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ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number
Case Name .
Consolidated Cases
Proceeding Type 19(b) Petition
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 25
Decision Issued By , Arbitrator
Petitioner Attorney Scott Goldstein
Respondent Attorney Bret Taylor
DATE FILED: 2/28/2022
THE INTEREST RATE FOR THE WEEK OF FEBRUARY 23, 2022 0.71%
/s/J ,Arbitrator
Signature
STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS. Rate Adjustment Fund (§8(g))
COUNTY OF COOK ) Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION
ARBITRATION DECISION
19(b)
Case #
Employee/Petitioner
v.
The Co.
Employer/Respondent
An Application for Adjustment of Claim was filed in this matter and a Notice of Hearing was provided to each
party. The matter was heard by the Honorable , Arbitrator of the Commission, in the city of
Chicago, on December 20, 2021. After reviewing all of the evidence presented, the Arbitrator hereby
makes findings on the disputed issues checked below, and attaches those findings to this document.
DISPUTED ISSUES
A. Was Respondent operating under and subject to the Illinois Workers' Compensation or Occupational
Diseases Act?
B. Was there an employee-employer relationship?
C. Did an accident occur that arose out of and in the course of Petitioner's employment by Respondent?
D. What was the date of the accident?
E. Was timely notice of the accident given to Respondent?
F. Is Petitioner's current condition of ill-being causally related to the injury?
G. What were Petitioner's earnings?
H. What was Petitioner's age at the time of the accident?
I. What was Petitioner's marital status at the time of the accident?
J. Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent
paid all appropriate charges for all reasonable and necessary medical services?
K. Is Petitioner entitled to any prospective medical care?
L. What temporary benefits are in dispute?
TPD Maintenance TTD
M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
O. Other TTD after 11/08/2018
ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611 Toll-free 866/352-3033 Web site: www.iwcc.il.gov
Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
FINDINGS
On the date of accident, 5/04/2018, 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 her 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 $40,571.44; the average weekly wage was $780.22.
On the date of accident, Petitioner was 45 years of age, single with 1 dependent children.
Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical
services.
Respondent shall be given a credit of $8,258.08 for TTD, $0 for TPD, $0 for maintenance, and $0 for other
benefits, for a total credit of $8,258.08. Any credit Respondent may be entitled to pursuant to Section 8(j) of
the Act is deferred to the final resolution of this claim and Respondent shall hold Petitioner harmless from any
claims by any providers of the services for which Respondent is receiving this credit, as provided in Section 8(j)
of the Act.
ORDER
Respondent shall pay reasonable and necessary medical services, ursuant to the medical fee schedule, in the
amount of $9,554.00 to Orthopedics, and $2,880.00 to Orthopedics, as provided in Sections
8(a) and 8.2 of the Act. Respondent shall make this payment directly to Petitioner’s attorney in accordance with
Section 9080.20 of the Rules Governing Practice before the IWCC.
Res ondent shall authorize and pay for Petitioner’s right total knee replacement surgery prescribed by Dr.
F . In addition, Respondent shall pay for all reasonable and necessary pre-surgical and post-
surgical care pursuant to Section 8(a) of the Act.
In no instance shall this award be a bar to subsequent hearing and determination of an additional amount of
medical benefits or compensation for a temporary or permanent disability, if any.
RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision,
and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of
the Commission.
STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of
Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if
an employee's appeal results in either no change or a decrease in this award, interest shall not accrue.
/s/
_______________________________________ FEBRUARY 28, 2022
Signature of Arbitrator
ICArbDec19(b)
Page 4
BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION
ADDENDUM TO ARBITRATION DECISION
19 (b)
, )
Petitioner, )
)
vs. ) 18 WC 035982
)
. )
)
Respondent. )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. PROCEDURAL HISTORY
(Petitioner), by and through her attorneys, filed an application for adjustment
of claim for benefits under the Illinois Workers' Compensation Act (the Act). Petitioner alleged
she sustained accidental injuries to her right knee on May 4, 2018 while working in her capacity
as an overnight stock lead for The Company (Respondent).
This matter proceeded to arbitration hearing pursuant to Section 19(b) of the Act on
December 20, 2021 before the Arbitrator in the City of Chicago, County of Cook. Petitioner
testified in support of her claim. She also offered the testimony of her treating orthopedic surgeon,
Dr. F , by evidence deposition. Respondent offered its Section 12 examining
orthopedic physician, Dr. L , by evidence deposition. The record and the transcript
of the hearing was examined by the Arbitrator and taken into consideration in rendering this
decision.
The parties identified four issues in dispute to be decided by arbitration: 1) whether
Petitioner’s current condition of ill-being is causally related to the work accident; 2) whether
Respondent is liable for medical treatment and medical bills incurred after November 8, 2018; 3)
Page 5
whether Petitioner is entitled to temporary total disability benefits subsequent to November 8,
2018; and 4) whether Petitioner is entitled to prospective medical care. (Arb. Ex. 1)
II. FINDINGS OF FACT
Petitioner suffered an undisputed work-related injury to her right knee while working
for Respondent on May 4, 2018. This matter was arbitrated pursuant to Section 19(b) of
the Act. The primary issue at arbitration was the causal relationship for any medical
treatment and/or TTD benefits subsequent to November 8, 2018. November 8, 2018
represents the date the company clinic affiliated surgeon opined that Petitioner reached
maximum medical improvement post right knee surgery, and prospective medical care
pursuant to Section 8(a) of the Act.
Petitioner testified that on May 4, 2018, she was employed with , a
subsidiary of the Company, as an overnight stock lead for over 7 years as of the date
of the hearing. (T. pp. 9, 19) On this date, she twisted her right knee while lifting cases of
product. (T.10) There is no dispute Petitioner suffered an accident as alleged on May 4,
2018 nor that she required arthroscopic meniscal surgery of the right knee.
Petitioner testified that after promptly reporting the accidental injury, her manager
sent Petitioner to Corporate Health where she received conservative
treatment beginning on May 5, 2018. (T.10; PX-2). Petitioner underwent approximately
one month of conservative treatment at . She was then referred by
Corporate Health to Dr. at Orthopedics. (T.11; PX-3). Petitioner
underwent knee meniscal surgery on August 28, 2018 performed by Dr. and
underwent follow up post-operative care and physical therapy. (T.11-12). Petitioner
Page 6
testified she had some relief from the surgery, but the pain returned. (T.12). Dr.
released her to return to full duty work on October 12, 2018 (T. 20) and released her from
his care on November 8, 2018 (T. 21).
On December 6, 2018, Petitioner obtained a second opinion with Dr.
G due to persistent right knee pain and was under his care until July 20, 2020.
(T.13, PX 5, p. 10). Dr. G performed a series of Hyalgan © injections as well as
a cortisone injection in the right knee. (T.14). Petitioner testified Dr. G opined
that she was a candidate for a total knee replacement and referred her to Dr.
F at Orthopedics. (T.15). Petitioner testified that COVID-19 pandemic
delayed her treatment. Accordingly, she did not begin treating with Dr. F until
March 8, 2021. She continued to treat with Dr. F through the date of arbitration,
continuing to work full duty. (T.22). Dr. F is now recommending joint replacement
surgery for the right knee which has not yet occurred. (T.16). Petitioner continued to work
full duty throughout this time period. (T.21).
Surgical authorization for a total knee replacement recommended by Dr. G
and Dr. F was denied by Respondent. Respondent’s denial was based on the
findings and opinions of Dr. L . Dr. L opined that treatment rendered by the
company clinic and company affiliated surgeon was reasonable, necessary and causally
related to Petitioner work accident of May 4, 2018. Dr. L , however, opined that
treatment rendered by Dr. G and Dr. F , although reasonable and
necessary, is not causally related to the work accident. Dr. L opined that her current
right knee complaints are due to pre-existing arthritis.
Page 7
Petitioner testified her knee pain is currently a 7 on a scale of 1 to 10, some days more,
some days less. (T.16-17). However, Petitioner acknowledged she has continued to work
without restrictions since November 8, 2018. (T.17). Petitioner testified following her
surgery she was released to return to work full duty on October 12, 2018. (T.20). Her last
medical visit with Dr. was on November 8, 2018, at which time she was still
working full duty. (T.21).
Petitioner testified that she works in pain and has worked in pain since she since was
released to return to work. She is able to work through the pain. She does so because she
must. She does so for financial reasons. She works through the pain to pay the bills. (T.
17) Petitioner is single and has one dependent child. (ARB. X 1)
Petitioner is in pain on a daily basis. She takes Ibuprofen and applies ice to reduce the
pain. She takes Ibuprofen every 6-8 hours daily and usually applies ice to her right knee
when she comes home from work. (Tr. 18).
The Arbitrator notes there is some confusion as to the medical records contained in
Petitioner’s Exhibits 3 and 4. Petitioner’s Exhibit 3 is identified as Same
Day Surgery treatment records. (PX 3). However, this exhibit also contains the treatment
records of Dr. G from Orthopedics and Sports Medicine, as well as
Dr. from Orthopedics. (PX 3). Petitioner’s Exhibit 4 is identified
as Orthopedics treatment records. (PX 4). However, this exhibit appears to contain
only the treatment records of Dr. F at Orthopedics and physical therapy
notes from Physical Therapy. (PX 4). Despite the misidentification of the treatment
records in the exhibits, the Arbitrator will refer to the treatment records as identified in
Page 8
Petitioner’s Exhibit List. Respondent did not object. There is no evidence that the records
are not accurate and trustworthy.
