Illinois Cases December 29, 2021: Greater Peoria Mass. Transit Dist. v. The Ill. Workers' Comp. Comm'n

Case Description

1

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Tazewell County. No. 20-MR-208 Honorable Paul E. Bauer, Judge, Presiding.

JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment.

ORDER

HUDSON JUSTICE

¶ 1 Held: The Illinois Workers' Compensation Commission could reasonably conclude that claimant's work accident of January 10, 2019, aggravated his preexisting cervical degenerative disc disease where claimant was able to function and work prior to the accident, but following the accident, claimant's condition deteriorated to the extent that he was unable to continue his employment as a bus driver. In addition, the evidence supports an inference that the accident accelerated claimant's need for surgery where claimant's treating physician testified that the symptoms resulting from the work accident were the impetus for claimant to seek medical attention. Accordingly, the Illinois Workers' Compensation Commission properly

2

determined that claimant's condition of ill-being was causally related to his work accident of January 10, 2019.

¶ 2 Claimant, Stephen Kirchgessner, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2018)) seeking benefits for injuries he allegedly sustained while in the employ of respondent, Greater Peoria Mass. Transit District d/b/a Citylink. Following a hearing, the arbitrator found that claimant sustained an accidental injury arising out of and occurring in the course of his employment with respondent and that claimant's condition of ill-being was causally related to the accident. The arbitrator awarded claimant reasonable and necessary medical care, temporary total disability (TTD) benefits, and prospective medical care. With one commissioner dissenting, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator and remanded the matter for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill.2d 327 (1980). On judicial review, the circuit court of Tazewell County confirmed the decision of the Commission. In this appeal, respondent argues that claimant had significant preexisting cervical degenerative disc disease that required surgical repair prior to the accident at issue. As such, respondent contends that the Commission erroneously determined that claimant's condition of ill-being was causally related to his work accident. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In March 2019, claimant filed an application for adjustment of claim alleging injuries to his right arm and the man as a whole on January 10, 2019, while working for respondent. An arbitration hearing on claimant's application for adjustment of claim was held pursuant to section 19(b) of the Act (820 ILCS 320/19(b) (West 2018)) on December 16, 2019, before arbitrator Gerald Granada. The issues in dispute were accident, causal connection, medical expenses, TTD benefits, and prospective medical care. The following factual recitation is taken from the evidence

3

presented at the arbitration hearing.

¶ 5 On January 10, 2019, claimant worked for respondent as a bus driver and had been so employed for nine years and three months. On that date, claimant worked a split shift which ran from 4:58 a.m. through 9 a.m. and then from 2:08 p.m. through 7 p.m. During the afternoon portion of the shift, claimant operated a bus on Main Street in downtown Peoria. The bus had power steering and claimant did not notice any problems with that feature on the day of the accident. As claimant approached the intersection of Main and Washington Streets, he began to make a right turn. To this end, claimant extended his right arm straight out at shoulder level to grasp the steering wheel. While turning the steering wheel in a clockwise motion, claimant experienced extreme pain and numbness radiating from his neck down his right arm. Claimant acknowledged that he had been experiencing pain and numbness in his right shoulder and biceps on the day of the accident and for "months" prior thereto. He testified, however, that he had never previously experienced the type of pain he had when the incident occurred, i.e., pain radiating from his neck into his arm.

¶ 6 Following the accident, claimant returned to the transit center, reported the accident to a supervisor, and sought medical attention at OSF Center for Occupational Health (OSF). At OSF, claimant saw Dr. Edward Moody. Claimant told Dr. Moody that he was making a right turn while driving a bus when he experienced pain and numbness in the right shoulder region extending down

4

the arm. Claimant also reported that he had been having "some generalized milder shoulder soreness for a couple of days, but nothing of this magnitude." Following a physical examination, Dr. Moody diagnosed right shoulder impingement syndrome with biceps tendinopathy as the pain generator. Dr. Moody ordered an X ray of the right shoulder and an MRI of the right elbow. The X ray showed osteoarthritis of the right acromioclavicular joint but no fractures or dislocations. Dr. Moody interpreted the MRI as showing a distal bicep tendon partial low-grade tear. These findings resulted in a referral to Dr. John Mahoney of Midwest Orthopaedic Center.

