Chi. Park Dist. v. Ill. Workers' Comp. Comm'n

2015 IL App (1st) 143185WC-U

CHICAGO PARK DISTRICT, Appellant, v. THE ILLINOIS WORKERS' COMPENSATIONCOMMISSION et al. (Robert McLean, Appellees).

NO. 1-14-3185WC

APPELLATE COURT OF ILLINOIS FIRST DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

December 23, 2015

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 Cook County

Nos. 14L50068 14L50113

Honorable James M. McGing, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

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

ORDER

¶ 1 Held: (1) The Commission's finding that claimant failed to establish his entitlement to permanent total disability benefits was not against the manifest weight of the evidence and the circuit court erred by reversing the Commission's decision.

(2) When finding claimant entitled to permanent partial disability benefits, the Commission erred in failing to consider claimant's entitlement to a wage differential award.

¶ 2 On January 17, 2008, claimant, Robert McLean, filed an application for adjustment of claim (case No. 08WC02385) pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2006)), alleging a work-related injury to his right knee that occurred on October 19, 2007, and seeking benefits from the employer, Chicago Park District. On August 18, 2008, he filed a second application (case No. 08WC35994), also seeking benefits from the employer but alleging a work-related injury to his right knee that occurred on July 22, 2008. His claims were consolidated and, following a hearing, the arbitrator found claimant sustained work-related accidents on both alleged accident dates. However, she also determined claimant's current condition of ill-being was causally related to only his July 2008 accident and denied claimant benefits associated with his October 2007 accident. In connection with his July 2008 accident, the arbitrator (1) ordered the employer to pay for vocational rehabilitation services claimant received; (2) awarded claimant 186-6/7 weeks' temporary total disability (TTD) benefits; (3) awarded claimant 1-5/7 weeks' maintenance benefits; and (4) awarded claimant permanent total disability (PTD) benefits for life, beginning December 15, 2012.

¶ 3 On review, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision with respect to claimant's October 2007 accident. However, with one commissioner dissenting, the Commission reversed the arbitrator's award of PTD benefits associated with claimant's July 2008 accident and, instead, awarded him permanent partial disability (PPD) benefits for a 60% loss of use of the person as a whole. The Commission otherwise affirmed and adopted the arbitrator's decision with respect to that accident.

¶ 4 On judicial review, the circuit court of Cook County reversed the Commission's denial of PTD benefits. The employer appeals, arguing the Commission's reversal of the arbitrator's award of PTD benefits and decision to, instead, award claimant PPD benefits for a 60% loss of use of the person as a whole was correct and not against the manifest weight of the evidence. Claimant disagrees, arguing he established his entitlement to PTD benefits. Alternatively, claimant maintains the Commission erred in failing to consider a wage differential award whenawarding PPD benefits. We reverse the circuit court's judgment but remand to the Commission with directions that it vacate the portion of its decision awarding claimant PPD benefits and determine claimant's entitlement to a wage differential award on the merits.

¶ 5 I. BACKGROUND

¶ 6 The arbitration hearing in this matter was conducted in November and December 2012. Claimant, who was 52 years old at the time of arbitration, testified he graduated from high school in 1978. Thereafter, he worked as a railroad switch man, a delivery man in the parts department of a car dealership, and a union laborer for two construction companies. In May 1988, claimant began working for the employer as "a building construction laborer," which he described as a union job that received union scale pay. His job duties involved "working with all trades except electricians" and included activities such as digging holes, stretching fences, putting in fence posts, tearing up flooring by hand, and unloading trucks. Claimant testified he received no specialized training through either the employer or the union. Further, he worked for the employer until October 10, 2012, when he was terminated from his employment.

¶ 7 In August 1993, claimant injured his right knee while working for the employer. The parties entered into a settlement agreement pursuant to which claimant received benefits for a 20% loss of use of his right leg.

¶ 8 Claimant testified that, while working on October 19, 2007, and driving a pickup truck owned by the employer, he was involved in a motor vehicle accident. He stated another driver ran a red light and he was "broadsided." The impact from the collision drove his right knee into the steering column of his work vehicle. Following the accident, claimant noticed swelling in his right knee and sought medical treatment. He testified he was taken off work and, on October 25, 2007, began seeing Dr. Dirk Nelson, who continued him off work. On Novem-ber 9, 2007, claimant underwent a magnetic resonance imaging (MRI) at Dr. Nelson's recommendation.