The medical records reflect Petitioner initially received conservative treatment with
Corporate Health beginning May 4, 2018, until approximately June 1,
2018. (PX 2). Corporate Health then referred Petitioner to Dr.
at Orthopedics who ultimately performed right knee meniscus surgery
on August 28, 2018.
Dr. stated in the operative report that surgery was warranted because
Petitioner suffered a right knee injury that did not improver after 3 months of conservative
care. Work up revealed a tear of the medial meniscus. Her symptoms persisted despite
prolonged nonoperative treatment which included anti-inflammatory mediation,
intraarticular cortisone and physical therapy. The preoperative and postoperative diagnosis
was medial meniscus tear, right knee. The operative report indicated that risks and benefits
were discussed with the Petitioner, including postoperative pain and stiffness and need for
subsequent surgery. (PX 3, p. 54)
This surgery included a right knee arthroscopic partial medial meniscectomy for near
full thickness tear. (PX 3, p.54-55). Operative findings noted there were no loose bodies
and the patella and trochlear cartilage were well maintained. (PX 3, pp.54-55). The articular
cartilage in the medial joint was well maintained. (PX 3, pp.54-55). There was a radial tear
adjacent to the posterior horn which was near full thickness. (PX 3, pp.54-55). Given
Petitioner’s age, a repair was not performed but rather the tear was saucerized. All other
operative findings were normal. (PX 3, pp.54-55).
Page 9
Petitioner continued to treat with Dr. post-operatively and was returned to
work with restrictions as of September 13, 2018 after her August 28, 2018 knee surgery (PX
3, pp.35-38). By October 11, 2018, Dr. had released Petitioner to return to work
full duty without restrictions about 6 weeks post-surgery. (PX 3, pp.32-34). Petitioner last
treated with Dr. on November 8, 2018. (PX 3, pp.30-32).
Less than a month later, Petitioner began treating with Dr. G on December
6, 2018. (PX 3, p.20). An MRI of the right knee was ultimately ordered by Dr. G
and performed on December 14, 2018. (PX 3, p.19). This MRI showed a medial meniscal
tear with blunting and irregularity of the posterior horn and mid body, small joint effusion,
subchondral bone marrow edema involving the medial and lateral femoral condyles
presumably post-traumatic localized bone bruising in these areas. (PX 3, p.19).
Dr. G recommended and performed a course of three Hyalgan © injections and
one cortisone injection. The injections did not appear to provide any permanent relief and
Dr. G ultimately began recommending she be seen by a total joint replacement
specialist and then concluded that she was a candidate for a total knee replacement. She
was last seen by Dr. G on July 2, 2020 as nothing more he could offer her other
than a referral to Dr. F for surgery. (PX 3, p.14, PX 5, p. 10).
Petitioner began treating with Dr. F on March 8, 2021. (PX 4, p.47).
Dr. F recommended a total knee replacement at his first medical visit based upon
Petitioner’s clinical examination and x-rays taken at the time of the visit. (PX 4, pp.47-49).
There is no reference to Dr. F reviewing the post-surgical MRI of the right knee.
(PX 4, pp.47-49). Petitioner has continued to treat with Dr. F through October 7,
2021. He continues to recommend a total knee replacement. (PX 4, pp.9-12).
Page 10
Petitioner was examined by Dr. L for a Section 12 examination on
November 16, 2020. (RX 1). Dr. L noted Petitioner’s post-accident medical treatment,
noted that she was working full duty and recorded that Petitioner complained of increased
right knee pain with ambulation, as well as increased pain going up and down stairs. She
does experience pain at night nor swelling. She complained of stiffness in her knee but no
weakness. She complained of pain with bending as well as popping in her right knee. At
that time, Dr. L reviewed all treatment records including all MRI records and films.
(RX 1). Based upon his review of the diagnostic films and records, as well as his clinical
examination, Dr. L testified Petitioner suffered from degenerative arthritis of the right
knee. (RX 3, p.11). Dr. L did not believe her current condition of ill being was causally
related to the accident of May 4, 2018. (RX 3, p.11).
Dr. L testified Petitioner’s medical treatment, including the August 28, 2018
surgery, was causally related to the accident of May 4, 2018. (RX 3, p.12). However,
Dr. L did not believe any treatment subsequent to November 8, 2018 was causally
related to the accident of May 4, 2018. (RX 3, p.12). Dr. L did not believe Petitioner’s
Hyalgan © injections and one cortisone injection were causally related to the accident of
May 4, 2018. (RX 3, pp.12-13).
Dr. L testified any treatment Petitioner received since November 8, 2018 is
causally related to her preexisting degenerative osteoarthritis of the knee. (RX 3, p.14). Dr.
L further testified Petitioner was not a candidate for a total knee replacement regardless
of causal relationship. (RX 3, pp.14-15). Having reviewed the actual MRI films and x-ray
findings, Dr. L saw nothing in the diagnostic studies which would lead him to believe
Petitioner was a candidate for a total knee replacement. (RX 3, pp.15-16). Dr. L further
Page 11
noted for a patient to be a candidate for a total knee replacement, one would expect the
patient to have significant findings of pain and joint stiffness. (RX 3, p.15). And yet, the
Arbitrator notes that Petitioner did complain of significant pain and stiffness to Dr. L
as well as her medical providers. Dr. L noted the fact Petitioner has continued to work
full duty since October 11, 2018 supported his opinion she was not a candidate for a total
knee replacement as her ability to work full duty correlated with his clinical findings that
her symptoms do not warrant additional surgery. (RX 3, p.17).
Dr. F also testified as to his treatment and opinions in this matter. (PX 1).
Dr. F testified Petitioner is a candidate for a total knee replacement. (PX 1, p.12).
He believes Petitioner’s current condition of ill being is causally related to the work accident
of May 4, 2018, and the total knee replacement would also be causally related. (PX 1, pp.12,
14). Dr. F acknowledged at the time he recommended the total knee replacement
he did not have all of the treatment records as he was a subsequent treater. (PX 1, p.13). Dr.
F further testified he did not have a copy of the original operative report of August
28, 2018 at the time of his original opinion he did by the time of his deposition. (PX 1,
p.17). On cross examination, he acknowledged he had not reviewed the operative report or
the MRI reports until he examined them the date of his deposition. (PX 1, pp.18-19).
Dr. F acknowledged if he had possession of the MRI report when he initially
recorded his diagnostic opinions and treatment recommendations, he would have listed the
reports in his treatment records. (PX 1, p.18). Dr. F further stated he did not need
MRI reports or films to render an opinion that Petitioner was a candidate for a total knee
replacement. (PX 1, p.18). Dr. F indicated the MRI films and/or report “… wasn’t
relevant to me.” (PX 1, p.18). Dr. F specifically testified he had not reviewed Dr.
Page 12
G records or Dr. records. (PX 1, p.21). Dr. F felt Petitioner
was able to work full duty without restriction since he first examined her on March 8, 2021.
(PX 1, p.22).
Petitioner has submitted outstanding medical bills which she claims are related to the
May 4, 2018 injury. The Arbitrator notes Petitioner’s Exhibit 5 contains outstanding
medical bills of $9,554.00 from Orthopedics and $2,880.00 from
Orthopedics and Sports (Dr. G ). The Arbitrator notes all of the foregoing medical
bills are for treatment rendered subsequent to November 8, 2018.
At arbitration, the parties agreed to defer any potential 8(j) credit issues to final
resolution by trial or settlement. (T.5).
CONCLUSIONS OF LAW
The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set
forth below. Section 1(b)3(d) of the Act provides that, in order to obtain compensation under the
Act, the employee bears the burden of showing, by a preponderance of the evidence, that he or she
has sustained accidental injuries arising out of and in the course of the employment. 820 ILCS
305/1(b)3(d). To obtain compensation under the Act, Petitioner has the burden of proving, by a
preponderance of the evidence, all of the elements of her claim O’Dette v. Industrial Comm’n, 79
Ill. 2d 249, 253 (1980) including that there is some causal relationship between her employment
and her injury. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 63 (1989) It is well
established that the Act is a humane law of remedial nature and is to be liberally construed to effect
the purpose of the Act - that the burdens of caring for the casualties of industry should be borne
Page 13
by industry and not by the individuals whose misfortunes arise out of the industry, nor by the
public. Shell Oil v. Industrial Comm’n, 2 Ill.2nd
590, 603 (1954).
Decisions of an arbitrator shall be based exclusively on the evidence in the record of the
proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The Arbitrator, as
the trier of fact in this case, has the responsibility to observe the witnesses testify, judge their
credibility, and determine how much weight to afford their testimony and the other evidence
presented. Walker v. Chicago Housing Authority, 2015 IL App (1st
) 133788, ¶ 47. Credibility is
the quality of a witness which renders his evidence worthy of belief. The Arbitrator, whose
province it is to evaluate witness credibility, evaluates the demeanor of the witness and any
external inconsistencies with his/her testimony. Where a claimant’s testimony is inconsistent with
his/her actual behavior and conduct, the Commission has held that an award cannot stand.
McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968); Swift v. Industrial Commission, 52 Ill.
2d 490 (1972). It is the function of the Commission to judge the credibility of the witnesses and
to resolve conflicts in the medical evidence and assign weight to witness testimony. O’Dette v.
