Economy Packing Co. v. Illinois Workers' Compensation Commission

901 N.E.2d 915, 387 Ill. App. 3d 283, 327 Ill. Dec. 182, 2008 Ill. App. LEXIS 1209
CourtAppellate Court of Illinois
DecidedDecember 9, 2008
Docket1-07-2947WC
StatusPublished
Cited by17 cases

This text of 901 N.E.2d 915 (Economy Packing Co. v. Illinois Workers' Compensation Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Economy Packing Co. v. Illinois Workers' Compensation Commission, 901 N.E.2d 915, 387 Ill. App. 3d 283, 327 Ill. Dec. 182, 2008 Ill. App. LEXIS 1209 (Ill. Ct. App. 2008).

Opinions

JUSTICE ROBERT E. GORDON

delivered the opinion of the court:

Economy Packing Company (Economy) appeals from an order of the circuit court of Cook County, confirming a decision of the Illinois Workers’ Compensation Commission (Commission), which awarded the claimant, Ramona Navarro, temporary total disability (TTD) and permanent total disability (PTD) benefits pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)). Economy contends that the Commission failed to apply the correct standard in determining that the claimant, as an undocumented alien, was entitled to PTD benefits. It further contends that the evidence does not support the Commission’s finding that the claimant was permanently and totally disabled. For the reasons stated below, we affirm.

BACKGROUND

The claimant filed an application for adjustment of claim under the Act, seeking benefits for injuries that she allegedly received while in the employ of Economy on May 7, 2002. The following facts relevant to our resolution of this appeal are taken from the evidence presented at the arbitration hearing.

In 1992, the claimant was hired by Economy to work on an assembly line manually deboning chickens. The claimant, who was born in Mexico, admitted that she does not have the necessary paperwork to legally obtain employment in the United States and that, when she applied for her position at Economy, she presented documents that she received from a source other than the government.

On May 7, 2002, the claimant slipped while at work, hit the wall, and fell onto the floor, causing her to strike her head, right shoulder, hip, and buttocks. She reported the accident to her supervisor and was driven by a company employee to Concentra Medical Center.

According to the records from Concentra Medical Center, the claimant was diagnosed with a contusion of her shoulder and chest wall, prescribed ibuprofen, and restricted from performing any work with her right upper extremities. Over the next couple of weeks, the claimant continued to receive treatment from Concentra Medical Center and her family physician, Dr. Alvar do Jarava. Dr. Jaravo subsequently referred her to an orthopedic surgeon, Dr. Daniel Newman.

On May 30, 2002, the claimant first met with Dr. Newman. Dr. Newman diagnosed the claimant with a grade 3-4 sprain of the acromioclavicular joint with significant displacement of the distal clavicle and recommended that she undergo physical therapy.

When the physical therapy proved ineffective, Dr. Newman suggested surgery. On November 1, 2002, the claimant underwent a resection of the distal clavicle and reconstruction of the coracoclavicular ligament.

The claimant continued to treat with Dr. Newman postoperatively. In January of 2003, Dr. Newman returned the claimant to work with the restrictions of no lifting over 10 pounds and no work above the shoulder. The claimant, however, testified that her shoulder prevented her from returning to her job at Economy.

On April 15, 2003, Dr. Newman found the claimant to be at maximum medical improvement and recommended that she return to work with a permanent restriction of lifting 10 pounds or less and no work above her shoulder level. After the claimant was again unable to return to her position at Economy, Dr. Newman believed that she could no longer work at an assembly-line job which required the use of her right upper extremity. On May 13, 2003, Dr. Newman found that the claimant was permanently disabled and noted that he was not “planning on having her return to any type of gainful employment in the future.” However, in a subsequent report dated July 29, 2003, Dr. Newman noted that the claimant was still unable to perform any work above her shoulder level and could not perform any significant lifting on her right side, but that “vocational rehab” was seeking a position for her that would not require these activities. In the July 29, 2003, report, Dr. Newman believed that the claimant could still be gainfully employed.

At the hearing, the claimant testified that she was 60 years old. Prior to coming to the United States in 1982, she attended school for three years in Mexico and then worked on a farm. The claimant stated that she did not receive any additional education beyond those three years. She further testified that she speaks Spanish and cannot speak, read, or write in English. She also does not drive an automobile.

The claimant stated that she continues to experience pain in her right shoulder. She testified that she cannot lift her right arm much above her shoulder and that she has no strength in her right arm. According to the claimant, her condition has caused her not to seek employment since the summer of 2003.

The claimant sought a vocational evaluation from Julie Bose, a vocational rehabilitation counselor. Bose met with the claimant on November 24, 2003, and reviewed her medical records. Based on the claimant’s age, her limited education and communication skills, and her work restrictions that limited her to less than sedentary work, Bose opined that no stable labor market existed in which the claimant was employable. Bose further testified that, given the claimant’s current circumstances, she would not be employable, even if she were a citizen of the United States.

James Breen, a vocational rehabilitation case manager engaged by Economy, also conducted a vocational assessment of the claimant. He met with the claimant on July 23, 2003, and performed a labor market survey. Breen believed that, not taking into account the claimant’s inability to legally obtain employment, she would be able to perform a wide range of unskilled sedentary work occupations, such as a fast-food worker, laundry worker, or sandwich maker. He further opined that, if the claimant could legally work in the United States, she could be gainfully employed in the current labor market. Breen, however, agreed that claimant was not a candidate for vocational rehabilitation.

At the conclusion of the hearing, an arbitrator found that the claimant suffered an accidental injury on May 7, 2002, arising out of and in the scope of her employment with Economy. The arbitrator awarded the claimant TTD benefits in the sum of $146.67 per week for a period of 60 weeks and PTD benefits in the amount of $371.12 per week for life. In determining that the claimant was entitled to PTD benefits, the arbitrator found that she was permanently and totally disabled under the “odd-lot” doctrine. Specifically, the arbitrator noted:

“[The claimant] is not obviously unemployable and the medical evidence indicates that [the claimant] is limited to less than sedentary work. Mr. Breen admitted that [the claimant] is not a candidate for vocational rehabilitation. The Commission has previously held that a [claimant] is entitled to rehabilitation services that are needed to provide [the claimant] with the physical and occupational skills necessary to enable her to resume working in any country where she would be legally entitled to work (Tomayo vs. American Excelsior and Labor World, Inc., (99 IIC 521).

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Economy Packing Co. v. Illinois Workers' Compensation Commission
901 N.E.2d 915 (Appellate Court of Illinois, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
901 N.E.2d 915, 387 Ill. App. 3d 283, 327 Ill. Dec. 182, 2008 Ill. App. LEXIS 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/economy-packing-co-v-illinois-workers-compensation-commission-illappct-2008.