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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 14WC035907
Case Name v. Illinois Dept. of Human Services
Consolidated Cases
Proceeding Type
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 9
Decision Issued By , Arbitrator
Petitioner Attorney Joshua Rudolfi
Respondent Attorney
DATE FILED: 9/27/2022
THE INTEREST RATE FOR THE WEEK OF SEPTEMBER 27, 2022 3.85%
,Arbitrator
Signature
CERTIFIED as a true and correct copy
pursuant to 820 ILCS 305/14
September 27, 2022
/s/ Michele Kowalski
, Secretary
Illinois Workers’ Compensation Commission
STATE OF ILLINOIS
Injured Workers’ Benefit Fund
(§4(d))
Rate Adjustment Fund (§8(g))
COUNTY OF WILL Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
Employee/Petitioner
v. Case
ILLINOIS DEPT. HUMAN SERVICES
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 Joliet, on July
19, 2022. 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
ICArbDec 4/22 Web site: www.iwcc.il.gov
. IL. Dept. Human Services, 14 WC 35907
2
FINDINGS
On August 19, 2014, 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 $54,825.68; the average weekly wage was $1,054.34.
On the date of accident, Petitioner was 51 years of age, single with 0 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 $112,274.98 for TTD, $104,121.46 for maintenance, and $49,902.82 for other
benefits, for a total credit of $266,299.26.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Medical benefits
o Respondent shall pay reasonable and necessary medical services of $550.88, as provided in Sections 8(a) and
8.2 of the Act.
Temporary Total Disability
o Respondent shall pay Petitioner temporary total disability benefits of $702.89/week for 220 5/7 weeks,
commencing 9/13/2014 through 12/6/2018, as provided in Section 8(b) of the Act.
Maintenance
o Respondent shall pay Petitioner maintenance benefits of $702.89/week for 181 4/7 weeks, commencing
12/7/2018 through 7/19/2022, as provided in Section 8(a) of the Act.
Permanent Total Disability
o Respondent shall pay Petitioner permanent and total disability benefits of $702.89/week for life,
commencing 7/20/2022, as provided in Section 8(f) of the Act.
v. IL. Dept. Human Services, 14 WC 35907
3
o Commencing on the second July 15th after the entry of this award, Petitioner may become eligible for cost-
of-living adjustments, paid by the Rate Adjustment Fund, as provided in Section 8(g) of the Act.
RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision,
and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the
Commission.
STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the
Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however,
if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue.
ICArbDec p. 2
. IL. Dept. Human Services, 14 WC 35907
4
ADDENDUM TO THE DECISION OF THE ARBITRATOR
STATEMENT OF FACTS
This matter proceeded to hearing pursuant to Section 19(b) of the Illinois Workers’ Compensation Act (“Act”) on
July 19, 2022, in Joliet, Illinois. (Arb. 1). The disputed issues are causal connection, liability for unpaid medical bills,
entitlement to TTD and maintenance benefits and, the nature and extent of the Petitioner’s injuries. (Id.).
Respondent does not dispute that on August 19, 2014, the Petitioner, who had been employed by Respondent since
2010 as a mental health technician at the Jack Mabley Development Center in Dixon, IL., sustained accidental
injuries that arose out of and in the course of his work duties. On that day, Petitioner was helping a
developmentally disabled resident in the bathroom when the resident became agitated, grabbing and pulling on
Petitioner’s right arm causing pain. Petitioner did not seek immediate medical treatment.
Petitioner had his left arm amputated just below the shoulder as the result of an electrical accident in the 1970s and
only had use of his right arm prior to and on the date of this accident.
On August 21, 2014, Dr. S , Petitioner’s primary doctor, noted a history of accident consistent with
Petitioner’s testimony. Dr. S restricted Petitioner from using his right arm at work. (Px. 1). Petitioner testified
that Respondent accommodated his work restrictions until September 12, 2014.
Petitioner underwent a right shoulder MRI on September 13, 2014, that revealed a tear at the insertion of the
supraspinatus and mild joint arthropathy. (Id.). Dr. Snider referred Petitioner for an orthopedic consult. (Id.).
On October 9, 2014, Petitioner presented for initial consult to Dr. G at Midwest Orthopedic
Institute “MOI”. On exam, Dr. G noted a history of accident consistent with Petitioner’s testimony. On
exam, the doctor noted positive supraspinatus and O’Brien’s test. Dr. G reviewed the recent MRI noting a
greater than 50% partial thickness right rotator cuff tear. Dr. G recommended arthroscopic repair of
Petitioner’s rotator cuff and restricted Petitioner’s work to lifting no more than 5 lbs. (Id.).
