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

2013 II App (1ST) 120717

ANNA SMELTZ, Appellant/Cross-Appellee,

v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al.,(MARRIOTT INTERNATIONAL, Inc., Appellee/Cross-Appellant).

No. 1-12-0717WC

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Filed: March 4, 2013

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

COOK COUNTY

No. 11 L 50767 and

10 L 50732

HONORABLE

MARGARET ANN

BRENNAN,

JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the judgment of the court.

Presiding Justice Holdridge and Justices Hudson and Harris concurred in the judgment. Justice Stewart specially concurred in the judgment.

ORDER

¶ 1 Held: The findings of the Illinois Workers' Compensation Commission that 1) the claimant suffered injuries in July 1998 and 1999 which arose out of and in the course of her employment, 2) that she is not permanently disabled, and 3) that Marriott acted unreasonably and vexatiously in failing to pay the claimant temporary total disability benefits following her 1999 accident are not against the manifest weight of the evidence. The circuit court erred in vacating the Commission's award of penalties and attorney fees. The Commission properly entered two benefit awards for the claimant's permanent-partial disability.

¶ 2 Both parties appeal from an order of the circuit court of Cook County which confirmed in part and vacated in part a decision of the Illinois Workers' Compensation Commission (Commission), awarding the claimant, Anna Smeltz, temporary-total disability (TTD) benefits, permanent-partial disability (PPD) benefits, penalties, and attorney fees pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)) for injuries she allegedly sustained while in the employ of Marriott International, Inc. (Marriott). The claimant contends that the Commission erred in not awarding her permanent-total disability (PTD) benefits under the Act, and the circuit court erred in vacating the Commission's award of penalties and attorney fees. For its part, Marriott contends that the Commission erred in finding that the claimant sustained injuries which arose out of her employment.

¶ 3 The following factual recitation is taken from the evidence presented at the arbitration hearings conducted on July 20, August 19, October 21, and November 19, 2009.

¶ 4 The claimant was born on October 14, 1965, and has three children. She never completed high school or obtained a GED. Prior to working for Marriott, she was employed making sandwiches, answering telephones, and making deliveries at Ricobene's Pizzeria, a job she held for approximately 12 years.

¶ 5 In May 1994, the claimant complained to her family doctor, Dr. Jerrold Schwartz, that she had "pulled out" her back. In February 1995, she complained of shooting pains in her lower back, which she said were radiating into her right leg and had been present for two days. Dr. Schwartz noted that she had chronic lumbar pain. In October 1995, the claimant again complained of lower back pain, stating that it had persisted for two weeks and was more severe than usual. At that time, she was issued a work restriction of no lifting more than 30 pounds and no repetitive bending. In January 1996, she again complained of back pain to Dr. Schwartz.

¶ 6 The claimant commenced her employment as a housekeeper for Marriott in October 1996. Her duties included cleaning hotel rooms and making beds. The claimant cleaned between11 and 13 rooms per day and put sheets on two to three beds per day. Marriott did not provide fitted sheets and required that beds be made with flat sheets only. In addition, she was required to fold the sheets under the mattress twice to form "hospital corners" so that the sheets stay tight. Prior to July 1998, she had never lost any time from work due to any back problems. On July 9, 1998, the claimant was bending over and holding up a king-size mattress in order to fold the bed sheet underneath the corner of the mattress, when she noticed a sudden, stabbing feeling in her lower back, which caused her to fall to the floor.

¶ 7 Marriott sent the claimant to Dr. Vivian Levy at Mercy Medical on July 21, 1998. Noting a consistent history of accident and that the claimant exhibited radiculopathy, Dr. Levy took her off work and prescribed medication and physical therapy.

¶ 8 Marriott subsequently sent the claimant to Mercy Works, where she was first seen on September 30, 1998. The diagnosis at Mercy Works was chronic low-back pain. Conservative treatment was prescribed and light-duty work restrictions were ordered.

¶ 9 On November 7, 1998, the claimant underwent a lumbar MRI, which revealed central bulging disks at L3-L4 and L4-L5, with a central disk protrusion at L2-L3, which produced a compromise of the spinal canal. Mercy Works referred the claimant to Dr. Charles Slack, who first examined her on November 20, 1998. Dr. Slack recommended light duty and conservative care, and ultimately, a functional capacity evaluation (FCE), which was performed on February 11, 1999. That evaluation revealed that the claimant was able to perform at the sedentary to light work level, including frequent lifting up to 13 pounds and a maximum lifting of 18 pounds. Thereafter, on May 20, 1999, Dr. Slack released the claimant to return to work within the limits as determined by the FCE and stated that her injury had reached a permanent state.

