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

2018 IL App (1st) 172712 WC

123 N.E.3d 409

428 Ill.Dec. 680

William PISANO, Appellant,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (the City of Chicago, Appellee).

No. 1-17-2712WC

Appellate Court of Illinois, First District, WORKERS' COMPENSATION COMMISSION DIVISION.

Opinion filed: December 7, 2018

Kevin Thomas Veugeler, of Healy Scanlon Law Firm, Ltd., of Chicago, for appellant.

Joseph Andrew Zwick, of Hennessy & Roach, P.C., of Chicago, for appellee.

JUSTICE HUDSON delivered the judgment of the court, with opinion.

¶ 1 Claimant, William Pisano, filed three applications for adjustment of claim seeking benefits under the Workers' Compensation Act (Act) ( 820 ILCS 305/1 et seq. (West 2006)) for injuries he sustained while working for respondent, the City of Chicago. The claims were consolidated, and the matter proceeded to an arbitration hearing pursuant to section 19(b) of the Act ( 820 ILCS 305/19(b) (West 2006)). The arbitrator issued a single decision on all three claims. Relevant to this appeal, the arbitrator awarded (1) permanent partial disability (PPD) benefits pursuant to section 8(e) of the Act ( 820 ILCS 305/8(e)(9), (e)(10) (West 2006)) for injuries to claimant's right wrist and right elbow arising out of the first accident and (2) a wage-differential award pursuant to section 8(d)(1) of the Act ( 820 ILCS 305/8(d)(1) (West 2006)) for an injury to claimant's right wrist arising out of the second accident. The arbitrator determined that the injuries from the third accident arose out of and in the course of the vocational-rehabilitation process for the second accident. As such, the arbitrator concluded that any permanency benefits were accounted for in relation to the award for the second accident. In addition, the arbitrator denied claimant's request for penalties and attorney fees pursuant to sections 16, 19(k), and 19(l ) of the Act ( 820 ILCS 305/16, 19(k), 19(l ) (West 2006)). The Illinois Workers' Compensation Commission (Commission) modified the rate and commencement date of the wage differential awarded for the second accident but otherwise affirmed and adopted the arbitrator's decision.

¶ 2 On judicial review, the circuit court of Cook County confirmed the Commission's decision in part and set it aside in part. In particular, the court disagreed with the Commission to the extent it awarded claimant both a scheduled PPD award pursuant to section 8(e) of the Act and a wage differential pursuant to section 8(d)(1) of the Act. Relying on Baumgardner v. Illinois Workers' Compensation Comm'n , 409 Ill. App. 3d 274, 349 Ill.Dec. 842, 947 N.E.2d 856 (2011), and City of Chicago v. Illinois Workers' Compensation Comm'n , 409 Ill. App. 3d 258, 349 Ill.Dec. 849, 947 N.E.2d 863 (2011), the court held that claimant should be awarded one type of benefit or the other, but not both. As such, the court remanded the matter to the Commission with instructions to "evaluate the totality of the evidence and provide a single award encompassing the full extent of the disability resulting from all accidents involved in this consolidated case." The court otherwise confirmed the Commission's decision.

¶ 3 On remand, the Commission determined that the full extent of claimant's disability resulting from all of his accidents warranted a finding of a wage-differential award pursuant to section 8(d)(1) of the Act. In so finding, the Commission modified its original decision by vacating the section 8(e) awards. On judicial review, the circuit court confirmed the decision of the Commission upon remand. Claimant now appeals, raising issues concerning the permanency awards entered by the Commission and the Commission's decision to deny his request for penalties and fees pursuant to sections 16, 19(k), and 19(l) of the Act. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and reinstate in part the Commission's original decision.

¶ 4 I. BACKGROUND

¶ 5 Claimant filed three applications for adjustment of claim seeking benefits under the Act for injuries he sustained while working for respondent. In the first application, case No. 05-WC49540, claimant alleged that on October 31, 2005, he injured his right elbow when he slipped on grease while standing on the platform of a machine. In the second application, case No. 08-WC47656, claimant alleged that on December 12, 2007, he aggravated his right wrist when he was struck by the side mirror of a car while directing traffic around a work area. In his third application, case No. 11-WC-16653, claimant alleged that on December 6, 2010, he sustained injuries to both shoulders, his right arm, and the person as a whole after he slipped on ice while going to a vocational-rehabilitation appointment.