Industrial Commission, 79 Ill.2d 249, 253 (1980); Hosteny v. Workers’ Compensation
Commission, 397 Ill. App. 3d 665, 674 (2009). Internal inconsistencies in a claimant’s testimony,
as well as conflicts between the claimant’s testimony and medical records, may be taken to indicate
unreliability. Gilbert v. Martin & Bayley/Hucks, 08 ILWC 004187 (2010).
In the case at hand, the Arbitrator observed Petitioner during the hearing and finds her to
be a credible witness. The Arbitrator compared Petitioner’s testimony with the totality of the
evidence submitted and did not find any material contradictions that would deem the witness
unreliable. The Arbitrator finds Petitioner’s testimony to be straight forward, truthful, and
consistent with the record as a whole. She does not appear to be a sophisticated individual and any
Page 14
inconsistencies in his testimony are not attributed to an attempt to deceive the finder of fact. The
Arbitrator finds the testimony of Dr. F to be straight forward, truthful, and consistent with
the record as a whole, and, thus, persuasive Whereas, Respondent’s expert witness testimony and
exhibits, for reasons stated below, did not persuade the Arbitrator.
WITH RESPECT TO ISSUE (F), IS THE PETITIONER’S PRESENT CONDITION OF
ILL-BEING CAUSALLY RELATED TO THE INJURY, THE ARBITRATOR FINDS AS
FOLLOWS:
"In a workers' compensation case, the claimant has the burden of proving, by a
preponderance of the evidence, all of the elements of his claim." R & D Thiel v. Illinois Workers'
Compensation Comm'n, 398 Ill. App. 3d 858, 867 (2010). "'[A] preexisting condition does not
prevent recovery under the Act if that condition was aggravated or accelerated by the claimant's
employment.'" Absolute Cleaning/SVMBL v. Illinois Workers' Compensation Comm'n, 409 Ill.
App. 3d 463, 470, (2011), quoting Caterpillar Tractor Co. v. Industrial Comm'n, 92 Ill. 2d 30, 36,
(1982). Further, "[e]very natural consequence that flows from an injury that arose out of and in the
course of the claimant's employment is compensable unless caused by an independent intervening
accident that breaks the chain of causation between a work-related injury and an ensuing disability
or injury." Vogel v. Ill. Workers' Comp. Comm'n, 354 Ill. App. 3d 780 (2005). "That other
incidents, whether work-related or not, may have aggravated the claimant's condition is irrelevant."
Vogel, 354 Ill. App. 3d at 786.
To obtain compensation under the Act, a claimant must prove that some act or phase of his
employment was a causative factor in his ensuing injuries. A work-related injury need not be the
sole or principal causative factor, as long as it was a causative factor in the resulting condition of
ill-being. Even if the claimant had a preexisting degenerative condition which made him more
Page 15
vulnerable to injury, recovery for an accidental injury will not be denied as long as he can show
that his employment was also a causative factor. Thus, a claimant may establish a causal
connection in such cases if he can show that a work-related injury played a role in aggravating his
preexisting condition. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 278
Ill. Dec. 70 (2003). “A chain of events which demonstrates a previous condition of good health,
an accident, and a subsequent injury resulting in disability may be sufficient circumstantial
evidence to prove a causal nexus between the accident and the employee’s injury.” International
Harvester v. Industrial Com., 93 Ill. 2d 59, 63 442 N.E.2d 908 (1982).
In Price v. Industrial Comm'n, 278 Ill. App. 3d 848, 853-54, 663 N.E.2d 1057, 215 Ill.
Dec. 543 (1996), the Appellate Court considered the applicability of this principle to a case
involving a preexisting condition and reasoned as follows: "The employer also contends that the
facts of the present case do not support the Commission's 'chain of events' analysis because [the
claimant] had a preexisting condition. The employer cites no authority for the proposition that a
'chain of events' analysis cannot be used to demonstrate the aggravation of a preexisting injury,
nor do we see any logical reason why it should not. The rationale justifying the use of the 'chain
of events' analysis to demonstrate the existence of an injury would also support its use to
demonstrate an aggravation of a preexisting injury.” Walquist Farm Partnership v. IWCC,
(January 11, 2021) This is a Rule 23 Illinois Appellate Court decision. However, since it was
issued after January 1, 2021 the decision may be cited for its persuasiveness, but not as precedent.
Pursuant to the Sisbro case, it is clear that a work-related accident that aggravates or
accelerates a pre-existing condition can be compensable under Illinois Workers’ Compensation
law. Further, based on the medical records and testimony, it is clear Petitioner had a preexisting
asymptotic arthritis in her right knee. The chain of events presented in this case show her right
Page 16
knee became symptomatic after her work accident. There is no evidence whatsoever that prior to
Petitioner’s work accident, she received any medical treatment let alone a surgical
recommendation. The record does not reflect that Petitioner had ever taken time off work due to
knee pain. No evidence was introduced about Petitioner’s pre-accident work performance no
being satisfactory. No mention was made that she requested any accommodation because of a
preexisting right knee arthritis condition. It is undisputed that Petitioner’s position was physically
demanding and yet again, no evidence was introduced that she was taken off work before the
accident because of her right knee. There was no evidence presented of intervening or subsequent
injuries to the right knee that could explain Petitioner’s injury and current condition. The
Arbitrator finds the Petitioner met her burden of proof by a preponderance of the evidence that her
condition of ill-being was causally related to her work accident based on the chain of events in
addition to the medical opinions contained in the record giving causal connection.
The Arbitrator finds Respondent agreed that Petitioner suffered a compensable
accident on May 4, 2018. Respondent agreed that as a result of the work accident, she
required medical treatment and ultimately the right knee arthroscopic partial medial
meniscectomy which occurred on August 28, 2018. It is noted the operative findings were
essentially normal but for the near complete radial tear of the medial meniscus. Dr.
did not perform a repair or debridement of the radial tear due to Petitioner’s age, but rather
saucerized the meniscus. Respondent agrees that all treatment through November 8, 2018,
the last date Petitioner treated with Dr. , is causally related to the accident of May
4, 2018.
The primary issue at arbitration is whether treatment subsequent to November 8, 2018,
consisting of the treatment of Dr. G , Dr. F , and the recommendation by
Page 17
both of them for a total knee replacement are causally related to the accident of May 4,
2018.
The Arbitrator finds that Petitioner’s current condition of ill-being in her right knee is
causally related to her May 4, 2018, work injury. The Petitioner injured the right knee in an
undisputed work accident on May 4, 2018. She has treated consistently with her physicians since
that time but still has significant pain in her right knee every day since then. Petitioner has had
physical therapy, diagnostic testing, injections, and right knee surgery but her symptoms in the
right knee remain present. Petitioner has no known injury or treatment to her right knee prior to
May 4, 2018 and no injury after her work accident.
Petitioner’s treating physician, Dr. F , indicates in his medical records from
March 8, 2021 that there is a clear causal connection between her current condition and her work
injury (Pet. Ex. #4 at 49). Dr. F goes through a specific, detailed analysis explaining why
her condition is causally connected to the work injury in his March 8, 2021 record (PX 4, p. 49).
Further, Dr. F testified at his deposition that there is a causal connection between her
current right knee condition and her May 4, 2018 work injury (PX 1, pp. 12-13). Dr. F
explained, in detail, at his deposition how Petitioner’s current condition in her right knee is causally
related to her May 4, 2018 work injury (PX 1, pp. 12-13).
Respondent’s Section 12 expert, Dr. L opined that Petitioner’s current
condition in her right knee is due to preexisting arthritis and not causally connected to her May 4,
2018 work injury. Dr. L in his November 16, 2020 Section 12 report when asked whether
Petitioner’s current condition in her right knee is causally related to her May 4, 2018 work injury
he answered “No” with no further explanation (RX 1, pp. 3-4).
Page 18
Dr. L opinion is generic and does not contain any explanation why he opined that no
causal connection exists between the accident and her current complaints and need for additional
surgery. He does not address why the Petitioner has exact symptoms which Dr. informed
Petitioner may have if the surgery failed. Dr. informed her that if the surgery failed, she
would have pain. And, Petitioner does. Petitioner continues to have pain post-surgery. Dr.
informed her if that if the surgery failed, she would have knee stiffness. Petitioner does.
Petitioner continues to have knee stiffness. And Dr. informed her if the surgery failed,
she may need additional surgery. Petitioner does. Both Dr. G and Dr. F opined
that the first surgery failed. Both Dr. G and Dr. F opined that post-surgical
treatment and injections failed, and both Dr. G and Dr. F recommended
additional surgery.
Dr. F recommended a total knee replacement at his very first visit with
Petitioner on March 8, 2021. He had a general understanding of the facts and medical
treatment preceding his initial consultation. Dr. F made his recommendation on his
clinical examination and x-rays performed at the visit. Dr. F opined that the need
for knee replacement surgery was obvious.
Normally, the Arbitrator would be concerned that Dr. F had not reviewed the
treatment records of Dr. nor the operative report of the prior surgery and that he
had not reviewed the treatment records of Dr. G . The Arbitrator would also
generally be concerned that Dr. F testified he had not reviewed the post-surgical
MRI and felt the MRI films and report were not provided to him qhen making his decision
as to whether Petitioner was a candidate for a total knee replacement. He did review them
later. However, this is not a concern in this case. The Arbitrator finds that Dr. F
Page 19
persuasively explained why as a treating orthopedic surgeon, it was immediately obvious
that the Petitioner required a total knee replacement. His opinion was rendered as a treating
surgeon; not as a Section 12 expert. She was bone on bone. Surgery was the only option
remaining to cure and relieve her of her work injury.
