Decision filed 04/28/11. The text of
this decision may be changed or
co rrecte d prio r to the filing o f a
Petition for Rehea r i n g or the
disposition of the same.
Filed: April 28, 2011
IN THE APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
) APPEAL FROM THE CIRCUIT
) COURT OF SANGAMON COUNTY
) No. 09 MR 539
COMPENSATION COMMISSION, et
) LEO J. ZAPPA
) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the judgment of the court, with
Presiding Justice McCullough and Justices Holdridge, Hudson,
and Stewart concurred in the judgment and the opinion.
Absolute Cleaning/SVMBL (Absolute) appeals from an order of
the circuit court of Sangamon County which confirmed a decision of
the Illinois Workers' Compensation Commission (Commission), finding
that its employee, Suanne Palazzolo (claimant), sustained workrelated injuries on May 9, 2006, and November 6, 2006, which arose
out of and in the course of her employment and awarding the
claimant benefits pursuant to the Workers’ Compensation Act (Act)
(820 ILCS 305/1 et seq. (West 2004)).
For the reasons that follow,
we affirm the judgment of the circuit court and remand this cause
to the Commission.
The following factual recitation is taken from the evidence
presented at the arbitration hearing on the claimant’s petition for
adjustment of claim.
The claimant, a worker for Absolute’s cleaning business,
testified that, on May 9, 2006, while lifting a mop bucket during
her cleaning duties, she experienced a sharp pain in her neck and
lower back shooting into her arm and left leg.
She testified that,
years before that accident, she had sought treatment for neck or
back problems but that those problems did not persist until the
time of her May 2006 accident.
After the May 2006 accident, the claimant sought treatment
from a chiropractor, Dr. Kelly Calloway, but returned to work
claimant testified that she discontinued chiropractic treatment
soon after the accident, and in fact sought no other medical
treatment before her next work accident, on November 6, 2006.
testified that, on November 6, she was lifting a trash bag when she
felt "the same feeling all over again," this time in her back and
neck, and "going down the right arm and *** wrapping around the
shoulder blade." After that incident, the claimant returned to Dr.
chiropractic care from that point until the day of the hearing, and
that the care helped to relieve her symptoms.
In her testimony,
the claimant stated that Dr. Calloway
referred her to Dr. Ronald Hertel "under [the claimant’s] wishes."
The claimant said that Dr. Hertel’s name was given to her by her
The claimant later clarified that Dr. Calloway
told her that she needed to see another doctor and that she could
"choose a doctor that [Dr. Calloway] could refer [her] out to."
his December 28, 2006, note, Dr. Hertel wrote that he saw the
The claimant disputed that characterization in her
The claimant’s medical records include a note, written
by Dr. Calloway and dated December 8, 2006, saying, "I would like
to refer [the claimant] to *** Dr. Ronald Hertel *** because I
suspect a cervical disc problem."
In the patient history included in his December 28, 2006,
treatment note, Dr. Hertel observed that the claimant had reported
low-back pain after her first work incident but returned to work
shortly thereafter and continued to work until the November 6,
Dr. Hertel wrote that, following that incident,
the claimant experienced pain in her upper arms, her legs, and low
back and problems with her neck. Dr. Hertel’s physical examination
revealed to him that the claimant’s "symptoms [were] far in excess
of that which [could] be substantiated on any objective physical
He recommended an MRI of the claimant’s spine, but,
according to the claimant’s testimony, he did not do so until her
attorney called the doctor after her appointment to request the
recommendation. He also noted that, at the end of his examination,
he and the claimant had an argument that led him to conclude that
he should not schedule another appointment with her.
A record of
the January 19, 2007, MRI the claimant later underwent includes the
impression that she suffered from mild disc protrusion at L3-L4,
annular tear at L4-L5, left paracentral/left lateral disc prolapse
at C5-C6, left paracentral disc protrusion at C4-C5, posterior
central disc protrusion at C6-C7, and degenerative disc disease at
L3-L4, L4-L5, and C5-C6.
In her testimony, the claimant said that she also saw her
family doctor, Dr. Chris Sprinkel, because Dr. Calloway "told [her]
that [she] would have to go to see him to get pain medicine."
cross-examination, the claimant clarified that Dr. Calloway did not
give her a written referral to see Dr. Sprinkel but instead "just
advised" her to see him if she wanted pain medication.
medication but told her that she needed to see a specialist and
that she should arrange the referral through Dr. Calloway.
Sprinkel’s December 11, 2006, treatment note states that the
claimant "[s]hould follow-up with the back specialist."
The claimant explained that Dr. Calloway first recommended
that she see a Dr. Freytag but that Calloway "gave [her] the choice
and [she] heard that Dr. Pencek was better." On cross-examination,
the claimant stated that she saw Dr. Terrence Pencek via a referral
from Dr. Calloway.
