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

2013 IL App (3d) 120010

G.F. STRUCTURES, Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION, (Martin Guerrero), Appellees.

NO. 3-12-0010WC

APPELLATE COURT OF ILLINOIS THIRD DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Filed: June 5, 2013

NOTICE

Decision filed 06/05 /13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

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

Whiteside County.

No. 11-MR-31

Honorable

Stanley B. Steines,

Judge, Presiding.

JUSTICE STEWART delivered the judgment of the court.

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

ORDER

¶ 1 Held: The Commission's finding that the claimant proved that he fell within the odd-lot category of permanent total disability is not against the manifest weight of the evidence; the Commission's failure to award vocational rehabilitation is not against the manifest weight of the evidence; and the Commission's awards of attorney fees and penalties pursuant to sections 16 and 19(k) of the Act (820 ILCS 305/16, 19(k) (West 2010)), are not contrary to the manifest weight of the evidence.

¶ 2 The parties agree that the claimant, Martin Guerrero, was involved in a workplace accident while working for the employer, G.F. Structures, and suffered injuries to his right lower extremity as a result of the accident. The claimant filed a claim under the Illinois Workers' Compensation Act (the Act), 820 ILCS 305/1 to 30 (West 2010). After an arbitration hearing, the arbitrator found that the claimant was permanently and totally disabled as a result of the accident and awarded him permanent total disability (PTD) benefits in the amount of $763.14/week for life. In addition, the arbitrator awarded the claimant $2,672.17 in attorney fees pursuant to section 16 of the Act (820 ILCS 305/16 (West 2010)) and $13,360.85 in penalties pursuant to section 19(k) of the Act (820 ILCS 305/19(k) (West 2010)). The employer appealed the arbitrator's decision to the Commission, and the Commission unanimously affirmed and adopted the arbitrator's decision. The employer appealed to the circuit court, and the circuit court confirmed the Commission's decision, holding that the decision "in all respects is not against the manifest weight of the evidence." This appeal ensued. On appeal, the employer challenges the Commission's finding that the claimant fell within the "odd-lot" category of permanent total disability andchallenges the Commission's failure to award vocational rehabilitation. In addition, the employer maintains that the Commission's awards of penalties and attorney fees are contrary to the manifest weight of the evidence and are contrary to law. The parties agree that the Commission erred in calculating the amount of the penalties and fees.

¶ 3 BACKGROUND

¶ 4 The claimant can read only a small amount of English, can write English even less, and does not understand some English words. Therefore, the claimant testified at the arbitration hearing through an interpreter. He testified that he attended school in Mexico through approximately the 6th grade. He also attended some compulsory classes one weekend per month, as is required of all adult Mexican males under the age of 40. The classes, however, did not further any job skills and were merely instructive classes about the Mexican military. The claimant's work experience prior to working for the employer included labor on a cattle ranch in Mexico, working as a picker/packer for Monterey Mushrooms in the United States, and installing fences for Midwest Fence.

¶ 5 The claimant began working for the employer as an ironworker on September 1, 2005. He started working out of Ironworkers Local #63 beginning in 1997 after passing a pre-employment physical examination. The claimant's job duties for the employer included installing guard rails and signs on local highways. The parties stipulated that the claimant sustained accidental injuries that arose during the course of his employment as a result of a slip and fall accident that occurred on September 1, 2005.

¶ 6 On the day of the accident, the claimant was working on installing posts every 200 feet on a highway approximately 10 miles from Rock Falls, Illinois. The claimant worked from a truck that was pulling a heavy air compressor. The accident occurred when the claimant attempted to get into the truck; he slipped, fell, and the air compressor ran over his legs. He heard cracking noises when the accident occurred. Records from the emergency room state that the claimant fell off the truck and that a heavy object rolled over his right ankle. The emergency room records further indicate that the claimant had a Grade 2 open tibia fracture, a fracture of the fibula, and that the claimant required surgery. Dr. Stephen Gabriel operated on the claimant's right leg on the same day as the accident. His operative report states that he performed an irrigation debridement with insertion of an intramedullary rod into the right tibia.

