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

2017 IL App (4th) 160231WC-U

LAURA PEVERELLE, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Gibson Area Hospital, Appellee).

NO. 4-16-0231WC

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

May 31, 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 Ford County

No. 15MR30

Honorable Matthew John Fitton, 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: The Commission's finding that claimant was not entitled to temporary total disability benefits during a portion of her claimed period of temporary total disability was against the manifest weight of the evidence.

¶ 2 On May 1, 2013, claimant, Laura Peverelle, 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, Gibson Area Hospital. Following a hearing, the arbitrator determined claimant sustained accidental injuries arising out of and in the course of her employment on December 20, 2012, and awarded her (1) 72-3/7 weeks' temporary total disability (TTD) benefits from January 8, 2013, through May 30, 2014; (2) medical expenses related to treatment for claimant's lumbar spine through May 30, 2014; and (3) prospective medical ex- penses in the form of an anterior L5-S1 fusion and the postoperative treatment recommended by one of claimant's doctors.

¶ 3 On review, the Workers' Compensation Commission (Commission) modified the arbitrator's TTD award, finding claimant was not entitled to an award of TTD from May 24, 2013, through January 9, 2014. It otherwise affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Ford County confirmed the Commission's decision. Claimant appeals, arguing the Commission erred in denying her TTD benefits from May 24, 2013, through January 9, 2014. We reverse and remand.

¶ 4 I. BACKGROUND

¶ 5 At the May 30, 2014, arbitration hearing, claimant testified she began working for the employer in October 2012. She held the position of surgical technician and her job duties included setting up for surgical procedures, assisting doctors during the procedures, helping move patients to the recovery bed, cleaning up the surgical room, and lifting in excess of 20 pounds. Claimant testified she was injured at work on December 20, 2012, while cleaning the surgical room. She stated she was moving a surgical bed into the hallway and, while pushing the bed, she "noticed something pull and shoot down [her] low back, into [her] legs."

¶ 6 Following her accident, claimant immediately sought medical treatment in the employer's emergency room. Medical records show she complained of low back pain and a "shooting sensation down both legs[,] mostly on the left." Claimant was diagnosed with a lower back strain with radicular symptomatology. Further, she was prescribed pain medication, given light-duty work restrictions, and told to follow up with her primary care doctor. With respect to her light-duty restrictions, claimant was told to "avoid bending, twisting, pushing or pulling over 25 pounds" and "[w]ork with 50% of the time sitting."

¶ 7 On December 28, 2012, claimant began seeing Dr. David Fletcher. She complained of lower back pain that radiated down her right leg as a result of her December 20, 2012, work accident. Dr. Fletcher diagnosed claimant with a lumbar strain and recommended physical therapy and modified-duty work of "no lifting over 20 [pounds] and no pushing/pulling more than 20 [pounds]." Claimant testified that, during physical therapy, she continued to experience pain and that "it was getting worse."

¶ 8 On January 2, 2013, claimant followed up with Dr. Fletcher and reported feeling the same but having increased pain at the time of her visit "due to being up more." Dr. Fletcher continued to recommend physical therapy and modified-duty work restrictions. On January 8, 2013, claimant reported an increase in radicular pain in her left leg and Dr. Fletcher noted claimant "was taken off work by her employer" until she followed up with him. He recommended a magnetic resonance imaging (MRI) scan of claimant's lumbar spine. Dr. Fletcher also continued to recommend physical therapy and modified-duty work restrictions. On January 10, 2013, claimant's MRI was performed, showing a "[p]osterior central disk protrusion at L5-S1 without nerve root impingement or significant foraminal compromise."

¶ 9 On January 14, 2013, claimant returned to see Dr. Fletcher and reported continued symptoms. Dr. Fletcher reviewed claimant's MRI and diagnosed her with a lumbar strain and L5-S1 disc herniation. He continued to recommend modified-duty work restrictions and physical therapy. Dr. Fletcher also referred claimant to Dr. Steven Thatcher for epidural steroid injections. Claimant testified she underwent two injections but they did not help her condition.

¶ 10 On February 12, 2013, claimant followed up with Dr. Fletcher, who found claimant had failed conservative treatment and needed a discectomy. He referred claimant to Dr. Kern Singh, an orthopedic spine surgeon. Dr. Fletcher also continued claimant's modified-duty workrestrictions but noted her "employer [was] not accommodating."

