Gutter Guard Installer Awarded TTD and Knee Surgery

Gutter Guard Installer Awarded TTD and Knee Surgery

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  ILLINOIS WORKERS’ COMPENSATIONCOMMISSION DECISION SIGNATURE PAGE Case Number 20WC026487 Case Name v. Consolidated Cases No Consolidated Cases Proceeding Type 19(b) Petition Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 12 Decision Issued By , Arbitrator Petitioner Attorney Joshua Rudolfi Respondent Attorney DATE FILED: 10/1/2021 THE INTEREST RATE FOR THE WEEK OF SEPTMBER 28, 2021 0.05% /s ,Arbitrator Signature
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  STATE OF ILLINOIS) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF DuPage ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION 19(b) Case # WC Employee/Petitioner v. Consolidated cases: ----- Leaf Guard Chicago, 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 Wheaton, on 8/31/2021. After reviewing all of the evidence presented, the Arbitrator hereby makes findings on the disputed issues checked below, and attaches those findings to this document. DISPUTED ISSUES A. Was Respondent operating under and subject to the Illinois Workers' Compensation or Occupational Diseases Act? B. Was there an employee-employer relationship? C. Did an accident occur that arose out of and in the course of Petitioner's employment by Respondent? D. What was the date of the accident? E. Was timely notice of the accident given to Respondent? F. Is Petitioner's current condition of ill-being causally related to the injury? G. What were Petitioner's earnings? H. What was Petitioner's age at the time of the accident? I. What was Petitioner's marital status at the time of the accident? J. Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent paid all appropriate charges for all reasonable and necessary medical services? K. Is Petitioner entitled to any prospective medical care? L. What temporary benefits are in dispute? TPD Maintenance TTD M. Should penalties or fees be imposed upon Respondent? N. Is Respondent due any credit? O. Other ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 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
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  FINDINGS On the dateof accident, 8/8/2020, 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 $48,585.16; the average weekly wage was $934.33. On the date of accident, Petitioner was 60 years of age, married 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 $13,250.64 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 for other benefits, for a total credit of $13,250.64. Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act. ORDER Respondent shall pay to Petitioner the costs of the medical services identified in Petitioner’s exhibits 1 and 4, pursuant to Sections 8.2 and 8(a) of the Act, and subject to the fee schedule, as set forth in the Conclusions of Law attached hereto and incorporated herein; Respondent shall pay Petitioner temporary total disability benefits from August 8, 2020 through August 20, 2021 for a period of 54 weeks, less the sum of $13,250.64 for benefits Respondent previously paid, as set forth in the Conclusions of Law attached hereto and incorporated herein; Petitioner failed to prove by the preponderance of the evidence that he is entitled to receive prospective medical treatment, as set forth in the Conclusions of Law attached hereto and incorporated herein; In no instance shall this award be a bar to subsequent hearing and determination of an additional amount of medical benefits or compensation for a temporary or permanent disability, if any. RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission. STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue. By: /o/ OCTOBER 4, 2021 r ra or ICArbDec19(b)
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 1 of 9 Procedural History This case proceeded to hearing on August 31, 2021 pursuant to Sections 19(b) and 8(a) of the Act. The disputed issues are whether Petitioner’s current condition of ill-being is causally related to his work-related injury, whether Respondent paid for all reasonable and necessary medical services, and whether Petitioner is entitled to TTD benefits. Petitioner is also seeking prospective medical care. (Arb. Ex. 1). Petitioner sustained an injury to his right foot, which as accepted. Several months after the injury to the right foot, Petitioner was diagnosed with a right knee condition, which Respondent denied. Findings of Fact B F (hereinafter referred to as “Petitioner”) worked for Leaf Guard Chicago, LLC (hereinafter referred to as “Respondent”) as an installer. Petitioner’s job duties included installing gutter systems on homes. Petitioner worked for Respondent for approximately six weeks prior to falling off a ladder on August 8, 2020. Petitioner