The next day, Petitioner underwent a repeat MRI that demonstrated a rotator cuff tear, a synovial cyst at the
superior AC joint, mild to moderate acromioclavicular joint arthritis, mild fraying in the posterior superior quadrant
of the labrum without discrete labral tear, and minimal subacromial bursa fluid suggestive of bursitis. (Id.). On
November 24, 2014, Petitioner underwent a right upper extremity EMG, which was normal. (Id.). Over the next
few months, Petitioner received corticosteroid injections and a lidocaine injection to his right shoulder. (Id.).
On March 4, 2015, Petitioner underwent surgery consisting of a right shoulder rotator cuff repair with an
acromioplasty performed by Dr. G at Kishwaukee Hospital. (Px. 2). Petitioner’s right arm was placed in a
sling after surgery and he was restricted from work. Per his testimony, Petitioner took his sling off at night to sleep.
He regularly followed up with Dr. G and engaged in post-operative physical therapy. (Id.).
Due to his persistent complaints of ain tingling, and numbness in his right arm, an injection was administered to
Petitioner’s right shoulder by Dr. G on July 9, 2015. (Id.). On August 13 2015 Dr. G transitioned
Petitioner into a course of work conditioning. On September 24, 2015, Dr. G noted that Petitioner was
having significant pain while engaged in work conditioning, and recommended physical therapy instead while
keeping Petitioner off work. (Id.). On November 19, 2015, Dr. G noted that Petitioner was getting worse
and was now having pain along his right triceps all the way to the thumb. An MR Arthrogram was recommended
v. IL. Dept. Human Services, 14 WC 35907
5
and physical therapy was discontinued due to a lack of insurance approval. (Id.). Dr. G noted on December
15, 2015, that Petitioner’s off-work restrictions were continued (Id.).
On January 6, 2016, an MR Arthrogram of Petitioner’s right shoulder was performed at Dr. G office which
revealed a full thickness tear of the supraspinatus at the same location of the original tear. (Id.). On January 14,
2016, Dr. G noted that Petitioner required another arthroscopy but opted to ostpone the testing until
Petitioner’s issues with taking his sling off in his sleep were addressed. (Id.) Dr. G referred Petitioner for a
sleep study. (Id.).
On February 25, 2016, Dr. B performed an Independent Medical Exam (“IME”) on Petitioner pursuant to
the Respondent’s request. (Rx. 1). Dr. B opined that the mechanism of injury was consistent with Petitioner’s
medical records and the diagnosis of a recurrent right rotator cuff tear causally related to the August 19, 2014 work
accident. (Id.). He further opined that a revision surgery would be reasonable and that Petitioner would require
home help due to his left arm amputation and his reliance on the right arm for activities of daily living. (Id.).
Pursuant to a sleep study and diagnosis of sleep apnea performed in June 2016, Dr. recommended a
CPAP machine which Petitioner received on September 22, 2016. (Px. 2). Petitioner followed up with Dr.
on October 18, 2016, and use of the CPAP machine and another sleep study were recommended. (Px. 3). Dr.
learned in December 2016 that Respondent’s carrier had denied the sleep study while awaiting an IME. Id. .
Throughout this period October 20, 2016, through August 3, 2017, Petitioner treated regularly with Dr. G
every four weeks. The doctor’s records indicate that Petitioner’s shoulder and elbow conditions were deteriorating.
(Px. 2). Surgery was still being recommended by Dr. G following resolution of Petitioner’s sleep issues and
Petitioner’s off-work restrictions were continued throughout. (Id.).
On September 28, 2017, Petitioner followed up with Dr. G who noted that home health care and the sleep
study were finally authorized. (Id.). An MR Arthrogram was performed at Dr. G office on November 7,
2017, which showed the same large tear as the previous MR Arthrogram. (Id.).
On December 20, 2017, Petitioner underwent a second right shoulder rotator cuff repair performed by Dr.
G at Northwestern Medicine. (Id.). Petitioner followed up with Dr. G on December 28, 2017, at
which time a course of physical therapy was ordered. Sling use for the right arm was ordered and off work
restrictions were continued. (Id.). Petitioner underwent physical therapy at Riverside Rehabilitative Services. (Id.)
Petitioner followed up with Dr. G and remained off work on January 25, 2018, February 22, 2018, March 22,
2018, April 19, 2018, and May 17, 2018. (Id.).
On August 16, 2018, Dr. G opined that Petitioner was likely to be released at MMI at his next appointment
and he was doing well post-operatively. (Px. 2). On December 6, 2018, Dr. G released Petitioner at MMI for
his right shoulder with permanent restrictions of a 15-20 lbs. waist level lift, and 5-10 lbs. overhead lifting restriction
on the right side. (Id.).
