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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 17WC012925
Case Name v. CITY OF ROCKFORD
Consolidated Cases
Proceeding Type
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 16
Decision Issued By , Arbitrator
Petitioner Attorney Joshua Rudolfi
Respondent Attorney
DATE FILED: 6/27/2022
THE INTEREST RATE FOR THE WEEK OF JUNE 22, 2022 2.39%
Arbitrator
Signature
STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF WINNEBAGO ) Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
Case # 17 WC 12925
Emp oyee Pet t oner
v.
City of Rockford
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
Rockford, on April 29, 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 4/17/2017, 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 $44,200.00; the average weekly wage was $850.00.
On the date of accident, Petitioner was 48 years of age, married with 1 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 $2347.54 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00
for other benefits, for a total credit of $2347.54.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Medical benefits
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of
$18,902.78 to the Department of Veterans Affairs, as provided in Sections 8(a) and 8.2 of the Act.
Temporary Total Disability
Respondent shall pay Petitioner temporary total disability benefits of $566.66/week for 21 5/7 weeks,
commencing 4/20/2017 through 9/22/2017, as provided in Section 8(b) of the Act.
Respondent shall be given a credit of $2347.54 for temporary total disability benefits that have been paid.
Permanent Partial Disability
The Arbitrator finds that Petitioner sustained permanent partial disability to the extent of 7.5% loss of use of
the Person as a Whole pursuant to §8(d)(2) of the Act. Respondent shall pay the petitioner $19,125.00
representing 37.5 weeks of compensation at a permanency rate of $510.00
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
JUNE 27, 2022
ICArbDec p. 2
1
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
, )
)
Petitioner, )
)
v. ) Case No. 17 WC 12925
)
City of Rockford, )
)
Respondent. )
STATEMENT OF FACTS
Petitioner is a 53-year-old man who worked for the City of Rockford from September 5,
2005 to August 21, 2017. Transcript of Arbitration (hereinafter referred to as “R.”) at 7-8.
Petitioner’s position was as a “Level 1 sign and marking tech”, which required him to drive around
the city to maintain the 30,000 street signs up to State, Federal, and Local levels. R. at 8. Petitioner
was on the streets on Rockford every day. R. at 9.
Petitioner was working for Respondent in this capacity on April 17, 2017. R. at 9.
Petitioner was at the corner of Kishwaukee and Pope Street inspecting a stop sign that had been
knocked down when two men approached him. R. at 9. One of the men put a gun to Petitioner’s
head and demanded his wallet, which Petitioner handed over. R. at 9-10. The two men then left
and Petitioner went immediately to his work vehicle, driving to a safe area, and reporting the
incident to his supervisor, Mr. W . R. at 10. Petitioner went to a fire station where the
police were called and a police report completed. R. at 10. Petitioner completed the rest of his
scheduled shift that day. R. at 10.
On April 20, 2017 Petitioner sought medical care with Dr. V , a psychiatrist with
the William S. Middleton Memorial Veterans Hospital. Pet. Ex. #3. Petitioner reported to Dr.
V that he had been held up at gunpoint and had been feeling very anxious, angry, irritable and
2
having lots of negative thoughts, flashbacks, and hypervigilance. Id. Dr. V recorded that
Petitioner had a history of Major Depressive Disorder but had not been seen in his clinic since
June 6, 2016, nearly a year before, but had been on Sertraline 200mg (for mood) and Zolpidem
10mg (for sleep). Id. Dr. V diagnosed Petitioner with Acute Stress Disorder and prescribed
Propranolol and Gabepentin(for anxiety) along with psychotherapy with Mr. P Id.
Petitioner was also placed off work effective April 20, 2017. Pet. Ex. #1. Petitioner began
psychotherapy with Mr. P the next day, on April 21, 2017 and attended 2-3 times per
week. Pet. Ex. #3.
Petitioner followed up with Dr. V on April 27, 2017. Id. Dr. V indicated that
Petitioner was still suffering from anxiousness, irritability, lack of sleep, and nightmares. Id. Dr.
V increased Petitioner’s Gabepentin and continued the rest of Petitioner’s medication and
psychotherapy. Id. Dr. V indicated in her notes that it was hoped that Petitioner would
complete care for this condition within 6 to 12 months. Id. Dr. V again continued Petitioner
off work. Pet. Ex. #1. Petitioner testified that he was receiving TTD from Respondent during this
period. R. at 22. Petitioner continued psychotherapy with Mr. P during this period and
was recommended to go to the gym 3-4 times per week in order to help combat the development
of social and behavioral avoidance that led to further development of PTSD. Pet. Ex. #3.
Petitioner testified that he did attend the gym during this period. R. at 17-18.
Petitioner followed up with Dr. V on May 11, 2017. Id. Dr. V noted that Petitioner
continued to complain of anxiety, depression, nightmares, and irritability. Id. Dr. V continued
Petitioner’s medication, including Gabepentin, psychotherapy, and continued Petitioner off work.
Id. Petitioner continued his psychotherapy with Mr. P . Id.
3
Petitioner followed up with Dr. V on June 16, 2017. Id. Dr. V noted continued
complaints of anxiety, depression, nightmares, and irritability. Id. Dr. V increased Petitioner’s
Gabepentin from 200mg to 300mg due to continued anxiety from Petitioner’s acute stress disorder.
Id. Dr. V again kept Petitioner off work for an additional 8 weeks due to continued symptons.
