Newbolds v. Ill. Workers’ Comp. Comm’n
Appellate Court of Illinois, Second District, Workers’ Compensation Commission Division
March 8, 2018, Filed
NO. 2-17-0301 WC
2018 IL App (2d) 170301WC-U *; 2018 Ill. App. Unpub. LEXIS 344 **
ROBERT NEWBOLDS, Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION COMMISSION et al. (Clesen Brothers, Inc., Appellee).
Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).
Prior History: [**1] Appeal from Circuit Court of Kane County. No. 16MR114. Honorable David R. Akemann, Judge Presiding.
[*P1] Held: The Commission’s decision that claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment was not against the manifest weight of the evidence.
[*P2] On September 13, 2012, claimant, Robert Newbolds, filed an amended application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), seeking benefits from the employer, Clesen Brothers, Inc. Following a hearing, the arbitrator awarded claimant benefits under the Act, finding that his injuries arose out of and in the course of his employment and were causally connected to a work accident on July 20, 2012.
[*P3] On review, the Illinois Workers’ Compensation Commission (Commission) reversed the arbitrator’s decision, finding that (1) claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment; and (2) his condition of illbeing was not causally [**2] related to a work accident on July 20, 2012. On judicial review, the circuit court of Kane County confirmed the Commission’s decision.
[*P4] Claimant appeals, arguing the Commission erred in finding that he did not prove his injuries arose out of and in the course of his employment and were not causally connected to a work accident on July 20, 2012.
[*P5] I. BACKGROUND
[*P6] At arbitration, claimant testified he worked for 17 years as a truck driver for the employer, a commercial greenhouse and nursery. His job duties included loading flats of plants onto a truck, delivering them to the employer’s customers, and unloading them. Claimant testified that he drove a “20-foot straight truck” with a solid bench seat and no cushion. He stated that the truck had a “rough” suspension that “bounced [him] out of the seat” while driving.
[*P7] Prior to each delivery, the flats of plants were placed onto carts, and he would load the carts onto the truck. According to claimant, an empty cart weighed 120 pounds and a loaded cart weighed up to 600 pounds. To remove the carts from the truck, claimant would disconnect the load bar holding them in place and pull each cart to the back of the truck. Claimant stated he would lower [**3] the carts to the ground via a lift gate.
[*P8] Claimant testified that, on Friday, July 20, 2012, he arrived at work between 5:00 a.m. and 5:30 a.m. He was scheduled to make eight or nine deliveries that day. His first delivery was approximately 2 1/2 to 3 hours away in Wisconsin. Claimant testified that he felt “great” before his first delivery. When he arrived in Wisconsin, he was “a little sore from sitting.” His first delivery included a full cart of plants with 28 cases averaging 10 to 20 pounds each. He explained that he noticed his back started “really hurting” when he “reached for the cart to pull it to the back of the truck to the lift gate ***.” Claimant stated that he “[l]owered the lift gate to the ground, rolled the cart over to *** where the customer wanted [him] to unload it[,] [w]hich [he] did.”
[*P9] Claimant further testified that he completed his first delivery despite his pain. As he drove to the site of the next customer, he was “bouncing around quite a bit” in his truck and “hurting.” He stated that he could barely finish his second delivery because of his pain. Claimant stated that his back pain worsened throughout the day. He also noticed pain running down into his left [**4] buttock. He nonetheless completed all eight or nine of his scheduled deliveries that day.
[*P10] Claimant testified that each delivery involved the same motion of pulling the carts out of the truck. He clarified that he “did do lifting” as he completed his deliveries and he noticed pain after “pulling a cart” and while he was “driving.”
[*P11] After completing his deliveries that day, claimant returned to the employer’s place of business around 4:30 p.m. He testified that he only spoke to the maintenance man, Mike Splinter. Claimant stated that he attempted to call one of the owners, Eric Clesen, but he was unable to reach him. Claimant explained that he did not leave a voicemail because he assumed the pain would “go away over the weekend, [and he] didn’t want to disrupt [Eric’s] weekend with his family ***.” Claimant testified that he did not speak to his supervisor, Patrick Clesen, on the day of his injury.
[*P12] Claimant testified that his pain worsened over the weekend. He attempted to call two co-workers on Sunday, July 22, 2012, to see if they could cover his next shift on Monday. Claimant was unable to reach either of his co-workers.
