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Recent Appellate Court Decisions
In Sunny Hill Nursing Home v. IWCC, No. 3-13-0028WC (3rd Dist. 2014), the Workers’ Compensation Commission Division of the Illinois Appellate Court affirmed a circuit court decision which had confirmed the IWCC’s award of benefits.
In Sunny Hill Nursing Home, the petitioner worked for Sunny Hill as a practical nurse taking care of patients. Before the accident she underwent right shoulder surgery. She was released to full duty work about a month before the accident date.
On the date of accident, the petitioner was lowering a patient when she felt something snap in her right shoulder and right arm. An arthrogram of the right shoulder showed a full thickness perforation of the rotator cuff. The petitioner was seen by Dr. Markarian who performed arthroscopic surgery for the petitioner’s right shoulder. Dr. Markarian noted the petitioner was asymptomatic prior to the accident. He determined that her right shoulder problems were casually connected to the work accident. A few months after surgery, the petitioner received a cortisone injection in her right shoulder. She was released to light duty employment.
At the request of the employer, the Petitioner was examined by Dr. Walsh. Dr. Walsh’s report was not admitted into evidence at arbitration. Dr. Markarian referred to Dr. Walsh’s report in his evidence deposition. Dr. Walsh determined the petitioner’s injuries were not related to the work accident. Dr. Walsh released the petitioner to full duty employment.
After an attempt at full duty employment, the petitioner returned to Dr. Markarian and complained of an aggravation of her right shoulder. Dr. Markarian took the petitioner off work. Another arthrogram showed a partial tearing of the rotator cuff.
By agreement of the parties, the petitioner was examined by Dr. Romeo. Dr. Romeo determined the Petitioner’s right shoulder problems were related to the work accident. Dr. Romeo performed a second right shoulder arthroscopy with subacromial decompression. At the time of arbitration, the petitioner had not been returned to work or discharged from treatment by Dr. Romeo.
About a year before the accident, the petitioner opened a flower shop with her two daughters. The daughters run the flower shop although the petitioner has a 53% ownership interest. After the work accident, the petitioner returned to the flower shop at least three days a week. The petitioner does not follow a regular schedule. She is not employed by the flower shop. She does not draw a paycheck. She does not keep track of her hours. At arbitration, the petitioner testified that when she is at the flower shop she answers the phone, picks up fax sheets, helps her daughters with flower arrangements, and babysits her grandchildren.
At arbitration the employer introduced surveillance video which showed the petitioner walking from her car to the flower shop, carrying bags or a brief case, sitting on the back stoop of the business, picking wildflowers with her granddaughter, holding a baby inside the flower shop, and driving to a park.
The arbitrator determined the petitioner suffered an injury to her right shoulder, neck, and low back on the date of accident. The arbitrator awarded TTD benefits through the date of arbitration. The arbitrator held that the Petitioner’s attendance at the flower shop was sporadic and infrequent. The petitioner’s partial ownership interest in the flower shop does not constitute a return to work that disqualifies her from receipt of TTD benefits. The arbitrator found the petitioner’s condition of ill-being on right shoulder was causally connected to the work accident. The arbitrator’s decision was affirmed by the IWCC and the Will County Circuit Court. The employer appealed.
The issue before the Workers’ Compensation Commission Division of the Illinois Appellate Court is whether the IWCC’s decision regarding the award of TTD benefits and causal connection was against the manifest weight of the evidence. The appellate court affirmed the circuit court which had confirmed the IWCC’s award of benefits.
The appellate court’s focus was whether the petitioner’s condition had stabilized. The petitioner had not reached MMI. The petitioner’s presence at the flower shop was only one factor for the Commission to consider. Her attendance at the flower shop did not establish her condition had stabilized. Although the petitioner is the majority owner her daughters run the business. Her presence at the flower shop was the same both before and after the work accident. While she is at the flower shop, she watches her grandchildren in a babysitting role. She will occasionally answer the phone, retrieve faxes or assist customers. She does no more at the flower shop than she would at home. She does not draw a paycheck. She does not have a regular schedule nor does she track her hours. She received no income from the flower shop business.
The appellate court went on to reason that a return to any work will not result in the denial of TTD benefits. A return to work could be a factor to determine if the employee’s condition has stabilized which is the proper focus of the TTD analysis. In this case, the Petitioner’s presence at the flower shop did not show her condition had stabilized.
The medical evidence also did not show the petitioner’s condition had stabilized. The petitioner was treated by Dr. Romeo who had not discharged her from treatment at the time of arbitration nor did he release her to return to work. The award of TTD benefits was appropriate because the petitioner’s presence at the flower shop did not constitute a return to work. She had not yet reached maximum medical improvement nor had she been released to return to work.
The employer had argued that the petitioner’s condition in her right shoulder was not causally connected to the work accident. The appellate court noted that despite a pre-existing condition the accidental injury only needs to be a causative factor in the resulting condition of ill-being. In this case the petitioner had a pre-existing condition. She was at maximum medical improvement and was released to return to full duty work approximately 30 days before the accident. She had been working without difficulty when she suffered the work accident. The petitioner was treated by Dr. Markarian and Dr. Romeo who both found a causal connection between the petitioner’s present condition and the work accident. The employer argued that Dr. Walsh’s opinions were more persuasive, but the court noted that the employer failed to even introduce Dr. Walsh’s report into evidence. The IWCC’s decisions regarding TTD benefits and causal connection were not against the manifest weight of the evidence.
Editor’s Note: In Sunny Hill, the employer had argued that a return to any work will result in the denial of TTD benefits. The appellate court specifically rejected this theory. The appellate court reaffirmed the TTD analysis of Interstate Scaffolding. A return to some kind of employment is only one factor for the Commission to consider. The IWCC needs to consider the type of work being performed, the hours worked, and the income earned to determine if the petitioner’s condition has stabilized. Occasionally a respondent will erroneously argue that a petitioner is not entitled to TTD benefits because the petitioner could have returned to some type of employment. The correct analysis is whether the petitioner’s condition has stabilized. A return to work can be a factor in showing whether or not the petitioner’s condition has stabilized. Other factors would be the petitioner’s typical work duties and the medical evidence. A TTD issue is present in almost every case an adjuster handles. This decision provides guidance for correctly resolving this issue.