On April 4, 2019, Petitioner underwent a formal FCE at ATI Physical Therapy, which placed him at the light-
medium demand level for the right arm only. (Px. 5).
Petitioner testified that Respondent would not take him back to work. On June 24, 2019, Petitioner began a self-
directed job search and completed weekly logs through September 1, 2019. (Px. 6). Following that period of self-
directed searching, a vocational consultation was authorized by Respondent.
v. IL. Dept. Human Services, 14 WC 35907
6
On October 31, 2019, Petitioner underwent an initial vocational assessment with B , a Certified
Rehabilitation Counselor with . Ms. B noted Petitioner was appropriately dressed, neatly
groomed, had a pleasant demeanor and appropriate manner of interpersonal interaction.
In assessing Petitioner’s prospective employability, B noted that at 56- ears-old, he was considered a person
of advanced age according to vocational evaluation criteria. Ms. B further noted Petitioner obtained a
Bachelor of Science degree in Computer Information Systems in 1986 and was a Certified Alcohol and Drug
Counselor (which he last used in 2007). (Id.). Petitioner re orted the systems he studied for his Computer
Information Systems degree were now obsolete. (Id.). Ms. B noted that Petitioner had his own laptop and
typed using a “one-handed hunt and peck method.” (Id.). P
Regarding elements of Petitioner’s acquired disability/vocational handicap, Ms. B noted that Petitioner does
not have the benefit of a left arm to assist him in lifting or carrying of items. Belmonte further noted, “Though the
left arm amputation is not part of his worker’s compensation claim, he will still face responding to disability related
inquiry from employers in addition to discussing his physical limitations with the ri ht arm”. (Id.). This was
evidenced by Petitioner’s description of his visit to Manpower, a staffing agency Ms. B deemed reputable,
who reportedly turned Petitioner away because of his right arm amputation.
Ms. B further noted that although Petitioner has obtained job positions in the past, he will now face
explaining a two-year gap in employment in addition to his physical restrictions.
Petitioner reportedly applied for 130 positions during his self-directed job search and has exhausted the companies
in his geographic area without having obtained any job offers.
Ms. B opined that because of his injury, Petitioner had lost access to his recent job as a mental health
technician for Respondent. B further noted Petitioner would require professional assistance in obtaining
any job position and would likely face discrimination due his visible disability. (Id.). Ms. B opined that
Petitioner required services such as: vocational testing, development of keyboard proficiency and Microsoft Office
literacy to marketable skill, comprehensive job seeking skills instruction and development of appropriate personal
branding (resume, cover letters, etc.), and job development assistance, including job searches. Id.
Petitioner testified that shortly after this initial consultation he began computer courses at his home on a laptop
supplied by and was compliant with all tasks asked of him. Progress reports from dated
February 16, 2020, March 9, 2020, and April 14, 2020, indicated that Petitioner was compliant with all computer
training modules and vocational services. (Px. 7).
Petitioner followed up with Dr. G on January 23, 2020, due to a flare up of his previously diagnosed
epicondylitis. (Px. 2). Dr. G reviewed the FCE report from A ril 4 2019 and opined that Petitioner had
permanent restrictions per that report. Id. On March 12, 2020, Dr. G provided Petitioner with an injection
to the epicondyle and recommended an updated EMG. Id. An EMG/NCV performed on March 18, 2020, revealed
cubital tunnel in the right arm. Id. On April 9, 2020, Dr. G provided a new splint for the right arm and noted
that Petitioner had this symptoms since the 2014 shoulder injury and recommended “no typing”. Id. Dr. G
noted in Petitioner’s May 7, 2020, final note that Petitioner wished to avoid surgery for the elbow condition and
advise that he should self-limit activities that cause pain. Id.
On May 29, 2020, Ms. B recommended that Petitioner utilize dragon dictation software to assist him in his
vocational services due to the limitation on Petitioner’s ability to type, authorization for which was requested from
Respondent. (Px. 7). On August 31, 2020, Ms. B authored another follow-up report. Id. Ms. B
v. IL. Dept. Human Services, 14 WC 35907
7
noted that Respondent refused to authorize the dictation software. On October 20, 2020, Ms. B authored a
final report noting:
Without this software and with the restriction of ‘no typing’ on his only arm, Mr. is unable to
utilize a computer. He is also without the ability to perform repetitive movements with this arm.
Given that he has a left arm amputation and significant restrictions on his remaining arm, it is the
opinion of this Consultant that without adaptive software training such as the Dragon Naturally
Speaking software training, Mr. is permanently and totally disabled from an occupational
perspective.