[*P13] On Monday, July 23, 2012, claimant reported to work and made [**5] a delivery. Claimant explained that he noticed “[t]he pain was still in [his] back and [his] left butt cheek.” According to claimant, when he returned from his delivery, he reported his pain to Patrick. Claimant testified that he informed Patrick that his “back was killing [him], that [he] needed to take off and go to the hospital and have it checked out.” He told Patrick that he “hurt [his] back doing [his] job Friday and that when [he] got back [he] fell down.” In response, Patrick suggested that claimant seek treatment from a chiropractor. Claimant stated that he “couldn’t afford that *** [and] he just wanted to go to the hospital ***.”
[*P14] Later that day, claimant left work and sought medical treatment from Delnor Community Hospital. He testified that he complained of back pain and pain in his left buttock running down his left leg. He stated that he did not know why the hospital records did not reflect that he sustained his injury during a “lifting” incident. Instead, the medical records from Delnor Community Hospital reflect the following accident history:
“The patient states that he developed back pain Friday. He does not remember doing anything other than he drives a truck and after [**6] trying to get in and out of his truck he was having lower back pain. The pain is more on the left side than the right. It does extend down his buttock. He did have an injury in October where a door hit him in his back. He did not follow up, did not have an x-ray at that point in time. *** He has left foot tingling which is not new. It is his chronic pain. Currently he states his pain is a 9/10. *** [H]e is having difficulty ambulating due to the pain.”
[*P15] Hospital records reflect that, upon physical examination, claimant was able to “move upper extremities without difficulty. Positive pain with straight leg raises on the left [were] compared to the right. He d[id] have tenderness over the [s]ciatic on the left side.” An x-ray was taken of claimant’s lumbar spine. The x-ray showed degenerative disk disease at L5-S1. The treating physician recommended that claimant follow up with his primary care physician. Claimant was also prescribed morphine, Valium, and Toradol for his pain.
[*P16] Claimant testified that he worked for part of the day on July 24, 2012. That same day, claimant followed up with his primary care physician of 15 years, Dr. William Scurlock. According to Dr. Scurlock’s medical [**7] records, claimant gave the following history:
“Back symptoms, buttock pain radiating to posterior thigh, radiating to the back of the leg, radicular pain, posterior aspect of lower extremities L leg and hip, and ending below the knees [sic]. No previous history of limb weakness. No numbness of buttocks. Numbness of the limbs L knee down to toes. No perianal numbness. Seen in ER for sciatica, here for follow up. Feeling better, pain in left leg since Friday. HX of cervical disc herniation years ago.”
[*P17] Claimant testified that he told Dr. Scurlock he had a “lifting” incident at work and he had “no idea why that’s not there [in the medical records].” Claimant further testified that Dr. Scurlock “knows what [claimant’s] job is *** and what [he] do[es].”
[*P18] According to Dr. Scurlock’s medical records, he examined claimant and noted tenderness to palpation of the lumbar spine, muscle spasms of the paraspinal muscles, limited lumbar range of motion with pain, and a positive straight leg raise on the left. The medical records further note that claimant had an altered gait and abnormal ankle reflex on the left. Dr. Scurlock diagnosed claimant with sciatica, recommended that claimant continue to take [**8] his pain medications, and ordered a magnetic resonance imaging (MRI) scan. Dr. Scurlock advised that claimant not work while on pain medication.
[*P19] On Wednesday, July 25, 2012, claimant worked for part of the day. He testified that he told the owners, Eric and Mike Clesen, that he “hurt [himself] on the job Friday, [he] went to the hospital Monday, [he] went to the doctor Tuesday, [the doctor] put [him] on medication and also stated that [he] could not drive and do [his] job.” Claimant testified that he did not work after July 25, 2012.
[*P20] On July 31, 2012, claimant saw Dr. Scurlock for his diabetic condition. Dr. Scurlock’s medical records do not show that claimant mentioned having back pain during this appointment.
[*P21] On August 2, 2012, claimant underwent an MRI of his lumbar spine at the Center for Diagnostic Imaging in Geneva, Illinois. According to medical records, the interpreting physician concluded as follows: “1. There is a disc herniation at L5-S1 with an associated annular tear. 2. There is multilevel mild facet degenerative change.”
[*P22] On August 6, 2012, claimant received his last paycheck. He testified that there was a notation on his paycheck instructing him to turn in his cell phone [**9] and credit card.
