided in Section 8(b) of the Act. Respondent shall be given a credit of $44,838.03 (TTD and short-term disability) for temporary total disability benefits that have already been paid. Permanent Partial Disability Considering the evidence and evaluating permanent partial disability in accordance with the five factors pursuant to Section 8.1b, the Arbitrator finds that Petitioner sustained 25% loss of use of the person as a whole under Section 8(d)(2), representing 125 weeks of permanent partial disability compensation. See Rider to Decision. RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission. STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue. __________________________________________________ Signature of Arbitrator ICArbDec p. 2
  • 4. 1 STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) ILLINOIS WORKERS’ COMPENSATION COMMISSION ) ) Petitioner, ) ) v. ) ) Case No. 19WC1 FedEx Ground Package Systems, Inc., ) ) ) Respondent. ) FINDINGS OF FACT This matter proceeded to hearing on July 22, 2022 in Chicago, Illinois before Arbitrator on Respondent’s Request for Hearing. Issues in dispute include Causal Connection, Medical bills, Temporary Total Disability and Nature and Extent. Arbitrator’s Exhibit “Ax” 1. Background Petitioner, (current surname “ ” following divorce), worked for Respondent as an operations manager beginning in April 2019. Transcript of Arbitration, hereinafter referred to as “R.”, 11-12. As an operations manager Petitioner worked on the dock with the package handlers and loaded and unloaded trailers. R. 12. She testified that she would assist package handlers in loading packages weighing between 5 and 75 lbs. R. 14-15. Petitioner’s Current & Prior Medical Conditions Petitioner denied any medical issues or treatment for her cervical and thoracic spine prior to the work accident of June 27, 2019. R. 41-42. She denied having any issues performing her full duty job prior to the accident. R. 42. She testified that as of the date of trial she continues to have pain in her cervical and thoracic spine and takes over-the-counter medication to help. R. 44. She does not believe that her medical bills have been paid. R. 45. Accident Petitioner was working as an operations manager on June 27, 2019. On the date of accident, she was standing inside a trailer when a package came off of the loading chute and struck her in the head. R. 18, 20. The package contained ceramic toilet parts. R. 21. Petitioner testified that she immediately felt pain in her neck, reported the accident, and went to the on-site nurse. R. 21-22. Petitioner continued working her shift that day. R. 22.
  • 5. 2 Summary of Medical Records Petitioner sought medical care with Dr. J with Management Specialists on July 1, 2019. Px1, p. 10. Dr. J recorded a history of injury consistent with Petitioner’s trial testimony and noted that she complained of pain in her head, neck, and mid-back following the accident. Id. Dr. J noted that Petitioner had a positive cervical compression test and limited range of cervical motion. Id. at 11. Dr. J diagnosed cervical/thoracic strains, cervical facet syndrome, and post-concussion headache. Id. at 12. He recommended physical therapy, prescribed meloxicam and cyclobenzaprine and provided work restrictions of no lifting or pushing greater than 10 lbs. Id. Dr. J addressed causal connection and stated that Petitioner had an underlying degenerative condition that was silent and asymptomatic but was rendered symptomatic requiring treatment as a result of the injury. Id. Petitioner testified that Respondent did not accommodate her restrictions. R. 23. She began receiving TTD benefits at that time. R. 24. Petitioner underwent a course of physical therapy for her thoracic and cervical conditions with P Physical Thera from July 2, 2019 through August 13, 2019. Px3, pp. 4-64. Petitioner followed up with Dr. J on July 15, 2019 where she continued to complain of pain in the neck, mid-back, and left knee. Px1, p. 13. Dr. J recommended bilateral C4, C5, and C6 medial branch blocks and bilateral thoracic facet joint injections while placing Petitioners off work. Id. at 16. Those nerve blocks were not initially approved by the Respondent. R. 25. Petitioner followed up again with Dr. J on July 29, 2019 wherein the blocks were again recommended and Petitioner continued off work. Px1, p. 18-21. Petitioner testified that she returned to work on August 30, 2019. R. 25-26. Petitioner underwent bilateral medial branch blocks at C4, C5, and C6 performed by Dr. J on September 18, 2019 and was placed off work. Px1, p. 155-156. Petitioner underwent right T3, T4, and T5 medial branch radiofrequency ablations with Dr. J on September 23, 2019 and was continued off work. Id. at p. 164-165. Petitioner testified that these blocks provided temporary relief of