Find Legal Information

Nos. 2--04--0291WC & 2--04--0293WC cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Illinois Workers' Compensation Commission Division

JUSTICE CALLUM delivered the opinion of the court.

I. INTRODUCTION

Claimant, Brian Vogel, sustained cervical injuries while working for employer, Hogan'sPlumbing, Inc. An arbitrator awarded claimant 45 weeks of temporary total disability (TTD) benefitsand $32,987.80 in medical expenses. The arbitrator found that injuries claimant received as a resultof 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) adoptedthe arbitrator's findings. On judicial review, the trial court found that the Commission's decision wasagainst the manifest weight of the evidence and contrary to law. On remand, the Commissionawarded claimant 85 weeks of TTD benefits and $36,915 in medical expenses and ordered employerto authorize surgery prescribed by claimant's treating physician. The trial court confirmed theCommission's decision on remand. On appeal, employer argues that the trial court erred in holdingthat 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 foremployer on June 22, 1998. On July 10, 1998, he was delivering a whirlpool tub to a customer'shome. 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 reportedthe accident upon returning to employer's office. He continued working until July 26, 1998, whenhe went to the emergency room at Central Du Page Hospital.

Claimant saw Dr. Harb Boury, a neurosurgeon, on July 29, 1998. Dr. Boury diagnosedherniated discs at C4-C5 and C5-C6 and a bulging disc at C6-C7 and also noted his impression thatclaimant 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 cervicaldiscectomy and fusion at C4-C5 and C5-C6. During his deposition, Dr. Boury testified that claimant'sfusion had been progressing nicely. According to Dr. Boury, a person with a job like claimant'stypically 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 wellmaintained. The bone graft was beginning to fuse but was not yet solid. On June 7, 1999, Dr. Bouryreported that an X ray taken on June 4, 1999, showed that the alignment was good and the height ofthe graft was maintained, but the fusion was not completely solid. He advised claimant to weanhimself off of his rigid neck brace over the next 7 to 10 days and, after that period, to continue towear the brace while driving.

Claimant testified that he "was doing fine" and was experiencing no pain until he was involvedin an automobile accident on June 9, 1999. Another car hit claimant's vehicle from behind whileclaimant was traveling to his first session of physical therapy. Claimant was wearing a soft brace atthe 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 remainedin place and the alignment remained satisfactory. He advised claimant to wear a rigid neck brace foranother six weeks.

Claimant saw Dr. Boury again on June 14, 1999. Claimant complained of pain in the upperpart of his right arm. The pain radiated downward but not all the way into his hand. Dr. Bourytestified that claimant's symptoms were "almost like a throw back to" what claimant experiencedbefore the surgery. On July 12, 1999, claimant informed Dr. Boury that he had taken a job deliveringpizzas. Dr. Boury advised claimant that such work was appropriate because it was "not a physicaljob." An X ray taken on July 24, 1999, showed that the graft was in a good position and thealignment was satisfactory.

A functional capacity evaluation conducted on August 16, 1999, concluded that claimant wasable to lift 50 pounds occasionally and could function in a job requiring a medium physical demandlevel. Claimant's job with employer was rated at the very heavy physical demand level. Claimantunderwent 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 restrictionsprescribed 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 relatedclaimant's complaint that "ever since the car accident, my shoulder never felt the same." Dr. Bakernoted that claimant's condition failed to improve with physical therapy and referred claimant back toDr. Boury.

On October 5, 1999, claimant underwent a myelogram and postmyelogram CT scan. Thesestudies showed a slight narrowing of the neuroforamina on the right side at C5-C6. Dr. Bouryadvised claimant that he probably would develop pseudoarthrosis, or a failed fusion, at that level andreferred him to Dr. Fred Geisler, a neurosurgeon. Dr. Geisler examined claimant. A CT scanperformed 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 consideringsurgery. He advised claimant to wear a neck brace in the hope that the external fixation would helpthe fusion to become solid. Also, he prescribed physical therapy. When the conservative treatmentconcluded, Dr. Boury believed that claimant required a second surgery, including an additional graftand plating.

Dr. Boury opined that the problems claimant experienced after the auto accident were causedprimarily 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 threemonths *** 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 apseudoarthrosis, which [proved] to be the case."

