Bejarano v. Ill. Workers' Comp. Comm'n

2017 IL App (2d) 150963WC-U

MANUEL BEJARANO, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al.(John Henry Homes, Appellee).

No. 2-15-0963WC

APPELLATE COURT OF ILLINOIS SECOND DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

February 9, 2017

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 the Circuit Court of Kane County.

No. 14 MR 1347

Honorable David R. Akemann, Judge, presiding.

JUSTICE MOORE delivered the judgment of the court.

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

ORDER

¶ 1 Held: Commission's decision affirmed where its determinations that the claimant reached MMI on March 30, 2009, that his current condition of ill-being was not causally connected to his workplace accident, that he was not due any unpaid medical benefits after March 30, 2009, and that he was not entitled to TTD benefits from March 30, 2009 through August 13, 2013, were not against the manifest weight of the evidence.

¶ 2 FACTS

¶ 3 The claimant, Manuel Bejarano, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) against his employer, John Henry Homes, seeking benefits for a back injury arising from a work accident on June 14, 2007. The claim proceeded to an arbitration hearing under section 19(b) of the Act (820 ILCS 305/19(b) (West 2008)). The following factual recitation is taken from the evidence presented at the August 13, 2013, arbitration hearing. The claimant testified in Spanish through an interpreter. He cannot read or write English and speaks "just a little bit" of English. He testified that the last grade he completed was 4th or 5th grade in Mexico. He described his ability to read and write in Spanish as "so so."

¶ 4 The claimant stated that he had worked as a laborer for the employer for 16 years. His job duties included plumbing, electrical, carpentry, cleaning, mowing grass, and caring for his boss' pets when his boss was out of town. He regularly lifted 100 to 150 pounds.

¶ 5 The claimant testified that on June 14, 2007, he and three co-workers were lifting a 400 to 500 pound rock. His co-workers let it go slightly, and he had to bear more weight. He fell and could not get up. He experienced terrible pain in his back. His boss, John Henry Simbriski, arrived around the time of the accident, noticed that he was in pain, and told him to go home and take Motrin.

¶ 6 The claimant testified that he continued to work with pain, and Simbriski eventually sent him to Dr. William Hestrup, a chiropractor. He underwent physical therapy, massage, and ultrasound with Dr. Hestrup.

¶ 7 On July 27, 2007, Dr. Hestrup examined the claimant. He diagnosed the claimant with lumbosacral sprain/strain, lumbosacral radiculopathy, left sciatica, and lumbar subluxation.

¶ 8 On August 10, 2007, the claimant had X-rays of the lumbar spine. Dr. Kenneth Sullivan wrote in his report that there were no degenerative changes or destructive lesions and that the sacroiliac joints were normal.

¶ 9 On August 13, 2007, the claimant had an MRI of his lumbar spine. Dr. Sullivan diagnosed the claimant with degenerative disc changes at L5-S1 associated with broad-based central disc bulging and an annular tear, as well as mild facet arthropathy on the right at L3-L4.

¶ 10 In a progress note dated August 31, 2007, Dr. Hestrup noted that the claimant's progress had improved from guarded to fair and that if he continued to improve while doing light work, his progress would be upgraded to good. Dr. Hestrup anticipated releasing the claimant from care in four to six weeks barring any complications.

¶ 11 The claimant testified that Dr. Hestrup referred him to Dr. John Mazur. Dr. Mazur examined the claimant on October 11, 2007, for complaints of low back pain radiating into both buttocks and both legs. In his patient notes, Dr. Mazur wrote that the claimant denied having low back pain prior to June 14, 2007, when he hurt his back unloading a huge stone with co-workers. Dr. Mazur wrote that the claimant reported that he was referred by his employer. Dr. Mazur reviewed the claimant's X-rays taken on August 10, 2007, and his lumbar MRI scan performed on August 13, 2007. Dr. Mazur wrote that, based on his review of the claimant's records, the claimant had facet joint arthropathy on the right side at L3-L4 and minor degenerative changes at L5-S1 with no impingement upon any nerve roots or on the dural sac. Dr. Mazur noted that the claimant had diabetes and stated that he drank vinegar for it but took no medication. Dr. Mazur reported that there were no localizing neurological findings and that the area of diminished scratch sensation could not be explained on an anatomical basis. He concluded that there was no evidence of an injury on the claimant's MRI scan or during his examination. He encouraged the claimant to resume his usual activities and released him to return to work without restrictions.