her symptoms. R. 26. Petitioner followed up with Dr. J on September 25, 2019 and it was noted that she had 100% relief from the injections temporarily. Px1, p. 23. Based on these results Dr. J recommended a second round of cervical blocks in order to increase the efficacy of radiofrequenc ablations while continuing Petitioner off work. Id. at 25-26. Petitioner followed up with Dr. J on October 7, 2019 and November 5, 2019 wherein the blocks were still recommended and Petitioner continued off work. Id. at 28-39. On December 4, 2019 Petitioner underwent right C4, C5, and C6 radiofrequency ablations with Dr. J . Id. at 157-159. Petitioner followed up with Dr. J on December 30, 2019 and complained of a numbing sensation into the neck with continued pain. Px1, p. 40. Dr. J recommended thoracic nerve block at T3, T4, and T5 due to continued axial pain at those levels and continued Petitioner off work. Id. at 44. Dr. J also changed Petitioner’s medication to include Cymbalta. Id. On January 15, 2020 Petitioner underwent bilateral T3, T4, and T5 medial branch blocks with Dr. J . Id. at 160-161. On January 22, 2020 those blocks were repeated. Id. at 162-163. Petitioner testified that these blocks helped her temporarily. R. 29-30. Petitioner followed up with Dr. J on January 27, 2020 and it was noted that her cervical pain had improved and the thoracic blocks provided temporary relief. Px1, p. 46. Dr. J recommended T3, T4, and T5 radiofrequency
  • 6. 3 ablations and continued Petitioner off work. Id. at 51. Petitioner testified that Respondent did not approve these procedures. R. 30. Petitioner followed up with Dr. J on March 6, 2020, April 13, 2020, May 11, 2020, June 8, 2020 and July 6, 2020 wherein Dr. J noted that they were still awaiting approval for these procedures and Petitioner remained off work. Px1, p. 53-87. Petitioner followed up with Dr. J on August 11, 2020 and September 10, 2020 when the radiofrequency ablation was approved. Px1, p. 88-105. Petitioner underwent right T3, T4, and T5 medial branch radiofrequency ablation with Dr. J . Id. at 164-165. Petitioner followed up with Dr. J on October 7, 2020 and it was noted that she had mild improvement following the ablation and that her neck pain was recurring. Id. at 106. Dr. J recommended cervical ablations and continued Petitioner off work. Id. at 112. Dr. J noted at the next office visit on November 4, 2020 that they were giving more time for the ablation to take effect and continued Petitioner off work. Id. at 121. On December 2, 2020 Dr. J recommended that Petitioner undergo a functional capacity evaluation in order to attempt to return Petitioner to work. Id. at 129. Petitioner underwent a functional capacity evaluation at A Physical Therapy on December 22, 2020. Px4, p. 100-106. The FCE revealed that Petitioner could return to work in a Sedentary/Light level. Id. Petitioner followed up with Dr. J on December 28, 2020 and Dr. J recommended that Petitioner undergo a course of physical therapy and return to work pursuant to the FCE restrictions. Px1, p. 138. Petitioner returned to work in an accommodated position for Res ondent on December 29, 2020. R. 36. Petitioner underwent a course of physical therapy at A Physical Therapy from January 7, 2021 through March 19, 2021. Px4. Petitioner followed up with Dr. J on January 27, 2021 and February 24, 2021 and was discharged with restrictions per the FCE. Px1, p. 139-154. Petitioner’s New Position with Respondent Petitioner testified that when she returned to work on December 29, 2020 it was in an accommodated position that was different from her previous one. R. 38. Petitioner was removed from the dock so she would not be required to lift or load/unload trailers. R. 39. Petitioner testified that she performs no lifting whatsoever and performs more office type work despite her job title remaining the same. R. 39. She receives her job assignments from the area manager and does not perform any work outside of a seated setting. R. 40-41. Petitioner testified that she is making the same amount of money as she was making prior to the accident, with yearly increases. R. 41, 62. Testimony of Respondent’s Witness C B Respondent called Mr. C B to testify. R. 67. Mr. B is the assistant senior manager of the Chicago hub for Respondent. R. 67. Mr. B is Petitioner’s supervisor, with other managers in between in rank. R. 68. Mr. B identified the job offer made to Petitioner in April 2019 for the position of operations manager and the job duties of an operations manager. Rx2 and Rx11. He confirmed that Petitioner continues to work in an accommodated position with Respondent and that Respondent intends to permanently accommodate Petitioner’s restrictions. R. 73-74. Mr. B completed a reasonable accommodation assessment with Petitioner on September 30, 2021. Rx4.