¶ 11 On March 18, 2013, claimant saw Dr. Singh. She reported experiencing a sudden onset of low back and left leg pain after pushing and pulling an operating room bed at work in December 2012. Claimant complained of low back pain that radiated into both lower extremities but which was worse on the left. Dr. Singh noted claimant reported pain that "comes on suddenly and is constant in nature." He stated claimant was currently not working. Claimant reported that standing, sitting, climbing, walking, stairs, and bending forward increased her pain and discomfort and Dr. Singh diagnosed her with "[d]egenerative disk disease, L5-S1" and a "[c]entral disk protrusion, L5-S1." Dr. Singh recommended "surgery in the form of an anterior lumbar interbody fusion, L5-S1." He identified claimant's ability to work and work restrictions as "per Dr. Fletcher." Further, he opined claimant's diagnoses and treatment were causally related to her alleged work accident.

¶ 12 On April 1, 2013, claimant followed up with Dr. Singh, who continued to recommend surgery. His records further stated claimant was unable to work.

¶ 13 At arbitration, the employer submitted a Physicians' Review Network report, dated April 3, 2013. In the report, Dr. Richard Erickson, an orthopedic surgeon, offered an opinion that fusion surgery at L5-S1 was not medically necessary for claimant.

¶ 14 On April 15, 2013, claimant returned to see Dr. Fletcher. He noted claimant was "no better" and needed surgery. Dr. Fletcher further stated as follows: "[Claimant] remains on modified work duty. Her restrictions are no lifting over 20 [pounds] and no pushing/pulling more than 20 [pounds]. Her employer is not accommodating."

¶ 15 On April 18, 2013, Dr. Singh authored a letter, stating he had reviewed the Physician Review Network report on claimant and disagreed with its conclusions. He continued torecommend surgery for claimant.

¶ 16 On May 14, 2013, claimant was evaluated at the employer's request by Dr. Robert Beatty, a neurosurgeon. At arbitration, the employer submitted Dr. Beatty's report and deposition, taken February 24, 2014, into evidence. Dr. Beatty opined claimant had degenerative lumbar disc disease, which was present before her December 2012 work accident. He found claimant's ongoing back problem was related to her preexisting degenerative changes and not her work accident. Dr. Beatty also determined claimant had reached maximum medical improvement (MMI) with respect to her December 2012 work injury. Further, although he opined Dr. Singh's surgical recommendation was "a reasonable suggestion" in view of claimant's pain and her resistance to conservative treatment, he asserted the proposed surgery was related to claimant's preexisting condition and not her December 2012 work accident. In his report, Dr. Beatty further opined as follows:

"It is my opinion that [claimant] is not able to return to work to her former full duties as a surgical tech because of her lower back pain. However, the inability to return to work full duty is a result of the pre-existing degenerative lumbar disc disease and is not related to the work injury. In my opinion, she can return to work with modified duty, limiting bending to no more than once per hour and lifting no more than 20 pounds three times an hour. These would be temporary restrictions, which would be reevaluated after she achieves a solid fusion from her surgery."

¶ 17 In July and August 2013, claimant continued to follow up with Dr. Fletcher. Dr. Fletcher reiterated his surgical recommendation and continued claimant's modified-duty work restrictions.

¶ 18 On August 21, 2013, claimant returned to Dr. Singh. Dr. Singh noted claimant had been scheduled for surgery by his office until she was examined by Dr. Beatty and placed at MMI. He stated claimant reported "having persistent axial low back pain radiating to bilateral buttocks and posterior aspects of her bilateral lower extremities, left leg being greater than her right leg." Claimant further complained of numbness, tingling, a throbbing sensation, and burning in her left foot. Dr. Singh's diagnoses of "[d]egenerative disk disease" and a "[c]entral disk herniation" at L5-S1 remained the same. He also continued to recommend surgery and his records identified claimant as being unable to work.

¶ 19 At arbitration, claimant submitted Dr. Singh's deposition, taken October 17, 2013. Dr. Singh testified he reviewed claimant's actual MRI films when diagnosing her with degenerative disc disease at L5-S1 and...