Thus, Dr. Boury believed that, if claimant had not been involved in the auto accident, he probablywould not have developed pseudoarthrosis. He explained that pseudoarthrosis "is a very specific termused 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 wasstruck 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. X rays takenat the emergency room showed the incomplete fusion at C5-C6 and the narrowing of the neuralforamina at C4-C5 and C5-C6.

Claimant was involved in a third accident on June 18, 2000, when he struck a vehicle that hadpulled out in front of him. Claimant's head struck the windshield. Emergency room X rays revealedthe incomplete fusion at C5-C6, effusion at C4-C5, and narrowing at C6-C7. Dr. Boury opined that"[a]ll these accidents are aggravating the pre-existing condition which is pseudoarthrosis at [C]5-[C]-6. The pseudoarthrosis is *** a result of the first accident of 6-9-99."

Claimant acknowledged that he exercised at a health club regularly from March 1, 2000, untilMay 31, 2000. He rode a stationary bicycle and did some weight training, mostly using his legs. Hedid upper body work to the extent he could tolerate it and lifted no more than 25 to 50 pounds. Claimant worked full time as a driver for Black Gold Septic from March 13, 2000, until April 24,2001. Claimant injured his ankle while working for Black Gold Septic and, at the time of the hearing,was receiving TTD benefits for that injury. At the time of the hearing, claimant had lawsuits pendingagainst the other drivers involved in claimant's first and third auto accidents.

At employer's request, Dr. Gary Skaletsky, a neurosurgeon, examined claimant on March 8,2001, and reviewed claimant's medical records. He opined that the graft at C5-C6 failed to fuse "forinherent biological reasons" and that the June 9, 1999, auto accident did not contribute to claimant'spseudoarthrosis. According to Dr. Skaletsky, the auto accident at most would have delayed thefusion but would not have prevented the fusion from occurring. He added that the postaccidentstudies showing that the bone graft remained properly aligned indicated that the accident did notcontribute to claimant's condition. Accordingly, he opined that the automobile accidents did notcontribute in any way to claimant's current condition. Dr. Skaletsky believed that one causecontributing to claimant's pseudoarthrosis was his failure to comply with Dr. Boury's directive to weara rigid brace while driving. He explained that any activity that causes hypermobility of the neck whilefusion is occurring could delay the fusion and lead to pseudoarthrosis. Also, he believed thatclaimant's work at Black Gold Septic was inappropriate given claimant's work restrictions and wasprobably a factor contributing to claimant's condition.

The arbitrator awarded claimant TTD benefits from July 28, 1998, until June 9, 1999, or 45weeks, and $32,987.80 in medical expenses. Relying on Dr. Boury's opinion, the arbitrator found thatthe auto accidents "further aggravated [claimant's] medical condition and resulted in the need foradditional medical treatment and lost time." Accordingly, claimant's current condition of ill-being was notcausally related to the July 10, 1998, work injury. The Commission adopted the arbitrator's decision.

Claimant sought judicial review. On October 7, 2002, the trial court ruled that theCommission's decision was "contrary to law and [against] the manifest weight of the evidence in thatthe 6/9/99 auto accident and subsequent auto accidents did not break the chain of causation between[claimant's] 7/10/98 work accident and his pseudoarthrosis, in that the work and auto accidents wereconcurrent causes." The trial court remanded the cause to the Commission with instructions to enteran award consistent with the court's ruling. Employer appealed the trial court's ruling, but this courtdismissed the appeal because a final judgment had not yet been entered. Vogel v. Industrial Comm'n,No. 2--02--1211 (2003) (unpublished order under Supreme Court Rule 23).

On remand, the Commission awarded claimant TTD benefits from July 28, 1998, throughMarch 13, 2000, or 85 weeks, and $36,915 in medical expenses and found that claimant was entitledto the second surgery that Dr. Boury had recommended. The trial court confirmed the Commission'sdecision, and employer timely appealed.
 

III. DISCUSSION

On appeal, employer argues that the trial court erred in setting aside the Commission's originaldecision that the auto accidents were intervening events that broke the causal connection betweenclaimant's work injury and his current condition of ill-being. Where, as here, the trial court reversesthe Commission's initial decision and the Commission enters a new decision on remand, this courtmust decide whether the Commission's initial decision was proper. Inter-City Products Corp. v.Industrial Comm'n, 326 Ill. App. 3d 185, 196 (2001).