Pet. Ex. #1. Petitioner continued psychotherapy during this time with Mr. P . Pet. Ex. #3.
On June 29, 2017, Respondent sent Petitioner for an Independent Medical Evaluation with
Dr. M . Resp. Ext. #4. Dr. M reviewed Petitioner’s prior medical records with
the VA and administered a battery of psychological tests. Id. Dr. M opined that Petitioner’s
psychological complaints at the time of the IME were not related to the work accident. Dr.
M opined that Petitioner symptoms were a manifestation of his chronic, long-standing
PTSD and personality traits. Id. Dr. M believes that Petitioner’s response to the April 17,
2017 robbery could best be described as an “Adjustment Disturbance”, a time limited reaction to
a stressor oh any severity. Dr. M noted that believed that Petitioner’s condition was
motivated by secondary gain. Id. He believed Petitioner was at MMI as of June 29, 2017 and
could return to work in a full-duty capacity. Id.
Petitioner again saw Dr. V on August 11, 2017. Pet. Ex. #3. On that date Petitioner
reported that he had begun having “movements (sic) of happiness sometimes, but I (sic) still
anxious, depressed, and irritable other times.” Id. He further noted that his memories of the
robbery were “fading down”, that he was becoming “less edgy”, and that he was sleeping better.
He reported going to the gym 2-3 times per week. Id. Dr. V continued the Gabepentin at 300mg
as it appeared to be helping. Id. Dr. V and Mr. P authored a note that day indicating
that they recommended that Petitioner be given additional time to complete his therapy before
making a full duty return to work, which they projected to be completed by September 22, 2017,
4
with a tentative return to work date of September 25, 2017. Pet. Ex. #1. They indicated that it
would be against medical advice for Petitioner to return to work prior to that date as Petitioner
would not have received the full benefit of the current psychological treatment that is directly
focused on handling the upcoming stresses of his position. Id. Petitioner continued his
psychotherapy at this time. Pet. Ex. #3.
On September 8, 2017 Petitioner was discharged from psychotherapy by Mr. P .
Id. Mr. P noted that, “Veteran was initially seen for acute stress disorder which then
became a new episode of his chronic PTSD. Veteran responded well to tx. Veteran is reporting
improvement in mood, reduction in anxiety and fear of public places. Veteran came in today
stating that he felt good enough to discontinue tx and that he had gotten out of it all that he needed.
Veteran is considered to have completed tx. Pet. Ex. #3, pp. 51
Petitioner followed up with Dr. V on September 22, 2017. Id. Dr. V noted that
Petitioner reported that he was at “maximum capacity” and continued Petitioner’s medications.
Id.
Petitioner testified that he did not return to work for Respondent following his release as
he was terminated by letter on August 21, 2017. R. at 18, Resp. Ex. #3. Petitioner testified that
during the 12 years that he worked for Respondent he never had any issues performing his full
duty work, especially during the four years working as a Level 1 Sign and Marking Tech. R. at
19-20.
Petitioner testified that he served in the US Army and received psychological treatment
upon his discharge in 1994 for major depression and PTSD. R. at 21. Petitioner treated through
the VA System, with his last appointment prior to the work incident being June 6, 2016. Pet. Ex.
#4. On that date Petitioner saw Dr. V and it was noted that Petitioner was “mostly good”,
5
motivation is good, concentration is okay, and that he was sleeping “good.” Id. It was further
noted that Petitioner’s nightmares and flashbacks had been reduced “greatly”. Petitioner was on
Setraline and Zolpidem and his medication was continued. Id. The Arbitrator notes that June 6,
2016 the final mental health medical note prior to Petitioner’s April 17, 2017 robbery with follow
up visits occurring approximately every six months prior to that date. See Pet. Ex #4 and Resp.
Ex. #2.
Petitioner testified that following his release from care he went to work for the VA making
$8.50/hour for a Federal Work Study Program. R. at 23. When he was actually hired, he began
earning $41,000 per year. R. at 24. Petitioner was not working at the time of trial due to a personal
health condition and the loss of his leg due to a reaction to the COVID19 vaccine, which has left
him with one leg and requiring the use of a wheelchair. R. at 24-25.
Petitioner testified that his medical bills with the VA for treatment related to this accident
have not be paid. R. at 24. Petitioner continues to receive mental health treatment through the
VA. R. at 26.
Dr. M testified by way of evidence deposition. Resp. Ex. #4. Dr. M is
a clinical psychologist who is not board certified. Id. at 4-5. Dr. M had Petitioner undergo
two written psychological tests in conjunction with his examination. Id. at 62. The MMPI was
administered, which Dr. M interpreted as showing intentional exaggeration. Id. The
second test was the SIMS, which tests for malingering. Id. at 63. Dr. M testified that
Petitioner scored a 32, with a cut off score of 14 showing malingering. Id. at 64. He interpreted
both of these scores to be invalid. Id. at 65.
Dr. M testified that Petitioner’s psychological issues began following his release
from the military is 1994 after being diagnosed with major depression. Id. at 11-12. He testified
6
that it was not until April 23, 2015 that PTSD became part of Petitioner’s record. Id. at 37. Dr
M further explained that after reviewing the Petitioner’s medical records immediately
following the April 17, 2017 robbery he noted a diagnosis of “acute stress disorder.” Id. at 42-43.
