Opinion
1-21-0592WC
04-08-2022
ECHO JOINT AGREEMENT, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and CATHERINE JACOBS, Appellees.
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 by Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 2020-L-050320 Honorable John J. Curry, Judge, Presiding.
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Holdridge and Justices Hudson, Cavanagh, and Hoffman concurred in the judgment.
ORDER
BARBERIS JUSTICE
¶ 1 Held: We affirm the judgment of the circuit which confirmed the decision of the Illinois Workers' Compensation Commission where the Commission's finding that claimant proved a causal connection between her current condition of ill-being and work accident was not against the manifest weight of the evidence.
¶ 2 Claimant, Catherine Jacobs, a special education teacher, initially brought two claims for workers' compensation benefits (09 WC 30456 and 09 WC 30457) against her employer, Echo Joint Agreement (Echo), pursuant to the Illinois Workers' Compensation Commission Act (Act) (820 ILCS 305/1 et seq. (West 2009)). This appeal is limited to the second claim (09 WC 30457).
¶ 3 In the first claim (09 WC 30456), claimant alleged that she sustained an injury to her "chest/rib cage" when a mentally challenged student struck her on March 19, 2009, while she was working for Echo. Claimant did not seek medical care for that injury.
¶ 4 In the second claim (09 WC 30457), claimant alleged that she sustained injuries to her neck, head, shoulders, back and legs when the same student attacked her on March 23, 2009, while she was working for Echo.
¶ 5 Arbitrator Steven Fruth consolidated both claims for hearing on January 10, 2018, with the closing of proofs on February 22, 2018. Echo did not dispute that claimant sustained work related accidents as alleged in both claims but disputed notice as to the first claim. With respect to both claims, Echo disputed causation, medical expenses, temporary total disability (TTD) benefits, nature/extent and penalties/fees.
¶ 6 On August 9, 2018, Arbitrator Fruth recused himself, and Arbitrator Brian Cronin was assigned to the claims. Neither party objected to Arbitrator Cronin issuing a decision with respect to both claims upon his review of the transcript of the January 10, 2018, hearing, the admitted exhibits, and each party's proposed findings.
¶ 7 On March 6, 2019, Arbitrator Cronin issued his decisions. With respect to the first claim, (09 WC 30456), the arbitrator denied benefits, finding that claimant gave timely notice but failed to demonstrate that her condition of ill-being was causally related to the March 19, 2009, accident. With respect to the second claim, (09 WC 30457), the arbitrator awarded benefits. Specifically, the arbitrator found that claimant sustained an undisputed accident arising out of and in the course of her employment on March 23, 2009. The arbitrator also found that Echo received timely notice and that claimant's condition of ill-being-referred to by claimant's treating physician as "atypical complex regional pain syndrome" (CRPS), or alternatively as "neuropathic pain condition of the low back and bilateral legs"-was causally connected to the March 23, 2009, work-related accident.
¶ 8 The arbitrator awarded claimant $321, 386.95 for medical expenses; TTD benefits of $717.97 per week from March 24, 2009, to January 13, 2010, June 1, 2010 to August 23, 2010, and October 28, 2010, to June 17, 2014, for a total of 244 1/7 weeks; temporary partial disability (TPD) benefits of $464.06 per week for January 11, 2016, to May 31, 2016, and August 24, 2010, to October 27, 2010, for a total of 28 weeks; and $549.99 per week for January 11, 2016 to January 31, 2016, for a total of three weeks; maintenance benefits of $717.97 per week from June 18, 2014, to January 10, 2016, and February 1, 2016, to February 12, 2016, for a total of 83 3/7 weeks. The arbitrator also awarded claimant permanent total disability (PTD) benefits of $717.97 for life commencing on February 13, 2016. The arbitrator denied claimant's request for penalties under sections 19(k) and 19(l) of the Act (id. §§ 19(k), 19(1)) and attorney fees under section 16 of the Act (id. §16).
¶ 9 Both parties filed timely cross-petitions for review of both claims with the Commission. On March 4, 2020, the Commission issued a decision as to both claims. However, the Commission later recalled the decision, and the Commission issued a corrected decision on June 29, 2020. In the corrected decision, the Commission adopted the arbitrator's decision to deny benefits regarding claimant's first claim (09 WC 30456). Regarding claimant's second claim (09 WC 30457), the Commission modified the arbitrator's decision in part.
¶ 10 The Commission reduced the last period of TTD benefits from October 8, 2010, to February 26, 2014 (rather than June 17, 2014), the date the Commission found that claimant achieved maximum medical improvement (MMI), for a total of 228.287 weeks (rather than 244 1/7 weeks). The Commission also reduced the period of maintenance from 83 3/7 weeks to 15.857 weeks (from February 27, 2014, to June 17, 2014, rather than from June 18, 2014, to January 10, 2016, and February 1, 2016, to February 12, 2016). Lastly, the Commission shortened the period of PTD benefits, finding that such benefits should have commenced on June 18, 2014, rather than on February 13, 2016. The Commission otherwise affirmed and adopted the arbitrator's decision.
¶ 11 On July 21, 2020, Echo filed a petition for review in the circuit court of Cook County, but limited its petition to the Commission's June 29, 2020, corrected decision regarding the second claim (09 WC 30457). Claimant did not file for review. On May 4, 2021, the court confirmed the Commission's decision. Echo timely filed the instant appeal on May 24, 2021.
¶ 12 I. Background
¶ 13 The following factual recitation comes from the transcript of the consolidated arbitration hearing held on May 23, 2018, and the voluminous record on appeal. We provide only a limited background as the issues raised by Echo are narrow, relating to the Commission's finding as to claimant's condition of ill-being and the award of benefits that flowed from that finding. For the sake of brevity and to avoid needless repetition, we limit our factual recitation to pertinent portions of the testimonies and omit certain witnesses and reports.
¶ 14 A. Claimant's May 23, 2009, Accident and Subsequent Treatment
¶ 15 Claimant, Catherine Jacobs, testified that at the time of the March 23, 2009, accident, she was 45 years old and worked as a special education teacher for Echo. Prior to the accident, claimant enjoyed a very active lifestyle, which included participation in organized sports and a full social life. She never experienced chronic pain or suffered any serious bodily injuries.
¶ 16 In 2009, claimant taught special needs students at the Academy for Learning (AFL) located in Dolton, Illinois. AFL students, ranging in age from 13 to nearly 22 years, are placed in the ECHO program at AFL due to their low IQ and severe behavioral issues, such as compulsive sexual behavior, aggression, and physical violence.
¶ 17 On March 23, 2009, claimant, accompanied by a teaching aide, took five students to a local food store for life skills training. At the store, a student attacked claimant, biting her left hand, punching her in the chest, and throwing her to the floor. Claimant landed on the tines of a pallet jack, striking the underside of her thighs against one fork and her buttocks against the other. Approximately 20 minutes later, on the return trip to the AFL, claimant experienced aching pain in her neck, left shoulder, and lower back as well as bleeding from the bite wound.
¶ 18 Claimant initially visited AFL's school nurse. A short time later, claimant went to the emergency room at MacNeal Hospital. After taking x-rays, the ER medical staff advised claimant to seek further treatment from her primary care physician and to remain off work. Two days later, on March 25, 2009, claimant presented to Dr. Matthew Hsieh (pronounced Shay), her primary care physician, complaining of worsening neck and back pain. Dr. Hsieh recommended physical therapy and directed claimant to remain off work.
¶ 19 On March 26, 2009, claimant presented to Dr. Mark Lorenz, a board-certified orthopaedic surgeon, at Hinsdale Orthopaedic Associates (HOA). At that time, claimant's symptoms remained unchanged. Dr. Lorenz prescribed pain medication and advised claimant to remain off work. Dr. Lorenz also recommended a regiment of physical therapy. Claimant underwent physical therapy several days a week at ATI Physical Therapy (ATI).
¶ 20 Beginning in April 2009, claimant saw Dr. Marie Kirincic, an HOA board certified physician in physical medicine and rehabilitation, on a weekly basis. Dr. Kirincic initially recommended that claimant continue with physical therapy and use a transcutaneous electrical nerve stimulation (TENS) unit for pain treatment. However, at the follow-up visit, claimant informed Dr. Kirincic that the TENS unit did not provide any benefit. Dr. Kirincic conducted a myofascial release and administered acupuncture and injections. Claimant reported a burning sensation in her low back, so Dr. Kirincic suggested that she stop physical therapy and go to a chiropractor. Claimant continued to see Dr. Kirincic on a weekly basis and began approximately eight months of chiropractic treatments through Dr. Richard Gelband.