¶ 7 Claimant consulted Dr. Mahoney on January 22, 2019. Claimant provided Dr. Mahoney with a history of his accident and subsequent symptoms. In particular, claimant told Dr. Mahoney that he was driving a bus when he "felt a sharp pain from [the] lateral aspect of [the] right side of [the] neck down to [the] elbow." Dr. Mahoney reviewed the MRI of the right elbow and the X ray taken at OSF. A physical examination revealed significant weakness of the right arm and atrophy of the right biceps. Dr. Mahoney determined that the weakness and atrophy claimant had of the right upper extremity was not typical for a muscle or tendon injury. He opined that claimant's symptoms were neck related and diagnosed cervical spondylosis with myelopathy. He recommended an MRI of the cervical spine to evaluate for nerve-root compression and a consultation with one of his colleagues. The MRI was performed on February 5, 2019, and showed significant developmental and acquired spinal stenosis of the cervical spinal canal at multiple levels without any evidence of cord impingement or alteration of the cord signal.

¶ 8 On February 11, 2019, Dr. Daniel Mulconrey saw claimant upon referral from Dr. Mahoney. Dr. Mulconrey documented that on January 10, 2019, claimant "had a severe increase in right upper extremity radiculopathy." Specifically, claimant reported that he was driving a bus for respondent and while making a turn sustained "a twisting injury to the right upper extremity

5

[which] caused severe pain in the right biceps as well as [the] right upper extremity." Upon examination, Dr. Mulconrey noted (1) significant wasting of the right biceps, (2) weakness of the right shoulder, upper arm, and forearm, and (3) mildly diminished sensation in the right forearm. X rays of the cervical spine revealed mild cervical degenerative changes. Dr. Mulconrey's assessment was right upper extremity paralysis and radiculopathy. Following the physical examination and a review of the MRI of the cervical spine, Dr. Mulconrey recommended further study including an MRI of the right shoulder and an EMG of the bilateral upper extremities. Dr. Mulconrey authorized claimant to return to work with a five-pound lifting restriction on the right upper extremity and prohibited him from driving a commercial vehicle. Respondent was unable to accommodate these limitations.

¶ 9 Claimant next saw Dr. Mulconrey on March 25, 2019. Dr. Mulconrey reported minimal findings on the MRI of the right shoulder. The EMG showed an incomplete radial nerve neuropathy. Upon examination, Dr. Mulconrey noted that claimant continued to have severe weakness and pain in the right upper extremity. Dr. Mulconrey also documented a limitation in range of motion of the cervical spine secondary to pain in claimant's right upper extremity, a "locking motion" of the right upper extremity, and a severe spasm in the right upper extremity. Due to the negative shoulder MRI, Dr. Mulconrey opined that the upper extremity radiculopathy was located in the cervical spine, a finding that correlated with the EMG results. Accordingly, Dr. Mulconrey diagnosed cervical spondylosis with radiculopathy and right upper extremity paralysis. Dr. Mulconrey recommended an anterior cervical decompression and fusion at C4-C7 due to claimant's right upper extremity paralysis, severe limitation of activities of daily living, his uncontrolled pain, and progressive weakness since the date of the accident. Dr. Mulconrey left claimant's work restrictions unchanged. As of the date of the arbitration hearing, claimant

6

continued to experience symptoms. He expressed a desire to undergo the surgery recommended by Dr. Mulconrey.

