Smith v. Industrial Commission

719 N.E.2d 329, 308 Ill. App. 3d 260, 241 Ill. Dec. 468, 1999 Ill. App. LEXIS 732
CourtAppellate Court of Illinois
DecidedOctober 13, 1999
Docket3-98-0827 WC
StatusPublished
Cited by7 cases

This text of 719 N.E.2d 329 (Smith 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
Smith v. Industrial Commission, 719 N.E.2d 329, 308 Ill. App. 3d 260, 241 Ill. Dec. 468, 1999 Ill. App. LEXIS 732 (Ill. Ct. App. 1999).

Opinions

JUSTICE HOLDRIDGE

delivered the opinion of the court:

Claimant, Marianne Smith, filed a claim pursuant to the Illinois Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq.) (West 1996)) seeking compensation for a right shoulder injury that she sustained on March 26, 1992, while employed by Bums Security (the employer).

The arbitrator found that claimant sustained accidental injuries, which arose out of and within the course of her employment, and which were causally connected to her March 26, 1992, accident. The arbitrator awarded claimant temporary total disability (TTD) benefits, a wage differential (WD), medical expenses, and penalties.

The Illinois Industrial Commission (the Commission) affirmed in part and vacated in part the arbitrator’s TTD benefit award, vacated the WD and penalties award, awarded claimant permanent partial disability (PPD) benefits, and otherwise affirmed and adopted the arbitrator’s decision.

The circuit court of La Salle County reversed the Commission’s decision concerning the disputed TTD period, reinstated the arbitrator’s TTD benefit award for that period, and confirmed the Commission’s PPD benefit award.

Claimant worked as a security supervisory officer for the employer. This position required her to pass an annual physical agility and weaponry test. As of March 1992, her hourly rate of pay was $14.70.

On March 26, 1992, and in an attempt to break an airlock seal at the employer’s Unit One reactor, claimant injured her right shoulder. On March 27, 1992, and upon the employer’s referral, she was seen by Dr. Ralph Tack, who took X rays, prescribed medication, and ordered physical therapy, which she underwent through November 1992. Dr. Tack referred her to orthopedic surgeon Dr. Keith Rezin, who, after taking a history and an exam, opined that “evidently she injured her right shoulder at work on March 26, 1992,” and he diagnosed her with a rotator cuff tear. He prescribed shoulder injections and an arthrogram.

On July 23, 1992, claimant underwent an acromioplasty and a rotator cuff repair performed by Dr. Rezin. In October 1992, Dr. Rezin noted that claimant “really has a restricted range of motion.” On November 6, 1992, Dr. Rezin noted claimant was “lacking some external rotation and still having some weakness, prescribing another couple of weeks of therapy.” He released her to return to work on November 6, 1992. However, due to the employer’s delay, she was told to report to work on November 30, 1992. When she reported to work the employer told her that she was laid off and that her TTD benefit payments were terminated.

In February 1993, claimant was examined by Dr. Gerald McDonald, who found a protruding mass in the superior aspect of her right shoulder, in addition to deformity, tenderness, and limited range of motion.

Claimant continued to treat with Dr. Rezin. He made a postsurgical diagnosis of impingement syndrome of the right shoulder. His April and May 1993 notes indicated her ongoing pain and range-of-motion limitations.

In June 1993, the employer referred claimant to orthopedic surgeon Dr. Daniel Mass, who diagnosed her with a partial rotator cuff tear and subacromial inflammation. In July 1993, after Dr. Mass indicated that claimant continued to be disabled from employment, the employer reinstated her TTD benefits. In October 1993, due to her continued pain and functional loss, Dr. Mass performed a second acromioplasty and a distal clavicle resection. Thereafter, Dr. Mass prescribed physical therapy and medication, which continued through September 1994.

In 1994, the employer revised its employee classifications and its minimum standards for firearms and agility testing. In March 1994, Dr. McDonald again examined claimant, and his findings were consistent with his earlier exam. He opined that there was a causal relationship between claimant’s March 1992 accident and her subsequent symptoms and treatment, as well as her physical abnormalities. He believed that her condition was now permanent and that she would never be able to perform her prior duties as a security supervisory officer.

On September 29, 1994, Dr. Mass released claimant to return to work as of October 3, 1994, which was conditioned upon her recertification in weaponry and agility testing. He noted that “[i]f she cannot pass the re-certification exam, then she will have to be retrained for another job.”

On October 3, 1994, claimant reported to work but was told that she was still laid off. The employer did not seek recertification of claimant but, instead, continued her TTD benefits until January 6, 1995, at which time it suspended those benefits “until Dr. Mass issued a restriction letter.”

In spring 1995, claimant enrolled in a computer class and consulted with a vocational rehabilitative service, which, after testing, suggested a vocational change. Claimant filed a section 19(b) motion for continued benefits. Thereafter, the employer referred her to Dr. Mitchell Krieger.

In March 1995, Dr. Krieger issued a report that diagnosed claimant with status post-operative acromioplasty, rotator cuff repair, and distal clavicle resection. He advised a functional work capacity evaluation to determine if claimant could fire a shotgun as required in her employment as a security supervisory officer.

On June 7, 1995, claimant was recalled to work, and she was tested to see if she was qualified to resume her supervisory duties. On June 13, 1995, and at the request of the employer, claimant was examined by Dr. Carmelo Ruiz, who noted “significant decreased range of motion of the shoulder and decreased strength of the arm, forearm, wrist and grip *** [which] may have negative impact on agility/firearms test.”

On June 25, 1995, due to her shoulder condition, claimant failed her first attempt at requalification. The employer provided her with a shoulder strap and a second test; however, she failed her second attempt. Thereafter, claimant was seen by her personal physician, Dr. Michael Harney, who prescribed medication and saw her on four occasions. Dr. Mass also prescribed more physical therapy.

Also on June 25, 1995, claimant requested that she be retrained to another vocation. The employer told her that she was not eligible for retraining. The employer offered, and claimant accepted, a position as a senior watch person. She was not required to carry a weapon and had less strenuous duties than a supervisor. She accepted an $8.55 hourly rate of pay, which was increased to $9.75 because of her seniority. Due to several pay raises during March 1996, by the end of that month claimant earned $15 per hour.

Claimant received her last treatment for her right shoulder on August 10, 1995. In December 1995, a functional capacity evaluation showed claimant’s “work tolerance at a light-medium physical demand level.” Her ability to tolerate the shooting of a shotgun placed against her right shoulder went beyond the scope of this test.

The arbitrator found claimant sustained accidental injuries that arose out of and within the course of her employment and that were causally connected to her March 26, 1992, accident.

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Smith v. Industrial Commission
719 N.E.2d 329 (Appellate Court of Illinois, 1999)

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Bluebook (online)
719 N.E.2d 329, 308 Ill. App. 3d 260, 241 Ill. Dec. 468, 1999 Ill. App. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-industrial-commission-illappct-1999.