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Petitioner's ability to perform heavy work after accident date basis for Arbitrator's finding of no causation

Julia McCarthy tried this case before Arbitrator Akemann in Geneva on petitioner's 19(b)/8(a) petition. Thomas Horist v. Western Industrial Contractors, No. 05 WC 16438.  Petitioner claimed injury on February 7, 2005, to his low back and was seeking ongoing TTD as well as authorization for further medical care, specifically fusion surgery. The arbitrator found petitioner sustained an injury to his low back on February 7, 2005, which was reported to the respondent on that date. Petitioner initially declined medical treatment. Petitioner continued working as a millwright on the job site until completion of the job on February 17, 2005. Testimony was given on behalf of the respondent by the supervisor who worked with petitioner on a daily basis on the job site. It was agreed petitioner worked up to 10 hours a day on some days following the injury. Further, it was agreed that his work constituted heavy work. On the final day on the job site, February 17, 2005, petitioner commented to the supervisor “what about my back”. Petitioner was advised to contact the HR representative in the home office. Petitioner did contact the HR representative and she advised him to follow-up with her regarding any treatment he sought on his back. She had no further contact from petitioner.

Medical records from petitioner's treating physician reflected he was seen February 21, 2005, and reported history of injury. He was diagnosed with a back strain. He was seen for follow-up on March 5, 2005, and March 16, 2005. He underwent an MRI on April 1, 2005, and an epidural injection was recommended.

Petitioner did not seek further medical treatment until July 13, 2005. During that time period, petitioner was off work from February 21, 2005, through March 6, 2005. However, beginning March 6, 2005, petitioner worked at another job site and worked up to 10 hours per day. Beginning March 7, 2005, through May 22, 2005, petitioner worked 682 hours for an average of 62 hours per week. During June and July of 2005 he worked on two subsequent job sites. Following his work on the subsequent jobs, petitioner again sought treatment beginning July 13, 2005.

Petitioner continued medical treatment and surgery was recommended for a low back fusion. Petitioner had a past history of injury to his thoracic spine.

Petitioner was seen for an independent medical evaluation with Dr. Bernstein on March 2, 2006. It was Dr. Bernstein's opinion surgery was reasonable. As to causation, it was his opinion that if petitioner continued to work in an unrestricted capacity for ten days following his work injury, prior to being laid off, his current condition was not causally related to that work incident. If, however, petitioner had subjective pain complaints and physical limitations subsequent to his injury, it was his opinion it was causally related.

The arbitrator noted petitioner attempted to rely on the opinion of Dr. Bernstein for causal connection. However, based on the evidence, petitioner continued working in heavy work through completion of the job site with respondent and on three subsequent job sites.

The arbitrator relied on the Appellate Court's decision in Village of Oreana v. Industrial Commission. He noted that in that case the respondent argued the only testimony that addressed causal connection was that of respondent's expert witness, in that case, the Appellate Court found that the appropriate question was whether the evidence could support an inference that the accident aggravated the condition or accelerated the processes which lead to the claimant's current condition of ill being. The court noted that the claimant had the burden of proving causal connection. From review of the evidence, the arbitrator found the treating physicians did not issue an opinion regarding causation. The arbitrator concluded the only opinion on causation in evidence was that of Dr. Bernstein. The arbitrator noted that based on the opinion of Dr. Bernstein and petitioner's testimony confirming he did in fact work heavy work following the accident, the petitioner's claim was not supported by Dr. Bernstein's opinion.

The arbitrator found no causal connection between petitioner's injury of February 7, 2005 and his ongoing condition for which surgery was now recommended.

In finding for the respondent, the arbitrator awarded two weeks of TTD and medical expenses incurred through April 4, 2005. The arbitrator denied ongoing medical treatment subsequent to April 4, 2005, and prospective treatment sought by petitioner.

On July 24, 2007, the Illinois Workers' Compensation Commission unanimously affirmed and adopted the Arbitrator's Decision in its entirety.  The panel consisted of Commissioners Gore, Rink, and Basurto.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
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