testified, on August 8, 2020, he was on a ladder installing a gutter when he fell to the ground. Petitioner testified he was coming down the ladder when the ladder titled causing him to lose his balance. Petitioner testified he fell about 4 feet. Petitioner testified he attempted to “roll” when he landed primarily on his right leg. Petitioner testified he experienced immediate pain in his right leg and right ankle. Petitioner reported the incident to his employer who sent him to an urgent care facility. Petitioner testified he went to the urgent care facility recommended by Respondent but there was a two hour wait. Petitioner decided to go to MedExpress. While at MedExpress Petitioner reported right ankle/foot pain. The examination noted bruising and swelling. An x-ray was taken of the right foot which showed a closed calcaneal fracture. Petitioner was provided with crutches and instructed to remain non-weightbearing until cleared by an orthopedic physician. (Px 2). On August 10, 2020 Petitioner presented to Dr. , an orthopedic physician with DuPage Medical Group. Dr. noted an edema in the right hindfoot consistent with the fracture. Petitioner was diagnosed with a fracture of the mid-body of the calcaneus. Petitioner was taken off work and advised to remain non-weightbearing for an additional 4 weeks. (Px. 3). On August 17, 2020, Petitioner followed up with Dr. who noted tenderness over the calcaneus. Petitioner was placed in a short-leg, non-weightbearing cast. Dr. continued Petitioner off work and opined Petitioner would require an additional six weeks of non-
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 2 of 9 weightbearing. (Px. 3). Petitioner returned to Dr. on September 9, 2020. At that visit, Petitioner was transitioned to a CAM boot walker and advised to continue non-weight bearing for an additional two weeks. (Px. 3). On October 7, 2020, Petitioner followed up with Dr. who kept Petitioner off work, recommended toe-touch weightbearing with use of the CAM boot and start transitioning to full weight-bearing. (Px. 3). On November 4, 2020 Petitioner returned to Dr. R reporting he could perform light walking but that he was having pain over the medial aspect of the right knee. Dr. noted no previous knee issues. Dr. opined Petitioner’s right medial knee pain could represent some irritation from a contusion sustained in the accident, or a possible meniscus tear. Petitioner was kept off work and instructed to begin weaning out of the CAM boot. (Px. 3). On November 25, 2020 Petitioner called Dr. reporting continued right knee pain. Dr. called in a prescription for anti-inflammatory medication. (Px. 3). On November 30, 2020 Petitioner returned to Dr. reporting continued right knee pain and clicking. Dr. noted tenderness along the medial joint space with moderate effusion. Dr. diagnosed Petitioner with post-traumatic irritation with possible meniscus tear. Dr. released Petitioner to return to work, for the right foot fracture, as of January 11, 2021. (Px. 3). On December 8, 2020 Petitioner called Dr. reporting severe right knee pain. Dr. prescribed a right knee MRI which Petitioner underwent on December 14, 2020. The MRI identified an acute lateral and medial meniscus tears. (Px. 3). Petitioner returned to Dr. on December 16, 202 to review the MRI results. Dr. diagnosed medial and lateral meniscus tears in the right knee and he opined the MRI showed impaction injuries to the femoral condyles and tibial plateaus sustained during Petitioner’s fall at work. Dr. recommended an arthroscopy of the right knee. Dr. kept Petitioner off work for the right knee condition. (Px. 3). On January 22, 2021 Petitioner underwent a Section 12 examination with Dr. G of the Illinois Bone and Joint Institute. Dr. G opined it was highly unlikely Petitioner’s right knee pain was a result of the work injury. He further opined Petitioner’s knee condition could have a rheumatological etiology given Petitioner’s underlying psoriasis. Dr. G recommended a rheumatological work up. Dr. G opined the delay in onset of pain the knee condition was likely a new injury unrelated to the original fall. Dr. G also opined