¶ 21 In May 2009, Dr. Kirincic performed a rheumatological battery on claimant, which came back negative. The magnetic resonance imaging (MRI) of claimant's shoulders, thoracic spine, and lumbar spine revealed no abnormalities. At the time of these visits, claimant experienced pain in her back, particularly between her shoulder blades and down to her belt buckle, and more intense pain while sitting. Claimant found it difficult to get dressed because wearing tight-fitting clothing caused her pain. Claimant also found that if someone touched her, it would cause severe pain.
¶ 22 On June 1, 2009, claimant presented to Dr. Julie Wehner, a board-certified orthopaedic surgeon, for an independent medical examination (IME) at Echo's request. Dr. Wehner reviewed the numerous x-rays taken during claimant's emergency room visit and the May 2009, MRI, all of which appeared normal. Dr. Wehner also reviewed the records from claimant's emergency room visit and treatment records from Drs. Lorenz, Kirincic, and Gelband.
¶ 23 In July 2009, following Dr. Kirincic's referral, claimant presented to Dr. Michael Zindrick, a HOA orthopaedic surgeon, for a determination of whether claimant's condition was connected to a spinal condition. After claimant complained of an onset of pain in her hips and burning sensations in her legs, Dr. Zindrick ordered an MRI of claimant's hips.
¶ 24 Dr. Wehner diagnosed claimant with soft tissue injuries that appeared causally related to the March 23, 2009, work accident. Dr. Wehner expressed that claimant could return to work but, due to complaints of pain in the areas of the kidneys, Dr. Wehner recommended an MRI of the kidneys as a precaution. Dr. Wehner expressed that claimant would be at maximum medical improvement (MMI) following normal MRI results.
¶ 25 On August 4, 2009, on a referral from Dr. Zindrick, claimant presented to Dr. Steven Louis, an HOA orthopaedic surgeon, for a pelvic examination. Dr. Louis reviewed the Computerized Tomography (CT) scan and MRIs of claimant's pelvis and the x-rays of claimant's pelvis and lumbar spine. Dr. Louis noted that claimant's most recent MRI showed mild T2 signal increase on the symphysis pubis but no other abnormalities. Claimant's CT scan also revealed no abnormalities. Dr. Louis recommended claimant follow up with Dr. Kirincic for evaluation of possible reflex sympathetic dystrophy or CRPS.
¶ 26 In September 2009, Dr. Kirincic ordered an Electromyography (EMG) test. Claimant also started a one-month inpatient physical treatment program under the care of Dr. Lynn Radar at Rehab Institute of Chicago (RIC), which included physical therapy, occupational therapy, psychiatry, mind/body training, and other modalities to manage pain without medication.
¶ 27 On November 4, 2009, and December 16, 2009, claimant presented to Dr. Jonathan Citow, a board-certified neurosurgeon, for an IME evaluation at Echo's request. Dr. Citow conducted a physical examination and reviewed claimant's medical records. Dr. Citow diagnosed claimant with non-anatomical dysesthesias "not likely related to the injury." Dr. Citow opined that claimant was at MMI and could perform her full-time work duties without restrictions. Based on Dr. Citow's report, claimant recounted that she attempted to return to work, but the pain increased each day until it became unbearable.
¶ 28 On January 21, 2010, claimant returned to Dr. Kirincic, who recommended that claimant limit work to a four-hour day. Dr. Kirincic also referred claimant to Dr. James Gruft, a pain specialist, and Dr. Timothy Tumlin, a psychologist. Claimant returned to work that same day. Echo paid claimant a full salary while accommodating her limited work schedule. Despite the limited work schedule, which continued through the end of the school year and resumed the following fall semester, claimant experienced the same level of pain.
¶ 29 On October 14, 2010, and October 27, 2010, claimant presented to Dr. Timothy Lubenow, a pain specialist at Rush Pain Center, for evaluation. During each visit, claimant underwent a full physical examination, which included measuring temperature differences of various parts of claimant's body. On Dr. Lubenow's referral, claimant also saw a pain psychologist, Dr. Patricia Merriman, for a psychological evaluation. Following the October 27, 2010, visit, Dr. Lubenow directed claimant to remain off work.
¶ 30 Shortly thereafter, Dr. Lubenow prescribed a five-day infusion of medication followed by an aggressive physical therapy program. Claimant recalled receiving very little benefit from the five-day infusion of medication. Dr. Lubenow next prescribed a spinal cord stimulator coupled with oral medication, which claimant recalled helped somewhat in lessening the pain and allowed her to walk longer distances. Although the stimulator lessened the pain, claimant described the stimulation as painful. Eventually, the spinal cord stimulator failed to provide sufficient benefit, so Dr. Lubenow prescribed an intrathecal pump, which delivers opioid medication directly into the spine. Claimant preferred the intrathecal pump over the oral medication due the adverse side effects of the oral medication.
¶ 31 On June 7, 2011, Debra Hooks, assistant director of Echo Joint Agreement, sent claimant a letter advising her that Echo would need a physician's statement and a full-duty release without any restrictions before she could return to work in the upcoming school year. In August 2011, Hooks sent a follow-up letter stating that claimant would not be allowed to return to work unless her physician cleared her to perform full-time work.
¶ 32 On July 7, 2011, claimant presented to Dr. Richard Noren at Pain Care Consultants for an IME at Echo's request. In his report, Dr. Noren expressed that claimant presented a history and subjective complaints consistent with neuropathic pain localized to her cervical, thoracic and lumbar regions over the backside of her body. Dr. Noren noted that claimant reported increased sweating from her knees to her thighs and occasional "whole body" sweats. Dr. Noren's physical examination revealed slight pilomotor changes with light touching of claimant's back.
¶ 33 Dr. Noren wrote that "as noted by Dr. Lubenow, this is an extremely unusual presentation for a complex regional pain syndrome." Dr. Noren further wrote the following:
"At this time, [claimant's] prognosis is indeterminate. Considering that CRPS is a diagnosis of exclusion, [claimant] has atypical presentation of the syndrome. *** The records reflect that [claimant's] symptoms appear to have begun at approximately the time of her injury and progressed in an atypical fashion for [CRPS]."Dr. Noren further wrote that claimant's physical examination revealed no objective findings of CRPS.
¶ 34 Dr. Noren also found that the intrathecal pump was unwarranted without an apparent explanation for claimant's "unusual neuropathic pain syndrome." Lastly, Dr. Noren noted the lack of success with the epidural trial and spinal cord stimulator and that both caused complications and increased discomfort.
¶ 35 Claimant testified that she did not recall Dr. Noren performing a physical examination, taking measurements of temperature changes, or checking for abnormal hair growth. She also did not recall discussing her job duties with Dr. Noren. Based on Dr. Noren's report, Echo initially refused to authorize payment for placement of a permanent intrathecal pump.
¶ 36 On January 4, 2012, claimant presented to Dr. Mary Moran, a board-certified physician in internal medicine and rheumatology, for an IME at Echo's request. At the time of the visit, claimant weighed 138 pounds. Dr. Moran noted that claimant was alert, oriented and afebrile. Upon examination, Dr. Moran observed that claimant had no adenopathy or thyromegaly in her neck and a full and normal range of motion without provocation of pain. Claimant's extremities appeared normal, with no swelling, warmth, or erythema. Claimant had a full range of motion of the shoulders, elbows, wrists, metacarpophalangeal and proximal interphalangeal joints, knees, hips and ankles. Dr. Moran observed no evidence of swelling, warmth, erythema, or reproducible tenderness with direct palpation of any of claimant's joints. Dr. Moran commented that claimant had very well-developed musculature in the upper and lower extremities, both proximally and distally, with no signs of atrophy. In addition, deep tendon reflexes were at two plus and symmetric in both the upper and lower extremities. Motor examination demonstrated optimal strength in the upper and lower extremities, both proximal and distal.
¶ 37 Dr. Moran noted that claimant refused to allow a direct palpate of her back. Dr. Moran, however, also noted that claimant sat comfortably in a waiting room chair even though the chair applied pressure directly on the same areas that claimant refused to allow Dr. Moran to touch. When Dr. Moran touched claimant around the shoulders, posteriorly and along the trochanteric regions, claimant complained and winced with pain. Dr. Moran opined that the intrathecal pump was not indicated, but Dr. Moran clarified that she did not have first-hand experience with intrathecal pumps. Dr. Moran noted subjective complaints of pain but no objective findings to substantiate mechanical pain or injury.
