Con-Way Freight, Inc. v. Ill. Workers' Comp. Comm'n

2016 IL App (1st) 152576 WC

67 N.E.3d 959

CON–WAY FREIGHT, INC., Appellant,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (Robert Armstrong, Appellee).

No. 1–15–2576WC.

Appellate Court of Illinois, First District, Workers' Compensation Commission Division.

Nov. 10, 2016.

Mark P. Rusin and Amy M. Doig, of Rusin & Maciorowski, Ltd., of Chicago, for appellant.

Michael J. Brandenberg, of Krol, Bongiorno & Given, Ltd., of Chicago, for appellee.

OPINION

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

¶ 1 The claimant, Robert Armstrong, was employed as a "line haul" truck driver for the employer, Con–Way Freight, Inc., when he was involved in a workplace accident. He filed a claim pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)), claiming injuries to both of his feet. An arbitrator awarded the claimant benefits under the Act, including permanent partial disability (PPD) benefits for 30% loss of the right foot and 8% loss of the left foot. The employer sought review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). The sole issue that the employer raised before the Commission concerned the nature and extent of the claimant's permanent partial disability. The Commission corrected a calculation error in the arbitrator's decision but otherwise affirmed and adopted the decision. The employer sought review of the Commission's decision before the circuit court. The circuit court entered a judgment confirming the Commission's decision. The employer now appeals the circuit court's judgment.

¶ 2 BACKGROUND

¶ 3 It is undisputed that the claimant was involved in a workplace accident on December 8, 2011, when a dolly weighing several thousand pounds ran over both of his feet while he was assisting another driver. At the time of the accident, he was 42 years old. He was taken to the emergency room, where X-rays showed that he had sustained fractures to the right fourth and fifth metatarsals, a dislocation of the proximal interphalangeal joints of the fifth toe on the right side, and a fracture of the cuboid and proximal phalanx of the left foot. That same day, Dr. Surender Dhiman, an orthopedic surgeon, performed surgery on the claimant's right foot. Two surgical screws were placed in the claimant's foot.

¶ 4 Following the surgery, the claimant followed up with Dr. Dhiman approximately once per month. Dr. Dhiman released the claimant to return to light duty work on March 27, 2012, and discharged the claimant from his care, releasing the claimant to work full duty beginning April 4, 2012. Dr. Dhiman noted that the claimant had completed his physical therapy and was improving. He believed that the claimant could resume driving trucks. The claimant returned to work full duty on April 5, 2012.

¶ 5 On June 25, 2012, the claimant returned to Dr. Dhiman with complaints of occasional aching on the side of his right foot. X-rays revealed healing of the claimant's fractures. The claimant returned to Dr. Dhiman in December 2012 with complaints that the two screws that had been placed in his right foot were causing him pain. The doctor performed a screw removal surgery on December 27, 2012. The doctor removed only one of the screws in the claimant's right foot and left a second screw in place. Following the screw removal surgery, on January 14, 2013, Dr. Dhiman released the claimant back to work full duty.

¶ 6 The claimant last saw Dr. Dhiman on March 4, 2013. He complained of some induration and tenderness in the area of the surgical scar on his right foot. The doctor released the claimant from his care, and there is no evidence that the claimant has sought any further medical care for any foot problems since his last visit with Dr. Dhiman.

¶ 7 The claimant's job duties require him to drive a truck on a daily basis from Bridgeview, Illinois, to Tomah, Wisconsin. The job description indicates that he is required to perform heavy job duties, including loading and unloading heavy objects, some weighing over 75 pounds. The claimant testified that he has to manually manipulate heavy freight, operate a forklift, and drive 10– to 12–hour shifts, approximately 500 miles round trip per day. At the time of the arbitration hearing, he was earning more money than he had prior to the accident.