Dr. M explained that acute stress disorder is “like PTSD, but it’s used in the immediate
aftermath of an event.” Id. at 43. He testified that “It’s a matter of time. It’s true that if the
symptoms you’re calling acute stress disorder persist then you would replace that with the
diagnosis of PTSD.” Id.at 81. Dr. M testified that he would relate the diagnosis of acute
stress reaction or adjustment disturbance to the April 17, 2017 robbery and that treatment and
remaining off work for a period following the incident would have been reasonable. Id. at 80-81.
Dr. M believes Petitioner had “an adjustment reaction” or an “acute stress reaction”
following the robbery, but that Petitioner had reached MMI by the time of his examination and
required no further care. Id. at 68.
CONCULSIONS OF LAW
1. Accident
The Arbitrator finds that Petitioner was injured in an accident that arose out of and in the
course of his employment by Respondent. On April 17, 2017 Petitioner was working for
Respondent as a Level 1 Sign and Marking Tech. This job required him to travel around the City
of Rockford to maintain and replace the signage. While inspecting a stop sign two men approached
Petitioner and robbed him at gunpoint. To obtain compensation under the Act, a claimant must
show by a preponderance of the evidence that he or she has suffered a disabling injury arising out
of and in the course of his or her employment. Both elements must be present at the time of the
claimant’s injury in order to justify compensation. IL Bell Telephone Co. v. Indust. Comm’n.,
7
131 Ill.2d 478, 483 (1989) Injuries sustained on an employer’s premises, or at a place where the
claimant might reasonably have been while performing his duties, and while a claimant is at work,
are generally deemed to have been received “in the course” of the employment. Caterpillar Tractor
Co. v. Indust. Comm’n., 129 Ill.2d 52, 57 (1989) Additionally, an employee who suffers a sudden,
severe emotional shock traceable to a definite time, place and cause which causes psychological
injury or harm has suffered an accident within the meaning of the Act, though no physical trauma
or injury was sustained. Pathfinder v. Indus. Comm’n., 62 Ill. 2d 556, 563 (1976) It is undisputed
that Petitioner was performing his job duties and inspecting a sign for Respondent when this
occurred, thus the incident was “in the course” of Petitioner’s employment with Respondent.
Further, the robbery at gunpoint on April 17, 2017 is a definite time, place, and cause of
Petitioner’s psychological injury.
The “arising out of” prong is also met in this case. This prong refers to the origin or cause
of the Petitioner’s injury. There are three types of risks which an employee might be exposed to,
namely” 1) risks distinctly associated with the employment; 2) risks which are personal to the
employee; and 3) “neutral risks which have no particular employment or personal characteristics.”
Illinois Institute of Technology Research Institute v. Indus. Comm’m., 314 Ill. App. 3d 149, 162
(1st Dist. 2000). Injuries resulting from a neutral risk generally do not arise out of the employment
and are compensable under the Act only where the employee was exposed to the risk to a greater
degree than the general public. Metropolitan Water Reclamation Dist. of Greater Chicago v.
IWCC, 407 Ill.App.3d 1010, 1014 (1st Dist. 2011) Such an increased risk may be qualitative, such
as some aspect of the employment which contributes to the risk, or quantitative, such as when the
employee is exposed to a common risk more frequently than the general public. Id. When a
Petitioner is a travelling employee, “the risk of being assaulted, although one to which the general
8
public is exposed, was a risk to which the claimant, by virtue of his employment, was exposed to
a greater degree that then general public.” Potenzo v. Indus. Comm’n., 378 Ill. App. 3d 113, 119
(1st Dist. 2007) The risk of assault can be classified as a neutral risk. It is undisputed that
Petitioner was required to travel around the City of Rockford to perform his job duties. Thus, by
virtue of his employment by Respondent Petitioner was exposed to the risk of assault to a greater
degree than the general public under the “street risk doctrine.” Accordingly, the Arbitrator finds
that Petitioner was injured in an accident that arose out of and in the course of his employment by
Respondent.
2. Causal Connection
The Arbitrator finds that Petitioner’s current condition of ill-being is causally related to
Petitioner’s April 17, 2017 work accident. It is undisputed that Petitioner had a previous diagnosis
of PTSD. It has long been recognized that, 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 the pre-existing condition. Sisbro v. Indust. Comm’n., 207 Ill.2d 193,
204-5 (2003). Further, accidental injury need not be the sole causative factor, nor even the primary
causative factor, as long as it was a causative factor in the resulting condition. Id. at 205. Further,
proof of prior good health and change immediately following and continuing after an injury may
establish that an impaired condition was due to the injury. Land and Lakes Co. v. Indust. Comm’n.,
359 Ill.App.3d 582, 593 (2d Dist. 2005).
Petitioner’s medical records establish that he had a diagnosis of major depressive disorder
dating back to 1994 upon being discharged from the US Army. He underwent treatment for this
9
condition at the VA for a number of years. In April 2015 Petitioner’s medical records from the
VA first note the diagnosis of PTSD. Pet. Ex. #4. The records establish that Petitioner underwent
therapy and a medication regimen to bring his PTSD under control. The last time Petitioner saw
his psychiatrist prior to this accident was June 6, 2016, over 10 months before. At that time
Petitioner was stable and working. Between June 6, 2016 and April 17, 2017 Petitioner did not
seek any treatment for a mental health condition and he was able to work full duty for Respondent
as a Level 1 Sign and Marking Tech. Petitioner sought medical care three days after the April 17,
2017 assault and was diagnosed with Acute Stress Disorder. Pet. Ex. #3. Respondent’s own IME
doctor, Dr. M , agreed with this diagnosis, and explained that acute stress disorder is
“like PTSD, but it’s used in the immediate aftermath of an event.” Id. at 43. He testified that “It’s
a matter of time. It’s true that if the symptoms you’re calling acute stress disorder persist then you
would replace that with the diagnosis of PTSD.” Id.at 81. Dr. M testified that he would
relate the diagnosis of acute stress reaction or adjustment disturbance to the April 17, 2017 robbery
and that treatment and remaining off work for a period following the incident would have been
reasonable. Id. at 80-81. Accordingly, from the records and opinions submitted at arbitration it is
undisputed that Petitioner sustained an injury, or diagnosis of acute stress disorder, as a result of
the April 17, 2017 robbery.