[*P23] On August 9, 2012, claimant followed up with Dr. Scurlock. Dr. Scurlock’s medical records noted that claimant “[c]annot work due to pain in back,” that claimant was afraid he would be fired if he filed a workers’ compensation claim, and he could not afford to stay at home. Dr. Scurlock diagnosed claimant with a herniated disk and sciatica. He recommended reduced physical activity and referred claimant to a pain clinic.
[*P24] On August 16, 2012, claimant gave a recorded statement to Jodie Arnett, a representative of the employer’s workers’ compensation carrier. In his recorded statement, claimant explained that his back pain developed when the employer “first got [this particular] truck.” Claimant went on to describe the truck. Claimant noted that he has complained to his supervisor about the truck’s “solid bench seat.” He explained that he would get “back pains every time [he] [got] in it ***.” Claimant further stated as follows:
“*** I’m short legged so I got to sit forward away from the back of the seat, I’m like five inches away from the back. *** [S]o you’re pretty much hanging on [to] the steering wheel *** [and] you ain’t got nothing to lean back against, it makes you [**10] sore ***.”
Further, when asked why he believed his pain was work related, he stated “it’s that front seat of that truck.” He explained “[t]hat’s the biggest thing. *** They should’ve replaced the seat in the truck.”
[*P25] On August 28, 2012, claimant saw Dr. H.S. Tsang at Fox Valley Pain Management. Dr. Tsang recorded the following accident history:
“In July 7/20/2012 [claimant] was driving a truck on a bumpy road and was bouncing up and down in the truck all day. At the end of day, he had difficulty getting off the truck[,] almost fell off the truck because of left leg pain and weakness. He described the pain was aching and shooting, going down to the lower leg especially back of the lower leg associated with some tingling and numbness ***.”
[*P26] Dr. Tsang examined claimant and noted he was tender in the left lumborascral region and he had limited range of motion in all directions because of pain. Dr. Tsang diagnosed claimant with radiculopathy secondary to a herniated disc at L5-S1. Dr. Tsang administered a transforaminal epidural steroid injection. Claimant testified that the injection reduced the pain in his back but the pain returned approximately six weeks later.
[*P27] Claimant further testified [**11] that, although he believed he was terminated from his employment on August 6, 2012, he attempted to return to work on August 28, 2012, because he needed health insurance. He explained that he talked his wife into going to Dr. Scurlock’s office to obtain a release to return to work. On August 28, 2012, Dr. Scurlock signed a form stating that claimant was able to return to work without restrictions. According to claimant, Eric Clesen informed him that he was no longer employed because “[w]orkers’ [c]omp[ensation] wouldn’t cover [him] ***.”
[*P28] Claimant stated that, after he was terminated, his health deteriorated due to his lack of health insurance. He explained that he was unable to follow up with his doctors for his back pain or pay for prescriptions for his diabetic condition.
[*P29] On November 6, 2012, claimant was admitted to Delnor Community Hospital for diabetes dysregulation. Claimant testified that he was in a coma during the five days he spent at the hospital. While there, claimant was given medication for his back pain.
[*P30] On November 16, 2012, Dr. Matthew Ross performed an independent medical examination (IME) at the request of claimant’s attorney. Dr. Ross reported the following history [**12] of claimant’s condition:
“The patient states that he was employed as a truck driver for Clesen Brothers Greenhouse. After returning from a delivery run to Wisconsin, [claimant] experienced severe low back pain as well as numbness down his left leg. He did not recall any specific accident. He states that he simply did his normal work activities of loading plants onto heavy carts, which he pushes and pulls into flower shops. The patient assumed that his pain would resolve. He rested at home over a weekend. When the pain persisted, he went to an emergency room for treatment. *** He denies previous problems with his low back.”
[*P31] According to Dr. Ross’s report, claimant had full range of motion in his lumbar spine. He further noted there was “tenderness over the lower lumbar spinous processes as well as over the left flank musculature just above the iliac crest.” There was no sciatic notch tenderness noted.
[*P32] Dr. Ross’s report noted that he reviewed claimant’s August 2012 MRI, which showed “early disk desiccation and an annular tear at L5-S1.” Dr. Ross further opined that “[t]here may be some slight bulging of this disk toward the right side.” Dr. Ross stated that he did not detect any herniation [**13] or nerve impingement. He opined that claimant had “symptoms of a lumbosacral strain as well as mild sciatica.” Dr. Ross recommended conservative treatment including additional epidural steroid injections and physical therapy. He found claimant was capable of returning to work provided he lifted nothing greater than 25 pounds and had the ability to vary his position from sitting to standing. Dr. Ross further opined as follows:
“Although there was no actual work accident, it is more likely than not that the lifting activities at work on July 20, 2012[,] were the proximate cause of the patient’s symptoms and his need for treatment. There is no evidence that he had a preexisting condition in his lumbar spine that would have any bearing on his current symptoms.”