Petitioner testified that in the four years of working for Respondent prior to his accident, he had no issues
performing his full-duty job. He underwent previous right shoulder surgery in 2003, but experienced no right
shoulder medical issues since being released for that condition in 2003.
Petitioner testified that he received a letter from TriStar dated July 1, 2022, indicating that his workers’
compensation benefits were being stopped due to a lack of a self-directed job search. (Px. 8).
B testified via evidence deposition. (Px. 7). Ms. B testified that based upon the FCE
restrictions, Petitioner’s inability to type, Respondent’s refusal to authorize dictation software, Petitioner’s left arm
amputation, Petitioner has no access to any stable labor market anywhere in the U.S. economy. (Id. at 48-49). She
further noted that Petitioner was unable to apply for jobs and was unable to work any job requiring typing due to
Respondent’s refusal to approve the dictation software. (Id. at 50). Based on accepted methodologies and the
information gleaned from her interviews with Petitioner, it was her opinion that Petitioner is totally disabled from
an occupational perspective. (Id. at 52).
Respondent produced no witnesses at trial.
CONCLUSIONS OF LAW
Causal Connection
There is no real causal connection controversy in this case. Petitioner’s doctors have opined that a causal
connection exists between the work accident and the current condition of ill-being in his right arm and
Respondent’s IME doctor opined twice that Petitioner’s initial tear and re-tear were causally related to the
undisputed accident. Accordingly, the Arbitrator finds that the current condition of ill-being in Petitioner’s right
upper extremity is causally related to his August 19, 2014, work accident.
Medical Bills
The only outstanding medical bill is from the FCE completed at ATI Physical Therapy on April 4, 2019, as
recommended by Dr. G . The Arbitrator finds this bill to be necessary and reasonable in light of Petitioner’s
condition and likelihood of permanent restrictions. Respondent has paid only $462.08 toward this $2,774.40
charge, which is reduced to $1,012.96 per the fee schedule (CPT CODE 97750 = $63.31 per unit, with 16 units
billed). Accordingly, Petitioner is awarded $550.88 representing the balance of the fee schedule amount for the
FCE.
v. IL. Dept. Human Services, 14 WC 35907
8
Temporary Total Disability Benefits and Maintenance Benefits
The Arbitrator finds the preponderance of evidence contained in the record supports a finding that Petitioner was
temporarily totally disabled from September 12, 2014, the day that he was sent home while on light duty by
Respondent) through December 6, 2018, the day Dr. G opined that Petitioner was at MMI and could work
with permanent restrictions. (Px. 2). Throughout this period Petitioner was in an off-work status as evidenced by
his medical records. There are no opinions as to Petitioner’s ability to work to the contrary. This is a period of 220
5/7 weeks payable at a rate of $702.89 per week.
The Arbitrator finds that following Petitioner’s release at MMI on December 6, 2018, Petitioner complied with
Respondent’s protocol in attem ting to return to work with permanent restrictions, including completing disability
forms contained in Dr. G medical records. (Px. 2). When Petitioner was told that his restrictions would not
be accommodated in June 2019, Petitioner then began his own self-directed job search from June 24, 2019, through
September 1, 2019. (Px. 6). Petitioner testified that he stopped performing this job search when vocational services
were finally authorized by Respondent. Petitioner began vocational services on October 31, 2019, and his
vocational progress reports indicate that he was compliant with vocational rehabilitation until being declared
permanently and totally disabled on October 20, 2020. The Arbitrator finds that Petitioner attempted to return to
work for Respondent in good faith, started his own job search when his restrictions could or would not be
accommodated by Respondent, and complied with vocational rehabilitation when it was finally authorized.
Accordingly, the Arbitrator awards Petitioner maintenance benefits from December 7, 2018, (the day after he was
released at MMI by Dr. G through the present, a period of 181 4/7 weeks payable at a weekly rate of
$702.89.
The parties stipulated to a total credit for Respondent of $266,299.26 for weekly benefits paid in this case.
Nature and Extent/Permanent Total Disability Benefits
The Arbitrator finds that Petitioner has established by a pre onderance of the credible evidence that he is
permanently and totally disabled in the “odd lot” category. B , whom the Arbitrator considered
credible and persuasive, testified that the claimant's advanced age, left arm amputation, FCE restrictions, inability to
type, and Respondent’s refusal to authorize dictation software have left Petitioner without access to any stable labor
market anywhere in the U.S. economy. Respondent produced no evidence or testimony to the contrary. The
opinions of Ms. B are completely unrebutted. Accordingly, the Arbitrator finds that the Petitioner is
permanently and totally disabled from gainful employment and orders Respondent to pay permanent total disability
benefits of $702.89/week for life, commencing July 19, 2022, as provided in Section 8(f) of the Act.