¶ 8 The claimant testified that since returning to work full duty after the accident, he has noticed an increase in pain and other symptoms in his right foot. He testified that his right foot is always in pain and that he has a constant throbbing sensation. The pain is worse during cold weather, when driving long distances, and when pressing the foot pedals of the truck. For pain relief, he removes his boot while driving and takes over-the-counter medication on a regular basis. He testified that when he walks his dog he is unable to walk as far as he did prior to the accident because of pain in his right foot. His right foot swells with overuse, and his work shoes feel tighter. He cannot jog or hop on his right foot without pain. With respect to his left foot, he stated that he has a constant tingling sensation from the top of the foot, near the fifth toe, to the middle-arch area of the foot. He has a loss in the range of motion in the fifth toe, and the left side at the top of the foot feels numb. He testified that his right foot pain is worse than his left foot pain.

¶ 9 On June 24, 2013, at the employer's request, the claimant submitted to a medical examination conducted by an orthopedic surgeon, Dr. Mark Levin. According to Dr. Levin's report, the claimant told the doctor that his left foot pain had totally resolved and that he had good healing. He stated that he had an achy sensation in his right foot over the fourth and fifth metatarsal areas during cold weather. He told Dr. Levin that he drove with no shoe on his right foot because he gets a throbbing sensation in the metatarsals. The doctor wrote, "By the end of his shift, he can get pain varying anywhere from 2/10 up to 4 to 5/10." He noted that the claimant took over-the-counter Aleve on an as-needed basis; was working full duty; and could perform all of his work activities with no problems, including driving a forklift and all of the other job activities that he could perform prior to the accident.

¶ 10 Pursuant to section 8.1b of the Act (820 ILCS 305/8.1b (West 2012) ), Dr. Levin offered an impairment rating based on the American Medical Association (AMA) Guides. With respect to the claimant's left foot, he opined that the claimant suffered no impairment and no objective deficiency pursuant to the AMA Guides. With respect to the claimant's right foot, he opined that the claimant sustained a 4% impairment.

¶ 11 At the conclusion of the hearing, the arbitrator found that the claimant sustained a 30% permanent loss of the right foot and an 8% permanent loss of the left foot. In determining the proper PPD award, the arbitrator noted each of the five factors enumerated in section 8.1b and made specific findings with respect to each factor.

¶ 12 The arbitrator began his analysis by noting Dr. Levin's impairment rating (8.1b(b)(i)). With regard to the claimant's occupation (8.1b(b)(ii)), the arbitrator found that it required heavy work and that the claimant's PPD award may be larger than an individual who performs lighter work. With regard to the claimant's age, (8.1b(b)(iii)), the arbitrator found that he was 44 years old and, therefore, was approaching middle age. The arbitrator concluded that the claimant may have to live and work with the disability for a longer period than an older individual with the same injuries and that he "may just as likely recover from his injury more quickly than an older worker." With regard to the claimant's future earning capacity (8.1b(b)(iv)), the arbitrator found that there was no evidence that his future earning capacity was diminished as a result of the injury. With regard to evidence of disability corroborated by medical records (8.1(b)(v)), the arbitrator noted the medical treatments following the accident as well as the claimant's continued pain following his treatments.

¶ 13 The arbitrator concluded as follows: "[A]fter applying Section 8.1b of the Act, 820 ILCS 305/8.1b and considering the relevance and weight of all these factors, including Dr. Levin's AMA impairment rating, the Arbitrator concludes that [the claimant] has sustained a 30% permanent loss of the right foot and an 8% permanent loss of the left foot."

¶ 14 On review, the Commission corrected a calculation error in the arbitrator's decision but otherwise affirmed and adopted the decision. The circuit court, on review, entered a judgment that confirmed the Commission's decision, finding that the decision is not contrary to law and is not against the manifest weight of the evidence. The employer now appeals the circuit court's judgment and challenges the Commission's application of section 8.1b of the Act in determining the claimant's PPD benefits.

¶ 15 ANALYSIS

¶ 16 On appeal, the employer argues that the Commission's award should be set aside as a matter of law due to the Commission's failure to comply with section 8.1b of the Act (820 ILCS 305/8.1b (West 2012) ). Section 8.1b of the Act provides as follows:

"For accidental injuries that occur on or after September 1, 2011, [PPD] shall be established using the following criteria:

(a) A physician licensed to practice medicine in all of its branches preparing a [PPD] impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the [AMA's] ‘Guides to the Evaluation of Permanent Impairment’

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