  • 7. 4 Mr. B testified on direct examination that Petitioner’s current job duties are primarily administrative, while an operations manager would be primarily on the dock and around packages and trailers. R. 78-79. Petitioner’s current job title is operations engagement manager. R. 79. Mr. B testified that Petitioner is not precluded from promotions due to her restrictions, however, Mr. B was unaware of any individuals working for Respondent in permanently accommodated positions ever being promoted. R. 83, 87. On cross-examination Mr. B testified that Petitioner’s job description (Rx11) does not demonstrate what Petitioner currently does for Respondent. R. 91. He testified that Petitioner does not perform any lifting contained in the job description. R. 91. Section 12 Examiner- Dr. Res ondent sent Petitioner for an IME with Dr. G on August 5, 2020. R. 32. Dr. G opined that Petitioner sustained cervical and thoracic strains and cervical thoracic facet joint syndrome as a result of her work accident. Rx5, p. 2. Dr. G believed these conditions were causally related to her June 27, 2019 work accident. Id. He further opined that she required an FCE for her cervical condition and radiofrequency ablation for her thoracic condition, the need for which was causally related to the work accident. Id. Dr. G stated that the treatment Petitioner had received to date had been reasonable, appropriate, and causally related to the accident. Id. He believed Petitioner capable of working with a 10 lb. lifting restriction. Id. On August 18, 2021 Dr. G authored an addendum IME report and opined that all treatment had been reasonable and necessary, and due to the accident. Rx6, p. 2. Dr. G recommended an FCE to see whether Petitioner could return to work as an operations manager. Id. On September 2, 2021 Dr. G authored a second IME addendum report and confirmed that he believes that Petitioner’s cervical and thoracic strains and facet syndromes were related to the accident. Rx7, p. 2. He opined that Petitioner was at maximum medical improvement and could continue to work pursuant to her FCE. Id. CONCLUSIONS OF LAW The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set forth below. Section 1(b)3(d) of the Act provides that, in order to obtain compensation under the Act, the employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment. 820 ILCS 305/1(b)3(d). To obtain compensation under the Act, Petitioner has the burden of proving, by a preponderance of the evidence, all of the elements of his claim O’Dette v. Industrial Comm’n, 79 Ill. 2d 249, 253 (1980) including that there is some causal relationship between his employment and his injury. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 63 (1989) It is well established that the Act is a humane law of remedial nature and is to be liberally construed to effect the purpose of the Act - that the burdens of caring for the casualties of industry should be borne by industry and not by the individuals whose misfortunes arise out of the industry, nor by the public. Shell Oil v. Industrial Comm’n, 2 Ill.2nd 590, 603 (1954).