Commencing on the second July 15th after the entry of this award, Petitioner may become eligible for cost-of-living
adjustments, paid by the Rate Adjustment Fund as provided in Section 8(g) of the Act.

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  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 14WC035907 Case Name v. Illinois Dept. of Human Services Consolidated Cases Proceeding Type Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 9 Decision Issued By , Arbitrator Petitioner Attorney Joshua Rudolfi Respondent Attorney DATE FILED: 9/27/2022 THE INTEREST RATE FOR THE WEEK OF SEPTEMBER 27, 2022 3.85% ,Arbitrator Signature CERTIFIED as a true and correct copy pursuant to 820 ILCS 305/14 September 27, 2022 /s/ Michele Kowalski , Secretary Illinois Workers’ Compensation Commission
  • 2. STATE OF ILLINOIS Injured Workers’ Benefit Fund (§4(d)) Rate Adjustment Fund (§8(g)) COUNTY OF WILL Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION Employee/Petitioner v. Case ILLINOIS DEPT. HUMAN SERVICES 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 Joliet, on July 19, 2022. 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 ICArbDec 4/22 Web site: www.iwcc.il.gov
  • 3. . IL. Dept. Human Services, 14 WC 35907 2 FINDINGS On August 19, 2014, 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 $54,825.68; the average weekly wage was $1,054.34. On the date of accident, Petitioner was 51 years of age, single with 0 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 $112,274.98 for TTD, $104,121.46 for maintenance, and $49,902.82 for other benefits, for a total credit of $266,299.26. Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act. ORDER Medical benefits o Respondent shall pay reasonable and necessary medical services of $550.88, as provided in Sections 8(a) and 8.2 of the Act. Temporary Total Disability o Respondent shall pay Petitioner temporary total disability benefits of $702.89/week for 220 5/7 weeks, commencing 9/13/2014 through 12/6/2018, as provided in Section 8(b) of the Act. Maintenance o Respondent shall pay Petitioner maintenance benefits of $702.89/week for 181 4/7 weeks, commencing 12/7/2018 through 7/19/2022, as provided in Section 8(a) of the Act. Permanent Total Disability o Respondent shall pay Petitioner permanent and total disability benefits of $702.89/week for life, commencing 7/20/2022, as provided in Section 8(f) of the Act.
  • 4. v. IL. Dept. Human Services, 14 WC 35907 3 o Commencing on the second July 15th after the entry of this award, Petitioner may become eligible for cost- of-living adjustments, paid by the Rate Adjustment Fund, as provided in Section 8(g) of the Act. RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission. STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue. ICArbDec p. 2
  • 5. . IL. Dept. Human Services, 14 WC 35907 4 ADDENDUM TO THE DECISION OF THE ARBITRATOR STATEMENT OF FACTS This matter proceeded to hearing pursuant to Section 19(b) of the Illinois Workers’ Compensation Act (“Act”) on July 19, 2022, in Joliet, Illinois. (Arb. 1). The disputed issues are causal connection, liability for unpaid medical bills, entitlement to TTD and maintenance benefits and, the nature and extent of the Petitioner’s injuries. (Id.). Respondent does not dispute that on August 19, 2014, the Petitioner, who had been employed by Respondent since 2010 as a mental health technician at the Jack Mabley Development Center in Dixon, IL., sustained accidental injuries that arose out of and in the course of his work duties. On that day, Petitioner was helping a developmentally disabled resident in the bathroom when the resident became agitated, grabbing and pulling on Petitioner’s right arm causing pain. Petitioner did not seek immediate medical treatment. Petitioner had his left arm amputated just below the shoulder as the result of an electrical accident in the 1970s and only had use of his right arm prior to and on the date of this accident. On August 21, 2014, Dr. S , Petitioner’s primary doctor, noted a history of accident consistent with Petitioner’s testimony. Dr. S restricted Petitioner from using his right arm at work. (Px. 1). Petitioner testified that Respondent accommodated his work restrictions until September 12, 2014. Petitioner underwent a right shoulder MRI on September 13, 2014, that revealed a tear at the insertion of the supraspinatus and mild joint arthropathy. (Id.). Dr. Snider referred Petitioner for an orthopedic consult. (Id.). On October 9, 2014, Petitioner presented for initial consult to Dr. G at Midwest Orthopedic Institute “MOI”. On exam, Dr. G noted a history of accident consistent with Petitioner’s testimony. On exam, the doctor noted positive supraspinatus and O’Brien’s test. Dr. G reviewed the recent MRI noting a greater than 50% partial thickness right rotator cuff tear. Dr. G recommended arthroscopic repair of Petitioner’s rotator cuff and restricted Petitioner’s work to lifting no more than 5 lbs. (Id.). The next day, Petitioner underwent a repeat MRI that demonstrated a rotator cuff tear, a synovial cyst at the superior AC joint, mild to moderate acromioclavicular joint