¶ 7 After the surgery, the claimant followed up with Dr. Steven Potaczek. Dr. Potaczek expected the claimant to require at least 4 to 6 months to recover from the accident and believed that the rod, or at least the screws, in the claimant's leg would have to come out at some point. The claimant began a course of physical therapy.

¶ 8 By October 2005, the claimant was bearing partial weight on his right leg. In November 2005, he was 50% weight bearing. In December 2005, Dr. Potaczek noted that the claimant's ankle motion was good but that he tended to externally rotate his foot when he walked. In January 2006, Dr. Potaczek noted that the claimant was "ambulating essentially putting all of his weight on the opposite side externally rotating his foot when hewalks." Dr. Potaczek instructed the claimant to bear weight on his right leg with the use of a cane or crutch. Dr. Potaczek's work restriction was "no work for now or light duty if available."

¶ 9 From February through June 2006, the claimant continued to have pain, and X-rays of the claimant's leg indicated that the fractures were not healing properly. In June 2006, the claimant met with Dr. Paul Perona. Dr. Perona noted that the claimant's leg pain had not significantly improved since his surgery. The claimant reported moderate pain which was worse with weight bearing. He was also experiencing numbness and tingling in his right foot, had difficulty walking, and walked with a limp. Dr. Perona's impression was nonunion of the right tibia and fibula.

¶ 10 Dr. Perona performed a second surgery on the claimant's right leg on June 16, 2006. He performed a right tibial intramedullary nail exchange with a dynamite reamed intramedullary nail, fibular osteotomy, and a posterior mold splint. In July 2006, the claimant reported that he was doing well with minimal pain and had been using one crutch. Dr. Perona's plan at that time was to discontinue use of the crutch and begin full weight-bearing as tolerated. The claimant was to remain off work. In addition, the claimant resumed physical therapy three times per week.

¶ 11 In August 2006, Dr. Perona noted that the claimant came to his office wearing a regular high-top work boot, had full weight bearing, and utilized no assist devices, but that he complained of a small amount of pain with ambulation. Dr. Perona's plan includedcontinued physical therapy for range of motion and strengthening of the ankle. The claimant followed up with Dr. Perona in September 2006, and reported swelling in the ankle and weakness while maneuvering stairs. Dr. Perona switched the claimant from physical therapy to work conditioning five days per week for four weeks. In October 2006, the claimant completed the work conditioning, but he continued to complain of pain with all activities. He reported that some days were good and some days were bad and that cold weather complicates it.

¶ 12 On November 7, 2006, the claimant underwent a functional capacity evaluation (FCE). The evaluator concluded that the claimant was unable to perform tasks that required acute dorsiflexion or plantar flexion, such as kneeling and crawling, due to pain. The claimant was "extremely labored" in descending stairs, and he avoided any walking other than very short distances. The evaluator noted that he was able to lift significant amounts of weight, but that the scope of that assessment did not require carrying the weight while walking. The evaluator reported that the claimant used poor body mechanics during some of the lifting tasks.

¶ 13 On December 5, 2006, Dr. Perona authored a letter to the medical case manager assigned to the claimant's workers' compensation case. Dr. Perona reported that the claimant complained of pain to the lateral portion of his lower leg, especially when descending stairs. The doctor reported that the claimant had completed physical therapy, and an FCE, and he had been off work since his injury. Dr. Perona stated that, after reviewing the FCE, hebelieved that the claimant could return to work with the following restrictions: no climbing, squatting, crawling, or stair or ladder climbing. The claimant was to avoid lifting greater than 25 pounds.

¶ 14 On January 18, 2007, the claimant followed up with Dr. Perona and complained that he continued to have sharp pain in the anterior portion of his lower leg when he takes his first few steps and is unable to walk long distances because of pain. At that time, Dr. Perona's plan for the claimant's treatment included shoe insert arch supports, discontinuing physical therapy, increasing home exercise, and returning the claimant back to regular job duties. The doctor noted that if the claimant continued to have pain, removing some of the hardware in the claimant's leg was an option.

¶ 15 The claimant testified...