Dr. L performed a Section 12 examination as to the issue of whether
Petitioner’s ongoing treatment and surgical recommendation were causally related to the
accident of May 4, 2018. Dr. L agreed Petitioner’s initial surgery of August 28, 2018,
and post-operative treatment through November 8, 2018, were causally related. However,
Dr. L did not believe Petitioner’s treatment subsequent to November 8, 2018, or the
recommended total knee replacement, were causally related. He further opined that she did
not require a total knee replacement. In reaching this opinion, Dr. L reviewed all
treatment records from all medical providers including the operative report as well as the
actual pre-surgical and post-surgical MRI films and reports. Dr. L reached his
conclusion that any ongoing treatment or recommended surgery was not causally related
based upon his review of these records and diagnostic studies, as well as the fact Petitioner
had been released to return to work full duty since October 2018. Petitioner has been treated
by Dr. , Dr. G , and Dr. F , all of whom gave their stamp of
approval for Petitioner to continue to work without restriction. Dr. L testified these
doctors’ opinions that Petitioner can continue to work without restriction support his
opinion that Petitioner’s clinical findings do not support the need for a total knee
replacement. However, Dr. L did note but did not address the post-surgical MRI
findings of December 14, 2018 indicating medial meniscal blunting and irregularity of the
posterior horn from the August 28, 2018 surgery. He also noted some subchondral marrow
Page 20
bone edema. Dr. L further noted that in his formal report, the radiologist, Dr. ,
confirmed the abnormal medial meniscus and the subchondral bone edema of the femoral
condyles post-surgery. (Rx 2, p. 3) And, yet, unlike Dr. F , Dr. L , failed to
explain why none of these abnormal findings are not a cause of Petitioner’s current
condition of ill-being. He totally ignored her subjective complaints. And, yet did not
indicate finding any symptom magnification or positive Waddell’s .
Dr. L agrees that the treatment received after November 8, 2018 was reasonable
and necessary. He just does not find it causally related. He simply concludes that current
condition of ill-being it is due to her pre-existing arthritis without providing a persuasive
explanation.
Dr L offers no explanation why the injured knee is symptomatic and bone on
bone where the non-injured left knee is not. Dr. F does. And does so persuasively.
Dr. L notes in his report that both Dr. G and Dr. F opined that
Petitioner needed and recommended a toral knee replacement. He noted that both Dr.
G and Dr. F opined that her need for the total knee replacement was
causally related to her work accident. And, yet he does not adequately explain why the
Petitioner’s Petitioner continues being in pain since the accident when she was
asymptomatic before her work accident. He clearly did not adequately address that fact that
Petitioner was worked in pain on a daily basis. Whereas Dr. F clearly understood.
Dr. F understood that Petitioner continues to work in pain for financial reasons.
She cannot afford not to work. She has bills to pay. She wants the surgery. Finally, Dr.
L did not explain why taking over the counter medication every 6-8 hours daily and
icing at the end of the workday is an acceptable treatment plan.
Page 21
Based upon the foregoing, the Arbitrator finds the testimony of Dr. F to be more
persuasive than Dr. L . Dr. F testimony is detailed, reasoned, and believable and
thus is afforded greater weight by the Arbitrator than the testimony of Dr. L . For the
foregoing reasons, the Arbitrator finds that the Petitioner has proven by a preponderance of the
evidence that her current condition of ill-being to her right knee is causally related to her work
injury of May 4, 2018.
WITH RESPECT TO ISSUE (J), WERE THE MEDICAL SERVICES THAT WERE
PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND HAS
RESPONDENT PAID ALL APPROPRIATE CHARGES FOR ALL REASONABLE AND
NECESSARY MEDICAL SERVICES, THE ARBITRATOR FINDS AS FOLLOWS:
The Arbitrator finds that the medical Petitioner’s treatment to date for her work injury of
May 4, 2018 has been reasonable, necessary and causally related. Respondent has not paid all
appropriate charges for Petitioner’s reasonable and necessary medical services. Petitioner’s
treatment to date for her right knee has consisted of doctor visits, physical therapy, injections,
medications, diagnostic testing, and surgery. All of these treatment measures are reasonable and
necessary in treating Petitioner’s right knee condition. Moreover, Dr. L agreed that the
treatment received before and after November 8, 2018 was reasonable and necessary. Petitioner
has outstanding bills for medical services provided by Orthopedics in the amount of
$9,554.00 and Orthopedics in the amount of $2,880.00, the total being $12,434.00. (PX
5) The Arbitrator awards Petitioner the outstanding medical bills totaling $12,434.00 to be paid as
part of the trial award in accordance with Sections 8(a) and 8.2 of the Act. Respondent shall make
this payment directly to Petitioner’s attorney in accordance with Section 9080.20 of the Rules
Governing Practice before the IWCC.
Page 22
The parties agreed that the issue of 8(j) credit is being deferred until the final resolution of
this claim. (T. p. 5) Respondent shall be given credit payments made by its group health insurance
carrier and shall hold Petitioner harmless from any claims by any providers of the services for
which Respondent is receiving this credit, pursuant to Section 8(j) of the Act.
WITH RESPECT TO ISSUE (K ), WHETHER PETITIONER IS ENTITLED TO
PROSPECTIVE MEDICAL TREATMENT, THE ARBITRATOR FINDS AS FOLLOWS:
Dr. F opined that with a reasonable degree of medical and surgical certainty
Petitioner is a candidate for a total knee replacement and that the need for surgery was causally
related to her work accident The basis opinion was as follows: 1) Petitioner had an accepted
surgery The arthroscopic procedure revealed a near complete tear of medial meniscus. The
surgery failed. The procedure caused the medical compartment to collapse which in turn caused
the Petitioner to be bone on bone. 2) Petitioner continued to have significant symptoms and
physical findings consistent with her pain complaints. 3) Her x-ray findings were bone on bone
which is the end stage of arthritis. 4) there is no bail out for her condition except a knee
replacement. Therefore, Dr. F believed that a knee replacement would improve her
clinical condition. (Px 1, pp. 11-13)
Dr. F correctly noted that Petitioner was doing well with knee before the date of
accident. He noted that although he did not review all the medical records, he was aware that she
had a continuity of care, which is supported by the evidence. He also knew that she never got
better. He noted that some sequela of patients, like the Petitioner, just do not get better after
arthroscopic meniscal surgery. He stated that in fact the medical tear that was produced at the time
of the accident was a pain generator and had some function. So, by removing some of the torn
Page 23
meniscus, the surgeon is removing the load transmitting shock absorbing agent of the knee which
allows the medial compartment to completely collapse. Thus, at this point there is no bailout
except a knee replacement. The need for a knee replacement is self-evident. (Px 1, p. 13).
After finding causation for Petitioner as to her current condition of illbeing, the Arbitrator
further finds the Petitioner’s is entitled to prospective medical care in the form of the right knee
total knee replacement surgery recommended by Dr. F (Pet. Ex. # 4 at 49), (Pet.
Ex. # 1 at 10-11). In addition, the Arbitrator awards all medical care associated with the total knee
replacement surgery including but not limited to: pre-op visits, pre-op testing, doctor visits,
physical therapy, orthopedic equipment, diagnostic testing, injections, medications, and any other
reasonable and necessary treatment to cure and relieve her from her injury and following a total
knee replacement surgery to her right knee
The Petitioner has exhausted all other treatment options and is now in a “…bone on bone…”
condition in her right knee per Dr. F (Pet. Ex. #1 at 10). Dr. F testified that the
Petitioner’s arthritic condition in the right knee, her continued symptoms in the right knee, and her
physical findings in the right knee necessitate the total knee replacement surgery (Pet. Ex. #1 at
11). Dr. F testified that for Petitioner’s condition in her right knee “…there’s no bail out
except a knee replacement.” (Pet. Ex. #1 at 11).
For the foregoing reasons the Arbitrator finds that Petitioner met her burden of proof by a
preponderance of the evidence and awards Petitioner the right knee total knee replacement surgery
and all associated medical care required for her to achieve maximum medical improvement status.
The Arbitrator finds that Petitioner’s need for a toral knee replacement is a natural consequence
that flowed from her work injury and the resulting arthroscopic surgery of August 28, 2018.
Page 24
WITH RESPECT TO DISPUTED ISSUE WHETHER PETITIONER IS ENTITLED TO
TEMPORARY DISABILITY BENEFITS SUBSEQUENT TO NOVEMBER 8, 2018, THE
ARBITRATOR FINDS AS FOLLOWS:
In the Request for Hearing form, the parties stipulated under Section 8 of the from
that TTD was not at issue. It appears that all TTD due and owing prior to November 8,
2018 was paid for which Respondent is entitled to credit of $8,258.08. However, in Section
13 of the form, the parties represented that Petitioner’s entitlement to “TTD benefits
subsequent to November 8, 2018” is a disputed issue. (ARB X 1) The Arbitrator notes
that no evidence was introduced that Petitioner was temporarily totally disabled from
November 8, 2018 to the date of hearing, and, therefore, awards none. It is unclear, but if
the Petitioner is seeking an award for prospective TTD, the Arbitrator lacks authority to
make such an award. Although it would be implied that Petitioner most likely would be
entitled to TTD benefits, if she is authorized off work if and when she undergoes the total
knee replacement, it would be speculative at the juncture. Therefore, the Arbitrator does
not award prospective TTD benefits. Accordingly, the Arbitrator does not award to
temporary total disability benefits subsequent to November 8, 2018.