arthritis, mild fraying in the posterior superior quadrant of the labrum without discrete labral tear, and minimal subacromial bursa fluid suggestive of bursitis. (Id.). On November 24, 2014, Petitioner underwent a right upper extremity EMG, which was normal. (Id.). Over the next few months, Petitioner received corticosteroid injections and a lidocaine injection to his right shoulder. (Id.). On March 4, 2015, Petitioner underwent surgery consisting of a right shoulder rotator cuff repair with an acromioplasty performed by Dr. G at Kishwaukee Hospital. (Px. 2). Petitioner’s right arm was placed in a sling after surgery and he was restricted from work. Per his testimony, Petitioner took his sling off at night to sleep. He regularly followed up with Dr. G and engaged in post-operative physical therapy. (Id.). Due to his persistent complaints of ain tingling, and numbness in his right arm, an injection was administered to Petitioner’s right shoulder by Dr. G on July 9, 2015. (Id.). On August 13 2015 Dr. G transitioned Petitioner into a course of work conditioning. On September 24, 2015, Dr. G noted that Petitioner was having significant pain while engaged in work conditioning, and recommended physical therapy instead while keeping Petitioner off work. (Id.). On November 19, 2015, Dr. G noted that Petitioner was getting worse and was now having pain along his right triceps all the way to the thumb. An MR Arthrogram was recommended
  • 6. v. IL. Dept. Human Services, 14 WC 35907 5 and physical therapy was discontinued due to a lack of insurance approval. (Id.). Dr. G noted on December 15, 2015, that Petitioner’s off-work restrictions were continued (Id.). On January 6, 2016, an MR Arthrogram of Petitioner’s right shoulder was performed at Dr. G office which revealed a full thickness tear of the supraspinatus at the same location of the original tear. (Id.). On January 14, 2016, Dr. G noted that Petitioner required another arthroscopy but opted to ostpone the testing until Petitioner’s issues with taking his sling off in his sleep were addressed. (Id.) Dr. G referred Petitioner for a sleep study. (Id.). On February 25, 2016, Dr. B performed an Independent Medical Exam (“IME”) on Petitioner pursuant to the Respondent’s request. (Rx. 1). Dr. B opined that the mechanism of injury was consistent with Petitioner’s medical records and the diagnosis of a recurrent right rotator cuff tear causally related to the August 19, 2014 work accident. (Id.). He further opined that a revision surgery would be reasonable and that Petitioner would require home help due to his left arm amputation and his reliance on the right arm for activities of daily living. (Id.). Pursuant to a sleep study and diagnosis of sleep apnea performed in June 2016, Dr. recommended a CPAP machine which Petitioner received on September 22, 2016. (Px. 2). Petitioner followed up with Dr. on October 18, 2016, and use of the CPAP machine and another sleep study were recommended. (Px. 3). Dr. learned in December 2016 that Respondent’s carrier had denied the sleep study while awaiting an IME. Id. . Throughout this period October 20, 2016, through August 3, 2017, Petitioner treated regularly with Dr. G every four weeks. The doctor’s records indicate that Petitioner’s shoulder and elbow conditions were deteriorating. (Px. 2). Surgery was still being recommended by Dr. G following resolution of Petitioner’s sleep issues and Petitioner’s off-work restrictions were continued throughout. (Id.). On September 28, 2017, Petitioner followed up with Dr. G who noted that home health care and the sleep study were finally authorized. (Id.). An MR Arthrogram was performed at Dr. G office on November 7, 2017, which showed the same large tear as the previous MR Arthrogram. (Id.). On December 20, 2017, Petitioner underwent a second right shoulder rotator cuff repair performed by Dr. G at Northwestern Medicine. (Id.). Petitioner followed up with Dr. G on December 28, 2017, at which time a course of physical therapy was ordered. Sling use for the right arm was ordered and off work restrictions were continued. (Id.). Petitioner underwent physical therapy at Riverside Rehabilitative Services. (Id.) Petitioner followed up with Dr. G and remained off work on January 25, 2018, February 22, 2018, March 22, 2018, April 19, 2018, and May 17, 2018. (Id.). On August 16, 2018, Dr. G opined that Petitioner was likely to be released at MMI at his next appointment and he was doing well post-operatively. (Px. 2). On December 6, 2018, Dr. G released Petitioner at MMI for his right shoulder with permanent restrictions of a 15-20 lbs. waist level lift, and 5-10 lbs. overhead lifting restriction on the right side. (Id.). On April 4, 2019, Petitioner underwent a formal FCE at ATI Physical Therapy, which placed him at the light- medium demand level for the right arm only. (Px. 5). Petitioner testified that Respondent would not take him back to work. On June 24, 2019, Petitioner began a self- directed job search and completed weekly logs through September 1, 2019. (Px. 6). Following that period of self- directed searching, a vocational consultation was authorized by Respondent.
