Will Cnty. Forest Pres. Dist. v. Ill. Workers' Comp. Comm'n

970 N.E.2d 16

361 Ill.Dec. 16

WILL COUNTY FOREST PRESERVE DISTRICT a/k/a Forest Preserve District of Will County, Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Denzil Smothers, Appellee).

No. 3–11–0077 WC.

Appellate Court of Illinois,

Third District,

Workers' Compensation Commission Division.

Feb. 17, 2012.

Rehearing Denied July 5, 2012.

Rory M. McCann, Jeffrey B. Huebsch, Power & Cronin, Ltd., Oak Brook, for appellant.

Michael D. Block, Block, Klukas & Manzella, P.C., Joliet, for appellee.

OPINION

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

[361 Ill.Dec. 18]¶ 1 Respondent, Will County Forest Preserve District, a/k/a Forest Preserve District of Will County, appeals from a judgment of the circuit court of Will County confirming a decision of the Illinois Workers' Compensation Commission (Commission). The Commission, affirming and adopting the decision of the arbitrator, determined that claimant, Denzil Smothers, suffered a compensable shoulder injury on June 2, 2008, which “partially incapacitate[s] him from pursuing the duties of his usual and customary line of employment.” As such, the Commission awarded claimant a person-as-a-whole award under section 8(d)(2) of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(2)(West 2008)). On appeal, respondent concedes that claimant suffered an injury which resulted in a partial incapacity. However, respondent argues that an award under section 8(d)(2) was improper because claimant failed to establish that this incapacity prevents him “from pursuing the duties of his usual and customary line of employment.” Respondent therefore maintains that the Commission should have awarded claimant benefits for a scheduled injury to the arm as set forth in section 8(e)(10) of the Act (820 ILCS 305/8(e)(10) (West 2008)). We conclude that an award under section 8(d)(2) is proper, but on a basis different than that proffered by the Commission. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On February 4, 2009, claimant filed an application for adjustment of claim alleging that on June 2, 2008, he sustained an injury to his right shoulder while in respondent's employ. The matter proceeded to arbitration on June 19, 2009. Among the issues in dispute were causal connection and nature and extent of the injury. The evidence presented at the arbitration hearing established that claimant, who is right-hand dominant, has worked for respondent for more than 20 years, most recently as a heavy-equipment operator. Claimant testified that in this position, he is subject to impact and vibration from various types of equipment, including tractors, dump trucks, jack hammers, chain saws, and sledge hammers. The physical-demand level for an equipment operator is medium to medium/heavy.

¶ 4 The parties stipulated that on June 2, 2008, claimant sustained an injury to his right shoulder which arose out of and in the course of his employment. Claimant explained that the injury occurred as he was trying to lift the tailgate of a trailer and he felt a “burning severe pain in [his] right shoulder.” Conservative treatment resulted in limited symptomatic improvement. As a result, on June 23, 2008, claimant presented for treatment to Dr. Harry Fuentes of Parkview Orthopaedics. Dr. Fuentes ordered an MRI. Upon reviewing the MRI, Dr. Fuentes diagnosed a partial thickness rotator cuff tear of the right shoulder with a possible posterior inferior labral tear. On August 13, 2008, Dr. Fuentes performed an arthroscopic repair of the right rotator cuff and a subacromial decompression with acromioplasty. Following surgery, claimant underwent physical therapy and work hardening.

¶ 5 A case-management report dated November 20, 2008, indicates that claimant had been participating in a daily work-hardening program for up to three hours a day. The report notes that claimant demonstrated the ability to safely lift 80 pounds from floor to bench height and 60 pounds to shelf height. The report further notes that claimant demonstrated the ability to perform essential job tasks such as entering and exiting a truck cab, bilateral and unilateral carrying of equipment, bilateral shoulder carrying of equipment, sweeping, digging, packing gravel, and forward and overhead reaching. The report concludes that claimant meets the physical-demand requirements (medium/heavy) for a safe, full-duty return to work. On November 24, 2008, claimant visited Dr. Fuentes and reported that his shoulder “feels great.” At that time, Dr. Fuentes released claimant to full duty without limitations and instructed him to return on an as-needed basis. Claimant has not visited Dr. Fuentes for his right shoulder since he was released to full duty.