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Scott Goldstein Helps Grocery Store Worker Win Total Knee Replacement

  • 1. ILLINOIS WORKERS’ COMPENSATION COMMISSION DECISION SIGNATURE PAGE Case Number Case Name . Consolidated Cases Proceeding Type 19(b) Petition Decision Type Arbitration Decision Commission Decision Number Number of Pages of Decision 25 Decision Issued By , Arbitrator Petitioner Attorney Scott Goldstein Respondent Attorney Bret Taylor DATE FILED: 2/28/2022 THE INTEREST RATE FOR THE WEEK OF FEBRUARY 23, 2022 0.71% /s/J ,Arbitrator Signature
  • 2. STATE OF ILLINOIS ) Injured Workers’ Benefit Fund (§4(d)) )SS. Rate Adjustment Fund (§8(g)) COUNTY OF COOK ) Second Injury Fund (§8(e)18) None of the above ILLINOIS WORKERS’ COMPENSATION COMMISSION ARBITRATION DECISION 19(b) Case # Employee/Petitioner v. The Co. Employer/Respondent An Application for Adjustment of Claim was filed in this matter and a Notice of Hearing was provided to each party. The matter was heard by the Honorable , Arbitrator of the Commission, in the city of Chicago, on December 20, 2021. After reviewing all of the evidence presented, the Arbitrator hereby makes findings on the disputed issues checked below, and attaches those findings to this document. DISPUTED ISSUES A. Was Respondent operating under and subject to the Illinois Workers' Compensation or Occupational Diseases Act? B. Was there an employee-employer relationship? C. Did an accident occur that arose out of and in the course of Petitioner's employment by Respondent? D. What was the date of the accident? E. Was timely notice of the accident given to Respondent? F. Is Petitioner's current condition of ill-being causally related to the injury? G. What were Petitioner's earnings? H. What was Petitioner's age at the time of the accident? I. What was Petitioner's marital status at the time of the accident? J. Were the medical services that were provided to Petitioner reasonable and necessary? Has Respondent paid all appropriate charges for all reasonable and necessary medical services? K. Is Petitioner entitled to any prospective medical care? L. What temporary benefits are in dispute? TPD Maintenance TTD M. Should penalties or fees be imposed upon Respondent? N. Is Respondent due any credit? O. Other TTD after 11/08/2018 ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611 Toll-free 866/352-3033 Web site: www.iwcc.il.gov Downstate offices: Collinsville 618/346-3450 Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
  • 3. FINDINGS On the date of accident, 5/04/2018, 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 her 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 $40,571.44; the average weekly wage was $780.22. On the date of accident, Petitioner was 45 years of age, single with 1 dependent children. Respondent has not paid all reasonable and necessary charges for all reasonable and necessary medical services. Respondent shall be given a credit of $8,258.08 for TTD, $0 for TPD, $0 for maintenance, and $0 for other benefits, for a total credit of $8,258.08. Any credit Respondent may be entitled to pursuant to Section 8(j) of the Act is deferred to the final resolution of this claim and Respondent shall hold Petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit, as provided in Section 8(j) of the Act. ORDER Respondent shall pay reasonable and necessary medical services, ursuant to the medical fee schedule, in the amount of $9,554.00 to Orthopedics, and $2,880.00 to Orthopedics, as provided in Sections 8(a) and 8.2 of the Act. Respondent shall make this payment directly to Petitioner’s attorney in accordance with Section 9080.20 of the Rules Governing Practice before the IWCC. Res ondent shall authorize and pay for Petitioner’s right total knee replacement surgery prescribed by Dr. F . In addition, Respondent shall pay for all reasonable and necessary pre-surgical and post- surgical care pursuant to Section 8(a) of the Act. In no instance shall this award be a bar to subsequent hearing and determination of an additional amount of medical benefits or compensation for a temporary or permanent disability, if any. RULES REGARDING APPEALS Unless a party files a Petition for Review within 30 days after receipt of this decision, and perfects a review in accordance with the Act and Rules, then this decision shall be entered as the decision of the Commission. STATEMENT OF INTEREST RATE If the Commission reviews this award, interest at the rate set forth on the Notice of Decision of Arbitrator shall accrue from the date listed below to the day before the date of payment; however, if an employee's appeal results in either no change or a decrease in this award, interest shall not accrue. /s/ _______________________________________ FEBRUARY 28, 2022 Signature of Arbitrator
  • 5. Page 4 BEFORE THE ILLINOIS WORKERS’ COMPENSATION COMMISSION ADDENDUM TO ARBITRATION DECISION 19 (b) , ) Petitioner, ) ) vs. ) 18 WC 035982 ) . ) ) Respondent. ) FINDINGS OF FACT AND CONCLUSIONS OF LAW I. PROCEDURAL HISTORY (Petitioner), by and through her attorneys, filed an application for adjustment of claim for benefits under the Illinois Workers' Compensation Act (the Act). Petitioner alleged she sustained accidental injuries to her right knee on May 4, 2018 while working in her capacity as an overnight stock lead for The Company (Respondent). This matter proceeded to arbitration hearing pursuant to Section 19(b) of the Act on December 20, 2021 before the Arbitrator in the City of Chicago, County of Cook. Petitioner testified in support of her claim. She also offered the testimony of her treating orthopedic surgeon, Dr. F , by evidence deposition. Respondent offered its Section 12 examining orthopedic physician, Dr. L , by evidence deposition. The record and the transcript of the hearing was examined by the Arbitrator and taken into consideration in rendering this decision. The parties identified four issues in dispute to be decided by arbitration: 1) whether Petitioner’s current condition of ill-being is causally related to the work accident; 2) whether Respondent is liable for medical treatment and medical bills incurred after November 8, 2018; 3)
  • 6. Page 5 whether Petitioner is entitled to temporary total disability benefits subsequent to November 8, 2018; and 4) whether Petitioner is entitled to prospective medical care. (Arb. Ex. 1) II. FINDINGS OF FACT Petitioner suffered an undisputed work-related injury to her right knee while working for Respondent on May 4, 2018. This matter was arbitrated pursuant to Section 19(b) of the Act. The primary issue at arbitration was the causal relationship for any medical treatment and/or TTD benefits subsequent to November 8, 2018. November 8, 2018 represents the date the company clinic affiliated surgeon opined that Petitioner reached maximum medical improvement post right knee surgery, and prospective medical care pursuant to Section 8(a) of the Act. Petitioner testified that on May 4, 2018, she was employed with , a subsidiary of the Company, as an overnight stock lead for over 7 years as of the date of the hearing. (T. pp. 9, 19) On this date, she twisted her right knee while lifting cases of product. (T.10) There is no dispute Petitioner suffered an accident as alleged on May 4, 2018 nor that she required arthroscopic meniscal surgery of the right knee. Petitioner testified that after promptly reporting the accidental injury, her manager sent Petitioner to Corporate Health where she received conservative treatment beginning on May 5, 2018. (T.10; PX-2). Petitioner underwent approximately one month of conservative treatment at . She was then referred by Corporate Health to Dr. at Orthopedics. (T.11; PX-3). Petitioner underwent knee meniscal surgery on August 28, 2018 performed by Dr. and underwent follow up post-operative care and physical therapy. (T.11-12). Petitioner
  • 7. Page 6 testified she had some relief from the surgery, but the pain returned. (T.12). Dr. released her to return to full duty work on October 12, 2018 (T. 20) and released her from his care on November 8, 2018 (T. 21). On December 6, 2018, Petitioner obtained a second opinion with Dr. G due to persistent right knee pain and was under his care until July 20, 2020. (T.13, PX 5, p. 10). Dr. G performed a series of Hyalgan © injections as well as a cortisone injection in the right knee. (T.14). Petitioner testified Dr. G opined that she was a candidate for a total knee replacement and referred her to Dr. F at Orthopedics. (T.15). Petitioner testified that COVID-19 pandemic delayed her treatment. Accordingly, she did not begin treating with Dr. F until March 8, 2021. She continued to treat with Dr. F through the date of arbitration, continuing to work full duty. (T.22). Dr. F is now recommending joint replacement surgery for the right knee which has not yet occurred. (T.16). Petitioner continued to work full duty throughout this time period. (T.21). Surgical authorization for a total knee replacement recommended by Dr. G and Dr. F was denied by Respondent. Respondent’s denial was based on the findings and opinions of Dr. L . Dr. L opined that treatment rendered by the company clinic and company affiliated surgeon was reasonable, necessary and causally related to Petitioner work accident of May 4, 2018. Dr. L , however, opined that treatment rendered by Dr. G and Dr. F , although reasonable and necessary, is not causally related to the work accident. Dr. L opined that her current right knee complaints are due to pre-existing arthritis.