¶ 12 The claimant testified that he then went to his primary care physician, Dr. Jose Trevino, who referred him to Dr. Daniel Laich, a neurosurgeon.

¶ 13 Dr. Daniel Laich testified by evidence deposition. He stated that he first examined the claimant on October 22, 2007, for low back and leg pain that started in June 2007, while lifting a 450 pound rock with three other people. In his patient notes, Dr. Laich wrote that the claimant was working full time with restrictions on lifting more than 20 pounds. The claimant reported that, after working one to two hours during a regular work day, his pain symptoms flared. He described his pain as "pulsating pain pressure injecting pain, much pain, legs fall asleep, tingling feeling start in back and goes down torso then legs." Dr. Laich testified that he examined the claimant and found that he was in no acute distress; he had a normal affect and normal gait to ambulation; he could hop on the left and right foot comfortably; his range of motion in his cervical spine was appropriate; and his lumbar spine was limited in flexion. Dr. Laich reviewed the claimant's August 10, 2007, X-rays and his August 13, 2007, MRI scan. Dr. Laich diagnosed him with low back pain, bilateral lower extremity pain radiating from his back to buttock posterior lateral to the plantar aspect to his left greater than right lower extremity, and degenerative disc disease at L5-S1 with dehydration and hyperintensity zone. Dr. Laich recommended a rigorous course of physical therapy and weight loss and authorized the claimant to continue working with restrictions.

¶ 14 Dr. Laich testified that he examined the claimant on December 13, 2007. In his patient notes, Dr. Laich noted that the claimant did not have a focal neurologic deficit. Dr. Laich wrote that the claimant reported that his work activities now included snow plowing, which had caused an increase in his back pain. Dr. Laich diagnosed the claimant with degenerative disease of the lumbar spine greatest at L5-S1. Dr. Laich recommended that the claimant continue with conservative measures because he was improving and recommended that he discontinue work for one month.

¶ 15 Dr. Laich testified that he examined the claimant on January 17, 2008, for low back pain and left lower extremity pain that radiated distally traveling into the heel and the plantar aspect of his left foot with associated numbness and tingling. The claimant reported that he felt that he was not progressing with physical therapy and that he was unable to participate in all that he desired to do in life including work. In his patient notes, Dr. Laich noted that the claimant had increased pain with forward flexion and with lumbar extension that had changed from his prior visit. There was no sacroiliac notch tenderness. Dr. Laich diagnosed the claimant with dysfunction motion segment instability secondary to degenerative disc disease primarily at L5-S1. Dr. Laich suggested facet injections.

¶ 16 On February 13, 2008, Dr. Yuan Chen gave the claimant a lumbar facet injection bilaterally. On February 27, 2008, Dr. Chen performed a lumbar discogram at L3-L4 and L4-L5 and a functional anesthetic discogram at L5-S1, which showed that L5-S1 was most likely the source of the claimant's pain. On February 27, 2008, the claimant had a CT scan of his lumbar spine.

¶ 17 Dr. Laich testified that he examined the claimant on February 29, 2008. He found the claimant neurologically stable to the lower extremity. Forward flexion caused the claimant significant pain. The claimant had no sacroiliac pain, and extension of the lumbar spine did not promote pain but only caused tightness. In his patient notes, Dr. Laich wrote that the claimant had the recommended testing with Dr. Chen including multi-level facet injections, which provided no benefit. The provocative and functional discography revealed L3-L4 to be negative both to concordant pain and radiographic finding and L5-S1 to be positive to concordant pain and radiographic finding with some relief with anesthetic discography. He noted that L3-L4 showed some vacuum phenomenon very slight on the right. There was degenerative disease. He diagnosed the claimant with low back pain and bilateral lower extremity pain, which radiated down from the low back into the buttocks progressing into the plantar aspect of the feet, left greater than right. He further diagnosed the claimant with dysfunctional motion segment instability at L5-S1 and degenerative facet disease at L3-L4, which was not currently a pain generator. He recommended an anterior decompression of L5-S1 with reconstruction. Dr. Laich testified that the claimant's back problems related to his June 14, 2007, work accident.

¶ 18 On May 28, 2008, Dr. Laich performed an L5-S1 anterior discectomy, an L5-S1 placement of Stalif cage with bone morphogenetic protein arthrodesis, and an L5-S1 stabilization on the claimant.

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