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 3 of 9 Petitioner could perform sedentary work but the restrictions were not related to Petitioner’s work injury. (Rx. 1). On February 5, 2021, Petitioner returned to Dr. who continued to recommend arthroscopy surgery. (Px. 3). Petitioner underwent surgy on February 17, 2021 with Dr. who identified right lateral and medial meniscus tears. (Px. 3). On February 24, 2021 Petitioner followed up with Dr. . At that visit, Dr. diagnosed complex tears of the medical and lateral meniscus. Petitioner was prescribed physical therapy and kept off work. Petitioner attended physical therapy at DuPage Medical Group. (Px 3). On August 4, 2021, Petitioner returned to Dr. reporting significant increase in swelling and pain over the past 2 weeks. Dr. noted Petitioner had not taken his psoriatic medicines due to Covid concerns. Dr. assessed synovitis and possible reaction to psoriatic arthritis. At that visit, Dr. removed 130 mL of synovial fluid out of Petitioner’s right knee and administered an intra-articular injection of Depo-Medrol. (Px 4). Petitioner followed up with Dr. on August 20, 2021. At that visit, Petitioner reported slight discomfort and that he noticed a significant difference in how his knee felt. The examination noted a trace effusion with minimal warmth in the right knee, full extension, negative McMurray’s, and negative joint line tenderness. Dr. did note some tightness with flexion at 120 degrees. Dr. diagnosed synovitis of the right knee with possible inflammation from psoriatic arthritis. Dr. prescribed a course of meloxicam until Petitioner receives clearance to use psoriatic medicine from Rheumatology. On that date, Petitioner was permitted to return to activities as tolerated and told to return if any problems occur or reoccur. (Px. 4). Petitioner testified he has not completed his medical care for his right knee condition. He denied any previous injury to the right knee. Petitioner testified, prior to his work accident, he had no issues performing his job duties. Petitioner also testified he has not been medically able to work since his work accident. Petitioner testified he used his wife’s group health insurance (Aetna) for the surgery and for treatment after the independent medical examination. Petitioner testified he paid several thousand dollars of out-of-pocket expenses as reflected in Petitioner’s Exhibit 1. Testimony of Dr. R the treating physician Dr. testified on June 28, 2021. Dr. testified Petitioner first reported pain over the medical aspect of the right knee on the first visit after starting weight bearing. Dr.
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 4 of 9 testified his examination showed a trace effusion and tenderness along the medical joint on both the palpation and when Petitioner put weight on the leg. Dr. testified the MRI showed medical and lateral meniscus tears and impaction bone marrow edema consistent with the trauma sustained in August. Dr. also testified the medical femoral condyle and lateral femoral condyle and tibial plateaus showed evidence of edema. Dr. testified he recommended surgery because injections failed to provide relief. (Px 3). Dr. testified during the surgery he found a large medical tear and a smaller lateral meniscus tear. Dr. also noted some mild synovitis and some breakdown of cartilage on the kneecap and the medical inside portion of the knee of the femoral condyle. Dr. opined that Petitioner had probably two things going on. Dr. testified Petitioner may have had some baseline swelling and some irritation from psoriasis or possible psoriatic arthritis which Petitioner had not had any prior treatment. Dr. R further testified Petitioner had a second aspect which involved the meniscal tears, contusions and trauma to the knee. (Px. 3). Dr. opined the meniscus tears were the result of Petitioner’s fall from the ladder on the 8th of August. Dr. testified Petitioner had no discernable prehistory of problems with the knees and, after the fall, Petitioner was very protective with his activities. Dr. also testified Petitioner did not experience any additional traumas which would result in the type of injury Petitioner experienced. Regarding the delay in the documentation of symptoms, Dr. testified that he did not initially exam Petitioner’s knee because he was focused on the heel which was extremely painful. Dr. also testified Petitioner’s knee became symptomatic when he started to really use the knee after Petitioner began to fully weight bear and use the leg in a normal fashion. (Px. 3). Testimony of Dr. the Section 12 Examiner Dr. G testified on April 21, 2021. Dr. G testified Petitioner denied any prior problems with his right knee but he had a significant history of psoriasis due to being placed on immunosuppressant drugs. Dr. G testified that Petitioner reported not taking the medicine because he was concerned about Covid-19. Dr. G testified psoriasis is an autoimmune condition that causes scaly lesions on the skin but psoriatic arthritis is an immune-mediated arthritis in the joints. (Rx. 2) Dr. G testified his examination noted diffused cutaneous posoriasis in the hands and on both legs. At the exam, Petitioner reported pain everywhere touched on the right knee, which