To obtain compensation under the Workers' Compensation Act (820 ILCS 305/2), a claimantmust show by a preponderance of the evidence that he or she has suffered a disabling injury arisingout of and in the course of his or her employment. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193,203 (2003). The "arising out of" component addresses the causal connection between a work-relatedinjury and the claimant's condition of ill-being. Sisbro, 207 Ill. 2d at 203. A claimant need prove onlythat some act or phase of his or her employment was a causative factor in the ensuing injury. TwiceOver Clean, Inc. v. Industrial Comm'n, 348 Ill. App. 3d 638, 643 (2004), appeal allowed, No. 98748. A work-related injury need not be the sole or principal causative factor, as long as it was a causativefactor in the resulting condition of ill-being. Sisbro, 207 Ill. 2d at 205.

Every natural consequence that flows from an injury that arose out of and in the course of theclaimant's employment is compensable unless caused by an independent intervening accident thatbreaks the chain of causation between a work-related injury and an ensuing disability or injury. Teskav. Industrial Comm'n, 266 Ill. App. 3d 740, 742 (1994). That other incidents, whether work-relatedor not, may have aggravated the claimant's condition is irrelevant. Lasley Construction Co. v.Industrial Comm'n, 274 Ill. App. 3d 890, 893 (1995); see also International Harvester Co. v.Industrial Comm'n, 46 Ill. 2d 238, 245 (1970) (where the work injury itself causes a subsequentinjury, the chain of causation is not broken).

Whether a causal connection exists is a question of fact for the Commission, and a reviewingcourt will overturn the Commission's decision only if it is against the manifest weight of the evidence. Navistar International Transportation Corp. v. Industrial Comm'n, 331 Ill. App. 3d 405, 415 (2002). Itis the Commission's duty to resolve conflicts in the evidence, particularly medical opinion evidence. Navistar, 331 Ill. App. 3d at 415. The test is whether the evidence is sufficient to support theCommission's finding, not whether this court or any other tribunal might reach an opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 833 (2002). For the Commission's decision to beagainst the manifest weight of the evidence, the record must disclose that an opposite conclusion clearlywas the proper result. Gallianetti v. Industrial Comm'n, 315 Ill. App. 3d 721, 729-30 (2000).

The trial court appropriately applied the causation principles discussed above in ruling thatthe Commission's original decision was against the manifest weight of the evidence. This court hasrecognized repeatedly that, when the claimant's condition is weakened by a work-related accident,a subsequent accident that aggravates the condition does not break the causal chain. See Lee v.Industrial Comm'n, 167 Ill. 2d 77, 87 (1995). For example, in Mendota Township High School v.Industrial Comm'n, 243 Ill. App. 3d 834 (1993), the claimant injured his lower back while playingbasketball in connection with his duties as an athletic coach. Less than one month later, the claimantaggravated his condition while playing racquetball. The claimant underwent conservative treatment,but his condition worsened. Several months later, the claimant suffered a sneezing episode whileattending a high school football game. Immediately, he experienced excruciating lower-back pain thatradiated down his leg. There was medical evidence that the basketball injury probably resulted in atear of the posterior longitudinal ligament or of the annulus fibrosis, which weakened and rupturedduring the sneezing episode.

The court noted that, although there was no dispute that the sneezing episode was theimmediate cause of the rupture, it was not necessarily the sole cause. Mendota, 243 Ill. App. 3d at837. "Had it not been for the original basketball injury, in all probability claimant's back problemswould not have reached the stage they did in such a short period of time." Mendota, 243 Ill. App.3d at 837. The court held that the Commission's finding that the racquetball injury and the sneezingepisode were only contributing, not intervening, causes was not against the manifest weight of theevidence. Mendota, 243 Ill. App. 3d at 837-38; see also International Harvester, 46 Ill. 2d at 247(evidence supported Commission's finding that claimant was suffering from a continuing conditionof traumatic neurosis that resulted from a work-related head injury and that the existence of thecondition was a causative factor in the total and permanent disability that occurred four years laterwhen claimant's wife struck him); Fermi National Accelerator Lab v. Industrial Comm'n, 224 Ill. App.3d 899, 908 (1992) (second fall involving use of crutches was not an intervening accident that brokethe causal connection between condition of ill-being and first fall where claimant would not have beenusing the crutches but for the first injury).

