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No. 2--04--0674WC

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Illinois Workers' Compensation Commission Division

JUSTICE CALLUM delivered the opinion of the court:

I. INTRODUCTION

After slipping and falling while working for employer, Land and Lakes Company, claimant, Rocco P. Dawson, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). An arbitrator found that claimant's back condition was causally related to his work accident, awarded claimant 67¹/₇ weeks of temporary total disability (TTD) benefits and $17,676 in medical expenses, and ordered employer to pay for the surgery that claimant's treating physician prescribed. The Industrial Commission⁽¹⁾ (Commission) adopted the arbitrator's decision. On judicial review, the trial court confirmed the Commission's decision.

On appeal, employer argues that (1) the arbitrator and the Commission erred in admitting claimant's medical bills because claimant failed to lay a proper foundation for their introduction; (2) the Commission's finding that claimant's condition of ill-being is causally connected to claimant's work injury is against the manifest weight of the evidence; (3) the Commission's award of medical expenses is against the manifest weight of the evidence; (4) the Commission's award of prospective medical care is against the manifest weight of the evidence; and (5) the Commission's TTD award is against the manifest weight of the evidence. We agree with employer that claimant's medical bills should not have been admitted. Therefore, we reverse the medical expenses award and remand the cause for another hearing on that issue. We affirm the Commission's decision in all other respects.

II. BACKGROUND

The arbitration hearing took place on September 20 and October 24, 2002. Claimant testified that he worked for employer as a machine operator. At the time of the accident, claimant was 65 years old, lived in Harvard, and was working at a site in Lincolnshire. Before the accident, claimant had experienced no problems with his back. On June 7, 2001, claimant was walking along an earthen ramp on a hill. While attempting to walk around a machine, he lost his footing and fell 10 to 12 feet down the slope of the hill. Claimant immediately felt pain in his lower back, numbness in both legs from the knees down, and tingling in both hands. Claimant reported the incident to his foreman, who sent claimant to the emergency room. Claimant had X rays taken and received pain medication.

The following day, claimant saw Dr. Robert Nixon, who ordered an MRI. Claimant saw Dr. Nixon again on June 13, 2001. Dr. Nixon diagnosed a lumbar strain with some neurologic symptoms but with no deficit or clear radicular pattern. He prescribed anti-inflammatory medication and physical therapy and authorized claimant to do sedentary work involving limited walking, no repeated bending, and no lifting of more than 20 pounds.

On June 18, 2001, claimant received from employer a letter directing him to report for work as an office clerk at employer's main office in Park Ridge. Claimant testified that Park Ridge was approximately 70 miles from his home. At the time, he was taking Darvocet, and Dr. Nixon had instructed him not to drive for more than 10 to 15 minutes and not to drive while taking medication.

On June 22, 2001, Dr. Nixon revised claimant's work restrictions to include no sitting for more than about 30 minutes. On June 25, 2001, claimant underwent an MRI, which revealed degenerative disc disease at L3-L4, a right-sided paramedian disc herniation at L4-L5, and a central disc herniation at L5-S1. Neither condition appeared to be impacting upon the dural sac. However, the combination of disc bulges, reduction of disc height, and hypertrophic posterior facets was tightening the L4 and L5 neural foramina bilaterally, more so at L5. After seeing the results of the MRI, Dr. Nixon ordered claimant off of work. He prescribed epidural steroid injections, which claimant received on August 30, September 11, and September 20, 2001.

At employer's request, claimant saw Dr. Jay Levin on September 26, 2001. Dr. Levin told claimant that he suffered from a degenerative condition that was not related to his work injury, had reached maximum medical improvement (MMI), and could return to work without restrictions.

On October 18, 2001, claimant attempted to return to light-duty work at the Lincolnshire site. He punched in at 6:30 a.m. At that time, he had not taken any medication. Claimant waited some time for instructions. He began experiencing pain and took some medication at 8:40 a.m. Shortly thereafter, two employees from employer's main office in Park Ridge arrived and told claimant that his position had been filled. Claimant told the individuals that the medication he took left him unable to drive, and employer called a limousine to take him home.

