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

28 N.E.3d 946

Daniel J. SHARWARKO, Appellant

v.ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (Village of Oak Lawn, Appellee).

No. 1–13–1733 WC.

Appellate Court of Illinois, First District, Industrial Commission Division.

Feb. 27, 2015.

John T. Bowman, of Bowman & Corday, Ltd., of Chicago, for appellant.

James Egan, of Keefe, Campbell, Biery & Associates, LLC, of Chicago, for appellee.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The claimant, Daniel J. Sharwarko, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) seeking benefits for injuries he received while working for The Village of Oak Lawn (Village). The claimant now appeals from the circuit court judgment confirming the decision of the Illinois Workers' Compensation Commission (Commission) which terminated his temporary total disability (TTD) benefits on October 31, 2006; found that he failed to prove that he was permanently and totally disabled; denied his request for an award of penalties and fees; and refused to answer the questions he submitted pursuant to section 19(e) of the Act (820 ILCS 305/ 19(e) (West 2012)). For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 The following factual recitation is taken from the evidence adduced at the arbitration hearing. At all times relevant, the claimant was employed by the Village as a water and sewer inspector. The claimant testified that, on April 6, 2006, his duties included replacing a water meter on a parcel of property in the Village. According to the claimant, as he reached down to replace the meter, the wrench he was using slipped, and he struck his right elbow against a concrete wall. The claimant felt an immediate onset of pain and reported the incident to his supervisor. The claimant was directed to seek treatment at Concentra Medical Center (Concentra).

¶ 3 The claimant was seen at Concentra on April 7, 2006, complaining of pain in his right elbow and numbness in the little finger of his right hand. An examination of the claimant revealed tenderness over the medial epicondyle, and he was diagnosed with medial epicondylitis and ulnar neuritis. The claimant's right elbow was placed in an air cast, and he was instructed to take Aleve for his pain. He was released to full-duty work.

¶ 4 The claimant returned to Concentra for two follow-up visits. The record of his visit on April 24, 2006, states that the claimant reported no pain or other symptoms, and his physical examination was unremarkable. The examining physician released the claimant from care on that date.

¶ 5 The claimant had also elected to seek treatment from his personal physician, Dr. John Elser, who referred him to Dr. I. Harun Durudogan at the Southwest Center for Healthy Joints. Dr. Durudogan diagnosed the claimant as suffering from right median and ulnar nerve neuropraxia and prescribed physical therapy.

¶ 6 The claimant underwent physical therapy as prescribed. However, when the claimant saw Dr. Durudogan on June 6, 2006, he reported worsening pain and symptoms of paresthesias in the median and ulnar nerve distributions. On physical examination, Dr. Durudogan noted that the Tinel test was markedly positive at the right wrist and elbow, and the Fallon test was markedly positive at the wrist. Evidence of early ulnar atrophy was also noted. Dr. Durudogan recommended that the claimant undergo an anterior ulnar nerve transposition and a revision right carpal tunnel release. Dr. Durudogan restricted the claimant's work duties to no use of his right hand.

¶ 7 The Village accommodated the work restrictions imposed by Dr. Durudogan, and the claimant was assigned to routine maintenance and meter-reading duties.

¶ 8 At the request of the Village, the claimant was seen by Dr. David Tulipan on July 6, 2006. Following his examination, Dr. Tulipan opined that the claimant's elbow contusion was the likely cause of his cubital tunnel syndrome, but not his carpal tunnel syndrome. Although he was of the opinion that the claimant was capable of working, Dr. Tulipan believed that the claimant would be a surgical candidate in the future. In his report, Dr. Tulipan noted that, if the claimant had the recommended surgery, he would be able to do some light work within three to four months thereafter. He recommended that the claimant have an EMG/NCS test.

¶ 9 An EMG/NCS performed on the claimant on July 28, 2006, showed evidence of: right ulnar nerve neuropathy at the elbow; chronic right median nerve compression neuropathy at the wrist; and abnormally slow nerve conduction in the forearm segments of the right median and ulnar motor nerves.

¶ 10 When the claimant saw Dr. Durudogan on August 1, 2006, he continued to complain of persistent pain and paresthesias in the median and ulnar nerve distributions. Dr. Durudogan again recommended surgery.