  • 7. v. IL. Dept. Human Services, 14 WC 35907 6 On October 31, 2019, Petitioner underwent an initial vocational assessment with B , a Certified Rehabilitation Counselor with . Ms. B noted Petitioner was appropriately dressed, neatly groomed, had a pleasant demeanor and appropriate manner of interpersonal interaction. In assessing Petitioner’s prospective employability, B noted that at 56- ears-old, he was considered a person of advanced age according to vocational evaluation criteria. Ms. B further noted Petitioner obtained a Bachelor of Science degree in Computer Information Systems in 1986 and was a Certified Alcohol and Drug Counselor (which he last used in 2007). (Id.). Petitioner re orted the systems he studied for his Computer Information Systems degree were now obsolete. (Id.). Ms. B noted that Petitioner had his own laptop and typed using a “one-handed hunt and peck method.” (Id.). P Regarding elements of Petitioner’s acquired disability/vocational handicap, Ms. B noted that Petitioner does not have the benefit of a left arm to assist him in lifting or carrying of items. Belmonte further noted, “Though the left arm amputation is not part of his worker’s compensation claim, he will still face responding to disability related inquiry from employers in addition to discussing his physical limitations with the ri ht arm”. (Id.). This was evidenced by Petitioner’s description of his visit to Manpower, a staffing agency Ms. B deemed reputable, who reportedly turned Petitioner away because of his right arm amputation. Ms. B further noted that although Petitioner has obtained job positions in the past, he will now face explaining a two-year gap in employment in addition to his physical restrictions. Petitioner reportedly applied for 130 positions during his self-directed job search and has exhausted the companies in his geographic area without having obtained any job offers. Ms. B opined that because of his injury, Petitioner had lost access to his recent job as a mental health technician for Respondent. B further noted Petitioner would require professional assistance in obtaining any job position and would likely face discrimination due his visible disability. (Id.). Ms. B opined that Petitioner required services such as: vocational testing, development of keyboard proficiency and Microsoft Office literacy to marketable skill, comprehensive job seeking skills instruction and development of appropriate personal branding (resume, cover letters, etc.), and job development assistance, including job searches. Id. Petitioner testified that shortly after this initial consultation he began computer courses at his home on a laptop supplied by and was compliant with all tasks asked of him. Progress reports from dated February 16, 2020, March 9, 2020, and April 14, 2020, indicated that Petitioner was compliant with all computer training modules and vocational services. (Px. 7). Petitioner followed up with Dr. G on January 23, 2020, due to a flare up of his previously diagnosed epicondylitis. (Px. 2). Dr. G reviewed the FCE report from A ril 4 2019 and opined that Petitioner had permanent restrictions per that report. Id. On March 12, 2020, Dr. G provided Petitioner with an injection to the epicondyle and recommended an updated EMG. Id. An EMG/NCV performed on March 18, 2020, revealed cubital tunnel in the right arm. Id. On April 9, 2020, Dr. G provided a new splint for the right arm and noted that Petitioner had this symptoms since the 2014 shoulder injury and recommended “no typing”. Id. Dr. G noted in Petitioner’s May 7, 2020, final note that Petitioner wished to avoid surgery for the elbow condition and advise that he should self-limit activities that cause pain. Id. On May 29, 2020, Ms. B recommended that Petitioner utilize dragon dictation software to assist him in his vocational services due to the limitation on Petitioner’s ability to type, authorization for which was requested from Respondent. (Px. 7). On August 31, 2020, Ms. B authored another follow-up report. Id. Ms. B
  • 8. v. IL. Dept. Human Services, 14 WC 35907 7 noted that Respondent refused to authorize the dictation software. On October 20, 2020, Ms. B authored a final report noting: Without this software and with the restriction of ‘no typing’ on his only arm, Mr. is unable to utilize a computer. He is also without the ability to perform repetitive movements with this arm. Given that he has a left arm amputation and significant restrictions on his remaining arm, it is the opinion of this Consultant that without adaptive software training such as the Dragon Naturally Speaking software training, Mr. is permanently and totally disabled from an occupational perspective. Petitioner testified that in the four years of working for Respondent prior to his accident, he had no issues performing his full-duty job. He underwent previous right shoulder surgery in 2003, but experienced no right shoulder medical issues since being released for that condition in 2003. Petitioner testified that he received a letter from TriStar dated July 1, 2022, indicating that his workers’ compensation benefits were being stopped due to a