Residential Carpentry, Inc. v. Illinois Workers' Compensation Commission

910 N.E.2d 109, 389 Ill. App. 3d 975, 331 Ill. Dec. 36, 2009 Ill. App. LEXIS 258
CourtAppellate Court of Illinois
DecidedMay 8, 2009
Docket03-08-0122WC
StatusPublished
Cited by11 cases

This text of 910 N.E.2d 109 (Residential Carpentry, Inc. 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
Residential Carpentry, Inc. v. Illinois Workers' Compensation Commission, 910 N.E.2d 109, 389 Ill. App. 3d 975, 331 Ill. Dec. 36, 2009 Ill. App. LEXIS 258 (Ill. Ct. App. 2009).

Opinion

JUSTICE HUDSON

delivered the opinion of the court:

Claimant, Douglas Tibbitts, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)). He alleged that he sustained an injury to his shoulder resulting from a work-related incident. The arbitrator found claimant credible and awarded him 28 weeks’ temporary total disability (TTD), existing and prospective medical expenses, as well as penalties and attorney fees. The Workers’ Compensation Commission (Commission) adopted the decision of the arbitrator, and the circuit court of Will County confirmed its decision. Respondent, Residential Carpentry, Inc., now appeals, raising two issues. First, it argues that claimant was not entitled to TTD. Second, it asserts that the Commission erred in imposing penalties and fees. We disagree and affirm. The arbitrator did defer ruling upon penalties and fees with respect to prospective expenses, so we remand for that determination as well as for further proceedings pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327 (1980).

Before proceeding further, we note that claimant requests that this court impose sanctions under Supreme Court Rule 375 (155 Ill. 2d R. 375). The imposition of sanctions under this rule is a matter “left strictly to our discretion.” Fields v. Lake Hillcrest Corp., 335 Ill. App. 3d 457, 466 (2002). Claimant asserts that sanctions would “hopefully minimize the need for injured workers to have to endure this process to this extent in the future.” We believe the fees and penalties imposed by the Commission adequately protect that interest. Hence, in exercise of the discretion we possess regarding this issue, we reject claimant’s request.

I. BACKGROUND

Claimant was employed by respondent as a “back-out” carpenter. His job involved building wooden structures, such as door frames, soffits, and dropped ceilings. It also included lifting prefabricated stairs into place, which weighed over 100 pounds. Claimant worked part-time between April 2001 and October 2004 in a window-washing business as well. He was injured on October 13, 2003, when he tore his rotator cuff. Claimant’s right shoulder also suffers from two additional conditions — spurring of the distal clavicle and arthritis.

Claimant testified that, on October 13, 2003, he was lifting some stairs and noticed a sharp pain in his shoulder. He thought he had “pulled a muscle.” The pain became worse that evening, and claimant had difficulty sleeping that night. The next day, claimant informed his foreman of the injury, and they filled out an accident report. Claimant stated that he had never experienced this sort of pain prior to this time. Claimant sought medical treatment from Dr. Analytis. Analytis ordered an MRI and referred claimant to Dr. Rezin. Rezin recommended starting with conservative treatment, specifically cortisone shots and physical therapy. Rezin did not place any restrictions upon claimant’s ability to work at this time.

Claimant testified that he participated in physical therapy from January 2004 to March 2004. He noted a “slight improvement.” Rezin eventually recommended surgery. Claimant stated that respondent refused to authorize the procedure.

On June 9, 2004, claimant was again lifting a set of stairs. He aggravated his shoulder and reported it to his foreman. Claimant sought care at an emergency room. An emergency room doctor told him to not work until he saw Rezin. Claimant was examined by Rezin on June 15, 2004. Rezin imposed some work restrictions, which respondent honored.

In December 2005, however, claimant was laid off. Claimant unsuccessfully attempted to be rehired by respondent. He also attended regular union meetings in an effort to secure employment. On March 8, 2006, claimant had a conversation with Dan Engel, respondent’s superintendent. Engel told claimant that they were not busy, that there were problems on claimant’s last job, and that claimant would be “better off to seek employment somewhere else.” Claimant characterized Engel’s manner of speaking as a tirade. Claimant stated that he was unaware of any problems with his last job. Claimant tried to obtain a position with 15 to 20 other contractors, and he kept a log documenting his efforts.

Claimant testified that there had been no changes with regard to the restrictions he was under since he saw Rezin in September 2005. Rezin’s recommendation that claimant undergo surgery also had not changed. Claimant testified that he had not had the surgery solely because respondent refused to authorize it. He still experienced a “constant dull ache” in his shoulder. Overhead activity causes him “sharp pain and a lot of popping in the shoulder joint.” Claimant testified that his symptoms have been “pretty much the same” since the incident on October 13, 2003.

During cross-examination, claimant acknowledged that between October 2003 and December 2005, he never missed work due to his injury. Claimant stated that he would help out in his window-washing business in May and November, which were usually busy periods. Claimant also acknowledged that he had some “aches and pains” in his shoulder prior to October 13, 2003. On redirect, claimant testified that he never injured himself while washing windows.

Bruce Elmer, respondent’s safety director, testified for respondent. In his position as safety director, Elmer oversees workers’ compensation claims. Elmer testified that respondent did have a light-duty program. Respondent tried to return injured employees to work as soon as possible, consistent with their limitations.

Elmer was aware of claimant’s accident of October 13, 2003. Elmer stated that it was normal for an employee to give his restricted-duty slips to his foreman. The slips eventually make their way to Elmer, who reviews them to see if respondent can provide work within the restrictions. Neither claimant’s foreman nor his superintendent discussed claimant’s situation with Elmer. Claimant never contacted Elmer either. Elmer explained that he did not make the decision regarding whether the company needed to hire more people. Rather, a superintendent would make a decision to start hiring, and then, if someone was available for a light-duty position and such a position was consistent with the needs of the company, Elmer would try and place the person in the position. According to Elmer, the company currently had some light-duty jobs available. Elmer stated that if claimant had contacted him and informed him that he was available for light duty, Elmer would have attempted to find out why claimant was not being recalled to work.

During cross-examination, Elmer testified that he was aware that claimant was working light-duty from September 2005 until the time he was laid off. Elmer acknowledged that he did not check to see why claimant was not being brought back to work despite having a restricted-duty slip in his office dated March 28, 2006. He stated that he did not know why claimant was off work.

Respondent also called Barry Bukeloo. Bukeloo is a private detective. In December 2003, he was hired by WRAMSCO (respondent’s workers’ compensation insurance carrier) to obtain an interview of claimant and his foreman.

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Bluebook (online)
910 N.E.2d 109, 389 Ill. App. 3d 975, 331 Ill. Dec. 36, 2009 Ill. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/residential-carpentry-inc-v-illinois-workers-compensation-commission-illappct-2009.