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 5 of 9 was warm and thick. Petitioner’s range of motion was limited. Dr. G reviewed the MRI and noted synovial debris, a medical meniscus tear and probably a lateral meniscus tear with some edema in the medial femoral condyle. Dr. G testified the knee was inflamed with an edema in the medical femoral condyle and could be multifactorial. Dr. G testified it could be post- traumatic or it could be degenerative in nature. (Rx. 2) Dr. G opined Petitioner’s right knee pain was not related to the meniscus tears. Dr. G testified he could not say the meniscus tears weren’t causing some of the pain but that something else more salient was going on. Dr. G opined the meniscus tears couldn’t be causing the discomfort. Dr. G testified the meniscus tears were a red herring based upon the limited range of motion, increased temperature, underlying history of psoriatic arthritis necessitating immunosuppressants, thickened synovium, synovial debris on the MRI. (Rx. 2) Dr. G opined the meniscus tears were not causally related to Petitioner’s work accident. Dr. G testified that if the meniscus was torn, which was acute, it would cause pain in the knee and Petitioner would have complained of pain to a doctor. Dr. G testified meniscus tears are caused from trauma and hurt. Dr. G testified one would move one’s knee in bed or when on the toilet. Dr. G was asked whether the ankle pain could mask the other pain and he responded “Yes, it does, but not for three months”. Dr. G further testified if Petitioner sustained a meniscus tear, at the time of the injury, one would thing that at least by the September 9th visit, he would have been complaining of some knee pain, and he was not. (Rx. 2) Conclusions of Law The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law as set forth below. The claimant bears the burden of proving every aspect of his claim by a preponderance of the evidence. Hutson v. Industrial Commission, 223 Ill.App.3d 706, 714 (Ill. App. 5th Dist. 1992). With Respect to Issue (F), Whether the Petitioner’s Current Condition of Ill-being is Causally Related to the Injury, the Arbitrator Finds as follows: In pre-existing condition cases, recovery will depend on the employee’s ability to show that a work-related accidental injury aggravated or accelerated the pre-existing disease such that the employee’s current condition of ill-being can be said to have been causally-connected to the work-related injury and not simply the result of a normal degenerative process of a pre-existing
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 6 of 9 condition. Caterpillar Tractor Co. v. Industrial Comm’n, 92 Ill.2d 30, 36-37. When a worker’s physical structures, diseased or not, give way under the stress of their usual tasks, the law views it as an accident arising out of and in the course of employment. General Electric Co. v. Industrial Comm’n, 89 Ill.2d 432, 60 Ill.Dec. 629, 433 N.E.2d 671 (1982). When an employee with a preexisting condition is injured in the course and of his employment the Commission must decide whether there was an accidental injury which arose out of the employment, whether the accidental injury aggravated or accelerated the preexisting condition or whether the preexisting condition alone was the cause of the injury. Sisbro, Inc. Industrial Comm’n, 207 Ill.2d 193, 278 Ill.Dec. 70,797 N.E.2d 665, (2003). Even though an employee has a preexisting condition which may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as it can be shown that the employment was also a causative factor. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill.2d 52, 133 Ill. Dec. 454, 541 N.E.2d 665 (1989). Furthermore, it has long been held that "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 Comm'n, 93 Ill.2d 59, 63-64 (1982). "When the claimant's version of the accident is uncontradicted and his testimony is unimpeached, his recital of the facts surrounding the accident may be sufficient to sustain an award. Id. at 64. The Arbitrator finds Petitioner has proven by preponderance of the evidence that his right knee condition is causally related to his work injury of August 8, 2020. Petitioner testified he did not have any prior issues with his right knee prior to the work accident. After being progressing to full weight bearing Petitioner began complaining of pain to the right knee. Dr. testified the meniscal tears identified in the MRI and intra-operatively were acute. Dr. also testified Petitioner had inflammation and evidence of traumatic contusions in the MRI and intra-operatively. The Arbitrator finds the medical opinion of Dr. R more persuasive than the opinions of Dr. G . The Arbitrator further finds the opinions of Dr. to be consistent with the MRI and operative findings which showed “acute” complex meniscal tears. The Arbitrator does not find Dr. G causation opinions to be persuasive and appear to be based, in part, upon speculation and conjecture. Respondent presented no evidence that Petitioner was experiencing joint involvement due to psoriasis at the time of his injury.