¶ 38 Dr. Moran disagreed with claimant's need for a scooter, finding that claimant was able to ambulate. Dr. Moran also gave her opinions regarding claimant's past treatment. Dr. Moran noted that extensive medical management had not resulted in significant reduction in symptoms. Dr. Moran also expressed disagreement with Dr. Lubenow with respect to the placement of an intrathecal pump. Dr. Moran specifically expressed that "[i]t seems extremely unlikely that this patient would respond to treatment with intrathecal medication, given that she has had little or no response to all of the previously stated medications and the spinal cord stimulator." Dr. Moran further found it difficult to make a diagnosis, stating that claimant subjectively complained of constant severe pain and hypersensitivity in an area where there is entirely normal tissue. Given that claimant had little or no response to very aggressive therapies, in terms of medical management with medications and with rehabilitation, Dr. Moran believed it unlikely that claimant's subjective complaints of pain would resolve.
¶ 39 Dr. Moran opined that claimant did not need further treatment with respect to the original injury until a clear finding on nerve testing or diagnostic imaging pointing to a particular source of pain. Finally, Dr. Moran stated her belief that claimant displayed no signs of a detectable debilitation and could return to work in a sedentary job.
¶ 40 In February 2012, following a utilization review, Echo approved use of the permanent intrathecal pump. After installation of the intrathecal pump, claimant experienced an initial adverse reaction, which included severe headaches and a puncture of the sac around her spine resulting in a loss of spinal fluid. Despite the initial adverse reaction, claimant testified that the intrathecal pump "definitely" benefitted her. Claimant explained that prior to the intrathecal pump, her pain was out of control and severe (8 out of 10); now, the pain was controlled and much lower (between four and seven). Claimant was also prescribed a device called a "bolus," which allowed her to receive additional medicine up to four times a day. In addition, claimant returned to Dr. Lubenow's office every few weeks for titration of the medications. During these visits, the medications were typically increased, resulting in a decrease in pain.
¶ 41 In August 2012, at Dr. Lubenow's request, claimant underwent an initial Functional Capacity Evaluation ("FCE") at ATI. Claimant recounted that she experienced severe pain in her back and her legs following the FCE, which she later reported to Dr. Lubenow. Dr. Lubenow referred her to Dr. Patricia Merriman, a clinical psychologist, for another psychological evaluation.
¶ 42 In August 2012, and September 2012, claimant presented to Dr. Alexander Obolsky, a forensic psychologist, for a forensic psychiatric evaluation at Echo's request. Dr. Obolsky prepared a six-page report on June 7, 2013. Dr. Obolsky noted that claimant exhibited physical discomfort and pain that worsened during the evaluation. Dr. Obolsky opined that claimant presented with multiple psychiatric factors reasonably expected to negatively influence her response to continued prospective medical care. It was also his opinion that claimant did not develop any condition of "mental ill-being" due to any work-related events.
¶ 43 Dr. Obolsky also noted that claimant demonstrated serious inconsistencies in relation to the potential presence of anxiety and depressive symptoms. Dr. Obolsky expressed that these inconsistences undermine the reliability of her self-reported symptoms of anxiety and depressive symptoms. Dr. Obolsky further noted that claimant failed the Green Word Memory Test and the Structured Inventory of Malingered Symptomology. Dr. Obolsky stated that claimant's performances on these two tests were consistent with symptom amplification. Additionally, Dr. Obolsky observed less than expected scoring patterns on measures of attention and executive function tests based on claimant's educational level. Dr. Obolsky stated that claimant's pain complaints did not explain her low performance on these tests, and the results were consistent with symptom exaggeration. Dr. Obolsky opined that "[t]hese factors are reasonably expected to influence negatively her responses to the continued prospective medical care as well as affect the severity and maintenance of her physical symptoms and pain complaints."
¶ 44 Dr. Obolsky next addressed the use of the intrathecal pump. Dr. Obolsky initially expressed that the necessity of the intrathecal pump should be based on objective physical evidence, including the evaluation of claimant's daily functioning and performance by an FCE. Dr. Obolsky also expressed that the subjective pain and physical complaints, without an identified pathology, were an unreliable basis for the invasive intrathecal pump installation procedure, unless the installation of the intrathecal pump was explicitly performed to decrease claimant's complaints of pain.
¶ 45 In October 2013, claimant underwent an updated FCE at ATI. Claimant testified that going through another FCE was "like touching a stove when you know [you are] going to get burnt." Although the parties agreed that claimant would undergo vocational rehabilitation, they disagreed over which vocational rehabilitation specialist to use.
¶ 46 On April 28, 2014, Vocamotive, a vocational rehabilitation services company chosen by Echo, evaluated claimant. In the evaluation report, the evaluator concluded that claimant could no longer access her usual and customary line of occupation as a special education teacher. Based on claimant's condition and the medical documentation available, the evaluator indicated that no viable labor market existed for claimant. The evaluator concluded claimant was totally disabled.
¶ 47 On May 2, 2014, Dr. Lubenow placed claimant on various permanent restrictions, including a three-to-four-hour workday. These restrictions also included a 20-pound lifting restriction, a 15-minute driving restriction and a 10-to-15-minute standing restriction. Dr. Lubenow also directed claimant to change positions after sitting 30 to 40 minutes and to use a scooter or cane for local transport and walking short distances. Claimant later underwent a second evaluation by "EVR," a company specializing in rehabilitation services. After that meeting, no one from EVR or any other vocational facility asked her to perform a job search.
¶ 48 Claimant continued follow-up visits with Dr. Lubenow for titration of the medications through 2015. In January 2016, claimant returned to work with restrictions at AFL. However, claimant missed several days of work over a three-week period due to her chronic pain.
¶ 49 On February 12, 2016, claimant again presented to Dr. Lubenow. After claimant described her condition since returning to work, Dr. Lubenow opined that claimant was permanently and totally disabled. Claimant provided Echo with Dr. Lubenow's report and claimant refused to return to work in any capacity. ECHO later terminated claimant's employment based on Dr. Lubenow's April 4, 2016, report.
¶ 50 On March 23, 2016, Dr. Merriman prepared a report in response to Dr. Obolsky's report. Dr. Merriman noted that Dr. Obolsky's tests and testing procedures were inappropriate for reaching his final conclusions. Given the facts surrounding claimant's medical history, Dr. Merriman stated that many of Dr. Obolsky's conclusions were incorrectly interpreted. Dr. Merriman found no indication in claimant's history of psychological problems prior to the work accident. Dr. Merriman commented that claimant sought no previous treatment, and claimant worked demanding job. In addition, claimant maintained healthy relationships with family and friends.
¶ 51 Dr. Merriman also took exception to Dr. Obolsky's purported test for malingering, which Dr. Merriman indicated was not a type of diagnosis. Dr. Merriman stated that somatoform disorders can play a role in legitimate pain conditions and, thus, it was not possible to test for malingering. Dr. Merriman also opined that claimant was diagnosed with a legitimate medical condition. Dr. Merriman stated that severe pain, which is not psychogenic, can be affected by stress. Dr. Merriman found that claimant's prior reports of distress congruent with her situation.
¶ 52 Lastly, claimant testified that the accident left her in constant pain. Prior to the accident, she was active. Since the accident, claimant testified to ongoing difficulty sleeping, sitting, and standing. Her life was reduced to mostly watching television, and her social life was gone. Regarding the pain, claimant testified that the backsides of her legs constantly burned. When using her legs, the pain increases to the point of feeling like fire. Despite the pain, claimant testified that she typically walks three times a week with the aid of a cane.
¶ 53
B. Depositions
¶ 54 1. Dr. Kirincic
¶ 55 On April 23, 2010, Dr. Kirincic testified via deposition to the following details. Dr. Kirincic specialized in nonoperative orthopaedic care. Dr. Kirincic treated claimant generally on a weekly basis between April 9, 2009, and October 2010, until Dr. Lubenow began treating claimant. Dr. Kirincic diagnosed claimant with cervical thoracolumbar strains, left-hand bite, left shoulder strain, and myofascial pain (a chronic musculoskeletal condition).