¶ 10 On May 9, 2019, Dr. Stephen Weiss conducted an examination of claimant pursuant to section 12 of the Act (820 ILCS 305/12 (West 2018)). Claimant told Dr. Weiss that he sustained the injury at issue on January 10, 2019, while driving a bus. Specifically, claimant reported that while in the process of turning the steering wheel, he felt pain running from the right side of his neck down his right upper extremity to about the level of his wrist. Claimant denied any malfunction of the steering wheel at the time of the incident or any prior difficulties with his neck or right upper extremity. Upon physical examination, Dr. Weiss noted marked atrophy of the biceps and arm as well as weakness of the biceps and extensor muscles of the right fingers. Dr. Weiss also reviewed claimant's medical records, including Dr. Mulconrey's progress notes, the MRIs of the cervical spine and right shoulder, and the EMG study. Dr. Weiss diagnosed preexisting C4-C7 cervical degenerative disc disease with right-sided multiple radiculopathy (probable C5-C7). Dr. Weiss opined that, in the absence of any associated significant mechanical problems, the forces involved in turning a steering wheel would be insufficient to cause or aggravate radiculopathy. He explained:

"[T]he biceps atrophy noted on [Dr. Mulconrey's progress note of] February 11, 2019, which was only one month after the injury, would indicate that his radiculopathy was probably present for a much longer period of time-at a minimum three to six months. Regardless, it appears from the history that he did have symptoms while turning the steering wheel. With this in mind, I believe [claimant] did not sustain any work injury while turning the bus steering wheel, but rather experienced only a manifestation of a normally progressive underlying condition."

7

Notwithstanding his opinion on causation, Dr. Weiss believed claimant was a surgical candidate.

¶ 11 Dr. Mulconrey testified via evidence deposition on November 4, 2019. In Dr. Mulroney's opinion, the findings of the February 5, 2019, MRI of the cervical spine correlated with the dysfunction claimant was having in the right upper extremity. Dr. Mulconrey further opined that the lack of significant findings on the EMG and the MRI of the right shoulder confirmed that claimant's pathology involved the cervical spine. Ultimately, Dr. Mulconrey diagnosed cervical spondylosis with radiculopathy and right upper extremity paralysis. He opined that claimant was a surgical candidate for an anterior cervical decompression and fusion from C4 to C7 due to his pain, his weakness, the chronicity of the problem, the lack of positive findings on other radiographic exams, the EMG, and the evaluation by an upper extremity specialist (Dr. Mahoney). Dr. Mulconrey explained that the cervical condition requiring surgical attention was bulging discs that are compressing the nerve roots and creating the weakness in claimant's right arm. Based upon claimant's history that he was able to function and work with the preexisting condition prior to January 10, 2019, but after the injury to his arm on that date, his symptoms became so severe that he was unable to continue to work, Dr. Mulconrey opined that claimant's cervical spine condition was aggravated by the work accident to the point of surgery. Dr. Mulconrey stressed that prior to the incident, claimant was able to do his job despite his preexisting wasting condition, which was related to an underlying degenerative condition that could occur without symptomology. Dr. Mulconrey stated the fact that claimant may have had some occasional numbness or pain in his arm would not change his causation opinion.

¶ 12 On cross-examination, Dr. Mulconrey acknowledged that he did not view the video recordings of claimant's driving activities on January 10, 2019. Nevertheless, he testified that claimant's pre-accident symptoms, as depicted in the video recordings and described to him at the

8

arbitration hearing, were consistent with patients who have had pain and dysfunction in the arm and with the findings that resulted in his opinion for surgery. Dr. Mulconrey further testified that if claimant had presented to him prior to the accident with a lack of pain and the ability to work, he would have been a surgical candidate based on the muscle wasting and the MRI findings. He explained, however, that it was claimant's complaints of pain that led him to seek medical attention, which then resulted in the recommendations that he undergo surgery and remain off work. In Dr. Mulconrey's opinion, if claimant had not experienced the incident on January 10, 2019, he would not have sought medical care. Moreover, Dr. Mulconrey testified that the purpose of the proposed surgery is not only to alleviate the weakness claimant experiences, but also the pain that manifested itself after the accident.

