Parkshore Estates Nursing & Rehab. Ctr. v. Ill. Workers' Comp. Comm'n

2017 IL App (1st) 161488WC-U

PARKSHORE ESTATES NURSING & REHABILITATION CENTER, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (John Gebert, Appellee).

NO. 1-16-1488WC

APPELLATE COURT OF ILLINOIS FIRST DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

June 30, 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 Circuit Court of Cook County

No. 15L50609

Honorable Carl Anthony Walker, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

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

ORDER

¶ 1 Held: (1) The Commission's determination that claimant was entitled to permanent and total disability benefits under an odd-lot theory was not against the manifest weight of the evidence.

(2) The employer failed to establish that the manner in which claimant's workers' compensation claim proceeded to arbitration violated its due process rights.

¶ 2 Claimant, John Gebert, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2010)), seeking benefits from the employer, Parkshore Estates Nursing & Rehabilitation Center. Following a hearing, the arbitrator found claimant sustained an accident that arose out of and in the course of his employment and awarded him (1) medical expenses of $148,259.64; (2) 63-2/7 weeks' temporary total disability (TTD) benefits; (3) 73-6/7 weeks' maintenance benefits; and (4) permanent and total disability (PTD) benefits for life, beginning July 10, 2014. On review, the Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Cook County confirmed the Commission. The employer appeals, arguing (1) the Commission's award of PTD benefits was against the manifest weight of the evidence and (2) its due process rights were violated when the case proceeded to arbitration shortly following a change in the employer's legal counsel. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On July 9, 2014, the arbitration hearing was conducted. Claimant testified he worked for the employer for 10 years and was a maintenance supervisor. He was responsible for building maintenance, which included "plumbing, electrical, carpentry, tiling, [and] heating and air conditioning" work. Claimant testified he completed high school only through the ninth grade and never obtained a general equivalency diploma (GED). Prior to working for the employer, he worked for his father's fencing company, installing fences, as well as on a "travelling" maintenance team for multiple nursing homes.

¶ 5 Claimant asserted, on November 22, 2011, he injured his back while painting at work. Specifically, he stated he "bent down to pick up a five gallon [container of] paint" and experienced "sharp pains *** across [his] back," which "put [him] on [his] knees." At the time of his alleged accident, claimant was 39 years old.

¶ 6 The day of his accident, claimant sought emergency medical care at South Suburban Advocate Hospital. Hospital records show he complained of lower back and right wrist pain.

Claimant was diagnosed with an acute back strain and acute right wrist sprain. He was also taken off work and told to follow up with his primary care physician.

¶ 7 On November 28, 2011, claimant saw Dr. Zaki Anwar, an interventional pain management specialist. He provided a history of his work accident and complained of pain across his back "mostly from the right side radiating towards the left side and also radiating to the right side of the hip." Dr. Anwar recommended a diagnostic magnetic resonance imaging (MRI) scan and physical therapy. He also took claimant off work. The same day, claimant underwent an MRI of his lumbar spine, which demonstrated "[l]umbar spondylosis with multilevel neuroforaminal and annular disc bulging contributing to neuroforaminal narrowing bilaterally at multiple levels" and "[m]ultilevel trefoil central canal narrowing[,] which appear[ed] most prominent at the L2-L3 level."

¶ 8 Following claimant's MRI, Dr. Anwar recommended injections for claimant's lower back, which claimant underwent in January, February, and March 2012. Dr. Anwar also prescribed medication and continued claimant off work. Additionally, from December 6, 2011, through March 8, 2012, claimant underwent a course of physical therapy.

¶ 9 On March 29, 2012, Dr. Anwar noted claimant "continue[d] to suffer from worsening intractable low back pain[,] which [was] mostly discogenic in nature." He recommended a lumbar discogram, which claimant underwent on April 20, 2012. The same day, a post-discogram CT scan was performed on claimant's lumbar spine and showed left-sided disc herniations at both the L4-L5 and L5-S1 levels of claimant's spine. On April 26, 2012, Dr. Anwar diagnosed claimant with left-sided disc herniations at L4-5 and L5-S1. He determined claimant was "a candidate for an outpatient microdiscectomy or outpatient plasma disc decompression." Dr. Anwar further found that, due to claimant's weight, 320 pounds, he was not agood candidate for any kind of invasive spinal surgery. He also continued claimant off work.