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 7 of 9 Petitioner testified his psoriatic condition manifested as skin lesions which Dr. G observed. Dr. G testified he was not a rheumatologist nor did he know if the psoriatic medicine was prescribed for joint involvement or cutaneous manifestations. Despite not being a rheumatologist or knowing whether the psoriatic medication was joint involvement, Dr. G testified that Petitioner’s symptoms were not caused by the meniscus tears but were caused by an underlying history of psoriatic arthritis. (Rx 2, pg. 18-18). Dr. G further opined the meniscus tears were not caused by Petitioner’s work accident of August 8, 2020 because Petitioner did not report knee pain soon after the accident. Dr. G testified that Petitioner must have had a subsequent unreported accident. The was no evidence of a subsequent accident. It is axiomatic that the weight accorded an expert opinion is measured by the fats supporting it and the reason given for it; an expert opinion cannot be based on guess, surmise, or conjecture. Wilfert v. Retirement Board, 318 Ill.App.3d 507, 514-15 (Ill. App. 1st Dist. 2000). With Respect to Issue “J”, Whether Respondent is liable for Medical Expenses, the Arbitrator Finds as Follows: Section 8(a) of the Act states a Respondent is responsible “…for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury…” A claimant has the burden of proving that the medical services were necessary, and the expenses were reasonable. See Gallentine v. Industrial Comm'n, 201 Ill.App.3d 880, 888 (2nd Dist. 1990). The Arbitrator finds Petitioner proved by the preponderance of the evidence the medical treatment he received for the right knee was necessary and reasonable. Respondent did not proffer evidence the medical treatment was not reasonable or necessary. Respondent disputed the medical treatment based upon causation. As such, Respondent shall pay to Petitioner the costs of the medical services identified in Petitioner’s exhibits 1 and 4, pursuant to Sections 8.2 and 8(a) of the Act, and subject to the fee schedule. With Respect to Issue (K), Prospective Medical Treatment, the Arbitrator Finds as Follows: Section 8(a) of the Act entitles a claimant to compensation for all necessary medical, surgical and hospital services “thereafter incurred” that are reasonably required to cure or relieve the effects of injury. Procedures or treatment that have been prescribed by a medical service
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 8 of 9 provider are “incurred” within the meaning of the statute, even if they have not yet been paid. Plantation Mfg. Co. v. Industrial Comm’n, 294 Ill.App.3d 705, 710 (Ill. App. 2nd Dist. 1997). Petitioner seeks prospective medical care pursuant to Section 8(a) of the Act. On August 20, 2021, Dr. examined Petitioner and released Petitioner from treatment without restrictions. The August 20, 2021 office notes states, “He [Petitioner] can progress with activities as tolerated with his right knee and I recommend follow up if any problems occur or any recurrence of the synovitis is noted.” (Rx. 4). On that date, Dr. did not recommend any additional treatment. The Arbitrator finds that Petitioner reached maximum medical improvement on August 20, 2021 when Dr. released him from care. As such, the Arbitrator finds that Petitioner failed to prove by the preponderance of the evidence that he is entitled to receive prospective medical treatment. With respect to issue “L” whether Petitioner is entitled to TTD benefits, the Arbitrator finds as follows: Petitioner seeks temporary total disability benefits from August 8, 2020, the date of the accident, through August 31, 2021, the date of trial. Respondent claims Petitioner is entitled to benefits from August 8, 2020 through January 11, 2021. Respondent paid $13,250.64 in temporary total disability benefits. “The period of temporary total disability encompasses the time from which the injury incapacitates the claimant until such time as the claimant has recovered as much as the character of the injury will permit, “i.e., until the condition has stabilized.” Gallentine v. Industrial Comm‘n, 201 Ill. App. 3d 880, 886 (2nd Dist. 1990). The dispositive test is whether the claimant’s condition has stabilized, i.e., reached MM.I. Sunny Hill of Will County v. Ill. Workers' Comp. Comm’n, 2014 IL App (3d) 130028WC at 28 (June 26, 2014, Opinion Filed); Mechanical Devices v. Industrial Comm’n, 344 Ill. App. 3d 752, 760 (4th Dist. 2003). To show entitlement to temporary total disability benefits, a claimant must prove not only that he did not work, but also that he was unable to work. Gallentine, 201 Ill. App. 3d at 887; see also City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087, 1090 (5th Dist. 1996). On August 20, 2021, Dr. released Petitioner from care without any restrictions. As stated above, the Arbitrator found that Petitioner reached maximum medical improvement on August 20, 2021 the date he had been released him from care. The Arbitrator finds Petitioner proved by the preponderance of the evidence that he is entitled to temporary total disability benefits
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  v. Leaf GuardChicago, L.L.C.; Case # 20 WC 026487 Page 9 of 9 from August 8, 2020 through August 20, 2021. As such, Respondent shall pay Petitioner temporary total disability benefits from August 8, 2020 through August 20, 2021 for a period of 54 weeks, less the sum of $13,250.64 for benefits Respondent previously paid. By: /o/ o October 1, 2021 Arbitrator Date