¶ 13 Dr. Weiss testified via evidence deposition on July 16, 2019. As noted, Dr. Weiss reviewed claimant's medical records and performed an examination of claimant pursuant to section 12 of the Act on May 9, 2019. Dr. Weiss diagnosed preexisting C4 through C7 cervical degenerative disc disease with multiple right-side radiculopathies. He opined that the act of turning the steering wheel while making a right turn on January 10, 2019, was not a causative factor in claimant's problems or the need for surgery. Dr. Weiss explained that the act of turning the steering wheel absent any mechanical malfunction was not sufficient to aggravate the cervical degenerative disc disease, cervical stenosis, or radiculopathy. Moreover, Dr. Weiss believed there was clear evidence of atrophy as confirmed by the videos of claimant's driving activities on January 10, 2019, which exhibited claimant having problems with his right arm prior to the incident of turning the steering wheel, notably rubbing the arm, flexing the fingers of his hand, favoring the right hand, and having generalized difficulty with the hand. Dr. Weiss testified that the atrophy would have been present at least three to six months before it was diagnosed by Dr. Mulconrey and nothing on the date of

9

the accident caused or aggravated the degenerative condition. Notwithstanding his opinion on causation, Dr. Weiss believed claimant was a surgical candidate but that the need for surgery predated the January 10, 2019, date of the accident.

¶ 14 On cross-examination, Dr. Weiss testified that he stopped treating patients with neck problems prior to 1990 and patients with low-back issues in the early 1990s. Moreover, Dr. Weiss stopped performing surgery in 2003, stopped treating patients altogether after 2008, and limits his practice to providing opinions such as in this case. Dr. Weiss estimated that 99% of the work he does in workers' compensation cases is for employers. Dr. Weiss further testified that the videos of claimant's driving activities on January 10, 2019, show claimant making a right-hand turn in a movement called "circumduction." Although claimant is shown dropping his arm multiple times in the video, when claimant does this circumduction maneuver, he drops his arm a bit more and it is more pronounced. Dr. Weiss explained that when claimant was turning the steering wheel, he circumducted his arm at least twice, which was beyond claimant's capabilities given his existing condition.

¶ 15 At the arbitration hearing, claimant also provided evidence of his care and treatment prior to the incident involved in this case. Between September 17, 2009, and September 12, 2018, there is no indication of complaints of neck, right shoulder, or right arm pain or discomfort. Claimant's last examination was on September 12, 2018, approximately four months prior to the accident at issue. That visit was for Family and Medical Leave Act paperwork and evaluation of gout and diarrhea. Review of systems noted normal range of motion in the musculoskeletal region. There is no mention of any symptoms like those claimant described as having arisen out of the January 10, 2019, accident.

¶ 16 Based on the foregoing evidence, the arbitrator determined that claimant sustained a work-

10

related accident on January 10, 2019, and that his condition of ill-being was causally related to the work accident. Regarding the issue of causation, the arbitrator, relying on the opinion of Dr. Mulconrey, concluded that claimant had a preexisting, degenerative cervical condition that was aggravated by the January 10, 2019, work accident. The arbitrator reasoned:

"[T] here is no dispute that the [claimant] had a pre-existing degenerative cervical condition that arguably could have required surgical attention notwithstanding the [claimant's] accident in question. However, the evidence shows that [claimant] was able to work full duty prior to the accident. There was no evidence that [claimant] had prior complaints of radiating pain similar to his current complaints. Nor was there evidence indicating a medical recommendation for surgery prior to the accident. The evidence shows that after the January 10, 2019 accident, [claimant's] pain symptoms increased to the point he could no longer perform his job and would require surgical intervention. Based on the evidence, it is clear that the [claimant's] January 10, 2019 work accident was a cause in the increase of the [claimant's] pain symptoms and accelerated his need for surgery."

The arbitrator awarded claimant reasonable and necessary medical treatment, prospective medical care (including the surgery recommended by Dr. Mulconrey), and 30-5/7 weeks of TTD benefits.