Further, the medical records establish that Petitioner was taking Steraline (for mood) and
Zolpidem (for sleep) on that day of the robbery. However, as soon as Petitioner sought treatment
with Dr. V he was prescribed Propanolol and Gabepentin, both for anxiety due to his
symptomology. This change in medication immediately in the aftermath of the robbery is
illustrative of the fact that Petitioner’s condition immediately changed. Even Dr. M
10
testified that Petitioner “may have had an exacerbation in the immediate aftermath.” Resp. Ex. #4,
pp. 74.
As there is no dispute as to Petitioner’s injury, the inquiry is therefore the duration of that
condition. Dr. V continued Petitioner off work and on the additional medication through his
release on September 22, 2017. Dr. M testified that he believed that Petitioner had returned
to baseline as of his IME on June 29, 2017. Petitioner testified credibly that he continued his
treatment with Dr. V and Mr. P , and that this treatment helped him. R. at 16-17. The
Arbitrator finds that Dr. V and Mr. P ’s treatment notes and Petitioner’s credible
testimony establish that Petitioner’s condition of ill-being is causally related to the April 17, 2017
assault by the preponderance of credible evidence. Petitioner’s complaints following the accident
remained consistent. Petitioner’s treatment following the accident was consistent. Only Dr.
M disagrees with Petitioner’s need for care and opined that Petitioner was treating for
“secondary gain”. The Arbitrator does not find this persuasive. In September 2017 Petitioner
indicated that he felt he had “gained as much as he could” from treatment and indicated he was
willing to try to go back to work. This is not consistent with Dr. M ’s opinion. Further,
Petitioner was only paid TTD for a short period following his assault, so his monetary motivation
for remaining off work is not present.
Accordingly, the Arbitrator finds that Petitioner’s current condition of ill-being is causally
related to the April 17, 2017 work accident.
3. Medical Bills
The Arbitrator finds Petitioner’s treatment to be reasonable and necessary and finds that
Respondent has not paid all appropriate charges. As a result of the April 17, 2017 assault Petitioner
required medical care in the form of psychiatric visits, psychotherapy sessions, and medication.
11
All of this constitutes a reasonable course of care in order to achieve maximum medical
improvement. Petitioner produced evidence that Respondent has not paid for any of this treatment.
Pet. Ex. #2. Accordingly, the Arbitrator awards the medical bills contained in Petitioner’s Exhibit
#2 to be adjudicated pursuant to the Illinois Medical Fee Schedule and payable direct to Petitioner.
4. Temporary Total Disability
The Arbitrator finds that Petitioner is entitled to TTD benefits from April 20, 2017 through
September 22, 2017, a period of 21 5/7 weeks payable at the rate of $566.66 per week, less
Respondent’s stipulated credit of $2,347.54 for TTD already paid. Having previously found a
causal connection and the opinion of Dr. V more support by the evidence than the opinion of
Dr. M , the Arbitrator finds that Petitioner was initially taken off work by Dr. V on April
20, 2017 and remained in an off-work status until being released to full duty work effective
September 22, 2017. Pet. Ex. #1. This is the proper period of TTD owed.
5. Nature and Extent
With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial
disability impairment report and/or opinion was submitted into evidence. The Arbitrator therefore
gives no weight to this factor.
With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator
notes that the record reveals that Petitioner was employed as a Leve 1 Sign and Marking Tech
at the time of the accident and that he is able to return to work in his prior capacity as a result of
said injury. The Arbitrator notes that Petitioner was restricted from working in his prior
position by his treating psychiatrist due to interaction with the public. However, following
his course of treatment Petitioner was returned to work without restrictions. Because of the
12
temporary nature of his inability to return to work full duty, the Arbitrator therefore gives lesser
weight to this factor.
With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years
old at the time of the accident. The Arbitrator finds that the petitioner is in the later half of expected
work life expectancy. The Arbitrator therefore finds that this factor weighs in favor of decreased
permanence.
With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the
Arbitrator notes that there was no evidence of any decrease in the petitioner’s earning capacity
due to permanent medical restrictions. Therefore, the Arbitrator finds that this factor weighs in
favor of decreased permanence.
With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the
treating medical records, the Arbitrator notes that Petitioner has a history of service connected
PTSD, but was able to work in a full duty capacity for Respondent from September 2005
to the April 17, 2017 date of accident. Due to the accident and resulting exacerbation of
his PTSD Petitioner was unable to return to work for Respondent. Petitioner’s medical
records indicate that following the accident he required a new course of medication and
round of therapy in order to achieve maximum medical improvement. At the time of his
release, Petitioner’s and therapist indicated that he would still require
further care for his PTSD. The Arbitrator finds that this factor weighs in favor of greater
permanence.
