Lynch Constr. Corp. v. Ill. Workers' Comp. Comm'n

2013 IL App (2d) 120876

LYNCH CONSTRUCTION CORP., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, (Donald Minorini), Appellees.

NO. 2-12-0876WC

APPELLATE COURT OF ILLINOIS SECOND DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Dated: November 18, 2013

NOTICE

Decision filed November 18, 2013. . The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or

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 Lake County.

No. 11-MR-2035

Honorable Christopher Starck, Judge, presiding.

JUSTICE STEWART delivered the judgment of the court.

Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in

the judgment.

ORDER

¶ 1 Held: The Commission's determination that the claimant was permanently and totally disabled under the odd-lot category was not against the manifest weight of the evidence.

¶ 2 The issue in this case is whether the finding of the Illinois Workers' Compensation Commission (the Commission) that the claimant, Donald Minorini, is permanently and totally disabled pursuant to section 8(f) of the Illinois Workers' Compensation Act (the Act), 820ILCS 305/8(f) (West 2010), is against the manifest weight of the evidence.

¶ 3 The claimant worked as a project manager for the employer, Lynch Construction Corp. On May 6, 2003, the claimant was involved in a work-related accident when he slipped and hyperextended his right knee. The claimant then underwent three failed knee replacement surgeries. The claimant declined to undergo a fourth attempt at a right knee replacement. The arbitrator found that the claimant was permanently and totally disabled as a result of the conditions of his right knee caused by the workplace accident. The Commission affirmed and adopted the arbitrator's award of permanent and total disability (PTD) benefits. The circuit court entered a judgment that confirmed the Commission's decision, and the employer now appeals the circuit court's judgment.

¶ 4 BACKGROUND

¶ 5 The claimant's work for the employer as a project manager required him to perform all phases of custom home construction, from concrete work to building custom cabinetry. He had to walk in mud, climb ladders, and carry objects. The claimant's accident occurred on May 6, 2003, when he slipped on mud and hyperextended his right knee. On May 15, 2003, he saw Dr. Chams. Dr. Chams' impression was that there was a tear of the medial meniscus or an anterior cruciate ligament (ACL) tear. An MRI showed an ACL tear as well as preexisting tricompartmental osteoarthritis, calcified loose bodies, and joint effusion.

¶ 6 On August 5, 2003, at the request of the employer, Dr. Zoellick examined the claimant. Dr. Zoellick concluded that there was a work-related tear of the medial meniscusand that the claimant also had significant preexisting tricompartmental arthritis of the knee. Dr. Zoellick also noted that the claimant had an ACL tear, but he believed that to be unrelated to the claimant's work.

¶ 7 On September 8, 2003, Dr. Chams performed surgery to repair the right medial and lateral medial tears in the claimant's right knee as well as degenerative arthrosis of all three compartments. The claimant's recovery after the surgery did not go well, and he continued to have discomfort in his knee. Therefore, the claimant underwent a total right knee replacement surgery on May 7, 2004, performed by Dr. Chams. Again, after the knee replacement surgery he continued to experience pain and swelling in his right knee. He worked light duty and underwent prescribed physical therapy.

¶ 8 On September 22, 2005, the claimant began treating with Dr. Shapiro. The claimant complained of constant aching, sharp to moderate pain, stiffness, and swelling in the right knee. Dr. Shapiro ordered a revision surgery for the right knee. On September 27, 2005, the claimant underwent a second knee replacement because the first joint replacement had failed. The claimant lost significant range of motion in his knee after the operation and continued to complain of right knee pain. The claimant's records indicate that his limited range of motion might have been caused by scar tissue in the knee. On November 11, 2005, Dr. Shapiro performed manipulation of the knee under anesthesia.

¶ 9 Dr. Bush-Joseph conducted an evaluation of the claimant on January 31, 2006. Dr. Bush-Joseph wrote in his report that the claimant "most likely had preexisting asymptomaticosteoarthritis of his right knee that allowed him to function normally in both his work occupation and activities of daily living." He opined that the work accident produced "objective findings and necessitated treatment." The doctor concluded that the claimant's May 6, 2003, work-related accident contributed to the claimant's need for the right knee surgeries and accelerated his preexisting osteoarthritis of his knee. He felt that the claimant was at maximum medical improvement (MMI) with regards to the function of his right knee.