¶ 11 On August 21, 2006, Dr. Durudogan operated on the claimant, performing an open right carpal tunnel release and a right cubital tunnel release. Subsequent to his surgery, the claimant was directed to remain off of work, and he began physical therapy. The claimant acknowledged that, until he was taken off of work following his surgery, the Village had accommodated the one-handed work restriction imposed by Dr. Durudogan.

¶ 12 On August 28, 2006, Dr. Tulipan issued an addendum to the report of his examination of the claimant. He found that the surgery performed by Dr. Durudogan was reasonable and that the claimant's work-accident was probably the cause of his cubital tunnel syndrome. Dr. Tulipan opined that the problems which the claimant was experiencing with his median nerve were chronic in nature, dating back to his childhood.

¶ 13 The claimant continued under the care of Dr. Durudogan post-operatively. When he saw the doctor on September 19, 2006, the claimant complained of significant persistent pain and paresthesias in the median and ulnar nerve distributions and stated that the pain had become worse after his surgery. Dr. Durudogan prescribed continued physical therapy and splint use, and he released the claimant to work on September 20, 2006, with the one-hand restriction.

¶ 14 There is a note in the record written by Kathleen Fitzgerald, a nurse who was assigned as a case manager to the claimant's case by the Village's insurance carrier, which states that she called the Village on September 19, 2006, and spoke to Sue Lanham. The note goes on to state: “Light duty cannot be accommodated at this time.”

¶ 15 The Village offered certain of its employees an early retirement package which the claimant accepted on October 3, 2006.

¶ 16 On October 20, 2006, the claimant was seen by Dr. Durudogan. The record contains a copy of a note signed by the doctor stating that the claimant is unable to return to work until after his next office visit which was scheduled for December 1, 2006. The record also contains a copy of a letter from Dr. Durudogan to Dr. Elser, dated October 20, 2006, which states that Dr. Durudogan's “recommendations are for no work with the right upper extremity.”

¶ 17 The claimant's request to retire was granted on October 31, 2006, and he began receiving a pension of $5,120.00 per month. There is no evidence in the record that, following the claimant's surgery on August 21, 2006, until his retirement on October 31, 2006, the Village offered him any work within his restrictions which he refused. However, Steven Barrett, the Director of Public Works for the Village, testified that, if the claimant had not retired, the Village would have accommodated his one-handed work restriction. According to Barrett, the Village had accommodated other employees working under light-duty restrictions, including one whose restrictions had been on-going for approximately eight years.

¶ 18 The Village paid TTD benefits to the claimant from the date of his surgery on August 21, 2006, until October 31, 2006, when it terminated those payments by reason of his voluntary retirement.

¶ 19 Following retirement, the claimant continued to receive medical treatment for problems with his right elbow, including ulnar nerve pain. His medical records reflect that he continued to demonstrate persistent ulnar neuropraxia with muscle atrophy and paresthesias in the median and ulnar nerve distributions. Dr. Durudogan continued to prescribe physical therapy. The record contains a letter from Dr. Durudogan to Dr. Elser, dated December 12, 2006, in which Dr. Durudogan described the claimant's medical condition on that date and goes on to state: “No work with the right upper extremity until further notice.”

¶ 20 Following an examination of the claimant on March 1, 2007, Dr. Durudogan noted that the Tinel test was markedly positive at the right elbow. He recommended that the claimant undergo revision ulnar release surgery and referred the claimant to Dr. Ramasamy Kalimuthu for a second opinion. Additionally, Dr. Durudogan restricted the claimant from performing any work with his right arm.

¶ 21 The claimant was seen by Dr. Kalimuthu on March 15, 2007. After examining the claimant, Dr. Kalimuthu diagnosed severe ulnar neuropathy in the motor and sensory branch of the ulnar nerve and muscle atrophy with sensory loss in the ulnar nerve distribution. Before formulating a treatment plan, Dr. Kalimuthu ordered an updated EMG, which was performed on March 26, 2007. The results of that test were consistent with severe right ulnar neuropathy and severe right median sensorimotor neuropathy across the carpal tunnel, and demonstrated a deterioration of ulnar nerve function when compared with the EMG/NCV of July 28, 2006.

¶ 22 After reviewing the results of the EMG, Drs. Durudogan and Kalimuthu both recommended that the claimant undergo revision ulnar release surgery. Following the recommendation, the Village requested that the claimant again be examined by Dr. Tulipan. On April 11, 2007, Dr. Tulipan examined the claimant and also...