13
Based on the above factors, and the record taken as a whole, the Arbitrator finds that
Petitioner sustained permanent partial disability to the extent of 7.5% loss of use of the Person
as a Whole pursuant to §8(d)(2) of the Act.

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  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number 17WC012925 Case Name v. CITY OF ROCKFORD Consolidated Cases Proceeding Type Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 16 Decision Issued By , Arbitrator Petitioner Attorney Joshua Rudolfi Respondent Attorney DATE FILED: 6/27/2022 THE INTEREST RATE FOR THE WEEK OF JUNE 22, 2022 2.39% Arbitrator Signature
  • 2. STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF WINNEBAGO ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION Case # 17 WC 12925 Emp oyee Pet t oner v. City of Rockford 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 Rockford, on April 29, 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 4/17/2017, 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 $44,200.00; the average weekly wage was $850.00. On the date of accident, Petitioner was 48 years of age, married with 1 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 $2347.54 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00 for other benefits, for a total credit of $2347.54. Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act. ORDER Medical benefits Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee schedule, of $18,902.78 to the Department of Veterans Affairs, as provided in Sections 8(a) and 8.2 of the Act. Temporary Total Disability Respondent shall pay Petitioner temporary total disability benefits of $566.66/week for 21 5/7 weeks, commencing 4/20/2017 through 9/22/2017, as provided in Section 8(b) of the Act. Respondent shall be given a credit of $2347.54 for temporary total disability benefits that have been paid. Permanent Partial Disability The Arbitrator finds that Petitioner sustained permanent partial disability to the extent of 7.5% loss of use of the Person as a Whole pursuant to §8(d)(2) of the Act. Respondent shall pay the petitioner $19,125.00 representing 37.5 weeks of compensation at a permanency rate of $510.00 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 JUNE 27, 2022 ICArbDec p. 2
  • 4. 1 BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION , ) ) Petitioner, ) ) v. ) Case No. 17 WC 12925 ) City of Rockford, ) ) Respondent. ) STATEMENT OF FACTS Petitioner is a 53-year-old man who worked for the City of Rockford from September 5, 2005 to August 21, 2017. Transcript of Arbitration (hereinafter referred to as “R.”) at 7-8. Petitioner’s position was as a “Level 1 sign and marking tech”, which required him to drive around the city to maintain the 30,000 street signs up to State, Federal, and Local levels. R. at 8. Petitioner was on the streets on Rockford every day. R. at 9. Petitioner was working for Respondent in this capacity on April 17, 2017. R. at 9. Petitioner was at the corner of Kishwaukee and Pope Street inspecting a stop sign that had been knocked down when two men approached him. R. at 9. One of the men put a gun to Petitioner’s head and demanded his wallet, which Petitioner handed over. R. at 9-10. The two men then left and Petitioner went immediately to his work vehicle, driving to a safe area, and reporting the incident to his supervisor, Mr. W . R. at 10. Petitioner went to a fire station where the police were called and a police report completed. R. at 10. Petitioner completed the rest of his scheduled shift that day. R. at 10. On April 20, 2017 Petitioner sought medical care with Dr. V , a psychiatrist with the William S. Middleton Memorial Veterans Hospital. Pet. Ex. #3. Petitioner reported to Dr. V that he had been held up at gunpoint and had been feeling very anxious, angry, irritable and
  • 5. 2 having lots of negative thoughts, flashbacks, and hypervigilance. Id. Dr. V recorded that Petitioner had a history of Major Depressive Disorder but had not been seen in his clinic since June 6, 2016, nearly a year before, but had been on Sertraline 200mg (for mood) and Zolpidem 10mg (for sleep). Id. Dr. V diagnosed Petitioner with Acute Stress Disorder and prescribed Propranolol and Gabepentin(for anxiety) along with psychotherapy with Mr. P Id. Petitioner was also placed off work effective April 20, 2017. Pet. Ex. #1. Petitioner began psychotherapy with Mr. P the next day, on April 21, 2017 and attended 2-3 times per week. Pet. Ex. #3. Petitioner followed up with Dr. V on April 27, 2017. Id. Dr. V indicated that Petitioner was still suffering from anxiousness, irritability, lack of sleep, and nightmares. Id. Dr. V increased Petitioner’s Gabepentin and continued the rest of Petitioner’s medication and psychotherapy. Id. Dr. V indicated in her notes that it was hoped that Petitioner would complete care for this condition within 6 to 12 months. Id. Dr. V again continued Petitioner off work. Pet. Ex. #1. Petitioner testified that he was receiving TTD from Respondent during this period. R. at 22. Petitioner continued psychotherapy with Mr. P during this period and was recommended to go to the gym 3-4 times per week in order to help combat the development of social and behavioral avoidance that led to further development of PTSD. Pet. Ex. #3. Petitioner testified that he did attend the gym during this period. R. at 17-18. Petitioner followed up with Dr. V on May 11, 2017. Id. Dr. V noted that Petitioner continued to complain of anxiety, depression, nightmares, and irritability. Id. Dr. V continued Petitioner’s medication, including Gabepentin, psychotherapy, and continued Petitioner off work. Id. Petitioner continued his psychotherapy with Mr. P . Id.