  • 8. Page 7 Petitioner testified her knee pain is currently a 7 on a scale of 1 to 10, some days more, some days less. (T.16-17). However, Petitioner acknowledged she has continued to work without restrictions since November 8, 2018. (T.17). Petitioner testified following her surgery she was released to return to work full duty on October 12, 2018. (T.20). Her last medical visit with Dr. was on November 8, 2018, at which time she was still working full duty. (T.21). Petitioner testified that she works in pain and has worked in pain since she since was released to return to work. She is able to work through the pain. She does so because she must. She does so for financial reasons. She works through the pain to pay the bills. (T. 17) Petitioner is single and has one dependent child. (ARB. X 1) Petitioner is in pain on a daily basis. She takes Ibuprofen and applies ice to reduce the pain. She takes Ibuprofen every 6-8 hours daily and usually applies ice to her right knee when she comes home from work. (Tr. 18). The Arbitrator notes there is some confusion as to the medical records contained in Petitioner’s Exhibits 3 and 4. Petitioner’s Exhibit 3 is identified as Same Day Surgery treatment records. (PX 3). However, this exhibit also contains the treatment records of Dr. G from Orthopedics and Sports Medicine, as well as Dr. from Orthopedics. (PX 3). Petitioner’s Exhibit 4 is identified as Orthopedics treatment records. (PX 4). However, this exhibit appears to contain only the treatment records of Dr. F at Orthopedics and physical therapy notes from Physical Therapy. (PX 4). Despite the misidentification of the treatment records in the exhibits, the Arbitrator will refer to the treatment records as identified in
  • 9. Page 8 Petitioner’s Exhibit List. Respondent did not object. There is no evidence that the records are not accurate and trustworthy. The medical records reflect Petitioner initially received conservative treatment with Corporate Health beginning May 4, 2018, until approximately June 1, 2018. (PX 2). Corporate Health then referred Petitioner to Dr. at Orthopedics who ultimately performed right knee meniscus surgery on August 28, 2018. Dr. stated in the operative report that surgery was warranted because Petitioner suffered a right knee injury that did not improver after 3 months of conservative care. Work up revealed a tear of the medial meniscus. Her symptoms persisted despite prolonged nonoperative treatment which included anti-inflammatory mediation, intraarticular cortisone and physical therapy. The preoperative and postoperative diagnosis was medial meniscus tear, right knee. The operative report indicated that risks and benefits were discussed with the Petitioner, including postoperative pain and stiffness and need for subsequent surgery. (PX 3, p. 54) This surgery included a right knee arthroscopic partial medial meniscectomy for near full thickness tear. (PX 3, p.54-55). Operative findings noted there were no loose bodies and the patella and trochlear cartilage were well maintained. (PX 3, pp.54-55). The articular cartilage in the medial joint was well maintained. (PX 3, pp.54-55). There was a radial tear adjacent to the posterior horn which was near full thickness. (PX 3, pp.54-55). Given Petitioner’s age, a repair was not performed but rather the tear was saucerized. All other operative findings were normal. (PX 3, pp.54-55).
  • 10. Page 9 Petitioner continued to treat with Dr. post-operatively and was returned to work with restrictions as of September 13, 2018 after her August 28, 2018 knee surgery (PX 3, pp.35-38). By October 11, 2018, Dr. had released Petitioner to return to work full duty without restrictions about 6 weeks post-surgery. (PX 3, pp.32-34). Petitioner last treated with Dr. on November 8, 2018. (PX 3, pp.30-32). Less than a month later, Petitioner began treating with Dr. G on December 6, 2018. (PX 3, p.20). An MRI of the right knee was ultimately ordered by Dr. G and performed on December 14, 2018. (PX 3, p.19). This MRI showed a medial meniscal tear with blunting and irregularity of the posterior horn and mid body, small joint effusion, subchondral bone marrow edema involving the medial and lateral femoral condyles presumably post-traumatic localized bone bruising in these areas. (PX 3, p.19). Dr. G recommended and performed a course of three Hyalgan © injections and one cortisone injection. The injections did not appear to provide any permanent relief and Dr. G ultimately began recommending she be seen by a total joint replacement specialist and then concluded that she was a candidate for a total knee replacement. She was last seen by Dr. G on July 2, 2020 as nothing more he could offer her other than a referral to Dr. F for surgery. (PX 3, p.14, PX 5, p. 10). Petitioner began treating with Dr. F on March 8, 2021. (PX 4, p.47). Dr. F recommended a total knee replacement at his first medical visit based upon Petitioner’s clinical examination and x-rays taken at the time of the visit. (PX 4, pp.47-49). There is no reference to Dr. F reviewing the post-surgical MRI of the right knee. (PX 4, pp.47-49). Petitioner has continued to treat with Dr. F through October 7, 2021. He continues to recommend a total knee replacement. (PX 4, pp.9-12).
  • 11. Page 10 Petitioner was examined by Dr. L for a Section 12 examination on November 16, 2020. (RX 1). Dr. L noted Petitioner’s post-accident medical treatment, noted that she was working full duty and recorded that Petitioner complained of increased right knee pain with ambulation, as well as increased pain going up and down stairs. She does experience pain at night nor swelling. She complained of stiffness in her knee but no weakness. She complained of pain with bending as well as popping in her right knee. At that time, Dr. L reviewed all treatment records including all MRI records and films. (RX 1). Based upon his review of the diagnostic films and records, as well as his clinical examination, Dr. L testified Petitioner suffered from degenerative arthritis of the right knee. (RX 3, p.11). Dr. L did not believe her current condition of ill being was causally related to the accident of May 4, 2018. (RX 3, p.11). Dr. L testified Petitioner’s medical treatment, including the August 28, 2018 surgery, was causally related to the accident of May 4, 2018. (RX 3, p.12). However, Dr. L did not believe any treatment subsequent to November 8, 2018 was causally related to the accident of May 4, 2018. (RX 3, p.12). Dr. L did not believe Petitioner’s Hyalgan © injections and one cortisone injection were causally related to the accident of May 4, 2018. (RX 3, pp.12-13). Dr. L testified any treatment Petitioner received since November 8, 2018 is causally related to her preexisting degenerative osteoarthritis of the knee. (RX 3, p.14). Dr. L further testified Petitioner was not a candidate for a total knee replacement regardless of causal relationship. (RX 3, pp.14-15). Having reviewed the actual MRI films and x-ray findings, Dr. L saw nothing in the diagnostic studies which would lead him to believe Petitioner was a candidate for a total knee replacement. (RX 3, pp.15-16). Dr. L further
  • 12. Page 11 noted for a patient to be a candidate for a total knee replacement, one would expect the patient to have significant findings of pain and joint stiffness. (RX 3, p.15). And yet, the Arbitrator notes that Petitioner did complain of significant pain and stiffness to Dr. L as well as her medical providers. Dr. L noted the fact Petitioner has continued to work full duty since October 11, 2018 supported his opinion she was not a candidate for a total knee replacement as her ability to work full duty correlated with his clinical findings that her symptoms do not warrant additional surgery. (RX 3, p.17). Dr. F also testified as to his treatment and opinions in this matter. (PX 1). Dr. F testified Petitioner is a candidate for a total knee replacement. (PX 1, p.12). He believes Petitioner’s current condition of ill being is causally related to the work accident of May 4, 2018, and the total knee replacement would also be causally related. (PX 1, pp.12, 14). Dr. F acknowledged at the time he recommended the total knee replacement he did not have all of the treatment records as he was a subsequent treater. (PX 1, p.13). Dr. F further testified he did not have a copy of the original operative report of August 28, 2018 at the time of his original opinion he did by the time of his deposition. (PX 1, p.17). On cross examination, he acknowledged he had not reviewed the operative report or the MRI reports until he examined them the date of his deposition. (PX 1, pp.18-19). Dr. F acknowledged if he had possession of the MRI report when he initially recorded his diagnostic opinions and treatment recommendations, he would have listed the reports in his treatment records. (PX 1, p.18). Dr. F further stated he did not need MRI reports or films to render an opinion that Petitioner was a candidate for a total knee replacement. (PX 1, p.18). Dr. F indicated the MRI films and/or report “… wasn’t relevant to me.” (PX 1, p.18). Dr. F specifically testified he had not reviewed Dr.