¶ 10 On October 1, 2012, claimant saw Dr. Ronald Michael for a neurosurgical consultation pursuant to a referral from Dr. Anwar. Dr. Michael diagnosed claimant with a herniated disc and discogenic pain at L4-L5. He identified claimant's options as (1) learning to live with his pain and accept it; (2) surgery, which he noted claimant wished to avoid; and (3) an "intermediate option" of a plasma disc decompression, which Dr. Michael opined "would be reasonable." At arbitration, claimant testified he did not go through with the surgery recommended by Dr. Michael because the risk was too high due to his weight.

¶ 11 On October 22, 2012, claimant underwent a functional capacity evaluation (FCE). The FCE report stated claimant demonstrated "functional capabilities most consistent with a Modified LIGHT Physical Demand Level."

¶ 12 On November 12, 2012, claimant followed up with Dr. Anwar. Dr. Anwar recommended an outpatient microdiscectomy at L4-L5 as claimant's "best option." On November 28, 2012, claimant underwent an outpatient lumbar microdiscectomy. He testified he felt "[a]bout the same" following that procedure.

¶ 13 On January 25, 2013, claimant underwent a second FCE, which found he demonstrated capabilities "to be most consistent with the LIGHT Physical Demand Level." Specifically, the FCE report stated claimant could occasionally lift 21 pounds from desk to chair, lift 17 pounds from chair to floor, press 24 pounds above his shoulder, push 74 pounds, pull 49 pounds, and carry 17 pounds. Claimant's job with the employer was described as a "MEDIUM Physical Demand Level position," which was beyond the level of claimant's capabilities. Further, the FCE report stated as follows:

"[Claimant] had the most difficulties with prolonged sitting and standing, lifting, kneeling and stair climbing. He reports that he completed a course of physical therapy some time ago with minimal objective results. *** At this time, it is recommended that he return to his MD to discuss all available options. He may benefit from participation in a daily work conditioning program in order to facilitate a safe return to full[-]duty work."

¶ 14 On February 7, 2013, claimant followed up with Dr. Anwar. Dr. Anwar noted claimant's January 2013 FCE suggested claimant could perform only light-duty work and was "not capable of working [at] his current job level due to medium demand level requirements." He released claimant to return to work with restrictions of no lifting, carrying, pushing, or pulling greater than 20 pounds.

¶ 15 The record reflects claimant continued to follow up with Dr. Anwar in 2013 and 2014, and continued to report pain in his lower back. At arbitration, he stated his lower back continued to hurt and affect his daily activities. Claimant testified, prior to his accident, he loved to be outside, fishing, hunting, and riding his motorcycle. However, he maintained he could no longer perform those activities because he was in too much pain.

¶ 16 Claimant testified he had not worked since the day of his accident. Following his January 2013 FCE, he contacted the employer about returning to work but received no response. In March 2013, he made a request to the employer for vocational rehabilitation but, ultimately, never received any assistance in finding employment from the employer.

¶ 17 From March 17, 2013, to May 13, 2014, claimant conducted a self-directed job search. He stated he searched for jobs online and visited places in his neighborhood. Claimant asserted he filled out applications with various potential employers, including "stores, gas sta-tions, [and] Menards." Additionally, claimant testified he kept track of potential employers he contacted and submitted an exhibit at arbitration containing his job search records. Claimant's records indicate he made contact with over 300 potential employers between March 2013 and May 2014. He testified he looked for both part-time and full-time work within his restrictions. However, his job search did not result in any interviews and, according to claimant's records, several potential employers asserted they would not hire someone with work restrictions.

¶ 18 Claimant testified, on the day of arbitration (July 9, 2014), his attorney showed him a letter from the employer that concerned an offer of employment. The letter was dated June 26, 2014, and offered claimant full-time employment as an assistant maintenance supervisor at his previous salary. He stated the letter did not describe the work or tasks he would be performing. Additionally, claimant asserted that, in the 10 years he worked for the employer, the position of assistant maintenance supervisor did not exist. Rather, the maintenance...