[*P33] Following Dr. Ross’s examination, claimant sought treatment from a free clinic, Tri City Health Partnership. According to the medical records, claimant received treatment for his diabetes on November 21, 2012. The medical records do not reflect that claimant made any mention of lower back pain during this appointment.
[*P34] On December 3, 2012, claimant returned to the free clinic. The medical records note that claimant reported a “back [**14] injury at work in July.” Claimant again visited the free clinic on January 17, 2013, but apparently did not mention having back pain. On February 14, 2013, claimant went to the free clinic and reported “chronic back pain” radiating to his left lower extremity. Claimant was referred to Dr. Escobar for his back pain.
[*P35] Claimant was seen at the free clinic on May 9, 2013. No complaints of back pain were recorded at that visit. According to the clinic’s medical records, claimant returned due to chest pain on July 11, 2013, after he “lift[ed] a stove into a truck.” He followed up at the free clinic on October 7, 2013, and December 12, 2013, for his diabetic condition. No mention of back pain was noted on either occasion. On March 27, 2014, and April 22, 2014, claimant returned complaining of back pain and he received an epidural injection.
[*P36] On September 29, 2014, Dr. Ross conducted a second IME. Dr. Ross noted that claimant’s back pain began after he made a delivery to Wisconsin. Dr. Ross stated that claimant “did not perform anything other than his normal work activities of loading plants on to carts.”
[*P37] According to Dr. Ross’s second IME report, claimant stated that “in the intervening 2 years, [**15] he has had some treatment from the ‘Free Clinic in Saint Charles.’ He underwent an injection ***.” Dr. Ross noted claimant’s August 2012 MRI, which was “normal except for disc desiccation and an annular tear at the L5-S1 level.”
[*P38] In his report, Dr. Ross opined that claimant had “persistent back and sciatic type pain in his left leg following his work activity in July 2012.” He further stated that claimant had evidence of disc degeneration and an annular tear at the L5-S1 level. He explained that, “[w]hile this potentially could be a cause for his low back pain, it would be unlikely to explain his left sciatic pain.” Dr. Ross advised that claimant was capable of functioning at only a light physical demand level. He further stated that claimant was not capable of commercial driving in his current condition. Regarding causation, Dr. Ross stated as follows: “Based on the history obtained from [claimant] and the lack of evidence to the contrary, his current condition of back and left leg pain continue to be causally connected to his work activity of July 2012.”
[*P39] Following the second IME, claimant returned to the free clinic on November 20, 2014, December 29, 2014, and February 4, 2015. Medical [**16] records make no mention of back pain.
[*P40] Mary Newbolds, claimant’s wife, testified at arbitration. She stated that she saw claimant before he went to work on Friday, July 20, 2012. She observed that claimant appeared to be walking normally and did not notice anything to suggest he was injured. She testified that, when claimant returned home later that day, he “threw [his] lunch bucket down and he also collapsed and kept grabbing his left hip.” She testified that she had to help him take off his shoes.
[*P41] Patrick Clesen testified for the employer. He stated that he is the operations manager. Patrick testified that he had a conversation with claimant after claimant returned from his route on Friday, July 20, 2012. Patrick observed that claimant did not appear to be in any pain. Patrick explained that claimant told him he “had slipped either off the lift gate or the side step of the truck and had injured his leg.” Patrick testified that claimant only mentioned pain in his leg—not his back. Patrick asked claimant if he needed medical attention and claimant said, “no.” Patrick testified that, according to his time cards, claimant worked on July 26, 27, and 30, 2012.
[*P42] On May 26, 2015, the arbitrator [**17] issued her decision finding that claimant’s injuries arose out of and in the course of his employment and were causally connected to a work accident on July 20, 2012. The arbitrator awarded claimant temporary total disability (TTD) benefits from July 31, 2012, through August 28, 2012, and from November 16, 2012, through April 17, 2015. The arbitrator also awarded claimant prospective and current medical expenses.
[*P43] On review, the Commission reversed the arbitrator’s decision, finding that (1) claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment; and (2) his condition of ill-being was not causally related to a work accident on July 20, 2012. The Commission found that claimant was not credible in light of the multiple, inconsistent versions he gave regarding his alleged work accident. The Commission noted that “[t]here [was] everything from generic to specific reports of a work accident and from a repetitive trauma to a specific trauma. The numerous versions results in internal inconsistencies being provided by [claimant] himself ***.”