  • 13. Page 12 G records or Dr. records. (PX 1, p.21). Dr. F felt Petitioner was able to work full duty without restriction since he first examined her on March 8, 2021. (PX 1, p.22). Petitioner has submitted outstanding medical bills which she claims are related to the May 4, 2018 injury. The Arbitrator notes Petitioner’s Exhibit 5 contains outstanding medical bills of $9,554.00 from Orthopedics and $2,880.00 from Orthopedics and Sports (Dr. G ). The Arbitrator notes all of the foregoing medical bills are for treatment rendered subsequent to November 8, 2018. At arbitration, the parties agreed to defer any potential 8(j) credit issues to final resolution by trial or settlement. (T.5). CONCLUSIONS OF LAW The Arbitrator adopts the above Findings of Fact in support of the Conclusions of Law set forth below. Section 1(b)3(d) of the Act provides that, in order to obtain compensation under the Act, the employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment. 820 ILCS 305/1(b)3(d). To obtain compensation under the Act, Petitioner has the burden of proving, by a preponderance of the evidence, all of the elements of her claim O’Dette v. Industrial Comm’n, 79 Ill. 2d 249, 253 (1980) including that there is some causal relationship between her employment and her injury. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 63 (1989) It is well established that the Act is a humane law of remedial nature and is to be liberally construed to effect the purpose of the Act - that the burdens of caring for the casualties of industry should be borne
  • 14. Page 13 by industry and not by the individuals whose misfortunes arise out of the industry, nor by the public. Shell Oil v. Industrial Comm’n, 2 Ill.2nd 590, 603 (1954). Decisions of an arbitrator shall be based exclusively on the evidence in the record of the proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The Arbitrator, as the trier of fact in this case, has the responsibility to observe the witnesses testify, judge their credibility, and determine how much weight to afford their testimony and the other evidence presented. Walker v. Chicago Housing Authority, 2015 IL App (1st ) 133788, ¶ 47. Credibility is the quality of a witness which renders his evidence worthy of belief. The Arbitrator, whose province it is to evaluate witness credibility, evaluates the demeanor of the witness and any external inconsistencies with his/her testimony. Where a claimant’s testimony is inconsistent with his/her actual behavior and conduct, the Commission has held that an award cannot stand. McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968); Swift v. Industrial Commission, 52 Ill. 2d 490 (1972). It is the function of the Commission to judge the credibility of the witnesses and to resolve conflicts in the medical evidence and assign weight to witness testimony. O’Dette v. Industrial Commission, 79 Ill.2d 249, 253 (1980); Hosteny v. Workers’ Compensation Commission, 397 Ill. App. 3d 665, 674 (2009). Internal inconsistencies in a claimant’s testimony, as well as conflicts between the claimant’s testimony and medical records, may be taken to indicate unreliability. Gilbert v. Martin & Bayley/Hucks, 08 ILWC 004187 (2010). In the case at hand, the Arbitrator observed Petitioner during the hearing and finds her to be a credible witness. The Arbitrator compared Petitioner’s testimony with the totality of the evidence submitted and did not find any material contradictions that would deem the witness unreliable. The Arbitrator finds Petitioner’s testimony to be straight forward, truthful, and consistent with the record as a whole. She does not appear to be a sophisticated individual and any
  • 15. Page 14 inconsistencies in his testimony are not attributed to an attempt to deceive the finder of fact. The Arbitrator finds the testimony of Dr. F to be straight forward, truthful, and consistent with the record as a whole, and, thus, persuasive Whereas, Respondent’s expert witness testimony and exhibits, for reasons stated below, did not persuade the Arbitrator. WITH RESPECT TO ISSUE (F), IS THE PETITIONER’S PRESENT CONDITION OF ILL-BEING CAUSALLY RELATED TO THE INJURY, THE ARBITRATOR FINDS AS FOLLOWS: "In a workers' compensation case, the claimant has the burden of proving, by a preponderance of the evidence, all of the elements of his claim." R & D Thiel v. Illinois Workers' Compensation Comm'n, 398 Ill. App. 3d 858, 867 (2010). "'[A] preexisting condition does not prevent recovery under the Act if that condition was aggravated or accelerated by the claimant's employment.'" Absolute Cleaning/SVMBL v. Illinois Workers' Compensation Comm'n, 409 Ill. App. 3d 463, 470, (2011), quoting Caterpillar Tractor Co. v. Industrial Comm'n, 92 Ill. 2d 30, 36, (1982). Further, "[e]very natural consequence that flows from an injury that arose out of and in the course of the claimant's employment is compensable unless caused by an independent intervening accident that breaks the chain of causation between a work-related injury and an ensuing disability or injury." Vogel v. Ill. Workers' Comp. Comm'n, 354 Ill. App. 3d 780 (2005). "That other incidents, whether work-related or not, may have aggravated the claimant's condition is irrelevant." Vogel, 354 Ill. App. 3d at 786. To obtain compensation under the Act, a claimant must prove that some act or phase of his employment was a causative factor in his ensuing injuries. A work-related injury need not be the sole or principal causative factor, as long as it was a causative factor in the resulting condition of ill-being. Even if the claimant had a preexisting degenerative condition which made him more
  • 16. Page 15 vulnerable to injury, recovery for an accidental injury will not be denied as long as he can show that his employment was also a causative factor. Thus, a claimant may establish a causal connection in such cases if he can show that a work-related injury played a role in aggravating his preexisting condition. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 205, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003). “A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee’s injury.” International Harvester v. Industrial Com., 93 Ill. 2d 59, 63 442 N.E.2d 908 (1982). In Price v. Industrial Comm'n, 278 Ill. App. 3d 848, 853-54, 663 N.E.2d 1057, 215 Ill. Dec. 543 (1996), the Appellate Court considered the applicability of this principle to a case involving a preexisting condition and reasoned as follows: "The employer also contends that the facts of the present case do not support the Commission's 'chain of events' analysis because [the claimant] had a preexisting condition. The employer cites no authority for the proposition that a 'chain of events' analysis cannot be used to demonstrate the aggravation of a preexisting injury, nor do we see any logical reason why it should not. The rationale justifying the use of the 'chain of events' analysis to demonstrate the existence of an injury would also support its use to demonstrate an aggravation of a preexisting injury.” Walquist Farm Partnership v. IWCC, (January 11, 2021) This is a Rule 23 Illinois Appellate Court decision. However, since it was issued after January 1, 2021 the decision may be cited for its persuasiveness, but not as precedent. Pursuant to the Sisbro case, it is clear that a work-related accident that aggravates or accelerates a pre-existing condition can be compensable under Illinois Workers’ Compensation law. Further, based on the medical records and testimony, it is clear Petitioner had a preexisting asymptotic arthritis in her right knee. The chain of events presented in this case show her right
  • 17. Page 16 knee became symptomatic after her work accident. There is no evidence whatsoever that prior to Petitioner’s work accident, she received any medical treatment let alone a surgical recommendation. The record does not reflect that Petitioner had ever taken time off work due to knee pain. No evidence was introduced about Petitioner’s pre-accident work performance no being satisfactory. No mention was made that she requested any accommodation because of a preexisting right knee arthritis condition. It is undisputed that Petitioner’s position was physically demanding and yet again, no evidence was introduced that she was taken off work before the accident because of her right knee. There was no evidence presented of intervening or subsequent injuries to the right knee that could explain Petitioner’s injury and current condition. The Arbitrator finds the Petitioner met her burden of proof by a preponderance of the evidence that her condition of ill-being was causally related to her work accident based on the chain of events in addition to the medical opinions contained in the record giving causal connection. The Arbitrator finds Respondent agreed that Petitioner suffered a compensable accident on May 4, 2018. Respondent agreed that as a result of the work accident, she required medical treatment and ultimately the right knee arthroscopic partial medial meniscectomy which occurred on August 28, 2018. It is noted the operative findings were essentially normal but for the near complete radial tear of the medial meniscus. Dr. did not perform a repair or debridement of the radial tear due to Petitioner’s age, but rather saucerized the meniscus. Respondent agrees that all treatment through November 8, 2018, the last date Petitioner treated with Dr. , is causally related to the accident of May 4, 2018. The primary issue at arbitration is whether treatment subsequent to November 8, 2018, consisting of the treatment of Dr. G , Dr. F , and the recommendation by
  • 18. Page 17 both of them for a total knee replacement are causally related to the accident of May 4, 2018. The Arbitrator finds that Petitioner’s current condition of ill-being in her right knee is causally related to her May 4, 2018, work injury. The Petitioner injured the right knee in an undisputed work accident on May 4, 2018. She has treated consistently with her physicians since that time but still has significant pain in her right knee every day since then. Petitioner has had physical therapy, diagnostic testing, injections, and right knee surgery but her symptoms in the right knee remain present. Petitioner has no known injury or treatment to her right knee prior to May 4, 2018 and no injury after her work accident. Petitioner’s treating physician, Dr. F , indicates in his medical records from March 8, 2021 that there is a clear causal connection between her current condition and her work injury (Pet. Ex. #4 at 49). Dr. F goes through a specific, detailed analysis explaining why her condition is causally connected to the work injury in his March 8, 2021 record (PX 4, p. 49). Further, Dr. F testified at his deposition that there is a causal connection between her current right knee condition and her May 4, 2018 work injury (PX 1, pp. 12-13). Dr. F explained, in detail, at his deposition how Petitioner’s current condition in her right knee is causally related to her May 4, 2018 work injury (PX 1, pp. 12-13). Respondent’s Section 12 expert, Dr. L opined that Petitioner’s current condition in her right knee is due to preexisting arthritis and not causally connected to her May 4, 2018 work injury. Dr. L in his November 16, 2020 Section 12 report when asked whether Petitioner’s current condition in her right knee is causally related to her May 4, 2018 work injury he answered “No” with no further explanation (RX 1, pp. 3-4).