¶ 56 In May 2009, Dr. Kirincic ordered two EMGs of claimant's lower extremities, including her back, and interpreted the findings as follows:
"The needling part was abnormal on her bilateral and the paraspinal. So[, ] it was suggestive of S1, the sciatica. The true sciatica of S1 bilateral, lateral, and then right at least inflamed nerve or some irritation to the nerves."
Additionally, at that time, Dr. Kirincic found claimant unable to return to work in a full-duty capacity, in need of pain management, and not at MMI. Dr. Kirincic opined that claimant suffered from degenerative changes at L5-S1 and a probable disc injury.
¶ 57 Dr. Kirincic opined that the discogenic component of claimant's pain began several months after the March 23, 2009, work accident. Dr. Kirincic documented claimant's complaints of allodynia, hyperpathia, burning pain and radiating pain during the examinations. Dr. Kirincic also documented weakness, multiple trigger points, limited lumbar range of motion, and hyperhidrosis/abnormal sweating with temperature dysregulation. Dr. Kirincic diagnosed claimant with "atypical CRPS" in the torso and opined that the condition was causally related to claimant's March 23, 2009, accident. Dr. Kirincic explained that blunt trauma was the most common cause of CRPS. Dr. Kirincic also testified that all the medical treatment claimant received for the condition was reasonable and necessary.
¶ 58 On cross-examination, Dr. Kirincic testified that the RIC staff failed to properly document claimant's temperature dysregulation. Dr. Kirincic acknowledged that an EMG serves as an objective test for nerve injuries, not specifically for CRPS. Dr. Kirincic also acknowledged that a trigger point injection can serve as an objective test for CRPS. Lastly, Dr. Kirincic testified that claimant was able to work part time.
¶ 59 2. Dr. Wehner
¶ 60 On April 28, 2010, Dr. Wehner, a board-certified orthopaedic surgeon concentrating on spine surgery, testified via deposition to the following findings. Dr. Wehner examined claimant at Echo's request on June 1, 2009. Dr. Wehner initially prepared a report but later added an addendum. During the June 1, 2009, examination, claimant reported no prior history of chronic pain but complained of a diffuse pattern of pain in her thoracic, lumbar, chest and upper abdominal areas. Dr. Wehner's physical examination revealed that claimant was thin in stature, with a height of five foot six inches and a weight of 126 pounds. Dr. Wehner found mild pain with light palpation at the right paraspinal area and chest area. Dr. Wehner concluded that claimant likely sustained soft tissue contusions and sprains during the March 23, 2009, work accident but that her continued complaints of pain could not be attributed to the accident. Dr. Wehner testified that there were no objective findings of a decreased range of motion and that it appeared claimant was self-limiting her range of motion.
¶ 61 Dr. Wehner testified that the emergency room x-rays and records revealed soft tissue contusions and sprains of the thoracic/lumbar area and shoulder. Additionally, the May 21, 2009, MRI report indicated disc desiccation at L5-S1, which the radiologist opined was mostly an anatomic variant or from the normal aging process but not pathologic or clinically significant. Dr. Wehner was unable to find a medical explanation for claimant's diffused area of pain, which began three months after the accident. Based on his examination and review of the medical records, Dr. Wehner opined that claimant could return to full-duty work. Dr. Wehner advised claimant to cease chiropractic and acupuncture treatments and begin home exercises.
¶ 62 On cross-examination, Dr. Wehner testified that she only conducts IMEs for employers. Dr. Wehner admitted that, following the June 1, 2009, examination, she believed claimant's condition of ill-being was causally related to the March 23, 2009, accident. Dr. Wehner denied reviewing any records other than those submitted at the initial examination in 2009. Dr. Wehner testified that 6 to 12 chiropractic visits would be reasonable for patients with soft tissue injuries, but 4 to 6 weeks would be reasonable for patients with a chronic, underlying condition. Dr. Wehner did not find that claimant misrepresented her symptoms. Dr. Wehner admitted that soft tissue injuries can lead to chronic pain, which is defined as pain lasting longer than six months. Although Dr. Wehner was unaware of the specific treatment claimant had received at RIC, including any FCE results, Dr. Wehner was aware that claimant received treatment at that facility and agreed that RIC staff were qualified and competent. Dr. Wehner testified claimant was not a candidate for the RIC program at the time of the examination in 2009. However, Dr. Wehner was unaware of claimant's treating records or test results since that time.
¶ 63 On redirect examination, Dr. Wehner testified that claimant did not have chronic pain in 2009, and that a chronic pain syndrome could not have been caused by the trauma suffered by claimant on March 23, 2009. Dr. Wehner testified that, following trauma, a person may complain of pain for six months and have no physical injury. Dr. Wehner further testified that claimant did not sustain a crashing injury or something that would lead to a belief that such soft tissue injuries would result in chronic pain, considering claimant was knocked down in the accident but suffered no bruising and maintained a full range of motion.
¶ 64 3. Dr. Lubenow
¶ 65 On November 9, 2011, Dr. Lubenow testified via deposition to the following facts. Dr. Lubenow is board certified in anesthesiology and pain management. Dr. Lubenow explained that CRPS is a neurological pain disorder, characterized by the presence of the following symptoms: hypersensitivity, swelling, discoloration, a limited range of motion, hair and nail growth differences, and asymmetrical temperature readings. The "Budapest" criteria for diagnosing CRPS includes a display of three symptoms and two physical findings on examination.
¶ 66 Dr. Lubenow began treating claimant in October 2010. Upon examination, Dr. Lubenow noted that claimant had significant diffuse allodynia (hypersensitivity) from her lumbar to lower cervical spine, significant allodynia of her lower lumbar vertebral region, and sensitivity to the posterior aspect of her thighs. Dr. Lubenow also noted abnormal hair growth on claimant's thighs and measured temperature differences of 1.5 degrees Celsius to 1.8 degrees Celsius. Based on these findings, Dr. Lubenow opined that claimant met the criteria for CRPS. Because allodynia was constant, but the other symptoms were not, Dr. Lubenow referred to claimant's diagnosis as "atypical CRPS," or alternatively as a neuropathic pain condition of the low back, lumbar spine and legs.
¶ 67 Dr. Lubenow noted that claimant had positive findings of S1 radiculopathy in her low back, and that claimant was vulnerable to this type of nerve injury from the March 23, 2009, accident. Dr. Lubenow also noted that the EMG was objective evidence of neuropathic pain due to the S1 radiculopathy. Thus, Dr. Lubenow diagnosed claimant with a secondary condition of bilateral radiculopathy at Sl.
¶ 68 On February 27, 2012, Dr. Lubenow implanted a permanent intrathecal pump in claimant's spine, allowing opioid medication to bypass both the gastrointestinal system and the cardiovascular system. Thereafter, Dr. Lubenow, or one of his associates, continued to titrate claimant's medications to achieve the best pain control.
¶ 69 In August 2012, Dr. Lubenow referred claimant for an FCE. Following the FCE, the evaluator limited claimant to four hours of light-duty work per day. Claimant also underwent a driving evaluation at Marianjoy Rehabilitation Hospital and was advised to restrict her driving to 20 minutes. A subsequent FCE included these same general restrictions. Dr. Lubenow recommended vocational rehabilitation, a strict 3-hour workday limitation and a 15-minute local driving limitation. Dr. Lubenow permitted claimant to walk with a cane for short distances and advised her to use a scooter for longer distances.
¶ 70 On February 12, 2016, after having attempted a return to work for five weeks, claimant returned to Dr. Lubenow with complaints of increased back and leg pain, as well as new pain in the mid-thoracic area and burning in the buttocks. Dr. Lubenow noted that Dr. Konowitz removed all driving and work restrictions, even though Dr. Konowitz previously agreed with the restrictions. Dr. Lubenow disagreed with removal of these restrictions because claimant experienced ongoing difficulty controlling the pain. Claimant reported to Dr. Lubenow that she was allowed to lie down for an hour at work each day, to have no contact with students, and to perform little to no actual work.
¶ 71 Upon examination, Dr. Lubenow noted limping, slow gait, increased allodynia in the low to mid back and sacral area. Dr. Lubenow also noted an increased sensation to the application of an alcohol pad on claimant's legs, which confirmed nerve dysfunction. Dr. Lubenow found claimant's condition consistent with chronic atypical CRPS, which worsened since her return to work. Dr. Lubenow opined that claimant was permanently and totally disabled.
¶ 72 Dr. Lubenow next testified to his vast experience in treating patients with opioid induced hyperesthesia. Given the small dose of claimant's medication and the specific tests performed, Dr. Lubenow concluded that claimant did not have opioid induced hyperesthesia.