¶ 10 The claimant followed up with Dr. Shapiro on March 20, 2006. At that time, the claimant suffered from lateral pain and swelling in his knee, and he reported that his pain had gotten worse over the last couple of weeks. Dr. Shapiro aspirated the right knee and prescribed a bone scan. The bone scan suggested a loosening of the tibial tray. On April 10, 2006, Dr. Shapiro opined that the claimant needed another revision surgery to revise the tibial component.

¶ 11 The claimant returned to Dr. Bush-Joseph on November 7, 2006. In his report, the doctor wrote that the bone scan showed "some increased uptake at the tibial prosthesis bone interface but no obvious evidence of loosening." According to the doctor's report, the claimant continued to work "with deteriorating function and increasing pain." Dr. Bush-Joseph acknowledged in his report that he was not a joint replacement expert, but opined that he did not think that the claimant's prosthesis was loose. He believed that the claimant's symptoms were the result of mechanical overload and that the claimant could not "tolerate the high levels of work, standing and climbing that his current occupation and job require."

He referred the claimant to his associate, Dr. Sporer, who is an expert in revision joint replacement surgery.

¶ 12 The claimant saw Dr. Sporer on December 13, 2006. At that time, the claimant reported significant knee pain. The claimant's knee pain worsened with prolonged standing, walking, and sitting. Dr. Sporer reported that x-rays showed an aseptic loosening of the right tibial component. He aspirated the knee, took a culture to rule out an infection, and prescribed another right knee replacement.

¶ 13 On January 29, 2007, the claimant underwent a third right knee replacement. The claimant discontinued working light-duty for the employer one week prior to this surgery and has not worked since then. In his notes dated April 27, 2007, Dr. Sporer noted that the claimant was functioning at a very high level until two weeks prior, but the claimant "overdid" it and started noticing increased pain and discomfort in the right knee. Dr. Sporer felt that the pain was due to the over exertion that the claimant placed on the knee shortly out of surgery, but overall, the claimant was having a gradual resolution of the pain and discomfort, and the doctor was happy with the result.

¶ 14 On June 13, 2007, Dr. Sporer noted that the claimant was experiencing increased knee pain. At that time, the doctor felt that the increased pain was secondary to the physical therapy which was causing a breakup of scar tissue that had formed after multiple knee surgeries. He prescribed a Functional Capacity Evaluation (FCE) which took place on July 5, 2007.

¶ 15 The evaluator who conducted the FCE noted that the claimant could lift 19.2 pounds from 30 to 63 inches, 21 pounds from 18 to 30 inches, and 23 pounds from the floor to 18 inches. The claimant could push/pull 54 pounds and carry 17 pounds in either arm. The evaluator found that the claimant's tolerance for sitting and standing was limited to 15 minute durations and that his work tolerance was two to three hours per day. The evaluator stated that the claimant gave full effort during the evaluation, and the results represented the claimant's safe capability level.

¶ 16 Approximately a week after the FCE, the claimant followed up with Dr. Sporer. Dr. Sporer's notes from July 13, 2007, state that the claimant was given a work restriction form that day. Dr. Sporer's July 13, 2007, work restriction form, however, is not included in the record on appeal. A later report by Dr. Zoellick states that Dr. Sporer's work restrictions following the July 2007 FCE were as follows: "returning to work with frequent lifting up to 10#, occasional lifting up to 20# and no kneeling, climbing ladders with occasional bending, stooping, working with machines and climbing stairs or scaffolds." In addition, according to Dr. Zoellick's report, Dr. Sporer did not mention a work tolerance of 2 to 3 hours per day in his work restrictions. The Commission found that Dr. Sporer did not expressly state in his medical reports and records that the claimant was limited to two to three hours of work at a time. The Commission, however, assumed that the doctor agreed with that limitation because he had sent the claimant for the FCE.

¶ 17 On September 12, 2007, Dr. Sporer noted an increase in pain and discomfort in theclaimant's right knee. The doctor noted tenderness along the knee cap area and the lateral side of the knee up to the thigh. X-rays showed that the knee's components were in good position and well fixed. In November 2007, Dr. Sporer noted that the claimant continued to have a large effusion of the right knee with limited range of motion. He noted radiolucency beneath the tibial base plate. He aspirated the knee and gave the claimant a...