  • 19. Page 18 Dr. L opinion is generic and does not contain any explanation why he opined that no causal connection exists between the accident and her current complaints and need for additional surgery. He does not address why the Petitioner has exact symptoms which Dr. informed Petitioner may have if the surgery failed. Dr. informed her that if the surgery failed, she would have pain. And, Petitioner does. Petitioner continues to have pain post-surgery. Dr. informed her if that if the surgery failed, she would have knee stiffness. Petitioner does. Petitioner continues to have knee stiffness. And Dr. informed her if the surgery failed, she may need additional surgery. Petitioner does. Both Dr. G and Dr. F opined that the first surgery failed. Both Dr. G and Dr. F opined that post-surgical treatment and injections failed, and both Dr. G and Dr. F recommended additional surgery. Dr. F recommended a total knee replacement at his very first visit with Petitioner on March 8, 2021. He had a general understanding of the facts and medical treatment preceding his initial consultation. Dr. F made his recommendation on his clinical examination and x-rays performed at the visit. Dr. F opined that the need for knee replacement surgery was obvious. Normally, the Arbitrator would be concerned that Dr. F had not reviewed the treatment records of Dr. nor the operative report of the prior surgery and that he had not reviewed the treatment records of Dr. G . The Arbitrator would also generally be concerned that Dr. F testified he had not reviewed the post-surgical MRI and felt the MRI films and report were not provided to him qhen making his decision as to whether Petitioner was a candidate for a total knee replacement. He did review them later. However, this is not a concern in this case. The Arbitrator finds that Dr. F
  • 20. Page 19 persuasively explained why as a treating orthopedic surgeon, it was immediately obvious that the Petitioner required a total knee replacement. His opinion was rendered as a treating surgeon; not as a Section 12 expert. She was bone on bone. Surgery was the only option remaining to cure and relieve her of her work injury. Dr. L performed a Section 12 examination as to the issue of whether Petitioner’s ongoing treatment and surgical recommendation were causally related to the accident of May 4, 2018. Dr. L agreed Petitioner’s initial surgery of August 28, 2018, and post-operative treatment through November 8, 2018, were causally related. However, Dr. L did not believe Petitioner’s treatment subsequent to November 8, 2018, or the recommended total knee replacement, were causally related. He further opined that she did not require a total knee replacement. In reaching this opinion, Dr. L reviewed all treatment records from all medical providers including the operative report as well as the actual pre-surgical and post-surgical MRI films and reports. Dr. L reached his conclusion that any ongoing treatment or recommended surgery was not causally related based upon his review of these records and diagnostic studies, as well as the fact Petitioner had been released to return to work full duty since October 2018. Petitioner has been treated by Dr. , Dr. G , and Dr. F , all of whom gave their stamp of approval for Petitioner to continue to work without restriction. Dr. L testified these doctors’ opinions that Petitioner can continue to work without restriction support his opinion that Petitioner’s clinical findings do not support the need for a total knee replacement. However, Dr. L did note but did not address the post-surgical MRI findings of December 14, 2018 indicating medial meniscal blunting and irregularity of the posterior horn from the August 28, 2018 surgery. He also noted some subchondral marrow
  • 21. Page 20 bone edema. Dr. L further noted that in his formal report, the radiologist, Dr. , confirmed the abnormal medial meniscus and the subchondral bone edema of the femoral condyles post-surgery. (Rx 2, p. 3) And, yet, unlike Dr. F , Dr. L , failed to explain why none of these abnormal findings are not a cause of Petitioner’s current condition of ill-being. He totally ignored her subjective complaints. And, yet did not indicate finding any symptom magnification or positive Waddell’s . Dr. L agrees that the treatment received after November 8, 2018 was reasonable and necessary. He just does not find it causally related. He simply concludes that current condition of ill-being it is due to her pre-existing arthritis without providing a persuasive explanation. Dr L offers no explanation why the injured knee is symptomatic and bone on bone where the non-injured left knee is not. Dr. F does. And does so persuasively. Dr. L notes in his report that both Dr. G and Dr. F opined that Petitioner needed and recommended a toral knee replacement. He noted that both Dr. G and Dr. F opined that her need for the total knee replacement was causally related to her work accident. And, yet he does not adequately explain why the Petitioner’s Petitioner continues being in pain since the accident when she was asymptomatic before her work accident. He clearly did not adequately address that fact that Petitioner was worked in pain on a daily basis. Whereas Dr. F clearly understood. Dr. F understood that Petitioner continues to work in pain for financial reasons. She cannot afford not to work. She has bills to pay. She wants the surgery. Finally, Dr. L did not explain why taking over the counter medication every 6-8 hours daily and icing at the end of the workday is an acceptable treatment plan.
  • 22. Page 21 Based upon the foregoing, the Arbitrator finds the testimony of Dr. F to be more persuasive than Dr. L . Dr. F testimony is detailed, reasoned, and believable and thus is afforded greater weight by the Arbitrator than the testimony of Dr. L . For the foregoing reasons, the Arbitrator finds that the Petitioner has proven by a preponderance of the evidence that her current condition of ill-being to her right knee is causally related to her work injury of May 4, 2018. WITH RESPECT TO ISSUE (J), WERE THE MEDICAL SERVICES THAT WERE PROVIDED TO PETITIONER REASONABLE AND NECESSARY AND HAS RESPONDENT PAID ALL APPROPRIATE CHARGES FOR ALL REASONABLE AND NECESSARY MEDICAL SERVICES, THE ARBITRATOR FINDS AS FOLLOWS: The Arbitrator finds that the medical Petitioner’s treatment to date for her work injury of May 4, 2018 has been reasonable, necessary and causally related. Respondent has not paid all appropriate charges for Petitioner’s reasonable and necessary medical services. Petitioner’s treatment to date for her right knee has consisted of doctor visits, physical therapy, injections, medications, diagnostic testing, and surgery. All of these treatment measures are reasonable and necessary in treating Petitioner’s right knee condition. Moreover, Dr. L agreed that the treatment received before and after November 8, 2018 was reasonable and necessary. Petitioner has outstanding bills for medical services provided by Orthopedics in the amount of $9,554.00 and Orthopedics in the amount of $2,880.00, the total being $12,434.00. (PX 5) The Arbitrator awards Petitioner the outstanding medical bills totaling $12,434.00 to be paid as part of the trial award in accordance with Sections 8(a) and 8.2 of the Act. Respondent shall make this payment directly to Petitioner’s attorney in accordance with Section 9080.20 of the Rules Governing Practice before the IWCC.
  • 23. Page 22 The parties agreed that the issue of 8(j) credit is being deferred until the final resolution of this claim. (T. p. 5) Respondent shall be given credit payments made by its group health insurance carrier and shall hold Petitioner harmless from any claims by any providers of the services for which Respondent is receiving this credit, pursuant to Section 8(j) of the Act. WITH RESPECT TO ISSUE (K ), WHETHER PETITIONER IS ENTITLED TO PROSPECTIVE MEDICAL TREATMENT, THE ARBITRATOR FINDS AS FOLLOWS: Dr. F opined that with a reasonable degree of medical and surgical certainty Petitioner is a candidate for a total knee replacement and that the need for surgery was causally related to her work accident The basis opinion was as follows: 1) Petitioner had an accepted surgery The arthroscopic procedure revealed a near complete tear of medial meniscus. The surgery failed. The procedure caused the medical compartment to collapse which in turn caused the Petitioner to be bone on bone. 2) Petitioner continued to have significant symptoms and physical findings consistent with her pain complaints. 3) Her x-ray findings were bone on bone which is the end stage of arthritis. 4) there is no bail out for her condition except a knee replacement. Therefore, Dr. F believed that a knee replacement would improve her clinical condition. (Px 1, pp. 11-13) Dr. F correctly noted that Petitioner was doing well with knee before the date of accident. He noted that although he did not review all the medical records, he was aware that she had a continuity of care, which is supported by the evidence. He also knew that she never got better. He noted that some sequela of patients, like the Petitioner, just do not get better after arthroscopic meniscal surgery. He stated that in fact the medical tear that was produced at the time of the accident was a pain generator and had some function. So, by removing some of the torn
  • 24. Page 23 meniscus, the surgeon is removing the load transmitting shock absorbing agent of the knee which allows the medial compartment to completely collapse. Thus, at this point there is no bailout except a knee replacement. The need for a knee replacement is self-evident. (Px 1, p. 13). After finding causation for Petitioner as to her current condition of illbeing, the Arbitrator further finds the Petitioner’s is entitled to prospective medical care in the form of the right knee total knee replacement surgery recommended by Dr. F (Pet. Ex. # 4 at 49), (Pet. Ex. # 1 at 10-11). In addition, the Arbitrator awards all medical care associated with the total knee replacement surgery including but not limited to: pre-op visits, pre-op testing, doctor visits, physical therapy, orthopedic equipment, diagnostic testing, injections, medications, and any other reasonable and necessary treatment to cure and relieve her from her injury and following a total knee replacement surgery to her right knee The Petitioner has exhausted all other treatment options and is now in a “…bone on bone…” condition in her right knee per Dr. F (Pet. Ex. #1 at 10). Dr. F testified that the Petitioner’s arthritic condition in the right knee, her continued symptoms in the right knee, and her physical findings in the right knee necessitate the total knee replacement surgery (Pet. Ex. #1 at 11). Dr. F testified that for Petitioner’s condition in her right knee “…there’s no bail out except a knee replacement.” (Pet. Ex. #1 at 11). For the foregoing reasons the Arbitrator finds that Petitioner met her burden of proof by a preponderance of the evidence and awards Petitioner the right knee total knee replacement surgery and all associated medical care required for her to achieve maximum medical improvement status. The Arbitrator finds that Petitioner’s need for a toral knee replacement is a natural consequence that flowed from her work injury and the resulting arthroscopic surgery of August 28, 2018.
  • 25. Page 24 WITH RESPECT TO DISPUTED ISSUE WHETHER PETITIONER IS ENTITLED TO TEMPORARY DISABILITY BENEFITS SUBSEQUENT TO NOVEMBER 8, 2018, THE ARBITRATOR FINDS AS FOLLOWS: In the Request for Hearing form, the parties stipulated under Section 8 of the from that TTD was not at issue. It appears that all TTD due and owing prior to November 8, 2018 was paid for which Respondent is entitled to credit of $8,258.08. However, in Section 13 of the form, the parties represented that Petitioner’s entitlement to “TTD benefits subsequent to November 8, 2018” is a disputed issue. (ARB X 1) The Arbitrator notes that no evidence was introduced that Petitioner was temporarily totally disabled from November 8, 2018 to the date of hearing, and, therefore, awards none. It is unclear, but if the Petitioner is seeking an award for prospective TTD, the Arbitrator lacks authority to make such an award. Although it would be implied that Petitioner most likely would be entitled to TTD benefits, if she is authorized off work if and when she undergoes the total knee replacement, it would be speculative at the juncture. Therefore, the Arbitrator does not award prospective TTD benefits. Accordingly, the Arbitrator does not award to temporary total disability benefits subsequent to November 8, 2018.