  • 6. 3 Petitioner followed up with Dr. V on June 16, 2017. Id. Dr. V noted continued complaints of anxiety, depression, nightmares, and irritability. Id. Dr. V increased Petitioner’s Gabepentin from 200mg to 300mg due to continued anxiety from Petitioner’s acute stress disorder. Id. Dr. V again kept Petitioner off work for an additional 8 weeks due to continued symptons. Pet. Ex. #1. Petitioner continued psychotherapy during this time with Mr. P . Pet. Ex. #3. On June 29, 2017, Respondent sent Petitioner for an Independent Medical Evaluation with Dr. M . Resp. Ext. #4. Dr. M reviewed Petitioner’s prior medical records with the VA and administered a battery of psychological tests. Id. Dr. M opined that Petitioner’s psychological complaints at the time of the IME were not related to the work accident. Dr. M opined that Petitioner symptoms were a manifestation of his chronic, long-standing PTSD and personality traits. Id. Dr. M believes that Petitioner’s response to the April 17, 2017 robbery could best be described as an “Adjustment Disturbance”, a time limited reaction to a stressor oh any severity. Dr. M noted that believed that Petitioner’s condition was motivated by secondary gain. Id. He believed Petitioner was at MMI as of June 29, 2017 and could return to work in a full-duty capacity. Id. Petitioner again saw Dr. V on August 11, 2017. Pet. Ex. #3. On that date Petitioner reported that he had begun having “movements (sic) of happiness sometimes, but I (sic) still anxious, depressed, and irritable other times.” Id. He further noted that his memories of the robbery were “fading down”, that he was becoming “less edgy”, and that he was sleeping better. He reported going to the gym 2-3 times per week. Id. Dr. V continued the Gabepentin at 300mg as it appeared to be helping. Id. Dr. V and Mr. P authored a note that day indicating that they recommended that Petitioner be given additional time to complete his therapy before making a full duty return to work, which they projected to be completed by September 22, 2017,
  • 7. 4 with a tentative return to work date of September 25, 2017. Pet. Ex. #1. They indicated that it would be against medical advice for Petitioner to return to work prior to that date as Petitioner would not have received the full benefit of the current psychological treatment that is directly focused on handling the upcoming stresses of his position. Id. Petitioner continued his psychotherapy at this time. Pet. Ex. #3. On September 8, 2017 Petitioner was discharged from psychotherapy by Mr. P . Id. Mr. P noted that, “Veteran was initially seen for acute stress disorder which then became a new episode of his chronic PTSD. Veteran responded well to tx. Veteran is reporting improvement in mood, reduction in anxiety and fear of public places. Veteran came in today stating that he felt good enough to discontinue tx and that he had gotten out of it all that he needed. Veteran is considered to have completed tx. Pet. Ex. #3, pp. 51 Petitioner followed up with Dr. V on September 22, 2017. Id. Dr. V noted that Petitioner reported that he was at “maximum capacity” and continued Petitioner’s medications. Id. Petitioner testified that he did not return to work for Respondent following his release as he was terminated by letter on August 21, 2017. R. at 18, Resp. Ex. #3. Petitioner testified that during the 12 years that he worked for Respondent he never had any issues performing his full duty work, especially during the four years working as a Level 1 Sign and Marking Tech. R. at 19-20. Petitioner testified that he served in the US Army and received psychological treatment upon his discharge in 1994 for major depression and PTSD. R. at 21. Petitioner treated through the VA System, with his last appointment prior to the work incident being June 6, 2016. Pet. Ex. #4. On that date Petitioner saw Dr. V and it was noted that Petitioner was “mostly good”,
  • 8. 5 motivation is good, concentration is okay, and that he was sleeping “good.” Id. It was further noted that Petitioner’s nightmares and flashbacks had been reduced “greatly”. Petitioner was on Setraline and Zolpidem and his medication was continued. Id. The Arbitrator notes that June 6, 2016 the final mental health medical note prior to Petitioner’s April 17, 2017 robbery with follow up visits occurring approximately every six months prior to that date. See Pet. Ex #4 and Resp. Ex. #2. Petitioner testified that following his release from care he went to work for the VA making $8.50/hour for a Federal Work Study Program. R. at 23. When he was actually hired, he began earning $41,000 per year. R. at 24. Petitioner was not working at the time of trial due to a personal health condition and the loss of his leg due to a reaction to the COVID19 vaccine, which has left him with one leg and requiring the use of a wheelchair. R. at 24-25. Petitioner testified that his medical bills with the VA for treatment related to this accident have not be paid. R. at 24. Petitioner continues to receive mental health treatment through the VA. R. at 26. Dr. M testified by way of evidence deposition. Resp. Ex. #4. Dr. M is a clinical psychologist who is not board certified. Id. at 4-5. Dr. M had Petitioner undergo two written psychological tests in conjunction with his examination. Id. at 62. The MMPI was administered, which Dr. M interpreted as showing intentional exaggeration. Id. The second test was the SIMS, which tests for malingering. Id. at 63. Dr. M testified that Petitioner scored a 32, with a cut off score of 14 showing malingering. Id. at 64. He interpreted both of these scores to be invalid. Id. at 65. Dr. M testified that Petitioner’s psychological issues began following his release from the military is 1994 after being diagnosed with major depression. Id. at 11-12. He testified