¶ 9 On December 5, 2007, Dr. Nelson performed arthroscopic surgery on claimant's right knee. The record reflects his postoperative diagnosis was "[m]edial meniscal tear, right knee plus patellofemoral athrosis, grade III." Claimant testified he continued to follow up with Dr. Nelson after surgery. Dr. Nelson kept claimant off work and prescribed physical therapy. Ultimately, he authorized claimant to return to regular-duty work on February 4, 2008. Claimant testified he returned to full-duty work for the employer and experienced only "[a]verage aches and pains" in his right knee.

¶ 10 Claimant stated he continued to perform his regular work duties for the employer without incident until July 22, 2008. On that date, he was "pull[ing] benches" for the employer, which required him to "dig around the bench bottom *** and then physically pull them out." Claimant testified he was using a shovel to dig a bench out, his right foot slipped off the shovel, and he "felt a twist in [his right] leg and a pop" in his right knee. He stated his right knee began to swell.

¶ 11 Claimant testified he reported the incident to his boss and sought medical treatment the same day. Medical records show claimant provided a history of his work accident and reported right knee pain. He was initially diagnosed with a right knee sprain and taken off work. On August 12, 2008, claimant was referred to Dr. Brian Cole at Midwest Orthopedics, whom he began seeing on August 25, 2008. Dr. Cole noted claimant had a recent MRI that demonstrated degenerative joint disease and a degenerative medial meniscus tear. Dr. Cole prescribed claimant medication, gave him a cortisone injection in his right knee, and took him off work for a couple of days.

¶ 12 Claimant testified, on September 2, 2008, he returned to work but his right knee felt "[l]ike a throbbing toothache." On September 29, 2008, he followed up with Dr. Cole, who recommended surgery but also stated claimant could "continue to work full duty, no restrictions." However, Dr. Cole subsequently revised his recommendation and restricted claimant to sedentary work. Claimant testified he performed light-duty work until November 5, 2008, when Dr. Cole performed surgery on his right knee in the form of a diagnostic arthroscopy and debridement of a medial meniscal tear. After surgery, claimant was taken off work and continued to follow up with Dr. Cole, who provided him with a series of injections in his right knee. From November 21, 2008, through January 30, 2009, he also underwent physical therapy at Dr. Cole's recommendation.

¶ 13 Claimant testified, on February 5, 2009, he followed up with Dr. Cole. He stated, at that time, he continued to experience pain in his right knee that was a 7 or 8 out of 10. Dr. Cole noted claimant's pain was "debilitating" and narcotic medication had not helped. He referred claimant to Dr. Brett Levine at Midwest Orthopedics and found claimant "capable of a desktop job only with no squatting, kneeling[,] or climbing." Claimant testified, on February 20, 2009, he returned to work for the employer.

¶ 14 On March 2, 2009, claimant began seeing Dr. Levine. Dr. Levine noted claimant had a history of multiple right knee arthroscopies and old radiographs that showed some degenerative joint disease. He opined claimant was a good candidate for knee replacement surgery.

¶ 15 On April 22, 2009, claimant was examined by Dr. Ira Kornblatt at the employer's request. He complained "of ongoing pain and weakness with giving out of the right knee." Dr. Kornblatt noted claimant had suffered multiple injuries to his right knee and his "recent injury of [July] 2008 was an acute episode in the face of chronic osteoarthritis." He opined claimant's July2008 accident "resulted in an aggravation of [claimant's] preexisting arthritis" and "likely accelerated [claimant's] need for [a] total knee arthroplasty." Dr. Kornblatt further opined that claimant had a "significant disability" and stated claimant was "capable only of doing a desk job[,] which he is doing at the present time."

¶ 16 On July 16, 2009, Dr. Levine performed a total right knee arthroplasty on claimant. Claimant testified, following surgery, he underwent physical therapy, continued to follow up with Dr. Levine, and was off work. He stated the condition in his knee did not improve and he continued to experience pain. On October 9, 2009, claimant had manipulation while under anesthesia at Dr....