Court Upholds Ruling Denying Causation
Court Upholds Commission Ruling Denying Causation With Respect to Low Back Surgery – Court Reverses the Commission as to Average Weekly Wage where Commission Included Self Employment Earnings.
Cindy Mansfield v. Illinois Workers’ Compensation Commission and Naperville Park District, 2013 Ill. App. (2nd) 120909WC (Filed November 21, 2013).
Petitioner was employed by Naperville Park District on a part time basis teaching preschool classes. She worked 12 to 20 hours a week. Her average weekly wage working for respondent was $247.97. In addition to her employment with the insured, she also taught piano lessons in her home. From her home business she earned about $269.59 per week.
Petitioner filed two applications for injuries on July 23, 2003 and September 9, 2003. The accidents were not disputed. On July 23, 2003, she jumped backwards to avoid a child and felt back pain. She saw a doctor and was diagnosed with a lumbar strain. She did not lose any time from work.
She suffered a second injury September 9, 2003 when she fell back into a door and her back pain increased. She treated with a chiropractor and was authorized off work. She had an MRI which showed no obvious disc herniation that was clinically significant.
Her employer sent her to Dr. Spencer who treated her for several months and placed her at MMI in January, 2004. Her employer sent her for an IME with Dr. Andrew Zelby. Dr. Zelby did not think petitioner had any significant disc herniation. He felt she sustained a lumbar strain and was at MMI within three or four months following the July, 2003 accident.
Eventually, petitioner sought treatment from other doctors at Northwestern Memorial Hospital. She had a discogram which showed disc degeneration at L5-S1. She underwent surgery and had an L5-S1 fusion.
The case was tried before an arbitrator who found all of petitioner’s medical treatment causally related to her accident of September 9, 2003. Petitioner was awarded several years of TTD, over $100,000.00 in medical bills and 25% man as a whole for PPD.
The employer appealed and the Commission reversed on the issues of causation and surgery. The Commission cut off TTD as of April 12, 2004, denied the surgery and awarded only 10% loss of use of the man as a whole. However, the Commission awarded benefits using an average weekly wage of $517.56 including both petitioner’s earnings from the employer and her self employment earnings teaching piano lessons.
Both parties appealed to the Circuit Court. The Circuit Court affirmed the Commission, but remanded to recalculate the average weekly wage.
Both parties appealed and the Appellate Court affirmed the Commission on the issues of causal connection, surgery, TTD and PPD. The court noted that the Commission was justified in relying on the opinions of Dr. Spencer and Dr. Zelby when deciding the issue of causation. Further, the court noted that petitioner’s treating physician actually opined that her condition of ill-being was causally related to the July 23, 2003 accident and not the September 9, 2003 accident. (Petitioner clearly erred in not appealing both of her decisions.)
The court refused to change the award of TTD or PPD. The court ruled that awards of PPD are uniquely within the province of the Commission.
However, the court reversed the Commission as to the average weekly wage calculation. The court found that the Commission erred when it included wages from petitioner’s self employment. The court found the case of Paoletti v. Industrial Commission, 279 Ill. App. 3rd 988, 665 N.E. 2d 507 (1996) to be dispositive. That case ruled that self employment earnings should not be included in the average weekly wage calculation.
Comment: This is an excellent and fair decision from the court. The arbitrator had written a terrible decision of this case finding petitioner’s degenerative back condition requiring surgery to be causally related to two fairly minor back injuries. The evidence clearly showed that petitioner had a long history of back problems and these two work events were simply minor strains at best. Despite petitioner’s continued complaints of low back pain, it was apparent that petitioner was exaggerating her symptoms and that her symptoms were personal problems, not work-related injuries. The award of TTD through April, 2004 was generous. The award of 10% loss of use of the man as a whole was more than generous.
It is surprising that the Commission would have erred in the wage calculation by including self employment earnings. The Paoletti case dates back to 1996 and there have been no statutory changes or case law changes which modify its holding. There is no reason why there should be any consideration for self employment earnings as part of the average weekly wage calculation. The Appellate Court was clearly correct in reversing the Commission’s wage calculation and remanding for a recalculation.