On further questioning, she clarified: "I was
allowed to choose my own doctor and I chose Dr. Pencek and [Dr.
Calloway] referred me out to him.
I would like to see."
She gave [me] the choice of who
The record on appeal contains a note, dated
February 20, 2007, in which Dr. Calloway refers the claimant to Dr.
In her January 21, 2007, report of an examination of the
claimant undertaken at Absolute’s request, Dr. Sandra Tate noted
tenderness in the claimant’s upper trapezius muscles and left
posterior superior iliac spine, and she noted from MRI reports that
the claimant had "degenerative disc changes in the cervical spine
at C5-6 and C6-7 with a left paracentral protrusion at L4-5."
Tate opined that "the patient’s left sacroiliac joint dysfunction
may be causally related to the November 2006 injury," while the
claimant’s neck and back problems "were, at most, exacerbated but
not caused by the May 2006 injury."
Dr. Tate indicated that the
claimant could work with restrictions and might benefit from
additional treatment or physical therapy.
In a March 12, 2007, treatment note, Dr. Pencek wrote that he
was seeing the claimant after a referral from her chiropractor--an
assertion he repeated in his deposition--and that the claimant told
him that her consultation with Dr. Hertel was at her request.
Pencek noted tenderness over the claimant’s left trapezius and left
posterior neck, noted that the claimant reported left leg and lowback pain, and indicated that the claimant had disc herniations on
the left side of the C5-C6 and C4-C5 levels.
physical therapy and epidural injections, and he wrote that the
claimant appeared frustrated that he did not recommend surgery.
Physical therapy treatment notes for March 2007 indicate that
the claimant continued to report pain in her neck and back but that
her "subjective reports [were] in excess of her general objective
Also in March 2007, the claimant saw Dr. Hyunchul
Jung via a referral from Dr. Pencek.
Dr. Jung, a pain specialist,
claimant testified that she underwent four epidural injections,
which gave her limited relief in her back and no relief in her
In a note following his May 24, 2007, examination of the
claimant, Dr. Pencek opined that the claimant would "benefit from
a C5-6 anterior cervical discectomy and fusion."
In a note
following an October 2007 examination, he again stated that the
deposition testimony, Dr. Pencek stated
recommend that surgery for the claimant.
that he continued to
He opined that her
cervical disc symptoms were caused at least in part by her work
accidents and that her lumbar disc problems could have been caused
by the work accidents.
He also stated, however, that he did not
recommend further treatment for her lumbar spine.
examination, Dr. Pencek agreed that much of his evaluation was
based on the claimant’s subjective complaints.
In a July 12, 2007, report of her second evaluation of the
claimant on behalf of Absolute, Dr. Tate stated that she reviewed
additional medical records and again examined the claimant before
concluding that the claimant was magnifying her symptoms, had
reached maximum medical improvement, and likely could return to
work with a restriction that she lift no more than 50 pounds.
her deposition, Dr. Tate clarified that her assessment meant that
the claimant no longer needed chiropractic or other medical care,
or any surgery.
Dr. Tate explained that surgery would be warranted
only with certain findings of disc-related pain, and she found no
evidence that the claimant suffered from disc-related pain.
The claimant testified that her pain continued as of the time
of the hearing and that she continued chiropractic care through
She further recalled that Dr. Pencek had told her that
"it was [her] choice" whether to continue with chiropractic care.
The claimant testified that she was no longer employed by
Absolute at the time of her testimony, because "[t]hey laid [her]
off because they lost their contract out at the mine."
however, that Absolute was still cleaning other areas, and she was
not aware of any other employees Absolute laid off at the same time
it laid her off.
She also testified that, at the time she was laid
off, she was doing laundry for Absolute in an area not directly
connected to the two cleaning contracts Absolute had lost.
At the conclusion of the hearing which was conducted pursuant
to section 19(b) of the Act (820 ILCS 305/19(b) (West 2004)), the
arbitrator found that the claimant sustained compensable injuries
from her employment on both dates and awarded her temporary total
disability (TTD) benefits for 49 6/7 weeks, for the periods from
November 16, 2006, through May 20, 2007, and February 23, 2008,
through the date of arbitration, August 5, 2008.
also awarded the claimant $24,012.37 in
ordered that Absolute
medical expenses and
authorize a surgery recommended by Dr.
In so finding, the arbitrator concluded that the
claimant’s injury was caused by her employment accidents, and that
all of the claimant’s medical treatment came in the chain of
referrals from her original physicians.