This court has applied the above principles to overturn a Commission finding that a secondaccident broke the causal connection between the claimant's work injury and his subsequent conditionof ill-being. In Teska, the claimant sustained a cervical injury while at work. He underwent surgeryand was released to work about two months later. The claimant continued to experience numbnessand pain. An MRI taken several months after the surgery revealed a recurrent herniated disc at thesame level upon which the surgery was performed. About one year after the surgery, the claimantexperienced sharp pain while bowling and did not return to work thereafter.

The court reasoned that merely because the claimant experienced an upsurge of neck pain whilebowling did not mean that the causal connection was broken. Teska, 266 Ill. App. 3d at 742-43. According to the court, the claimant's condition would not have progressed to the point it did but for hisoriginal work-related accident. Teska, 266 Ill. App. 3d at 742. Because the claimant's work-relatedaccident played a causative role in his current condition of ill-being, the Commission's decision to thecontrary was against the manifest weight of the evidence. Teska, 266 Ill. App. 3d at 743.

Here, claimant's first auto accident clearly aggravated his condition resulting from his work-relatedinjury. There is no dispute that, when claimant was involved in the first auto accident, he had not fullyrecovered from his surgery. Just before the first auto accident, Dr. Boury reported that the fusion wasprogressing nicely but was not complete. Claimant had not yet been released to full-duty work. Even ifthe accident was responsible for the failed fusion, such a condition could not have developed but for thesurgery, which everyone agreed was necessary as a result of claimant's work injury.

The evidence that appears to support the Commission's initial decision is illusory. Claimanttestified that he "was doing fine" and was experiencing no pain until he was involved in the first autoaccident. This testimony about a lack of symptoms does nothing to change the fact that claimant wasstill recovering from the surgery and therefore was susceptible to complications such aspseudoarthrosis. The Commission relied on Dr. Boury's opinion that the first auto accident playeda "major" role in claimant's worsening clinical condition. Dr. Boury's opinion, however, does nothingto eliminate claimant's work-related injury as a causative factor in his current condition of ill-being. Dr. Boury recognized that the timing of the auto accident shortly after the surgery, while claimantwas still recovering, was a crucial factor. Also, he explained that the existence of pseudoarthrosisimplies a previous surgery. Although Dr. Boury testified that the pseudoarthrosis would not haveoccurred but for the auto accident, it is equally true that the pseudoarthrosis would not have occurredbut for claimant's work injury. Therefore, Dr. Boury's opinion merely established that the autoaccident was a concurrent cause, along with the work injury.

The same analysis applies to the subsequent auto accidents. There was no evidence that theaccidents changed the nature of the injury other than to aggravate it, and the need for the secondsurgery became apparent before the second auto accident. Therefore, the inescapable conclusion isthat claimant's work-related injury was a causative factor in his resulting condition.

We note that the arbitrator and the Commission never expressly found that the auto accidentsbroke the causal chain, but instead found merely that they "further aggravated [claimant's] medicalcondition." The law is clear, however, that the fact that other nonwork-related accidents may haveaggravated claimant's condition is irrelevant.

In Zion-Benton Township High School District 126 v. Industrial Comm'n, 242 Ill. App. 3d 109,114 (1993), and Ditola v. Industrial Comm'n, 216 Ill. App. 3d 531, 535-36 (1991), the courts upheldCommission decisions finding that the second accidents broke the causal chains. Those decisions aredistinguishable. The claimants in those cases had returned to work after receiving treatment for their workinjuries and had been working for several months at the times of their second accidents. Here, claimantwas still recovering from surgery and had not yet been released to return to full-duty work.
 

IV. CONCLUSION

For the foregoing reasons, the trial court properly ruled on October 7, 2002, that theCommission's initial decision was against the manifest weight of the evidence and remanded the causeso that the Commission could enter an award consistent with the court's ruling. The parties do nottake issue with any aspects of the Commission's decision on remand.

Therefore, the judgment of the circuit court of Du Page County is affirmed and the cause isremanded for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980).

Affirmed and remanded to Industrial Commission.

McCULLOUGH, P.J., and HOFFMAN, HOLDRIDGE, and GOLDENHERSH, JJ., concur.

 

1. The name of the Industrial Commission was changed to the Illinois Workers' Compensation Commission on January 1, 2005. However, for the sake of consistency, we will continue to use the name "Industrial Commission" in this case.