  • 8. 5 Decisions of an arbitrator shall be based exclusively on the evidence in the record of the proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The Arbitrator, as the trier of fact in this case, has the responsibility to observe the witnesses testify, judge their credibility, and determine how much weight to afford their testimony and the other evidence presented. Walker v. Chicago Housing Authority, 2015 IL App (1st ) 133788, ¶ 47. Credibility is the quality of a witness which renders his evidence worthy of belief. The Arbitrator, whose province it is to evaluate witness credibility, evaluates the demeanor of the witness and any external inconsistencies with his/her testimony. Where a claimant’s testimony is inconsistent with his/her actual behavior and conduct, the Commission has held that an award cannot stand. McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968); Swift v. Industrial Commission, 52 Ill. 2d 490 (1972). The Arbitrator observed Petitioner during the hearing and finds her to be a credible witness. The Arbitrator compared Petitioner’s testimony with the totality of the evidence submitted and did not find any material contradictions that would deem the witness unreliable. None of the physicians who treated or examined her noted any symptom magnification. The Arbitrator finds Petitioner’s testimony to be straight forward, truthful, and consistent with the records as a whole. Issue F, whether Petitioner’s current condition of ill-being is causally related to the injury, the Arbitrator finds as follows: To obtain compensation under the Act, a claimant must prove that some act or phase of his employment was a causative factor in his ensuing injuries. It is not necessary to prove that the employment was the sole causative factor or even that it was the principal causative factor, but only that it was a causative factor. Tolbert v. Ill. Workers' Comp. Comm'n, 2014 IL App (4th) 130523WC, ¶ 1, 11 N.E.3d 453. A work-related injury need not be the sole or principal causative factor, as long as it was a causative factor in the resulting condition of ill-being. Even if the claimant had a preexisting degenerative condition which made him more vulnerable to injury, recovery for an accidental injury will not be denied as long as he can show that his employment was also a causative factor. Thus, a claimant may establish a causal connection in such cases if he can show that a work-related injury played a role in aggravating his preexisting condition. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003). “A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee’s injury.” International Harvester v. Industrial Com., 93 Ill. 2d 59, 63 442 N.E.2d 908 (1982). The Arbitrator finds that it is unrebutted that Petitioner’s thoracic and cervical conditions are causally related to the 6/27/19 accident and that Respondent’s dispute per Arbitrator’s Exhibit 1, hereinafter “Ax1” was subject to testimony. Ax1. Given Petitioner’s testimony that she is not claimin that any lumbar condition is causally related to the 6/27/19 accident and per Dr. G ’s IME opinions that no such condition is, the Arbitrator finds accordingly. The Arbitrator therefore finds that Petitioner’s current condition of ill-being is causally related to Petitioner June 27, 2019 work accident. Dr. J and Dr. G both opine in their records and
  • 9. 6 reports that Petitioner’s condition is causally related to the undisputed work accident. There are no opinions to the contrary, thus causal connection is clearly established. Issue J, whether the medical services that were provided to Petitioner were reasonable and necessary and whether Respondent has paid all appropriate charges for all reasonable and necessary medical services, the Arbitrator finds as follows: Dr. J state’s specifically in each office note that Petitioner’s medical care has been reasonable and necessary. He states this in the final office note of February 24, 2021. Px1, p. 154. Likewise, Dr. G states specifically in each one of his reports that Petitioner’s medical care been both reasonable and necessary. The only opinions as to the necessity of medical care are the three utilization review reports produced by Respondent. Rx8, Rx9, Rx10. These reports dispute the need for Lidozen patches, ondansetron, and fexmid. The Arbitrator finds the opinions of both the treating physician and IME physician to be more credible. Accordingly, the Arbitrator finds at Petitioner’s medical care mentioned above was also reasonable and necessary. Petitioner roduced outstandin medical bills from P P Mana ement S ecialists, W C Anesthesia, and A Physical Therapy. The bills from P e P Management Specialists are for office visits with Dr. J . Px1, p. 2-9. The bills from W C Anesthesia are for the in ections received on September 16, 2020 and September 23, 2020. Px2, p. 3, 6. The bills from A Physical Therapy are for therapy visits and the FCE. Px4, p. 5-8, 99. None of these bills are for disputed medical care. Therefore, these bills are awarded to Petitioner and are to be adjudicated pursuant to the Illinois Medical Fee Schedule. Overall, the Arbitrator finds Petitioner’s treatment to be reasonable and necessary and finds that Respondent has not paid for all of said treatment. As such, the Arbitrator orders Respondent to pay Petitioner directly for the following outstanding medical services, pursuant to the medical fee schedule and Sections 8(a) and 8.2 of the Act: • P P Management Specialists $2,021.50 • W C Anesthesia $4,275.00 • A Physical Therapy $15,662.01 Issue K, whether Petitioner is entitled to temporary total disability benefits, the Arbitrator finds as follows: A claimant is temporarily totally disabled from the time an injury incapacitates him from work until such time as he is as far recovered or restored as the permanent character of his injury will permit. Westin Hotel v. Indus. Comm’n, 372 Ill.App.3d 527, 542 (1st Dist. 2007). In determining whether a claimant remains entitled to receiving TTD benefits, the primary consideration is whether the claimant’s condition has stabilized and whether she is capable of a return to the workforce. Interstate Scaffolding, Inc. v. Illinois Workers’ Comp. Comm’n, 236 Ill.2d 132, 148 (2010). Once an injured employee's physical condition stabilizes, she is no longer eligible for TTD benefits. Archer Daniels Midland Co. v. Indus. Comm’n, 138 Ill.2d 107, 118 (1990).
