Abf Freight Sys., Inc. v. Ill. Workers' Comp. Comm'n

2018 IL App (4th) 170737WC-U

ABF FREIGHT SYSTEMS, INC., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al.(Bradley Wildermuth, Appellee).

NO. 4-17-0737WC

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

May 2, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 16MR668

Honorable Paul G. Lawrence, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Holdridge and Justices Hoffman, Hudson, and Barberis concurred in the judgment.

ORDER

¶ 1 Held: The Commission committed no error in awarding claimant vocational rehabilitation and maintenance benefits.

¶ 2 On March 22, 2013, claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), seeking benefits from the employer, ABF Freight Systems, Inc. Following a hearing, the arbitrator determined claimant sustained a compensable, work-related injury and awarded him vocational rehabilitation benefits and maintenance benefits of $469.29 per week, beginning May 15, 2015. On review, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision without further comment. On judicial review, the circuit court of McLean County confirmed the Commission's decision. The employer appeals, arguing the Commission erred in awarding claimant maintenance and vocational rehabilitation benefits and that such an award was improper under section 19(d) of the Act (820 ILCS 305/19(d) (West 2012)). We affirm.

¶ 3 I. BACKGROUND

¶ 4 At arbitration, claimant testified he was 45 years old. He described his education level as being "[h]igh school, GED." Claimant stated he had been a truck driver for the majority of his life. However, he also tended bar for seven years and bought and ran a restaurant. He still owned the restaurant but it was not open. In January 2011, he began working for the employer as a "[c]hecker/driver." Claimant testified his job duties were "[t]o work the dock and deliver freight throughout the day in a truck." He described the work he performed with his hands as including opening "all the bay doors"; getting freight ready; loading the trucks; using a pallet jack, two-wheeler, or fork truck; hooking up the trailers; bringing landing gear up; and shutting doors.

¶ 5 On January 9, 2012, claimant was injured at work while making a delivery at a Burger King. He testified he had to unload four large monitors and "caught" his right index finger in a "two-wheeler," i.e., a hand truck used to move freight. Claimant experienced a "really hot burning sensation" and his finger swelled. He reported his injury to his supervisor but continued with his work.

¶ 6 The same day as his accident, claimant sought medical care at Genesis Convenient Care. He underwent x-rays that showed no acute fracture and was given a splint and Ibuprofen. The following day, claimant began a course of treatment at Genesis Occupational Health. Initially, claimant was given work restrictions and received a recommendation for physical therapy. Medical records reflect he reported that he was unable "to return to his regular driving condition until he ha[d] full use and function of his hand due to the demands of loading and unloading, as well as the mechanism of shifting." On April 17, 2012, claimant saw Dr. Rick Garrels,who diagnosed him with a "[r]ight 2nd metacarpophalangeal joint sprain" and chronic arthritis. Dr. Garrels recommended claimant resume regular work, stating he did "not see anything further to offer [claimant] treatment-wise."

¶ 7 On April 19, 2012, claimant visited Dr. Even Kvelland, his family physician, for a second opinion with respect to his right hand injury. Claimant provided a history of his work accident and reported that he experienced symptoms including reduced motion, swelling, impairment of the normal function of the thumb and index finger, and tenderness with right hand motion. Dr. Kvelland referred claimant to Dr. Tyson Cobb, an orthopedic surgeon.

¶ 8 On May 2, 2012, claimant saw Dr. Cobb for the first time and provided a history of injuring his right index finger at work in January 2012. Following an examination, Dr. Cobb's impression was a "[r]ight index MP sprain with probable ulnar collateral ligament tear." He recommended surgery and light-duty work restrictions.

¶ 9 On June 11, 2012, Dr. Cobb performed surgery on claimant in the form of a right index MP arthroscopy with synovectomy and debridement. Following surgery, claimant continued to follow up with Dr. Cobb and was given work restrictions. He also underwent physical therapy. Claimant testified that his finger did not improve after his surgery and only worsened.