On November 1, 2001, claimant began receiving a retirement pension through his union. Employer contributed to the union pension fund. The retirement benefit was $1,107 per month. On January 27, 2002, claimant began receiving Social Security retirement benefits of $1,026 per month.

Dr. Nixon advised claimant to see a neurosurgeon. Claimant chose to see Dr. Marshall Pedersen, whom he visited on November 12, 2001. Claimant denied experiencing any back problems before the accident. He complained of lower back pain primarily on the right side and numbness in both legs below the knee. He reported that the pain he experienced interrupted his sleep three to six times per night and that walking for more than 10 minutes, sitting for more than 20 minutes, or bending over to lift items increased his pain. Dr. Pedersen recommended a lumbar discogram and a postdiscogram CT scan.

On December 7, 2001, claimant underwent the discogram. Before undergoing the procedure, claimant described the severity of his pain as 10 on a scale of 1 to 10. When the disc at L1-L2 was injected with dye, claimant rated his pain at 10 and reported no worsening of his pain upon pressurization of the disc. At L2-L3, claimant reported pain across his back similar to pain he typically experienced after his injury. At L3-L4, claimant reported pain similar to that he normally experienced. At L4-L5, claimant reported no increase in pain and did not appear to react to the disc pressurization. At L5-S1, claimant denied any worsening of his pain.

The postprocedure diagnosis was an annular tear at L4-L5 with a collection of material centrally and towards the right and an annular tear at L5-S1 with leakage. After reviewing the discogram results, Dr. Pedersen prescribed a thoracic lumbrosacral orthosis (TLSO) brace, a one-piece molded plastic brace that fits around the patient's midsection to stabilize the area. Its purpose is to help relieve the patient's pain and to give the treating physician an indication of whether the patient will respond to surgery.

Claimant next saw Dr. Pedersen on May 20, 2002, and complained of low-back pain and bilateral numbness from the knees down. Dr. Pedersen diagnosed painful degenerative disc disease at L2-L3 and L3-L4 and painful herniated discs at L4-L5 and L5-S1. There was no indication of stenosis or nerve root impingement. Dr. Pedersen believed that, because claimant had been enduring symptoms for some time, he should consider surgery. Dr. Pedersen recommended a discectomy and cage fusion initially at L2-L3 and L3-L4. If, after six to eight months, the pain persisted, a second procedure at L4-L5 and L5-S1 should be performed.

During his May 24, 2002, deposition, Dr. Pedersen explained that a discogram involves injecting the nucleus pulposus of a disc with radiographic dye. A patient generally does not report pain when a normal disc is injected and typically reports pain or an increase in pain when a significantly abnormal disc is injected.

Dr. Pedersen opined that claimant had a preexisting degenerative condition that was asymptomatic. Claimant's work-related accident aggravated the condition and caused it to become symptomatic. Specifically, he testified:

"I believe that the symptoms and findings *** were the result of the work injury which he suffered on June 7th, 2001. *** [Claimant] likely had the degeneration of the disk in his lumbar spine preexisting the accident *** but *** the injury that occurred was the *** tearing of the annular ligaments due to the forcing of degenerated disk material through them that caused his discomfort and his current situation of ill health.

***

The interval between the injury and the [MRI] was *** 13 days. *** [T]hat is probably not a long enough [time] *** to allow these disks to completely leach out all their water and have all the changes that occur in them. So that's why it was my opinion that the degenerated disk disease that was present there likely predated the accident.

*** I don't think any injury would have likely caused this problem. I think he had to have a significant injury where full force weight of fall, that kind of thing you would have that would do that."

Dr. Pedersen testified further that, because of the level of discomfort that claimant was experiencing, there were very few employment situations that claimant could tolerate. When asked if the fact that the TLSO brace did not alleviate claimant's symptoms indicated that claimant was not a surgical candidate, Dr. Pedersen replied that "[i]t's one of those things that *** if it works, fine, if it doesn't work, it doesn't add to the equation. *** You feel better about doing the surgery if he has a positive response to wearing the TLSO, but he did not. *** [W]e don't have any further information now than we did previously."