  • 10. 7 The Arbitrator finds that Petitioner is entitled to TTD benefits from July 1, 2019, through August 29, 2019 and from September 18, 2019 through December 29, 2020, a period of 75 2/7 weeks. Petitioner’s medical records and testimony establish that she was either in an off-work capacity during these periods or had work restrictions that could not be accommodated. Respondent paid these periods but stopped TTD effective August 5, 2020. Ax1, p. 2. The Arbitrator finds no basis for the stoppage of benefits on this date as Petitioner was still in an off-work status on that date. Further, while Respondent’s IME doctor, Dr. G , opined in his August 5, 2020 IME report that Petitioner could return to work with restrictions, there was no evidence introduced that an accommodated position was available nor offered at that time. The evidence introduced however does establish that a permanent, accommodated position was eventually offered to and accepted by Petitioner, effective December 30, 2020. Accordingly, the Arbitrator finds that Petitioner is entitled to these two periods of TTD benefits, totaling 75 2/7 weeks, less Respondent’s stipulated credit for benefits already paid. Respondent’s credit totals $44,838.03: $39,896.57 in TTD paid and $4,941.46 in short term disability paid, covering from 7/1/19-8/29/19 and from 9/21/19- 8/5/20. Ax1. Issue L, the nature and extent of the injury, the Arbitrator finds as follows: 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 an operations manager at the time of the accident and that she is not able to return to work in her same prior capacity as a result of said injury. Despite having the same job, the function of her new position is administrative now. The Arbitrator notes that Petitioner is presently in a permanent accommodated position with the job title of Operations Engagement Mana er. Respondent’s witness, assistant senior manager for FedEx Ground’s Chicago Hub, Mr. B , testified that Petitioner’s current primary job duties consist of administrative tasks, rather than working on the dock as she did before the accident. R. 78 He testified (which was corroborated by Petitioner that now she does not perform any lifting. R. 93. Further, the Arbitrator notes that Mr. B personally conducts reasonable accommodation requests for FedEx employees but is not aware of any employees in permanently accommodated positions ever being promoted. R. 86-87. Because of Petitioner’s inability to perform lifting in her new accommodated position and the inability to be promoted due to this accommodated position, the Arbitrator therefore gives greater weight to this factor. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 38 years old at the time of the accident. Because of Petitioner’s young age and likelihood that she will work for a number of decades with permanent lifting restrictions, the Arbitrator therefore gives significant weight to this factor. With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the Arbitrator notes that Petitioner does not have a loss of wages. Because of Petitioner’s ability to earn the same wage with meritorious increases, the Arbitrator therefore gives some weight to this factor.
  • 11. 8 With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical records, the Arbitrator notes Petitioner had an FCE performed on December 22, 2020 that was conditionally valid and placed Petitioner in the Sedentary-Light demand level. Px4, p. 100. Petitioner’s treating physician, Dr. J , released Petitioner with these permanent restrictions on February 24, 2021. Px1, p. 154. Respondent’s IME physician, Dr. G , agreed with Petitioner’s permanent restrictions in his September 2, 2021 addendum report. Rx7, p. 2. Because of Petitioner’s undisputed permanent work restrictions that do not allow her to perform the essential functions of her pre-accident position, the Arbitrator therefore gives greater weight to this factor. 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 25% loss to the Person as a Whole pursuant to §8(d)(2) of the Act. It is so ordered: Arbitrator /23 Date 15, 2023