¶ 17 A majority of the Commission affirmed and adopted the decision of the arbitrator and remanded the matter for further proceedings pursuant to Thomas, 78 Ill.2d 327. Commissioner Doerries dissented. Relying principally on the videos of claimant's driving activities on January 10, 2019, and Dr. Weiss's opinion, Commissioner Doerries concluded that the evidence showed that claimant's preexisting degenerative cervical condition was symptomatic leading to atrophy, wasting, and dysfunction, and that his condition required surgical intervention prior to the January 10, 2019, accident. Commissioner Doerries rejected the majority's reliance on Dr. Mulconrey's

11

causation opinion. She noted that unlike Dr. Weiss, Dr. Mulconrey never viewed the video evidence "which clearly shows [claimant] refraining from using his right arm as frequently as the left, which is indicative of a symptomatic pre-existing condition, a condition Dr. Mulconrey testified required surgery." As such, Commissioner Doerries determined that the videos undermined the basis of Dr. Mulconrey's causation opinion thereby rendering it unreliable. On judicial review, the circuit court of Tazewell County confirmed the decision of the Commission. This appeal by respondent ensued.

¶ 18 II. ANALYSIS

¶ 19 The sole issue presented in this appeal is whether the Commission properly determined that claimant's condition of ill-being was causally related to his work accident of January 10, 2019. 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' Compensation Comm'n, 397 Ill.App.3d 665, 674 (2009). To recover compensation under the Act, an employee must prove by a preponderance of the evidence all elements of his or her claim, including a causal connection between the injury and his or her employment. Boyd Electric v. Dee, 356 Ill.App.3d 851, 860 (2005). An occupational activity need not be the sole or principal causative factor, as long as it was a causative factor in the resulting condition of ill-being. Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 205 (2003); Freeman United Coal Mining Co. v. Industrial Comm'n, 308 Ill.App.3d 578, 586 (1999). 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' Compensation Comm'n, 2015 IL App (3d) 130869WC, ¶ 52. It is the function of the Commission to decide questions of fact, judge the credibility of witnesses, and resolve conflicts in the evidence.

12

Hosteny, 397 Ill.App.3d at 674. This is especially true with respect to medical issues, to which we owe the Commission heightened deference because of the expertise it possesses in the medical arena. Long v. Industrial Comm'n, 76 Ill.2d 561, 566 (1979). As a reviewing court, we cannot reject or disregard permissible inferences drawn by the Commission simply because different or conflicting inferences may also reasonably be drawn from the same facts, nor can we substitute our judgment for that of the Commission on such matters unless the Commission's findings are against the manifest weight of the evidence. Zion-Benton Township High School District 126 v. Industrial Comm 'n, 242 Ill.App.3d 109, 113 (1993). A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Ravenswood Disposal Services v. Illinois Workers' Compensation Comm'n, 2019 IL App (1st) 181449WC, ¶ 15.

¶ 20 Applying the foregoing standards, we find sufficient evidence to support the Commission's causation finding. It is undisputed that claimant suffered from preexisting cervical degenerative disc disease prior to the accident of January 10, 2019. As the Commission noted (in adopting the decision of the arbitrator), despite his preexisting condition, claimant was able to work full duty as a bus driver prior to the accident. After the accident, however, claimant was taken off work and