¶ 73 Dr. Lubenow found that claimant had reached MMI and was unable to return to gainful employment. Dr. Lubenow testified that claimant required continued use of the intrathecal pump and oral medications, and that continued use of opioids by intrathecal pump was within established guidelines. Dr. Lubenow opined that claimant's condition was causally related to the March 23, 2009, work accident.
¶ 74 On cross-examination, Dr. Lubenow testified that he could alternatively diagnose claimant with neuropathic pain syndrome. Dr. Lubenow acknowledged that the first time he evaluated claimant, he found that she did not meet the Budapest criteria. At later visits, however, Dr. Lubenow found sufficient physical findings to satisfy the Budapest criteria.
¶ 75 4. Dr. Konowitz
¶ 76 On January 5, 2017, Dr. Konowitz, board certified in anesthesiology and pain management, testified at deposition to the following. On May 23, 2012, October 10, 2014, and March 26, 2015, Konowitz conducted separate IMEs of claimant producing a total of eight reports or addendum reports.
¶ 77 During the May 23, 2012, visit, claimant completed a six-page pain questionnaire and three scantron questionnaires, which provided a screening test (among other screening tools), to determine treatment and proper medication prescriptions. Claimant also provided a comprehensive list of prescribed medications and supplements.
¶ 78 Dr. Konowitz conducted a full physical examination and assessment for CRPS. Dr. Konowitz noted the presences of hyperalgesia but no other symptoms to meet the Budapest criteria, including color changes, temperature changes, edema, trophic, and nail changes. Dr. Konowitz explained that CRPS used to be referred to as "reflex sympathetic dystrophy," which was previously referred to as "causalgia." For a diagnoses of CRPS, a patient must meet the Budapest criteria. Unlike Dr. Lubenow, who had diagnosed claimant with "atypical CRPS," Dr. Konowitz testified that the criteria are based on objective conditions existing at the time of the examination and a diagnosis cannot be piecemealed over multiple examinations. In other words, all conditions must be met during a single examination. Dr. Konowitz opined that claimant suffered only from subjective pain complaints, which did not meet the Budapest criteria. For that reason, Dr. Konowitz requested an independent psychiatric examination and an FCE.
¶ 79 Dr. Konowitz provided a published copy of the treatment guidelines for CRPS to the parties and testified that the Budapest criteria include the following four symptom categories: (1) reports of hyperalgesia or allodynia; (2) reports of vasomotor changes (i.e., temperature asymmetry or skin color); (3) reports of sudomotor changes (i.e., sweating changes or edema on exam); and finally (4) reports of motor/trophic changes (i.e., any loss of hair, increased hair, changes in the nails and see changes to the skin along with specific temperature changes in areas).
¶ 80 After reviewing Dr. Obolsky's report, Dr. Konowitz testified that the psychiatric and secondary pain factors prevented validation of claimant's subjective pain complaints and symptoms. Dr. Konowitz also reviewed the claimant's job description and believed that she could perform all required job duties, except for physical restraint of students.
¶ 81 Dr. Konowitz testified that the intrathecal pump should be discontinued because claimant did not have a physical diagnosis and did not meet psychological criteria for use of the intrathecal pump. Dr. Konowitz further testified that claimant only needed two of her prescribed medications, Gabapentin and Cymbalta, and that only those two medications were related to the accident. Dr. Konowitz also testified that claimant should be restricted to light-duty work with no lifting over 20 pounds, based on the U.S. Department of Labor criteria.
¶ 82 Dr. Konowitz next summarized his findings from the October 10, 2014, examination. Dr. Konowitz testified that claimant's physical examination was normal in all pertinent respects. Claimant displayed hyperalgesia in the arms and legs upon pinprick, but she refused to allow pinpricks on her back. Regarding CRPS, the only Budapest finding was the presence of hyperalgesia in the extremities, no edema, sweating, nail changes, hair growth changes, or temperature changes. Dr. Konowitz could not diagnosis CRPS on physical examination based on the Budapest criteria.
¶ 83 Dr. Konowitz testified that the examination findings on March 26, 2015, were effectively the same as the previous examinations. Any pertinent change in the examination findings related to claimant's pain scores, areas of pain, and medications. Additionally, claimant no longer reported ribcage pain and saw improvement after an adjustment of the intrathecal pump.
¶ 84 On November 5, 2015, Dr. Konowitz prepared a final addendum listing claimant's diagnosis as "mechanical allodynia." Dr. Konowitz explained that no other diagnosis justified claimant's subjective complaints and that an allodynia diagnosis meant that there existed a "subjective experience to a non-painful experience." Dr. Konowitz clarified by way of examples. For instance, Dr. Konowitz reported that when rolling a pin wheel on claimant's skin, claimant complained that it felt as though a knife was cutting her skin.
¶ 85 Dr. Konowitz further stated that mechanical allodynia can be caused by intrathecal opioids, such as the kind claimant received for pain. Opioid-induced hyperalgesia resulting from the chronic intrathecal use of opioids can only be diagnosed when the opioid-induced hyperalgesia improves after stopping of opioid use. Dr. Konowitz reiterated that claimant was administered the intrathecal pump without a definitive diagnosis and that subjective complaints alone did not justify the prior use of an intrathecal pump.
¶ 86 Dr. Konowitz concluded that claimant could perform sedentary work that included sitting, standing, and walking for an eight-hour period. Dr. Konowitz also concluded that claimant's medications would not prevent her from driving.
¶ 87 After reviewing the available medical records and Dr. Obolsky's June 7, 2013, psychiatric report, Dr. Konowitz concluded that claimant presented with multiple psychiatric factors, such as dependent personality traits and somatic reactions under stress. As such, claimant's functional impairment, in addition to her potential hyperalgesia, accounted for all her pain symptoms.
¶ 88 On cross-examination, Dr. Konowitz testified that MES Solutions hired him to examine claimant and paid him to write the reports and addendums. MES Solutions provided all the medical records for his review. Each time Dr. Konowitz met with claimant, he spent one-and-a-half hours with her, totaling four-and-a-half hours for all visits.
¶ 89 Dr. Konowitz found the results of claimant's cage questionnaire and opioid risk tool, used to assess the risk of long-term opioid use negative. Dr. Konowitz also found that claimant did not report pre-existing complaints of pain. Dr. Konowitz expressed his belief that claimant experiences the pain symptoms. In returning claimant to sedentary work, Dr. Konowitz gave claimant the lowest possible duty from her subjective complaints. Dr. Konowitz acknowledged that he was unaware of whether Dr. Obolsky followed appropriate protocols in evaluating claimant.
¶ 90 Dr. Konowitz explained that he disagreed with the use of the intrathecal pump because of the risks involved and lack of necessary criteria. Dr. Konowitz expressed that Dr. Lubenow made the diagnosis without claimant meeting the required criteria.
¶ 91 Dr. Konowitz's opined that claimant's current condition consisted of subjective symptoms without physiological abnormality and that she exhibited psychiatric and secondary gain factors that affected the severity and maintenance of her physical symptoms and pain complaints. Dr. Konowitz agreed that there was no evidence that claimant had psychological issues before the accident.
¶ 92 On redirect examination, Dr. Konowitz testified that claimant never met the Budapest criteria during the four previous physical examinations and that Dr. Lubenow violated a standard of care by installing the intrathecal pump. Dr. Konowitz also testified that the amount of hydromorphone used in claimant's intrathecal pump was sufficient for opioid-induced hyperalgesia.
¶ 93 5. Dr. Noren
¶ 94 On March 16, 2017, Dr. Noren, board certified in pain management and anesthesiology, testified via deposition to the following. On July 7, 2011, claimant presented to Dr. Noren for a physical examination. At that time, claimant was 47 years old and weighed 136 pounds. Claimant provided a history of the accident and the treatment that followed. Claimant reported treatment that included a five-day epidural infusion at Rush Presbyterian Hospital. Claimant also reported that she was bedridden for the first two days after the accident and unable to attend physical therapy. At that time, claimant was scheduled for a trial of an intrathecal pump. Claimant denied any color changes and upper or lower extremity nail changes but reported sweating from her knees to her thighs and at times, over her whole body. She claimed that her thighs were swollen, and she had to go up one pants size. Regarding physical activities, claimant reported that she could only walk for 5 to 15 minutes without experiencing severe body aches and frequently needed to change positions while sitting. Claimant also reported that she stopped driving in the fall of 2010, because her medications caused intermittent confusion. Claimant stated that she used a wheelchair while grocery shopping.