¶ 10 At Marriott's request, the claimant was examined by Dr. Marshall Matz on June 22, 1999. Following that examination, Dr. Matz stated that he did not believe the claimant's 1998 employment accident caused her any significant low-back derangement. In addition, he did notbelieve that the claimant's bulging disks represented any permanent condition "from a perspective of disability or incapacity." Dr. Matz also stated that the claimant was not disabled and could return to work if allowed to do so and if she were appropriately motivated. In addition, he found no indication that any work limitation was warranted, but he acknowledged that it would be helpful to restrict the amount of weight she lifted for a couple of weeks. According to Dr. Matz, there was no indication that the claimant was in need of any further treatment, and he expressed his belief that her symptoms would resolve if "left alone."

¶ 11 The claimant returned to work on July 10, 1999, and resumed performing her regular duties as a hotel housekeeper until she suffered a second employment accident on July 20, 1999. On that date, the claimant again experienced shooting pain in her low back while she was bending and lifting a king-size mattress while making a bed. She saw Dr. Slack two days after this incident and has remained off work ever since. Dr. Slack's examination revealed positive straight-leg raising on the right, as well as decreased hamstring, hip flexor, and quadricep strength on the right. Dr. Slack reiterated the need for work restrictions, as indicated by the prior FCE performed in February 1999. During a follow-up visit on August 12, 1999, Dr. Slack recommended epidural steroid injections. The claimant stopped seeing Dr. Slack because she did not have insurance and had no ability to pay for further care by him. Thereafter, the claimant began treating at Cook County Hospital.

¶ 12 The claimant was first seen at the Occupational Medicine Clinic at Cook County Hospital on December 21, 1999. There, physical therapy was prescribed. The claimant continued to receive conservative treatment from Cook County Hospital through April 4, 2000, when she was referred to Dr. Terry Nicola, a neurologist at UIC Medical Center.

¶ 13 Dr. Nicola examined the claimant and performed an EMG/NCV test on April 19, 2000. The electromyography was unremarkable for any lumbar radiculopathy.

¶ 14 In April 2000, the claimant obtained a medical card from the Illinois Department ofPublic Aid, so she commended treatment for her back with her long-time family physician, Dr. Schwartz. He first saw the claimant in connection with her back injuries on April 20, 2000. Dr. Schwartz ordered a second MRI, which was performed on May 1, 2000. That MRI revealed disk herniations at L2-L3, L3-L4, L4-L5, and L5-S1.

¶ 15 Dr. Schwartz then referred the claimant to Dr. Raymond Schlueter, who first examined the claimant on May 9, 2000. Dr. Schlueter noted that the claimant had been suffering with low-back pain, with varying intensities, on a daily basis ever since her work accident. Her symptoms were primarily in the low back, radiating to the right buttock. She noticed weakness in the right, lower extremity, as over the last several months she has had several episodes of buckling of her right, lower leg as a result of the weakness. Further, Dr. Schlueter noted that the claimant had decreased tolerance for activity with her right leg, such as walking up stairs. Although she noted occasional numbness of the anterior thigh, her main problem was low-back pain on the right and into the right buttock. Dr. Schlueter diagnosed herniated nucleus pulposus at L3-L4, L4-L5, and L5-S1, with degenerative disk disease and degenerative joint disease at both the levels of the lumbar spine. He recommended an epidural steroid injection, which was performed on June 28, 2000.

¶ 16 In a November 14, 2000, office note, Dr. Schlueter stated that the claimant's right ankle and calf had been "giving way." Upon Dr. Schlueter's recommendation, the claimant underwent a CT/diskogram on October 31, 2000. That test revealed spinal stenosis which was most severe at L3-L4, and stenosis at L4-L5. Ultimately, on March 27, 2001, Dr. Schlueter performed a diskectomy at L5-S1. On May 15, 2001, Dr. Schlueter noted that the claimant's right, lower extremity paresthesias had significantly improved. However , the claimant was still complaining of low-back pain, especially on the right side.

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