13

has never been returned to full duty. Moreover, while claimant acknowledged that he had been experiencing pain and numbness in his right shoulder and biceps on the day of the accident and for "months" prior thereto, he testified at the arbitration hearing that he had never previously experienced the type of symptoms he had after the accident occurred, i.e., extreme pain and numbness radiating from his neck down his right arm. Claimant's testimony regarding the intensification of his symptoms was consistent with the histories he provided the physicians who examined him. For instance, claimant told Dr. Moody that the event of January 10, 2019, resulted in pain and numbness in the right shoulder region extending down the arm. Dr. Moody's records further reflect that while claimant reported "some generalized milder shoulder soreness" prior to the accident, his post-accident symptoms were of a greater magnitude. Similarly, claimant told Dr. Mahoney that, following the event of January 10, 2019, he felt a "sharp" pain from the lateral aspect of the right side of the neck down to the elbow. Dr. Mulconrey's notes document that the accident at issue resulted in "a severe increase in right upper extremity radiculopathy" and "caused severe pain in the right biceps as well as [the] right upper extremity." (Emphases added.) Thus, there was evidence in the record showing an aggravation of claimant's condition coincident with the accident. This is sufficient to support an inference of causation. See Schroeder v. Illinois Workers' Compensation Comm'n, 2017 IL App (4th) 160192WC, ¶ 26 ("[I]f a claimant is in a certain condition, an accident occurs, and following the accident, the claimant's condition has deteriorated, it is plainly inferable that the intervening accident caused the deterioration. The salient factor is not the precise previous condition; it is the resulting deterioration from whatever the previous condition had been.").

¶ 21 In addition, the Commission expressly chose to credit Dr. Mulconrey's opinion over that of Dr. Weiss. Dr. Weiss testified that the act of turning the steering wheel absent any mechanical

14

malfunction was not sufficient to aggravate the cervical degenerative disc disease, cervical stenosis, or radiculopathy. In contrast, Dr. Mulconrey noted that claimant was able to function and work with the preexisting condition prior to January 10, 2019, but after the twisting injury to his arm on that date his symptoms became so severe that he was unable to work. Based on this history, Dr. Mulconrey opined that claimant's cervical spine condition was aggravated by the work accident to the point of surgery. As noted, it is the function of the Commission to resolve conflicts in the evidence. Hosteny, 397 Ill.App.3d at 674. Given the state of the record and the Commission's role in resolving conflicts in the evidence, we cannot say that the Commission's decision to credit Dr. Mulconrey's opinion over that of Dr. Weiss was contrary to the manifest weight of the evidence.

¶ 22 We also point out that where an accident accelerates the need for surgery, a claimant may recover under the Act. Schroeder, 2017 IL App (4th) 160192WC, ¶ 32. In this case, although Dr. Mulconrey testified on cross-examination that if claimant had presented to him prior to the accident with a lack of pain and the ability to work, he would have been a surgical candidate, claimant did not seek medical attention prior to the accident. To the contrary, as Dr. Mulconrey emphasized, it was the complaints of pain arising from the January 10, 2019, accident that led claimant to seek medical attention. This supports an inference that the accident accelerated the need for surgery. Schroeder, 2017 IL App (4th) 160192WC, ¶ 32. That claimant did not consult a physician and was able to work full duty before the accident and that he decided to seek medical treatment and undergo surgery after the accident supports a similar inference. Schroeder, 2017 IL App (4th) 160192WC, ¶ 32. Therefore, we also conclude that the Commission's finding that the January 10, 2019, work accident accelerated claimant's need for surgery was not against the manifest weight of the evidence.

15

¶ 23 In short, given the state of the record, we cannot say that a conclusion opposite that of the Commission on the issue of causation is clearly apparent or that, in turn, the Commission's decision is against the manifest weight of the evidence.

¶ 24 Respondent, nevertheless, insists that there was "no evidence whatsoever that the alleged work-related accident 'aggravated' or 'accelerated' the pre-existing cervical degenerative disc disease such that claimant's condition of ill-being can be said to be causally connected to [the] accident." Respondent suggests that the Commission ignored the testimony of both Dr. Weiss and Dr. Mulconrey that claimant had significant cervical degenerative disease which preexisted the accident and that the need for surgery also existed prior to the January 10, 2019, date of accident. We disagree. As discussed above, the accident of January 10, 2019, clearly aggravated claimant's condition of ill-being. Notably, the accident increased the intensity and scope of claimant's pain and rendered claimant unable to perform his duties as a bus driver, duties claimant was able to perform prior to the accident despite his preexisting condition. Likewise, there was evidence to support the Commission's finding that the accident accelerated the need for claimant's surgery. As noted previously, Dr. Mulconrey did indicate that if claimant had presented to him prior to the accident with a lack of pain and the ability to work, he would have been a surgical candidate based on the muscle wasting and the MRI findings. But this was merely a hypothetical inquiry as claimant did not consult Dr. Mulconrey (or any other doctor) for complaints involving his right upper extremity prior to the accident. See Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 215 (2003) (noting that factual findings must be supported by the record and not be based on mere speculation or conjecture). More significant, as Dr. Mulconrey later explained, absent the accident, claimant would not have sought medical attention. In other words, it was claimant's complaints of pain-complaints that arose while performing his work duties on the date of the accident-that