Absolute sought review of the arbitrator’s decision before the
In a decision with one commissioner dissenting, the
Commission adopted the arbitrator’s decision with one correction to
referrals and remanded the matter to the arbitrator pursuant to
Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E. 2d 1322
Absolute filed a petition for judicial review of the
Commission’s decision in the circuit court of Sangamon County. The
circuit court confirmed the Commission’s decision, and this appeal
For its first assignment of error, Absolute argues that the
Commission erred in finding that the claimant did not exceed her
choice of physician limitation under the Act.
Section 8(a) of the
Act, which imposes the "two-physician rule" upon which Absolute
relies (Comfort Masters v. Workers’ Compensation Comm’n, 382 Ill.
App. 3d 1043, 1046 (2008)), provides as follows, in pertinent part:
"[T]he employer’s liability to pay for *** medical services
selected by the employee shall be limited to:
(1) all first aid and emergency treatment; plus
(2) all medical, surgical and hospital services provided
by the physician, surgeon or hospital initially chosen by the
institution or other provider of services recommended by said
initial service provider or any subsequent provider of medical
services in the chain of referrals from said initial service
(3) all medical, surgical and hospital services provided
by any second physician, surgeon or hospital subsequently
chosen by the employee or by any other physician, consultant,
expert, institution or other provider of services recommended
by said second service provider or any subsequent provider of
medical services in the chain of referrals from said second
820 ILCS 305/8(a) (West 2006).
treatment as a result of a valid referral is a question of fact for
the Commission. See Nabisco Brands, Inc. v. Industrial Comm’n, 266
Ill. App. 3d 1103, 1108, 641 N.E.2d 578 (1994).
On appeal, we will
reverse the Commission’s factual findings only if they are against
the manifest weight of the evidence. Elmhurst-Chicago Stone Co. v.
Industrial Comm’n, 269 Ill. App. 3d 902, 906, 646 N.E.2d 961
In order for a finding to be contrary to the manifest
weight of the evidence, an opposite conclusion must be clearly
Elmhurst-Chicago Stone Co., 269 Ill. App. 3d at 906.
Put another way, the Commission’s determination on a question of
fact is against the manifest weight of the evidence only if no
rational trier of fact could have agreed.
Dolce v. Industrial
Comm’n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175 (1996).
According to Absolute, the claimant chose Dr. Calloway as her
first physician but then treated with Drs. Sprinkel, Hertel, and
Pencek without a valid referral.
Thus, Absolute argues, the
physician allowance under the Act.
To support this argument,
Absolute highlights the fact that the record does not include
written referrals for treatment for all four of her physicians,
evidence that the claimant or her attorneys were involved in the
physician referral process, and evidence that the claimant directed
Dr. Calloway to refer her to certain physicians.
However, to the
physicians at the plaintiff’s (or her attorney’s) urging, we note
that the genesis of the referral has no bearing on the issue so
See Elmhurst-Chicago Stone Co., 269 Ill. App. 3d at 907
("No matter how Dr. Bartucci’s name initially came up, claimant’s
treating doctor still referred him to Dr. Bartucci.
*** Dr. Bartucci was in the chain of referral ***.").
Absolute further argues at some length that Dr. Calloway’s
actual referral was nonetheless invalid because it was a "sham"
referral designed to circumvent the two-physician rule.
the record contains not only written evidence, in the form of Dr.
treatment note indicating that he saw the claimant on a referral
from her chiropractor, but also testimony to establish that Drs.
Hertel and Pencek saw the claimant based on referrals from Dr.
Those referrals, whose purposes the claimant explained
Commission’s finding that Dr. Calloway validly sent the claimant to
other physicians and thus that the claimant did not exceed her twophysician limitation.
Absolute next argues that the Commission erred in finding that
the claimant’s condition of ill-being was causally related to her
A prerequisite to the right to recover
benefits under the Act is some causal relationship between the
Industrial Comm’n, 379 Ill. 139, 144-45, 39 N.E.2d 980 (1942).
Compensation may be awarded under the Act even if the conditions of
employment do not constitute the sole or principal cause of the
claimant’s injury. Brady v. Louis Ruffolo & Sons Construction Co.,
143 Ill. 2d 542, 548, 578 N.E.2d 921 (1991).
condition does not prevent recovery under the Act if that condition
Caterpillar Tractor Co. v. Industrial Comm'n, 92 Ill.2d 30, 36, 440
N.E.2d 861 (1982).
For its argument that the claimant’s injuries bore no causal
relationship to her work, Absolute relies on evidence that she
suffered some back or neck problems several years prior to her
workplace accidents, evidence that the claimant was magnifying her
symptoms after the accidents, and evidence that the claimant had a
indicates that the claimant was able to work prior to the accidents
now at issue, and the claimant testified that her prior problems
had abated by the date of her first workplace accident. Further,
Dr. Pencek opined that her work activities exacerbated or caused
her condition of ill-being and led to her need for surgical
In fact, even Dr. Tate, who examined the claimant at
Absolute’s request, concluded that the claimant’s work accidents
caused or exacerbated her condition.