  • 9. 6 that it was not until April 23, 2015 that PTSD became part of Petitioner’s record. Id. at 37. Dr M further explained that after reviewing the Petitioner’s medical records immediately following the April 17, 2017 robbery he noted a diagnosis of “acute stress disorder.” Id. at 42-43. Dr. M explained that acute stress disorder is “like PTSD, but it’s used in the immediate aftermath of an event.” Id. at 43. He testified that “It’s a matter of time. It’s true that if the symptoms you’re calling acute stress disorder persist then you would replace that with the diagnosis of PTSD.” Id.at 81. Dr. M testified that he would relate the diagnosis of acute stress reaction or adjustment disturbance to the April 17, 2017 robbery and that treatment and remaining off work for a period following the incident would have been reasonable. Id. at 80-81. Dr. M believes Petitioner had “an adjustment reaction” or an “acute stress reaction” following the robbery, but that Petitioner had reached MMI by the time of his examination and required no further care. Id. at 68. CONCULSIONS OF LAW 1. Accident The Arbitrator finds that Petitioner was injured in an accident that arose out of and in the course of his employment by Respondent. On April 17, 2017 Petitioner was working for Respondent as a Level 1 Sign and Marking Tech. This job required him to travel around the City of Rockford to maintain and replace the signage. While inspecting a stop sign two men approached Petitioner and robbed him at gunpoint. To obtain compensation under the Act, a claimant must show by a preponderance of the evidence that he or she has suffered a disabling injury arising out of and in the course of his or her employment. Both elements must be present at the time of the claimant’s injury in order to justify compensation. IL Bell Telephone Co. v. Indust. Comm’n.,
  • 10. 7 131 Ill.2d 478, 483 (1989) Injuries sustained on an employer’s premises, or at a place where the claimant might reasonably have been while performing his duties, and while a claimant is at work, are generally deemed to have been received “in the course” of the employment. Caterpillar Tractor Co. v. Indust. Comm’n., 129 Ill.2d 52, 57 (1989) Additionally, an employee who suffers a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm has suffered an accident within the meaning of the Act, though no physical trauma or injury was sustained. Pathfinder v. Indus. Comm’n., 62 Ill. 2d 556, 563 (1976) It is undisputed that Petitioner was performing his job duties and inspecting a sign for Respondent when this occurred, thus the incident was “in the course” of Petitioner’s employment with Respondent. Further, the robbery at gunpoint on April 17, 2017 is a definite time, place, and cause of Petitioner’s psychological injury. The “arising out of” prong is also met in this case. This prong refers to the origin or cause of the Petitioner’s injury. There are three types of risks which an employee might be exposed to, namely” 1) risks distinctly associated with the employment; 2) risks which are personal to the employee; and 3) “neutral risks which have no particular employment or personal characteristics.” Illinois Institute of Technology Research Institute v. Indus. Comm’m., 314 Ill. App. 3d 149, 162 (1st Dist. 2000). Injuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public. Metropolitan Water Reclamation Dist. of Greater Chicago v. IWCC, 407 Ill.App.3d 1010, 1014 (1st Dist. 2011) Such an increased risk may be qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public. Id. When a Petitioner is a travelling employee, “the risk of being assaulted, although one to which the general
  • 11. 8 public is exposed, was a risk to which the claimant, by virtue of his employment, was exposed to a greater degree that then general public.” Potenzo v. Indus. Comm’n., 378 Ill. App. 3d 113, 119 (1st Dist. 2007) The risk of assault can be classified as a neutral risk. It is undisputed that Petitioner was required to travel around the City of Rockford to perform his job duties. Thus, by virtue of his employment by Respondent Petitioner was exposed to the risk of assault to a greater degree than the general public under the “street risk doctrine.” Accordingly, the Arbitrator finds that Petitioner was injured in an accident that arose out of and in the course of his employment by Respondent. 2. Causal Connection The Arbitrator finds that Petitioner’s current condition of ill-being is causally related to Petitioner’s April 17, 2017 work accident. It is undisputed that Petitioner had a previous diagnosis of PTSD. It has long been recognized that, 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 the pre-existing condition. Sisbro v. Indust. Comm’n., 207 Ill.2d 193, 204-5 (2003). Further, accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition. Id. at 205. Further, proof of prior good health and change immediately following and continuing after an injury may establish that an impaired condition was due to the injury. Land and Lakes Co. v. Indust. Comm’n., 359 Ill.App.3d 582, 593 (2d Dist. 2005). Petitioner’s medical records establish that he had a diagnosis of major depressive disorder dating back to 1994 upon being discharged from the US Army. He underwent treatment for this
  • 12. 9 condition at the VA for a number of years. In April 2015 Petitioner’s medical records from the VA first note the diagnosis of PTSD. Pet. Ex. #4. The records establish that Petitioner underwent therapy and a medication regimen to bring his PTSD under control. The last time Petitioner saw his psychiatrist prior to this accident was June 6, 2016, over 10 months before. At that time Petitioner was stable and working. Between June 6, 2016 and April 17, 2017 Petitioner did not seek any treatment for a mental health condition and he was able to work full duty for Respondent as a Level 1 Sign and Marking Tech. Petitioner sought medical care three days after the April 17, 2017 assault and was diagnosed with Acute Stress Disorder. Pet. Ex. #3. Respondent’s own IME doctor, Dr. M , agreed with this diagnosis, and explained that acute stress disorder is “like PTSD, but it’s used in the immediate aftermath of an event.” Id. at 43. He testified that “It’s a matter of time. It’s true that if the symptoms you’re calling acute stress disorder persist then you would replace that with the diagnosis of PTSD.” Id.at 81. Dr. M testified that he would relate the diagnosis of acute stress reaction or adjustment disturbance to the April 17, 2017 robbery and that treatment and remaining off work for a period following the incident would have been reasonable. Id. at 80-81. Accordingly, from the records and opinions submitted at arbitration it is undisputed that Petitioner sustained an injury, or diagnosis of acute stress disorder, as a result of the April 17, 2017 robbery. Further, the medical records establish that Petitioner was taking Steraline (for mood) and Zolpidem (for sleep) on that day of the robbery. However, as soon as Petitioner sought treatment with Dr. V he was prescribed Propanolol and Gabepentin, both for anxiety due to his symptomology. This change in medication immediately in the aftermath of the robbery is illustrative of the fact that Petitioner’s condition immediately changed. Even Dr. M
