Vogel v. Industrial Commission

821 N.E.2d 807, 354 Ill. App. 3d 780, 290 Ill. Dec. 495
CourtAppellate Court of Illinois
DecidedJanuary 4, 2005
Docket2-04-0291 WC, 2-04-0293 WC
StatusPublished
Cited by29 cases

This text of 821 N.E.2d 807 (Vogel 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
Vogel v. Industrial Commission, 821 N.E.2d 807, 354 Ill. App. 3d 780, 290 Ill. Dec. 495 (Ill. Ct. App. 2005).

Opinion

JUSTICE CALLUM

delivered the opinion of the court:

I. INTRODUCTION

Claimant, Brian Vogel, sustained cervical injuries while working for employer, Hogan’s Plumbing, Inc. An arbitrator awarded claimant 45 weeks of temporary total disability (TTD) benefits and $32,987.80 in medical expenses. The arbitrator found that injuries claimant received as a result of three automobile accidents broke the causal chain and therefore that his current condition of ill-being was not causally related to his work injury. The Industrial Commission 1 (Commission) adopted the arbitrator’s findings. On judicial review, the trial court found that the Commission’s decision was against the manifest weight of the evidence and contrary to law. On remand, the Commission awarded claimant 85 weeks of TTD benefits and $36,915 in medical expenses and ordered employer to authorize surgery prescribed by claimant’s treating physician. The trial court confirmed the Commission’s decision on remand. On appeal, employer argues that the trial court erred in holding that the Commission’s decision was against the manifest weight of the evidence. We affirm.

II. BACKGROUND

The arbitration hearing took place on August 23, 2001. Claimant began working for employer on June 22, 1998. On July 10, 1998, he was delivering a whirlpool tub to a customer’s home. While dragging the tub, which weighed 275 to 300 pounds, he tripped over some debris. Claimant felt pain in his neck that radiated down his right arm and into his fingers. Claimant reported the accident upon returning to employer’s office. He continued working until July 26, 1998, when he went to the emergency room at Central Du Page Hospital.

Claimant saw Dr. Harb Boury, a neurosurgeon, on July 29, 1998. Dr. Boury diagnosed herniated discs at C4-C5 and C5-C6 and a bulging disc at C6-C7 and also noted his impression that claimant had a congenitally narrow cervical spinal canal. Dr. Boury ordered claimant off of work.

Claimant underwent surgery on March 12, 1999. Dr. Boury performed an anterior cervical discectomy and fusion at C4-C5 and C5-C6. During his deposition, Dr. Boury testified that claimant’s fusion had been progressing nicely. According to Dr. Boury, a person with a job like claimant’s typically would not be able to return to work until about six months after the surgery. On April 26, 1999, Dr. Boury reported that X rays showed that the graft height and alignment were well maintained. The bone graft was beginning to fuse but was not yet solid. On June 7, 1999, Dr. Boury reported that an X ray taken on June 4, 1999, showed that the alignment was good and the height of the graft was maintained, but the fusion was not completely solid. He advised claimant to wean himself off of his rigid neck brace over the next 7 to 10 days and, after that period, to continue to wear the brace while driving.

Claimant testified that he “was doing fine” and was experiencing no pain until he was involved in an automobile accident on June 9, 1999. Another car hit claimant’s vehicle from behind while claimant was traveling to his first session of physical therapy. Claimant was wearing a soft brace at the time. After the accident, claimant experienced pain in his neck, shoulder, and arm.

Claimant saw Dr. Boury on June 10, 1999, and informed him about the auto accident. Dr. Boury reviewed the X rays taken at the emergency room and determined that the bone graft remained in place and the alignment remained satisfactory. He advised claimant to wear a rigid neck brace for another six weeks.

Claimant saw Dr. Boury again on June 14, 1999. Claimant complained of pain in the upper part of his right arm. The pain radiated downward but not all the way into his hand. Dr. Boury testified that claimant’s symptoms were “almost like a throw back to” what claimant experienced before the surgery. On July 12, 1999, claimant informed Dr. Boury that he had taken a job delivering pizzas. Dr. Boury advised claimant that such work was appropriate because it was “not a physical job.” An X ray taken on July 24, 1999, showed that the graft was in a good position and the alignment was satisfactory.

A functional capacity evaluation conducted on August 16, 1999, concluded that claimant was able to lift 50 pounds occasionally and could function in a job requiring a medium physical demand level. Claimant’s job with employer was rated at the very heavy physical demand level. Claimant underwent two weeks of work hardening but was unable to achieve any physical or functional gains. On August 30, 1999, Dr. Boury authorized claimant to return to work within the restrictions prescribed in the functional capacity evaluation.

Claimant remained symptomatic, and, in September 1999, Dr. Boury referred claimant to Dr. Steven Baker, an orthopaedic surgeon. In his referral letter to Dr. Baker, Dr. Boury related claimant’s complaint that “ever since the car accident, my shoulder never felt the same.” Dr. Baker noted that claimant’s condition failed to improve with physical therapy and referred claimant back to Dr. Boury.

On October 5, 1999, claimant underwent a myelogram and postmyelogram CT scan. These studies showed a slight narrowing of the neuroforamina on the right side at C5-C6. Dr. Boury advised claimant that he probably would develop pseudoarthrosis, or a failed fusion, at that level and referred him to Dr. Fred Geisler, a neurosurgeon. Dr. Geisler examined claimant. A CT scan performed at Dr. Geisler’s behest on November 5, 1999, revealed a failed fusion, at C5-C6.

Dr. Boury testified that he wanted to attempt conservative treatment before considering surgery. He advised claimant to wear a neck brace in the hope that the external fixation would help the fusion to become solid. Also, he prescribed physical therapy. When the conservative treatment concluded, Dr. Boury believed that claimant required a second surgery, including an additional graft and plating.

Dr. Boury opined that the problems claimant experienced after the auto accident were caused primarily by the auto accident and not claimant’s work accident. According to Dr. Boury:

“The accident clearly played a major role in his worsening clinical condition. And *** what’s unfortunate is the timing of the accident, that the accident happened not quite three months *** from the anniversary of his surgery; that a fusion is not solid by that time, *** and, therefore, the accident clearly will set back the fusion and sometimes may lead into a pseudoarthrosis, which [proved] to be the case.”

Thus, Dr. Boury believed that, if claimant had not been involved in the auto accident, he probably would not have developed pseudoarthrosis. He explained that pseudoarthrosis “is a very specific term used to describe the *** lack of a bony fusion. In and of itself, it implies a pre-existing operation.”

Claimant was involved in a second automobile accident on April 7, 2000. Again, he was struck from the rear. Claimant complained of pain in his left shoulder and arm, pain in his lower back, pain in his right upper arm, and numbness in his right middle finger and right ring finger.

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Bluebook (online)
821 N.E.2d 807, 354 Ill. App. 3d 780, 290 Ill. Dec. 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-industrial-commission-illappct-2005.