¶ 95 On examination, claimant presented a normal gait. Claimant reported pain over the trochanteric region of her hips when standing on her toes. Dr. Noren found no allodynia in the upper extremities and the lower extremities with repeated testing, but severe allodynia in the thoracic and lumbar region, even on slight touch. Dr. Noren noted no color changes or swelling, and that claimant presented normal motor strength in both upper and lower extremities, symmetric reflexes, and negative straight leg raising. Dr. Noren noted equal temperatures in the upper and lower extremities and a normal pulse. Dr. Noren observed no swelling in the upper or lower extremities, no nail changes, and an equal vein pattern in both feet. Claimant's legs appeared shaved. Dr. Noren's measurements of the upper and lower extremities revealed no measurable edema. Based on the examination, Dr. Noren could not make a diagnosis. Dr. Noren recommended that claimant see a rheumatologist for further evaluation as a possible source of the pain syndromes. Dr. Noren attributed claimant's subjective complaints, including the allodynia, to her March 23, 2009, accident.
¶ 96 Dr. Noren observed no objective findings of CRPS during claimant's July 7, 2011, examination. Concerning the Budapest criteria, claimant had only subjective finding of allodynia, but no objective signs such as no temperature changes, edema, and vasomotor or sudomotor changes. Dr. Noren believed that claimant's complaints of allodynia could be related to any disease, and that the conclusion that claimant suffered from CRPS or atypical CRPS amounted to mere conjecture. Concerning claimant's ability to work as a special education teacher, Dr. Noren opined that claimant could sufficiently perform her job duties.
¶ 97 Dr. Noren reviewed Dr. Lubenow's notes through August 4, 2016, both FCEs (August 1, 2012, and August 17, 2013), and the June 7, 2013, IME report of Dr. Obolsky. Dr. Noren disagreed with Dr. Lubenow's diagnoses of either atypical CRPS or neuropathic pain condition and of S1 radiculopathy. Dr. Noren found no evidence of S1 radiculopathy during the July 7, 2011, examination.
¶ 98 Dr. Noren next testified concerning Dr. Lubenow's diagnosis of atypical CRPS. Dr. Noren explained that "atypical CRPS" is not a clinically acceptable, or recognized, diagnosis in the pain management community.
¶ 99 In addition, Dr. Noren testified that the intrathecal pump was medically unnecessary, and for that reason, not causally related to claimant's March 23, 2009, accident. Dr. Noren explained that Dr. Lubenow performed a surgical procedure-an interventional invasive treatment into claimant's spinal canal-with no specific pathology or diagnosis. Dr. Noren further explained that it made no sense for Dr. Lubenow to perform such a surgery (which required an incision and dissection down to the ligaments along claimant's spine in the same region as the neuropathic pain) because it would likely exacerbate or worsen the pain syndrome. Dr. Noren testified that the records showed no functional improvement following the surgery and that surgery in the same region as the pain was contraindicated due to claimant's description of allodynia over her entire back. Dr. Noren testified that such a surgery should be reserved for someone who "actually has CRPS."
¶ 100 Dr. Noren next testified that claimant was at MMI. Dr. Noren explained that claimant responded to some of the medications, but the spinal cord stimulation trial and the intrathecal pump failed to improve claimant's condition. Based on the August 2012 FCE, Dr. Noren testified that claimant likely functioned at a light physical demand level. Dr. Noren found nothing in the records evidencing an ability to function at a higher level. Based on a review of all FCEs, Dr. Noren opined that claimant could return to work as a special education teacher for Echo.
¶ 101 On cross-examination, Dr. Noren testified to conducting between 20 to 50 examinations for MES Solutions. Dr. Noren also performed about two legal/medical examinations per week and that almost all of them are done on behalf of an employer. Dr. Noren typically charged $1500 per examination. Dr. Noren had three publications, the last in 1994. None of Dr. Noren's publications directly related to the treatment of CRPS/RSD.
¶ 102 Dr. Noren did not agree with claimant's counsel's suggestion that an opinion from someone who is qualified to make a CRPS diagnosis holds more value and more weight if that person treated the patient over a longer period. Rather, Dr. Noren believed it more important that the patient meet the criteria on a specific visit. Dr. Noren testified that the Budapest criteria is the best criteria at the current time for an undiagnosable, non-specific disease.
¶ 103 Dr. Noren acknowledged that additional records would help him in determining if, on a specific date, claimant met the Budapest criteria. On examination, Dr. Noren found severe allodynia in claimant's thoracic and lumbar region, where claimant reported extreme pain and pulled back on a touch of her lower lumbar area. She also reacted with a slight pilomotor change (goosebumps), on a light touch to her back, which was a possible indicator of CRPS. Dr. Noren tested claimant's upper extremities and her lower extremities by touch but found no temperature differential. Dr. Noren could not recall Dr. Lubenow's documented changes in temperature. Dr. Noren admitted that he wrote the following:
"[Claimant] provides a history and subjective exam findings consistent with neuropathic pain***. As noted by Dr. Lubenow, this is an extremely unusual presentation for a [CRPS]. *** Based on the history [claimant] provides, this appears to be causally related to her injury of [March 23rd of 2009]."
¶ 104 Dr. Noren testified that the claimant's records confirmed that she consistently complained of chronic pain since the March 23, 2009, accident. Dr. Noren also admitted that he wrote claimant had an atypical presentation of CRPS. Dr. Noren acknowledged referring claimant to a rheumatologist but testified that he had assumed the rheumatologist's findings were negative.
¶ 105 Dr. Noren acknowledged that Echo did not contact him after receiving the results of the utilization review, and that he had no discussions with Echo between 2011 and 2017. Dr. Noren also acknowledged requesting an FCE. Although Dr. Noren was provided with a job description, he was never informed that claimant's job duties included the physical restraint of mentally challenged children and young adults.
¶ 106 Dr. Noren found no evidence of S1 radiculopathy during claimant's examination in 2011, and he never received the results of an EMG study. Dr. Noren testified that even if positive EMG results were sent to him, they would not have been significant because they did not match his exam findings. Dr. Noren agreed that CRPS was a well-recognized, non-fictitious medical and clinical diagnosis. Dr. Noren found claimant was at MMI and believed her work restrictions consistent with the prior FCEs.
¶ 107 Dr. Noren agreed that he was not a psychologist and that none of the prior records include a finding of malingering. Dr. Noren believed that claimant could perform light-duty work for a normal workday, provided claimant was not required to physically restrain students. Dr. Noren was unaware of whether claimant had any driving restrictions.
¶ 108 On redirect examination, Dr. Noren testified that his private practice was orthopedic-related, and only three to five percent of his current patients had a CRPS diagnosis. Dr. Noren had 15 years' experience related to intrathecal pumps, including inserting and replacing intrathecal pumps and managing patients with intrathecal pump implants. He also testified that his examination of claimant was consistent with Dr. Lubenow's examination of claimant. Other than in his review of the medical records, Dr. Noren had not seen documented physical findings that would meet the criteria for CRPS. Dr. Noren reviewed Dr. Lubenow's records from 2010 to 2016. Because of claimant's complaints of severe allodynia, Dr. Noren further found it unusual that claimant received acupuncture treatments and had an EMG. Dr. Noren explained that most people with CRPS would not be able to tolerate needles being stuck in them. Dr. Noren testified that when he saw claimant, he did not specifically diagnose CRPS and that when he wrote "this is an extremely unusual presentation for [CRPS]," he would have been commenting on what Dr. Lubenow had opined. Dr. Noren again reiterated that no medical literature includes a discussion of atypical CRPS.
¶ 109 C. The Arbitrator's Decision
¶ 110 On August 9, 2018, Arbitrator Fruth recused himself, and Arbitrator Cronin was assigned to the claims. Neither party objected to Arbitrator Cronin issuing a decision with respect to both claims upon his review of the transcript of the January 10, 2018, hearing, the admitted exhibits, and each party's proposed findings.