¶ 10 On February 28, 2013, Dr. Cobb discussed fusion surgery with claimant but stated that claimant was "very resistant." He further noted as follows:

"[Claimant] states that his anxiety level is extreme and the thought of having the joint held in a fixed position is 'freaking him out.' He previously cut his cast off that we placed on him because of extreme anxiety. He sees Dr. Kvelland for his anxiety and has taken medications for the same in the past. I have encouraged him to see Dr. Kvelland for potentially getting medicated. We discussed that fusionwould require a period of casting for protection. He apparently has not ever tolerated immobilization in the past."

¶ 11 Claimant testified his understanding of a fusion was that pins would be used to permanently fuse his finger in a straight position. He testified, however, that he suffered from obsessive compulsive disorder and claustrophobia. He did not like "closed spaces" and had "issues with being confined in any way." Claimant asserted he could not "have anything restricting [him]" and did not "think [he] could handle [his] finger being put straight." He believed that if his finger was fused he would "wake up in the middle of the night and try to break it." According to claimant, he had taken medication for his psychological conditions and they predated his work accident.

¶ 12 On March 6, 2013, claimant returned to Dr. Kvelland to discuss his anxiety and fears relating to the healing or repair of his right hand injury. In particular, Dr. Kvelland noted that recommendations of a fusion of claimant's finger into a straight position caused claimant "a great deal of consternation and dislike." Claimant also expressed that he could not tolerate the presence of a cast even though it might be beneficial to him. Dr. Kvelland suggested a psychiatry consult.

¶ 13 Claimant testified that, following his visit with Dr. Kvelland, he saw a therapist once or twice a week for six months. Claimant submitted records at arbitration, showing he began undergoing "mental health therapy" at Bridgeway Inc. on April 8, 2013, to assist him with managing his anxiety, panic disorder, and obsessive compulsive disorder symptoms.

¶ 14 On May 22, 2013, claimant followed up with Dr. Cobb, who recommended a hand-based orthoplast splint. The purpose of the splint was to simulate a fusion and test whether claimant could tolerate being restricted.

¶ 15 On June 6, 2013, claimant's therapist, Kurt Doyle, authored a letter regarding claimant's mental health condition. He noted that claimant had "ongoing panic and anxiety *** related to claustrophobia" and "struggle[d] with the thought of having his finger fused permanently." Doyle recommended that "other methods of treating [claimant's] finger be entertained." Further, he stated as follows:

"[Claimant] and I have discussed that Dr. Cobb *** suggested that a finger brace be used to simulate how his finger would be if permanently fused. My clinical concern is that with having [claimant's] finger fused permanently, not being able to move this finger[,] that this could cause him ongoing struggles with panic, personal safety issues[,] and the inability to get back to working the job he once had before his accident at work. It is my clinical opinion that the finger brace would be the least restrictive of options for [claimant] at this time and would follow the harm reduction approach to treatment."

¶ 16 Claimant testified that, in June 2013, he tried using the splint recommended by Dr. Cobb but he "psychologically" could not "get passed [sic] not being able to move [his] hand naturally." Claimant testified the splint did not help him because it gave him "more anxiety" and he continued to experience pain.

¶ 17 On September 3, 2013, Doyle authored another letter regarding claimant's mental health condition. He noted claimant was continuing to receive individual therapy and reiterated his concern that a finger fusion would cause claimant to struggle with "panic and personal safety issues." Again, Doyle believed that "the finger brace" was the least restrictive option for claimant. He stated that both he and claimant agreed that claimant "could return to work doing lighter duties successfully and accurately" while wearing the brace. Doyle opined claimant could not"cope with" having his finger fused permanently.

¶ 18 On September 4, 2013, claimant followed up with Dr. Cobb, who noted that claimant and Doyle had "decided that fusion is not in [claimant's] best interest because of his inability to control his anxiety associated with being confined in one spot." According to Dr. Cobb, claimant's splint seemed "to be reasonably comfortable and it alleviate[d] the anxiety related issue because [claimant could] pull it off when he ha[d] one of his anxiety attacks." He stated the final solution was to proceed with a functional capacity evaluation (FCE).

¶ 19 On December 10, 2013, claimant underwent an FCE at Kewanee Physical Therapy and Rehabilitation. His evaluator determined he demonstrated the ability to perform within the light physical demand level and noted claimant's job as...