Based on this evidence, we
conclude that a rational trier of fact could have agreed with the
Commission’s finding that the claimant’s condition of ill-being was
causally related to her work.
Accordingly, we reject Absolute’s
argument that the Commission’s finding on that point was against
the manifest weight of the evidence.
Absolute next agues that the Commission erred in finding that
certain of the claimant’s medical treatment was reasonable and
Under section 8(a) of the Act (820 ILCS 305/8(a) (West
2006)), a claimant is entitled to recover reasonable medical
expenses, the incurrence of which are causally related to an
accident arising out of and in the scope of her employment and
which are necessary to diagnose, relieve, or cure the effects of
the claimant’s injury.
University of Illinois v. Industrial
Comm’n, 232 Ill. App. 3d 154, 164, 596 N.E.2d 823 (1992).
a medical expense is either reasonable or necessary is a question
of fact to be resolved by the Commission, and its determination
will not be overturned on review unless it is against the manifest
weight of the evidence.
F&B Manufacturing Co. v. Industrial
Comm’n, 325 Ill. App. 3d 527, 534, 758 N.E.2d 18 (2001).
Absolute argues that the Commission should not have awarded
the claimant her medical expenses for visits to Dr. Calloway up
until the time of arbitration or for her medical treatment rendered
by Dr. Pencek.
Regarding Dr. Calloway’s care, Absolute contends
that chiropractic care did not resolve the claimant’s problems or,
alternatively, that the claimant’s condition resolved long before
she stopped seeing Dr. Calloway.
However, the Commission found,
based on the claimant’s testimony, that chiropractic care provided
her with temporary relief from her symptoms, and, on that basis,
the Commission concluded that the chiropractic care was reasonable
Because that finding has an evidentiary basis in
the record, we will not disturb it on appeal.
that Dr. Pencek’s treatment was unnecessary is premised on the
notion that the claimant had no medical basis for her complaints
and thus did not actually require treatment.
However, Dr. Pencek
testified that the claimant did require treatment, and in fact
required surgery. This testimony supports the Commission’s finding
conclude that the finding was not against the manifest weight of
Absolute’s fourth argument on appeal is that the Commission
erred in awarding the claimant expenses for the future operation
reasonableness of the claimant’s medical expenses presented a
factual issue, and Dr. Pencek’s testimony that the surgery was
necessary provided ample basis for the Commission’s finding that
the surgery was, in fact, reasonable and necessary.
we cannot say that the Commission’s finding in this regard was
against the manifest weight of the evidence, and we will not
disturb the finding on appeal.
Finally, Absolute argues that the Commission should not have
awarded the claimant TTD benefits.
An employee is temporarily
totally disabled from the time that an injury incapacitates her
from work until such time as she is as far recovered or restored as
the permanent character of her injury will permit.
Midland Co. v. Industrial Comm’n, 138 Ill. 2d 107, 118, 561 N.E.2d
stabilizes or she reaches maximum medical improvement, she is no
longer eligible for TTD benefits.
Ill. 2d at 118.
Archer Daniels Midland Co., 138
The determination of the period of time during
which a claimant is temporarily and totally disabled is a question
of fact to be resolved by the Commission, and its resolution of the
issue will not be disturbed on appeal unless it is against the
manifest weight of the evidence.
Archer Daniels Midland Co., 138
Ill. 2d at 119-20.
Absolute asserts that TTD benefits were inappropriate here for
First, it argues that the medical evidence disproves
the claimant’s assertion that she suffered from any significant
injury and thus belies the conclusion that she was temporarily
We have rejected this contention above as it
relates to Absolute’s
argument that the medical services she
received were unnecessary, and we reject it again here.
Second, Absolute argues that the claimant should not receive
termination was due to economic conditions.
asserts, the claimant’s disability no longer caused her inability
to work and should no longer have supported its liability under the
The Commission rejected this argument, however, by finding
that Absolute’s decision to terminate the claimant’s employment was
not due to economic conditions.
In so finding, the Commission
cited, inter alia, evidence that, at the time she was laid off, the
claimant was not working at any of the mines that cancelled their
contracts with Absolute.
Based on this evidence, we conclude that
the Commission’s finding regarding the cause of the claimant’s
termination was not against the manifest weight of the evidence.
That finding forecloses Absolute’s argument that the cause of the
benefits, and we do not consider the argument further.
Based upon the foregoing analysis, we affirm the judgment of
the circuit court, which confirmed the Commission’s decision, and
remand the matter to the Commission for further proceedings.
Affirmed and remanded.