¶ 111 On March 6, 2019, Arbitrator Cronin issued his decisions. With respect to the first claim (09 WC 30456), the arbitrator denied benefits, finding that claimant gave timely notice but failed to demonstrate that her condition of ill-being was causally related to the March 19, 2009, accident. With respect to the second claim (09 WC 30457), the arbitrator awarded benefits. Specifically, the arbitrator found that claimant sustained an undisputed accident arising out of and in the course of her employment on March 23, 2009. The arbitrator also found that Echo received timely notice and that claimant's condition of ill-being-referred to by claimant's treating physician as atypical CRPS, or alternatively as "neuropathic pain condition of the low back and bilateral legs"-was causally connected to the March 23, 2009, work-related accident.
¶ 112 The arbitrator awarded claimant $321, 386.95 for medical services provided; TTD benefits of $717.97 per week from March 24, 2009, to January 13, 2010, June 1, 2010 to August 23, 2010, and October 28, 2010, to June 17, 2014, for a total of 244 1/7 weeks; TPD benefits of $464.06 per week for January 11, 2016, to May 31, 2016, and August 24, 2010, to October 27, 2010, for a total of 28 weeks; and $549.99 per week for January 11, 2016 to January 31, 2016, for a total of three weeks; maintenance benefits of $717.97 per week from June 18, 2014, to January 10, 2016, and February 1, 2016, to February 12, 2016, for a total of 83 3/7 weeks. The arbitrator also awarded claimant PTD benefits of $717.97 for life commencing on February 13, 2016. The arbitrator denied claimant's request for penalties under sections 19(k) and 19(l) of the Act (id. §§ 19(k), 19(1)) and attorney fees under section 16 of the Act (id. §16).
¶ 113 D. The Commission's Decision
¶ 114 Both parties filed timely cross-petitions for review of both claims with the Commission. On March 4, 2020, the Commission issued a decision as to both claims. However, the Commission later recalled the decision, and the Commission issued a corrected decision on June 29, 2020. In the corrected decision, the Commission adopted the arbitrator's decision to deny benefits regarding claimant's first claim (09 WC 30456). Regarding claimant's second claim (09 WC 30457), the Commission modified the arbitrator's decision in part.
¶ 115 The Commission reduced the last period of TTD benefits from October 8, 2010, to February 26, 2014 (rather than June 17, 2014), the date the Commission found that claimant achieved maximum medical improvement (MMI), for a total of 228.287 weeks (rather than 244 1/7 weeks). The Commission also reduced the period of maintenance from 83 3/7 weeks to 15.857 weeks (from February 27, 2014, to June 17, 2014, rather than from June 18, 2014, to January 10, 2016, and February 1, 2016, to February 12, 2016). Lastly, the Commission shortened the period of PTD benefits, finding that such benefits should have commenced on June 18, 2014, rather on February 13, 2016. The Commission otherwise affirmed and adopted the arbitrator's decision.
¶ 116 On July 21, 2020, Echo filed a petition for review in the circuit court of Cook County, but limited its petition to the Commission's June 29, 2020, corrected decision regarding the second claim (09 WC 30457). Claimant did not file for review. On May 4, 2021, the court confirmed the Commission's decision. Echo timely filed the instant appeal on May 24, 2021.
¶ 117 II. Analysis
¶ 118 On appeal, Echo argues that the Commission erred by finding that claimant's condition of ill-being was causally related to her work accident of March 23, 2009. Presuming success on this argument, Echo also argues that the Commission erred by finding that claimant's medical treatment and expenses were reasonable and necessary. Echo requests that this court reverse the Commission's decision and remand for the entry of an order in favor of Echo.
¶ 119 A. Standard of Review
¶ 120 The parties disagree about the applicable standard of review. Echo contends that "under the peculiar circumstances of the case at bar, not only does the against the manifest weight of the evidence standard apply, but also the abuse of discretion standard applies." (Internal quotation marks omitted.). We note that Echo asserts that an abuse of discretion occurred when the Commission, after first acknowledging that Dr. Lubenow's conclusions and findings were inconsistent, adopted Dr. Lubenow's findings and conclusions. Relying solely on Blum v. Koster, 235 Ill.2d 21, 36 (2009), Echo argues for this court to apply an abuse of discretion standard in the present case. We are not persuaded.
¶ 121 In Blum, the trial court reduced a maintenance award where the parties' marital settlement agreement provided for review of maintenance after a certain date. Blum, 235 Ill.2d at 25. On appeal, the appellate court found that the trial court erred by reducing the periodic maintenance award. Id. at 24. In Blum, our supreme court reiterated that "a trial court's decision to modify maintenance upon conducting a review of maintenance will not be disturbed absent a clear abuse of discretion." Id. at 36. Our supreme court further reiterated that "[a] clear abuse of discretion occurs when 'the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.'" Id. (quoting People v. Hall, 195 Ill.2d 1, 20 (2000)). Ultimately, in Blum, the supreme court held that the appellate court erred by finding that the trial court abused its discretion in reducing the maintenance award. Id. at 47.
¶ 122 In Blum, the question raised before the supreme court was whether the appellate court erred by finding that the trial court abused its discretion in modifying the ex-husband's periodic maintenance obligation. Id. at 28. We acknowledge that the abuse of discretion standard applies in specific situations where the Commission may exercise its discretion. For instance, where the actions of an employer are deliberate or the result of bad faith or an improper purpose, the Commission's decision to deny penalties and attorney fees pursuant to sections 19(k) and 16 involves a two-part analysis. McMahan v. Industrial Comm'n, 183 Ill.2d 499, 514-15 (1998). First, the Commission's finding that the facts do not justify section 19(k) penalties and section 16 attorney fees is reviewed under the manifest weight of the evidence standard. McMahan, 183 Ill.2d at 516. Second, however, the reviewing court must determine if it would be an abuse of discretion to refuse to award such penalties and fees. Id. Moreover, section 19(d), by its plain terms, vests the Commission with discretion to reduce an award in whole or in part where the claimant persists in an injurious practice tending to either imperil or retard her recovery. 820 ILCS 305/19(d) (West 2020); Keystone Steel & Wire Co. v. Industrial Comm'n, 72 Ill.2d 474, 481 (1978).
¶ 123 Here, unlike Blum (modification of maintenance under the Marriage Act) and the Commission's discretionary decisions under the Act (as detailed above), the issues raised on appeal are determinate on the Commission's factual findings. See O'Dette v. Industrial Comm'n, 79 Ill.2d 249, 253 (1980) (entitlement to workers' compensation benefits is a factual matter in which the claimant has the burden of proving all elements of the claim). It is well-settled that the Commission, as the trier of fact, resolves issues as to the nature and extent of the claimant's injuries, the reasonableness and necessity of his prospective medical expenses, and the causal relationship between the claimant's condition of ill-being and his work accident. See R&D Thiel v. Illinois Workers' Comp. Comm'n, 398 Ill.App.3d 858, 868 (2010). As such, our review of the Commission's factual findings is limited to determining whether such findings are against the manifest weight of the evidence. Johnson v. Illinois Workers' Compensation Comm'n, 2011 IL App (2d) 100418WC, ¶ 17. Accordingly, we reject Echo's contention that the abuse of discretion standard applies in the present case and now turn to the merits.
¶ 124 B. The Commission's Decision
¶ 125 The issues on appeal are whether claimant's condition of ill-being was causally related to her work accident of March 23, 2009, and, alternatively, whether claimant's medical treatment and expenses were reasonable and necessary. As previous discussed, the manifest-weight-of-the-evidence standard applies to both issues.
¶ 126 The purpose of the Act is to protect an employee from any risk or hazard which is peculiar to the nature of the work he or she is employed to do. Hosteny v. Illinois Workers' Comp. Comm 'n, 397 Ill.App.3d 665, 674 (2009). To obtain compensation under the Act, a claimant must prove by a preponderance of the evidence that "some act or phase of his *** employment was a causative factor in his *** ensuing injuries." Land & Lakes Co. v. Industrial Comm 'n, 359 Ill.App.3d 582, 592 (2005). Whether a causal relationship exists between a claimant's employment and his or her condition of ill-being is a question of fact. Certi-Serve, Inc. v. Industrial Comm 'n, 101 Ill.2d 236, 244 (1984); Bolingbrook Police Department v. Illinois Workers' Comp. Comm'n, 2015 IL App (3d) 130869WC, ¶ 52. Whether a claimant has established the requisite causal connection between his current injuries and an industrial accident is a question of fact for the Commission to determine, and that determination will not be overturned on appeal unless it is against the manifest weight of the evidence. O'Dette, 79 Ill.2d at 253; R&D Thiel, 398 Ill.App.3d at 866. In resolving factual matters, it is the function of the Commission to assess the credibility of the witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence and draw reasonable inferences therefrom. Hosteny, 397 Ill.App.3d at 674. A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n, 2013 IL App (5th) 120564WC, ¶ 21.