When asked about the reasonableness of claimant's epidural injections, Dr. Pedersen replied that they are "used for a variety of conditions in a person's back and some of it is irritation of nerve roots and some of it is for back pain. *** I don't have any problem with the fact that the patient had that particular procedure and I think it was quite indicated."

Claimant saw Dr. Levin a second time on August 28, 2002. Dr. Levin reviewed the results of the postdiscogram CT scan and opined that the annular tears at L4-L5 and L5-S1 were incidental to claimant's complaints. He believed this because, during the discogram procedure, claimant reported pain while being injected at levels where there was no evidence of an annular tear. Dr. Levin's diagnosis was a lumbar contusion with degenerative changes at L3-L4, L4-L5, and L5-S1. He felt that surgery was not appropriate and reaffirmed his earlier opinion that claimant had reached MMI.

During his April 26, 2002, deposition, Dr. Levin testified that he believed that claimant did sustain an injury as a result of the work accident. He opined, however, that the right-sided L4-L5 disc herniation was not causally related to the work accident and was not causing claimant's symptoms. He explained that his examination revealed only a left-sided weakness of the left extensor hallus longus musculotendinous, which is an L5 innervated muscle. This left-sided finding was not related to the right-sided L4-L5 herniation. Dr. Levin believed that claimant could benefit from home exercises but did not require any formal medical treatment or therapy and could work without restrictions.

Also, Dr. Levin testified that he would not have prescribed the epidural injections. He explained that such injections are best suited to relieve radicular pain, i.e., "a mass occupying lesion pressing on a nerve with associated radicular complaints," but are very unlikely to alleviate back pain.

Claimant testified that, at the time of the hearing, he was still under Dr. Pedersen's restrictions of light-duty work only and no driving or operating heavy machinery. Claimant continued to experience pain, difficulty walking, and numbness in his arms and legs and was taking Darvocet. He planned to see Dr. Pedersen in October 2002.

Claimant never returned to work for employer after October 18, 2001, and has not sought out other employment. At the time of the hearing, claimant was still drawing a pension and collecting Social Security benefits. He explained that he sought these benefits because he needed money to meet his living expenses.

During claimant's direct examination, claimant was presented with each bill for which he sought recovery. For most bills, claimant identified the service he received and testified that, to the best of his knowledge, a balance remained unpaid. For some of the bills, claimant testified that he paid them himself and had not yet been reimbursed. During cross-examination, claimant acknowledged that he never contacted the providers to verify the balances and that he had no personal knowledge of the unpaid balances. During redirect examination, claimant explained that a collection agency had contacted him several times about the $8,522 bill for his discogram. When claimant later sought to introduce the bills into evidence, employer objected on the ground that claimant failed to lay a proper foundation. The arbitrator overruled the objection.

Relying on the opinions of Drs. Nixon and Pedersen, the arbitrator found that claimant's current condition of ill-being was causally related to his work injury. Accordingly, he awarded TTD benefits from June 7, 2001, through September 20, 2002, or 67¹/₇ weeks, and $17,676 in medical expenses. The arbitrator also found that the surgical procedures that Dr. Pedersen recommended were reasonable and necessary to relieve claimant's symptoms.

The Commission adopted the arbitrator's decision. Addressing employer's objection to the medical bills, the Commission found that "a proper foundation was laid when [claimant] testified that the bills had been sent to him at his home and to his knowledge remained unpaid. [Claimant] could not be expected to have personal knowledge as to whether his employer had paid the bills." The trial court confirmed the Commission's decision. Employer timely appealed.

III. DISCUSSION

A. Admissibility of Medical Bills

Employer argues that the arbitrator and the Commission erred in allowing claimant to introduce his medical bills over employer's objections that no proper foundation had been laid for them. Except when the Act provides otherwise, the Illinois rules of evidence govern proceedings before an arbitrator or the Commission. 50 Ill. Adm. Code