  • 13. 10 testified that Petitioner “may have had an exacerbation in the immediate aftermath.” Resp. Ex. #4, pp. 74. As there is no dispute as to Petitioner’s injury, the inquiry is therefore the duration of that condition. Dr. V continued Petitioner off work and on the additional medication through his release on September 22, 2017. Dr. M testified that he believed that Petitioner had returned to baseline as of his IME on June 29, 2017. Petitioner testified credibly that he continued his treatment with Dr. V and Mr. P , and that this treatment helped him. R. at 16-17. The Arbitrator finds that Dr. V and Mr. P ’s treatment notes and Petitioner’s credible testimony establish that Petitioner’s condition of ill-being is causally related to the April 17, 2017 assault by the preponderance of credible evidence. Petitioner’s complaints following the accident remained consistent. Petitioner’s treatment following the accident was consistent. Only Dr. M disagrees with Petitioner’s need for care and opined that Petitioner was treating for “secondary gain”. The Arbitrator does not find this persuasive. In September 2017 Petitioner indicated that he felt he had “gained as much as he could” from treatment and indicated he was willing to try to go back to work. This is not consistent with Dr. M ’s opinion. Further, Petitioner was only paid TTD for a short period following his assault, so his monetary motivation for remaining off work is not present. Accordingly, the Arbitrator finds that Petitioner’s current condition of ill-being is causally related to the April 17, 2017 work accident. 3. Medical Bills The Arbitrator finds Petitioner’s treatment to be reasonable and necessary and finds that Respondent has not paid all appropriate charges. As a result of the April 17, 2017 assault Petitioner required medical care in the form of psychiatric visits, psychotherapy sessions, and medication.
  • 14. 11 All of this constitutes a reasonable course of care in order to achieve maximum medical improvement. Petitioner produced evidence that Respondent has not paid for any of this treatment. Pet. Ex. #2. Accordingly, the Arbitrator awards the medical bills contained in Petitioner’s Exhibit #2 to be adjudicated pursuant to the Illinois Medical Fee Schedule and payable direct to Petitioner. 4. Temporary Total Disability The Arbitrator finds that Petitioner is entitled to TTD benefits from April 20, 2017 through September 22, 2017, a period of 21 5/7 weeks payable at the rate of $566.66 per week, less Respondent’s stipulated credit of $2,347.54 for TTD already paid. Having previously found a causal connection and the opinion of Dr. V more support by the evidence than the opinion of Dr. M , the Arbitrator finds that Petitioner was initially taken off work by Dr. V on April 20, 2017 and remained in an off-work status until being released to full duty work effective September 22, 2017. Pet. Ex. #1. This is the proper period of TTD owed. 5. Nature and Extent With regard to subsection (i) of §8.1b(b), the Arbitrator notes that no permanent partial disability impairment report and/or opinion was submitted into evidence. The Arbitrator therefore gives no weight to this factor. With regard to subsection (ii) of §8.1b(b), the occupation of the employee, the Arbitrator notes that the record reveals that Petitioner was employed as a Leve 1 Sign and Marking Tech at the time of the accident and that he is able to return to work in his prior capacity as a result of said injury. The Arbitrator notes that Petitioner was restricted from working in his prior position by his treating psychiatrist due to interaction with the public. However, following his course of treatment Petitioner was returned to work without restrictions. Because of the
  • 15. 12 temporary nature of his inability to return to work full duty, the Arbitrator therefore gives lesser weight to this factor. With regard to subsection (iii) of §8.1b(b), the Arbitrator notes that Petitioner was 48 years old at the time of the accident. The Arbitrator finds that the petitioner is in the later half of expected work life expectancy. The Arbitrator therefore finds that this factor weighs in favor of decreased permanence. With regard to subsection (iv) of §8.1b(b), Petitioner’s future earnings capacity, the Arbitrator notes that there was no evidence of any decrease in the petitioner’s earning capacity due to permanent medical restrictions. Therefore, the Arbitrator finds that this factor weighs in favor of decreased permanence. With regard to subsection (v) of §8.1b(b), evidence of disability corroborated by the treating medical records, the Arbitrator notes that Petitioner has a history of service connected PTSD, but was able to work in a full duty capacity for Respondent from September 2005 to the April 17, 2017 date of accident. Due to the accident and resulting exacerbation of his PTSD Petitioner was unable to return to work for Respondent. Petitioner’s medical records indicate that following the accident he required a new course of medication and round of therapy in order to achieve maximum medical improvement. At the time of his release, Petitioner’s and therapist indicated that he would still require further care for his PTSD. The Arbitrator finds that this factor weighs in favor of greater permanence.
  • 16. 13 Based on the above factors, and the record taken as a whole, the Arbitrator finds that Petitioner sustained permanent partial disability to the extent of 7.5% loss of use of the Person as a Whole pursuant to §8(d)(2) of the Act.