¶ 6 Claimant acknowledged that after November 24, 2008, he has been able to perform his job. However, he testified that since returning to work, he has noticed that his right shoulder becomes stiff and weak if he uses it a lot. Claimant also indicated that he experiences soreness with vibration and sensitivity with changes in the weather. Claimant cited several examples of how he compensates for these problems by using his left side more frequently than his right side, especially with heavy or repetitive activities. Representative of these examples is the following testimony from claimant:

“For instance, if I am loading bags of concrete, 50, 60 pounds of concrete and I am having to pull them off of the truck, I will notice that the right side is starting to get weak. So I switch over to the left side, and I start using that for a while until it kind of calms down, and then I start using the right side which is I am right handed [ sic ].

So I generally use the right hand all of the time. The other thing is climbing in and out of my truck or up and down off [a] tractor. I notice I have been using my left hand to pull myself up into the truck now because if I pull my whole weight with my right side up and down off the tractor all day, it gets sore pretty quick.”

Claimant testified that prior to the June 2, 2008, accident, he did not use his left arm frequently for tasks that required the use of only one arm because most of the equipment he uses is geared toward right-handed individuals.

¶ 7 Claimant also testified that he experiences a “rubbing affect [ sic ]” with tasks that require him to extend his arms over his head such as greasing a tractor. Further, claimant recounted that prior to the June 2, 2008, accident, he was able to lift between 75 and 80 pounds overhead with his right shoulder. Although claimant still attempts to lift the same amount, he testified that he quickly becomes sore. As a result, he generally tries to limit overhead lifting with his right shoulder to 50 pounds or less. Claimant added that if his shoulder starts to hurt, he applies ice or takes pain medication.

¶ 8 Although claimant testified that he had never injured or had problems with his right shoulder prior to the June 2, 2008, accident, he did acknowledge suffering an injury at work in May 2003 which required surgery to his right elbow and a right carpal-tunnel release. Claimant negotiated a settlement with respondent as a result of the May 2003 injury, which consisted of, inter alia, benefits under section 8(e) of the Act representing a 15% loss of use of the right hand and a 15% loss of use of the right arm. Following the May 2003 injury, claimant testified that he returned to work for respondent at full duty, but began experiencing stiffness, soreness, numbness, and weakness in his right elbow with heavy use or vibration.

¶ 9 Claimant was examined by Dr. Jeffrey Coe on May 12, 2009, at the request of his attorney. Dr. Coe's report documents complaints by claimant of right shoulder pain while lifting or reaching with his right arm, with changes in the weather, and with sleeping on his right side. Claimant also complained of stiffness, weakness, “catching,” and “popping” of the right shoulder. Claimant provided a history of his June 2, 2008, accident and noted that he had injured his right upper extremity at work in May 2003. Dr. Coe's examination revealed a well-healed arthroscopic scar above the right shoulder. There was residual tenderness over the anterior glenohumeral joint, but claimant's scar was not tender to palpation and there was no right shoulder acromioclavicular tenderness. Claimant's right shoulder showed a decreased range of motion versus normal with abduction (160 degrees versus 180 degrees), forward elevation (170 degrees versus 180 degrees), and internal rotation (35 degrees versus 40 degrees), but not with external rotation. Dr. Coe also noted positive right shoulder impingement and atrophy of the right upper arm. However, muscle strength about the right shoulder girdle was normal in all aspects except resisted forward elevation, which measured 4+/5. Dr. Coe concluded that the injury to claimant's right shoulder on June 2, 2008, caused “permanent partial disability to the right arm.” In addition, Dr. Coe opined that claimant continued to experience impairment from the injury to his right elbow in May 2003 and from right carpal-tunnel syndrome.

¶ 10 Based on the foregoing evidence, the arbitrator determined that claimant established a causal connection between his employment and the condition of his right shoulder as a result of the June 2, 2008, accident. The arbitrator awarded claimant 15 weeks of temporary total disability (TTD) benefits. See 820 ILCS 305/8(b) (West 2008). In addition, the arbitrator addressed whether claimant's shoulder injury should be compensated as a partial disability to the person as a whole under section 8(d)(2)ILSTC820S2 of the Act (820 ILCS 305/8(d)(2) (West 2008)) or whether it should be compensated pursuant to the schedule of specific losses set forth in section 8(e) of the Act (820 ILCS 305/8(e) (West 2008)). The arbitrator noted that “[t]he mere fact that [claimant's] injured body part happens to be one of those enumerated in the ...