¶ 6 The claims were consolidated, and the matter proceeded to an arbitration hearing pursuant to section 19(b) of the Act ( 820 ILCS 305/19(b) (West 2006)) over several dates between January 22, 2013, and September 3, 2013. In all three cases, the parties stipulated to the accidents. Additionally, in case Nos. 05-WC-49540 and 08-WC-47656, the parties stipulated to causation. The issues in dispute involved the nature and extent of the injuries, medical expenses, maintenance, and causation in case No. 11-WC-16653. In addition, prior to the arbitration hearing, claimant filed petitions for penalties and attorney fees alleging that respondent had refused to pay certain medical expenses and maintenance benefits. The following factual recitation is taken from the evidence presented at the arbitration hearing.

¶ 7 Claimant testified that the highest level of education he completed was his first year of high school. During his sophomore year, claimant left high school and briefly attended trade school. He then joined the Navy but was given a general discharge after six months due to color blindness. Claimant began working for respondent in 1979 as a roller engineer and eventually became a hoist engineer in respondent's water department. Claimant testified that his duties as a hoist engineer included operating, maintaining, and repairing various types of heavy equipment, including graders, backhoes, cranes, end loaders, forklifts, Bobcats, and snowblowers. Claimant testified the lifting requirement for a hoist engineer is up to 100 pounds. Claimant is right handed.

¶ 8 A. October 31, 2005, Accident and Medical Treatment

¶ 9 Claimant testified that while working for respondent on October 31, 2005, he was directed to a jobsite with his backhoe. While climbing onto the machine, claimant slipped on grease, fell backwards, and landed on his right arm and right side. Claimant immediately felt pain and noticed his right arm swell.

¶ 10 Following the accident, claimant sought treatment at MercyWorks, where he was diagnosed with a right elbow fracture, right wrist contusion, and right shoulder strain. Claimant was taken off work, prescribed medication, given a sling for his arm, and referred to Dr. William Heller of Midland Orthopedics. Dr. Heller recommended that claimant refrain from using his right arm, prescribed a course of physical therapy, and instructed claimant to follow up in six weeks.

¶ 11 Claimant returned to MercyWorks on November 8, 2005, with complaints of right hip pain and increased right wrist pain. A course of therapy was recommended. On December 27, 2005, claimant underwent magnetic resonance imaging (MRI) of the right wrist. The MRI revealed a triangular fibrocartilage complex (TFCC) tear. Dr. Heller opined the TFCC tear was due to claimant's job duties and likely became symptomatic due to the fall. Dr. Heller administered a cortisone injection to the wrist and recommended continued physical therapy. Claimant was also referred to Dr. Daniel Nagle. On March 1, 2006, Dr. Nagle performed surgery on claimant's right wrist, consisting of an arthroscopy with TFCC debridement. Following surgery, Dr. Nagle noted that claimant had extensive damage to his right wrist and had three options—living with the wrist as is, undergoing a partial fusion of the wrist, or undergoing a panarthrodesis. The physician at MercyWorks instructed claimant to continue treating with Dr. Nagle and to remain off work. On March 22, 2006, claimant presented to MercyWorks and reported that his right shoulder, right elbow, and right hip were "fine."

¶ 12 On April 21, 2006, claimant underwent a functional capacity evaluation (FCE). The FCE was considered valid and placed claimant at the light-to-medium physical-demand level with lifting restrictions of 55 pounds from floor to waist on an occasional basis and 30 pounds from waist to overhead on an occasional basis. This did not meet the job demands of a hoist engineer, which requires a heavy physical-demand level with lifting of 100 pounds occasionally and 50 pounds frequently. On May 11, 2006, Dr. Nagle discharged claimant with permanent restrictions pursuant to the April 2006 FCE. Initially, respondent was unable to accommodate these restrictions, so claimant remained off work. However, respondent eventually found a position for claimant as a mail van driver.

¶ 13 On July 11, 2006, Dr. Nagle reevaluated claimant's right wrist and recommended claimant continue with the restrictions outlined in the FCE. Dr. Nagle next evaluated claimant on October 10, 2006. At that time, claimant complained of pain in his right wrist and elbow and occasional popping and clicking in his right elbow. Dr. Nagle indicated that absent additional surgical intervention, claimant had reached maximum medical improvement (MMI) with permanent light-duty restrictions. He instructed claimant to return on an as-needed basis.

¶ 14 Claimant returned to Dr. Nagle's office on March 22, 2007. Claimant told Dr. Nagle that he wanted to return to his position as a hoist engineer. Dr. Nagle felt claimant's situation had improved, and he recommended a repeat FCE, which was performed on April 4, 2007. The FCE indicated that claimant could lift 100 pounds from floor to waist and 50 pounds from waist...