¶ 127 A claimant is entitled to recover reasonable medical expenses that are required to diagnose, relieve, or cure the effects of the claimant's condition of ill-being. F & B Manufacturing Co. v. Industrial Comm'n, 325 Ill.App.3d 527, 534 (2001). Whether a medical expense is reasonable and necessary is a question of fact for the Commission, and its determination will not be overturned unless it is against the manifest weight of the evidence. F & B Manufacturing Co., 325 Ill.App.3d at 534.
¶ 128 Here, Echo asserts that claimant met her burden of proving a compensable work accident on March 23, 2009, but failed to prove that she suffers from "a medically diagnosed injury requiring her current treatments of an intrathecal drug pump, ongoing oral pain medication, and treatment for a chronic pain diagnosis." In support, Echo maintains that the Commission "ignored the consistent majority of physicians' opinions*** and expressly states in its [d]ecision that it was willing to overlook the treating physician's, Dr. Lubenow's, inconsistent testimony and factual inconsistencies in order to adopt his erroneous opinions." Contrary to Echo's position, claimant maintains that the Commission accepted Dr. Lubenow's diagnosis of atypical CRPS by weighing the competing medical evidence and opinion testimony and in viewing Echo's experts as less credible. Thus, claimant argues that the Commission's decision is not against the manifest weight of the evidence. We agree with claimant.
¶ 129 The Commission found that claimant's condition of ill-being was causally connected to the March 23, 2010, accident. In making this finding, the Commission provided a careful review of the various experts' testimonies and opinions and provided a detailed factual summary for its findings. Nothing in the record demonstrates that the Commission ignored contrary expert opinions. Rather, the Commission clearly noted that Echo presented contrary expert opinions concerning causation and future medical care from five examining physicians.
¶ 130 The Commission expressed primary reliance on Dr. Lubenow's opinion but acknowledged certain inconsistencies in Dr. Lubenow's testimony. Notwithstanding these inconsistencies, the Commission reasoned that Dr. Lubenow was the most qualified to render a CRPS diagnosis and further found it significant that Drs. Kirincic, Louis, and Gruft concurred in Dr. Lubenow's diagnosis. The Commission found Dr. Lubenow's curriculum vitae impressive, as it revealed his expertise in the study and treatment of CRPS. The Commission also gave considerable weight to Dr. Lubenow's opinions because he treated claimant for approximately seven years.
¶ 131 Dr. Lubenow testified that claimant did not have "the normal presentation of CRPS" because the physical examination finding was limited to allodynia with "no other indicia of CRPS" noted. Thus, Dr. Lubenow made a preliminary diagnosis during claimant's first examination of "an atypical presentation of CRPS." At the next follow-up visit, Dr. Lubenow observed, in addition to significant allodynia, differences in hair growth and mechanically tested differences in temperature asymmetry between extremities. Again, Dr. Lubenow observed that claimant presented atypical CRPS.
¶ 132 In contrast, the Commission discounted the testimonies of Drs. Noren and Konowitz. Regarding Dr. Noren, the Commission noted that Dr. Noren examined claimant only once, approximately six years before the 2018 trial. The Commission also noted, unlike Dr. Lubenow, Dr. Noren had not published since 1994, and never regarding CRPS.
¶ 133 Additionally, the Commission discounted Dr. Noren's testimony because he attempted to distance himself from his 2011 written report in his deposition testimony. Specifically, Dr. Noren wrote in his report that "as noted by Dr. Lubenow, this is an extremely unusual presentation for a complex regional pain syndrome." Dr. Noren further wrote the following:
Dr. Noren later testified that in writing those words, he was commenting on Dr. Lubenow's diagnosis, rather than specifically diagnosing claimant with CRPS."At this time, [claimant's] prognosis is indeterminate. Considering that CRPS is a diagnosis of exclusion, [claimant] has atypical presentation of the syndrome. *** The records reflect that [claimant's] symptoms appear to have begun at approximately the time of her injury and progressed in an atypical fashion for [CRPS]."
¶ 134 The Commission also found Dr. Noren's opinions less persuasive due to his failure to consider several additional medical records and findings. For example, Dr. Noren testified, prior to the March 16, 2017, deposition, he reviewed Dr. Lubenow's medical records from 2010 to 2016. At the time of the section 12 evaluation, Dr. Noren noted that claimant's physical examination revealed no findings of S1 radiculopathy. However, Dr. Noren testified that he could not recall reviewing claimant's positive EMG, revealing bilateral radiculopathy, which admittedly would have raised suspicion concerning the inconsistency between the physical examination and the test results. Moreover, Dr. Noren testified, consistent with his report, that claimant exhibited allodynia during the physical examination, and he observed pilomotor changes. However, Dr. Noren testified that he was unaware of other objective indicia of CRPS documented in the claimant's treatment records, including Dr. Lubenow's records documenting claimant's abnormal hair growth, mechanically recorded temperature variances, as well as RIC's records documenting excessive sweat patterns. The Commission further noted that Dr. Noren did not conduct mechanical temperature variance tests, relying only on touch, during the section 12 evaluation.
¶ 135 The Commission also discounted Dr. Konowitz's expert opinion and provided its reasoning. The Commission first noted that Echo engaged in" (examining) doctor shopping and vocational rehabilitation counselor shopping." The Commission acknowledged that Dr. Konowitz objected to Dr. Lubenow's diagnosis of atypical CRPS and use of the intrathecal pump where claimant's diagnosis did not meet the necessary criteria. The Commission also acknowledged that Dr. Konowitz testified that Dr. Lubenow was violating a standard of care by installing the intrathecal pump because he did not have a valid pain diagnosis. Additionally, Dr. Konowitz opined that the amount of hydromorphone used in claimant's intrathecal pump was sufficient for opioid-induced hyperalgesia. The Commission, however, found Dr. Konowitz's testimony unconvincing.
¶ 136 The Commission stated that the opinions of Dr. Konowitz "are suspect since they rest upon an incomplete review of all the relevant medical records." The Commission noted that Dr. Konowitz did not review the RIC records documenting abnormal sweat patterns.
¶ 137 Even if we accept Echo's contention that the Commission made factual errors about Dr. Konowitz's testimony concerning his review of the records, we do not find these errors sufficient to alter the outcome or to render the Commission's decision against the manifest weight. Again, the appropriate test is whether the record on appeal contains sufficient evidence to support the Commission's determination. R&D Thiel, 398 Ill.App.3d at 866.
¶ 138 The Commission also noted that Dr. Konowitz documented temperature variances and abnormal hair growth, yet he never conducted any scientific tests for temperature differences. While this court recognizes that atypical CRPS is not a commonly accepted medical diagnoses, the manifest weight of the evidence demonstrates that claimant suffered an undeniable work-related accident followed by years of chronic pain. Additionally, the medical treatments, especially the intrathecal pump, were prescribed for the sole purpose of reducing claimant's complaints of pain. Dr. Lubenow, contrary to Dr. Konowitz, testified that the amount of prescribed opioid medication was within recommended guidelines and, given the small dose and the specific tests, claimant did not have opioid-induced hyperesthesia. As the Commission correctly noted, Dr. Konowitz also testified to his belief that claimant experiences chronic pain, albeit without physiological abnormality.
¶ 139 While the parties presented conflicting evidence on the issue, the Commission found the medical opinions of Dr. Lubenow more credible than those of Dr. Konowitz. "In resolving questions of fact, it is within the province of the Commission to assess the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from the evidence." Hosteny, 397 Ill.App.3d at 674. In light of the evidence, we cannot say that an opposite conclusion than that reached by the Commission is clearly apparent. Freeman United Coal Mining Co., 2013 IL App (5th) 120564WC, ¶ 21.
¶ 140 In sum, there is sufficient evidence to support the Commission's decision. Therefore, we conclude that the Commission's determination that claimant's current condition of ill-being was causally related to his employment is not against the manifest weight of the evidence. Additionally, because Echo's second argument was premised on success of its first argument, we conclude that the Commission's award of reasonable and necessary medical expenses is not against the manifest weight of the evidence.
¶ 141 III. Conclusion
¶ 142 For the reasons stated, we affirm the judgment of the circuit court which confirmed the Commission's decision.
¶ 143 Affirmed.