lack of a self-directed job search. (Px. 8). B testified via evidence deposition. (Px. 7). Ms. B testified that based upon the FCE restrictions, Petitioner’s inability to type, Respondent’s refusal to authorize dictation software, Petitioner’s left arm amputation, Petitioner has no access to any stable labor market anywhere in the U.S. economy. (Id. at 48-49). She further noted that Petitioner was unable to apply for jobs and was unable to work any job requiring typing due to Respondent’s refusal to approve the dictation software. (Id. at 50). Based on accepted methodologies and the information gleaned from her interviews with Petitioner, it was her opinion that Petitioner is totally disabled from an occupational perspective. (Id. at 52). Respondent produced no witnesses at trial. CONCLUSIONS OF LAW Causal Connection There is no real causal connection controversy in this case. Petitioner’s doctors have opined that a causal connection exists between the work accident and the current condition of ill-being in his right arm and Respondent’s IME doctor opined twice that Petitioner’s initial tear and re-tear were causally related to the undisputed accident. Accordingly, the Arbitrator finds that the current condition of ill-being in Petitioner’s right upper extremity is causally related to his August 19, 2014, work accident. Medical Bills The only outstanding medical bill is from the FCE completed at ATI Physical Therapy on April 4, 2019, as recommended by Dr. G . The Arbitrator finds this bill to be necessary and reasonable in light of Petitioner’s condition and likelihood of permanent restrictions. Respondent has paid only $462.08 toward this $2,774.40 charge, which is reduced to $1,012.96 per the fee schedule (CPT CODE 97750 = $63.31 per unit, with 16 units billed). Accordingly, Petitioner is awarded $550.88 representing the balance of the fee schedule amount for the FCE.
  • 9. v. IL. Dept. Human Services, 14 WC 35907 8 Temporary Total Disability Benefits and Maintenance Benefits The Arbitrator finds the preponderance of evidence contained in the record supports a finding that Petitioner was temporarily totally disabled from September 12, 2014, the day that he was sent home while on light duty by Respondent) through December 6, 2018, the day Dr. G opined that Petitioner was at MMI and could work with permanent restrictions. (Px. 2). Throughout this period Petitioner was in an off-work status as evidenced by his medical records. There are no opinions as to Petitioner’s ability to work to the contrary. This is a period of 220 5/7 weeks payable at a rate of $702.89 per week. The Arbitrator finds that following Petitioner’s release at MMI on December 6, 2018, Petitioner complied with Respondent’s protocol in attem ting to return to work with permanent restrictions, including completing disability forms contained in Dr. G medical records. (Px. 2). When Petitioner was told that his restrictions would not be accommodated in June 2019, Petitioner then began his own self-directed job search from June 24, 2019, through September 1, 2019. (Px. 6). Petitioner testified that he stopped performing this job search when vocational services were finally authorized by Respondent. Petitioner began vocational services on October 31, 2019, and his vocational progress reports indicate that he was compliant with vocational rehabilitation until being declared permanently and totally disabled on October 20, 2020. The Arbitrator finds that Petitioner attempted to return to work for Respondent in good faith, started his own job search when his restrictions could or would not be accommodated by Respondent, and complied with vocational rehabilitation when it was finally authorized. Accordingly, the Arbitrator awards Petitioner maintenance benefits from December 7, 2018, (the day after he was released at MMI by Dr. G through the present, a period of 181 4/7 weeks payable at a weekly rate of $702.89. The parties stipulated to a total credit for Respondent of $266,299.26 for weekly benefits paid in this case. Nature and Extent/Permanent Total Disability Benefits The Arbitrator finds that Petitioner has established by a pre onderance of the credible evidence that he is permanently and totally disabled in the “odd lot” category. B , whom the Arbitrator considered credible and persuasive, testified that the claimant's advanced age, left arm amputation, FCE restrictions, inability to type, and Respondent’s refusal to authorize dictation software have left Petitioner without access to any stable labor market anywhere in the U.S. economy. Respondent produced no evidence or testimony to the contrary. The opinions of Ms. B are completely unrebutted. Accordingly, the Arbitrator finds that the Petitioner is permanently and totally disabled from gainful employment and orders Respondent to pay permanent total disability benefits of $702.89/week for life, commencing July 19, 2022, as provided in Section 8(f) of the Act. Commencing on the second July 15th after the entry of this award, Petitioner may become eligible for cost-of-living adjustments, paid by the Rate Adjustment Fund as provided in Section 8(g) of the Act.