[*P44] On March 21, 2017, the circuit court confirmed the Commission’s decision.
[*P45] This appeal followed. [**18]
[*P46] II. ANALYSIS
[*P47] On appeal, claimant argues the Commission erred by finding he failed to prove that he sustained an accidental injury on July 20, 2012, arising out of and in the course of his employment. Claimant also argues the Commission erred by finding that his low back pain condition of ill-being was not causally related to his work accident.
[*P48] An employee’s injury is compensable only when it arises out of and in the course of his employment. Tower Automotive v. Illinois Workers’ Compensation Comm’n, 407 Ill. App. 3d 427, 434, 943 N.E.2d 153, 160, 347 Ill. Dec. 863 (2011). “To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment.” Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203, 797 N.E.2d 665, 671, 278 Ill. Dec. 70 (2003). An injury “arises out of” employment when “the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Id.
[*P49] Whether an employee has suffered a work-related accident is a question of fact for the Commission to determine, and its decision will not be overturned on appeal unless it is against the manifest weight of the evidence. Beattie v. Industrial Comm’n, 276 Ill. App. 3d 446, 449, 657 N.E.2d 1196, 1199, 212 Ill. Dec. 851 (1995). “In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion [**19] clearly must be apparent.” Teska v. Industrial Comm’n, 266 Ill. App. 3d 740, 741-42, 640 N.E.2d 1, 3, 203 Ill. Dec. 574 (1994). It is solely within the Commission’s province to judge the credibility of witnesses and weigh conflicting medical testimony. Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1041, 721 N.E.2d 1165, 1169, 242 Ill. Dec. 634 (1999).
[*P50] Here, as stated, the Commission rejected claimant’s argument that he sustained an accidental injury arising out of and in the course of his employment on July 20, 2012. In so holding, it found claimant was not credible. We find the evidence was sufficient to support the Commission’s decision.
[*P51] Specifically, the Commission noted significant inconsistencies in claimant’s multiple descriptions of the mechanism of injury. For example, when he first sought medical treatment from Delnor Community Hospital on Monday, July 23, 2012, claimant reported developing back pain on the previous Friday “after trying to get in and out of his truck.” However, in claimant’s recorded statement to the employer’s workers’ compensation carrier, he identified the “front seat of [his] truck” as the cause of his back pain, stating “[t]hat’s the biggest thing. They should’ve replaced the seat in the truck.” Then, at arbitration, claimant testified that he noticed low back pain after “pulling a cart” and while “driving.” Claimant’s supervisor, Patrick Clesen, [**20] contradicted claimant’s testimony, stating that claimant reported that he “had slipped either off the lift gate or the side step of the truck,” and that he had injured only his leg—not his back. Dr. Ross, opined in his November 2012 report that “there was no actual work accident ***.” He further noted that claimant “did not recall any specific accident.” Claimant testified that he told Dr. Scurlock he had a “lifting” accident at work. However, Dr. Scurlock’s records do not support this assertion. Finally, the Commission noted claimant gave Dr. Tsang a history of “driving a truck on a bumpy road and *** bouncing up and down in a truck all day” as the injury-causing event.
[*P52] In reaching its conclusion that claimant did not prove that he sustained a workrelated accident, the Commission accurately summarized the inconsistencies in the evidence, stating as follows:
“Did [claimant] get bounced around day to day on the bench seat (repetitive trauma), did he load plants onto heavy carts (note plants were loaded before he left [the employer]), did he push/pull carts or did he fall/almost fall off the lift gate or side of the truck. Which of the multiple versions/theories is the Commission to believe?” [**21]
[*P53] As stated, it is within the Commission’s province to judge the credibility of witnesses. Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1041, 721 N.E.2d 1165, 1169, 242 Ill. Dec. 634 (1999). Based on the multiple conflicting descriptions regarding claimant’s mechanism of injury, we cannot say the Commission’s finding that claimant failed to prove he sustained a work-related accident was against the manifest weight of the evidence.
[*P54] Finally, claimant also argues the Commission erred by finding that the condition of ill-being in his low back was not causally related to his employment. However, we need not address this issue based on our decision regarding accident.
[*P55] III. CONCLUSION
[*P56] For the reasons stated, we affirm the circuit court’s judgment.