Homebrite Ace Hardware v. Industrial Commission

814 N.E.2d 126, 351 Ill. App. 3d 333, 286 Ill. Dec. 476, 2004 Ill. App. LEXIS 661
CourtAppellate Court of Illinois
DecidedJune 8, 2004
Docket5-03-0650 WC
StatusPublished
Cited by10 cases

This text of 814 N.E.2d 126 (Homebrite Ace Hardware v. Industrial 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
Homebrite Ace Hardware v. Industrial Commission, 814 N.E.2d 126, 351 Ill. App. 3d 333, 286 Ill. Dec. 476, 2004 Ill. App. LEXIS 661 (Ill. Ct. App. 2004).

Opinion

JUSTICE CALLUM

delivered, the opinion of the court:

Claimant, Kevin Schnoeker, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)) while working for employer, Homebrite Ace Hardware. Following a hearing on claimant’s section 19(b) petition (820 ILCS 305/19(b) (West 2002)), the arbitrator awarded claimant 54 weeks of temporary total disability (TTD) benefits and directed employer to authorize claimant’s prescribed cervical spine surgery. The Industrial Commission (Commission) affirmed and adopted the arbitrator’s decision, and it remanded the case for further proceedings pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 332-35 (1980). The circuit court confirmed the Commission’s decision, and employer timely appealed. We affirm and remand pursuant to Thomas, 78 Ill. 2d at 332-35.

I. BACKGROUND

Claimant worked for employer as paint department manager. In 2000, claimant had worked for employer for 10 years and had managed the paint department for about 5 years. On November 6, 2000, claimant heard a pop in his back while he unloaded five-gallon buckets of driveway sealer from a pallet. He continued working, but felt back pain about four hours later. Claimant reported his injury to employer and did not return to work.

On November 9, 2000, claimant saw a doctor who worked with his family physician, Dr. Garces. Claimant related the popping episode and complained of lower back pain. The associate diagnosed a possible disc herniation or bulging and prescribed pain medication and light work duty. The associate also referred claimant to Dr. Charisse Barta, a neurologist. Claimant returned to Dr. Garces’s office for follow-up visits on November 14 and 28, 2000, and complained of continued lumbar pain. Dr. Garces prescribed physical therapy and suggested light-duty work for four hours per day for two weeks.

Dr. Barta examined claimant on November 30, 2000, and diagnosed lower back pain and ordered an MRI of claimant’s lumbosacral spine. She next examined claimant on December 28, 2000. In her notes, she wrote that claimant’s lumbar MRI revealed a herniated disc at L3-L4 and a disc bulge at L4-L5. She also stated that claimant could return to work with a restriction of no lifting over 10 pounds. Dr. Garces subsequently referred claimant to Dr. Christopher Heffner, a neurosurgeon.

According to claimant, about six weeks to two months after the accident, he began feeling pain in his neck and upper back. Claimant testified that he had never experienced any neck problems before his injury, but he did experience back problems on several occasions.

At his deposition, Dr. Heffner, a board-certified neurosurgeon, testified that he first examined claimant on January 30, 2001. Claimant explained that he continued to experience back pain that radiated to his right posterior hip. He also had difficulty sleeping and with sexual function. Dr. Heffner reviewed claimant’s MRI films and diagnosed herniated lumbar disc disease with back pain and hip pain. Dr. Heffner prescribed steroid medication and a TENS unit. Claimant was already off of work and Dr. Heffner agreed with that recommendation. Over employer’s counsel’s objection, he opined that claimant’s condition was causally related to his work accident.

Dr. Heffner next saw claimant on February 13, 2001. At this time, claimant complained of pain to his neck that radiated to his arm. Dr. Heffner opined, over counsel’s objection, that claimant’s condition at this time was causally related to his work accident. Following two lumbar epidural injections, claimant complained at a March 6, 2001, visit, of neck and lower back pain, but no pain radiating to his legs. Dr. Heffner ordered another injection and continued physical therapy. During a March 29, 2001, visit, claimant complained of neck pain that radiated to his right arm and to the back of his head. The MRI films revealed degenerative changes of the C5-C6 disc with some posterior disc bulging. Dr. Heffner recommended cervical traction. Again, over counsel’s objection, he opined that claimant’s condition at this time was causally related to his work accident. Dr. Heffner continued to keep claimant off of work and recommended continued physical therapy and home cervical traction.

Dr. Heffner next saw claimant on April 20, 2001. He felt that claimant’s neck was a more significant problem at this time and discussed with claimant surgical intervention. During a May 17, 2001, visit, claimant complained of neck and lower back pain and posterior headaches. He also complained of pain radiating from his neck to his right upper shoulder and arm. Dr. Heffner’s continuing diagnosis was a herniated lumbar disc and cervical degenerative disc disease. He again discussed with claimant surgical intervention with respect to his cervical spine. Claimant again saw Dr. Heffner on June 21, and July 31, 2001. His condition had not significantly changed.

Claimant agreed to undergo the cervical surgery, and it was scheduled for September 10, 2001. However, he did not undergo the procedure because employer did not authorize it. Dr. Heffner did not see claimant again after July 31, 2001, and never released him to return to work. According to Dr. Heffner, as of July 31, 2001, claimant’s lower back condition had improved, and claimant did not complain of radicular pain to his leg. Dr. Heffner advised claimant to treat the condition on an as-needed basis. He testified that he would have released claimant to return to work if the cervical condition had not developed. Dr. Heffner further stated that he did not issue a report about causation with respect to claimant’s cervical spine.

On July 16, 2001, Dr. R. Peter Mirkin examined claimant on employer’s behalf and reviewed his MRI films. In his evaluation, Dr. Mirkin stated that there was no relationship between claimant’s neck condition and his work injury. He noted that claimant’s neck pain did not develop for several months after the injury. Dr. Mirkin also stated that claimant had a very small disc bulge in his neck and that he would not recommend surgery for it because it would not be beneficial. He recommended that claimant return to work.

On February 5, 2002, the arbitrator awarded claimant 54 weeks’ TTD benefits for the period November 7, 2000, through November 21, 2001, and directed employer to authorize the treatment prescribed by Dr. Heffner, including the cervical spine surgery. Finding Dr. Heffner’s causation opinion credible, the arbitrator found that claimant’s condition of ill-being, including his cervical condition, was causally related to his work accident.

On November 18, 2002, the Commission, with one commissioner dissenting, affirmed and adopted the arbitrator’s decision. In addition, it found that employer could not reasonably claim surprise by Dr. Heffner’s causation opinion and thus overruled employer’s objections to his testimony. The Commission remanded the case for further proceedings pursuant to Thomas, 78 Ill. 2d at 332-35.

On September 17, 2003, the circuit court confirmed the Commission’s decision. Employer timely appealed.

II.

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Bluebook (online)
814 N.E.2d 126, 351 Ill. App. 3d 333, 286 Ill. Dec. 476, 2004 Ill. App. LEXIS 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/homebrite-ace-hardware-v-industrial-commission-illappct-2004.