BCM secures reversal: Commission reverses Arbitrator's 19(b)/8(a) Decision, which awarded petitioner $286,261.35 in benefits

Peter J. Stavropoulos succeeded in securing a reversal of the Arbitrator's decision on a 19(b)/8(a) hearing that awarded the petitioner 66-4/7 weeks of temporary total disability ($30,116.72) and medical expenses in the sum of $256,144.63. David Fenwick v. Area Wide Septic Services, No. 07 IWCC 0769.

The case was tried before the Arbitrator in Ottawa on February 16, 2005. Petitioner testified that on June 18, 2003, he was digging a hole and cutting concrete. He slipped and fell into the hole and injured his back. Petitioner was taken by ambulance to St. Margaret's Hospital.

An MRI was taken which revealed a small right lateral L5-S1 annular tear. His own physician, Dr. Lukancic, saw the petitioner on June 28, 2003 and diagnosed petitioner with an acute lumbosacral strain. Ultimately, petitioner fell into the hands of Dr. DePhillips.

Petitioner first saw Dr. DePhillips on September 15, 2003. Dr. DePhillips prescribed an EMG, lumbar epidural steroid injection. On that date, Dr. DePhillips advised that petitioner would be able to remain working as it did not seem to be aggravating his pain. Petitioner then underwent a course of 3 epidural steroid injections. After his course of treatment, Dr. DePhillips recommended an EMG and a lumbar discogram.

Petitioner first saw Dr. Zelby at respondent's request for a Section 12 exam on November 7, 2003. Dr. Zelby found inconsistent behavior responses and 5 out of 5 positive Waddell signs. He showed signs of dramatic symptom amplification. In Dr. Zelby's opinion, the MRI showed only degenerative changes with no neural impingement. He opined that petitioner did not need an EMG or discography because petitioner was "absolutely not a candidate for a lumbar fusion and no consideration should be made to pursue lumbar fusion."

On December 3, 2003, petitioner underwent a functional capacity evaluation which found him capable of performing light duty work. This restriction was accommodated by the employer.

On December 8, 2003, petitioner returned to work light duty. He testified that he attempted to work but felt that he could not handle it. After two hours at the work site, petitioner called an ambulance and was taken from the work site to the emergency room at St. Margaret's Hospital. At the emergency room, a review of symptoms could not be obtained secondary to petitioner's non compliance. During that visit to the emergency room the notes revealed that petitioner became very angry and verbally abusive. When a nurse asked the petitioner when he was having back surgery, the petitioner responded that he was not having it because he was "faking it."

On December 18, 2003, petitioner returned to Dr. DePhillips. He again ordered a lumbar discogram, which was performed on December 23, 2003. The discogram recreated petitioner's pain at L2-L3, L4-L5, and L5-S1. The injection at L3-L4 did not reproduce the petitioner's pain.

Petitioner underwent 3 more discograms, all of which had different results. Petitioner ultimately underwent a fusion on May 6, 2004. Petitioner was fused from L4 to S1. The surgery was performed by Drs. Malek and DePhillips. In his evidence deposition, Dr. DePhillips opined that the fusion surgery was causally connected to petitioner's work accident and that all of the treatment provided was necessary to treat petitioner's work related injuries.

The Illinois Workers' Compensation Commission disagreed.

Instead, the Illinois Workers' Compensation Commission adopted the opinions of Dr. Zelby. The Commission gave great weight to the opinions of Dr. Zelby, that petitioner was not a candidate for a fusion. They also noted Dr. Zelby's findings that there was no objective medical evidence to support petitioner's continued complaints of pain, that petitioner engaged in dramatic symptom amplification, and that petitioner should have been weaned off his narcotic medication.

As stated in the decision, "the Commission adopts Dr. Zelby's opinion that as a result of the accident on June 18, 2003, petitioner sustained a lumbar strain. Petitioner's condition had resolved by November 7, 2003, when he was examined by Dr. Zelby. A functional capacity evaluation, performed on December 3, 2003, showed petitioner capable of performing light duty work. The Commission finds that petitioner is not entitled to medical expenses incurred after December 3, 2003." The Commission then went on to award the petitioner $3,733.89 in medical expenses.

Because the respondent was able to offer petitioner light duty work beginning December 8, 2003, the Commission found that petitioner was not entitled to temporary total disability benefits after that date. Respondent was awarded a credit for the benefits paid to date. Temporary total disability benefits in the amount of 10-6/7 weeks were awarded to the petitioner, covering the periods from June 19, 2003, through June 30, 2003, and from October 5, 2003, through December 7, 2003.

Petitioner filed an appeal to the Circuit Court, and the Commission Decision was confirmed in its entirety.  The Illinois Appellate Court affirmed the Circuit Court on April 3, 2009.