16

prompted claimant to seek medical attention, and, in turn resulted in the recommendation for surgery. Indeed, as Dr. Mulconrey noted, the purpose of the proposed surgery is not only to alleviate the weakness claimant experiences but also the pain that manifested after the accident. The record therefore supports an inference that the accident accelerated the need for surgery. Schroeder, 2017 IL App (4th) 160192WC, ¶ 32. Accordingly, contrary to respondent's contention, there was clear evidence that the January 10, 2019, event 'aggravated' or 'accelerated' claimant's preexisting cervical degenerative disc disease such that claimant's condition of ill-being can be said to be causally connected to the accident.

¶ 25 Respondent further contends that this case is analogous to Greater Peoria Mass. Transit District v. Industrial Comm'n, 81 Ill.2d 38 (1980). In that case, the claimant, a 32-year-old bus driver, returned from her route and proceeded to the driver's room to place public schedules and transfers on a window ledge. The claimant testified that she dropped the documents, and, as she leaned over to pick them up, she lost her balance and stumbled. The claimant was unsure if she hit something, but stated that she began to feel pain in her right shoulder. The claimant was diagnosed with a dislocated shoulder and underwent surgery. The surgeon indicated that any episode of minor trauma could have caused the claimant's shoulder to dislocate. The surgeon also stated that the claimant's shoulder was a "time bomb" which could go off at any time. Moreover, the medical evidence established that the claimant had previously dislocated her shoulder and was subject to repeated subluxations (where the shoulder partially came out but did not dislocate) prior to the incident at issue. Based on this record, the Commission determined that the claimant sustained a compensable accident. The supreme court, however, set aside the Commission's decision. Greater Peoria Mass. Transit District, 81 Ill.2d at 40-44. The court relied heavily on medical testimony that because the claimant had previously dislocated her shoulder and was subject to repeated

17

subluxations, any normal activity could have precipitated the dislocation of the claimant's shoulder. Greater Peoria Mass. Transit District, 81 Ill.2d at 43.

¶ 26 This case is distinguishable from Greater Peoria Mass. Transit District. In that case, the reviewing court determined that the claimant's employment bore no relationship to the injury for which compensation was sought. In so holding, the court relied on medical testimony that the claimant's condition had degenerated to the point that any normal activity could have resulted in the injury at issue. Greater Peoria Mass. Transit District, 81 Ill.2d at 43. Here, in contrast, there was conflicting medical evidence regarding the issue of causation. As was its province, the Commission resolved this conflict by crediting Dr. Mulconrey's opinion that claimant's work duty-specifically turning the steering wheel of the bus with his right arm-aggravated his preexisting degenerative cervical disc disease and accelerated the need for surgery. As such, respondent's reliance on Greater Peoria Mass. Transit District is misplaced.

¶ 27 Respondent further asserts that the findings of the Commission in support of its conclusion that claimant's condition of ill-being and need for surgery were causally connected to the January 10, 2019, accident are contrary to the evidence presented at the arbitration hearing. In particular, respondent disputes the Commission's statements that: (1) there was no evidence that claimant had prior complaints of radiating pain similar to his current complaints; (2) there was no evidence indicating a medical recommendation for surgery prior to the accident; and (3) based on the evidence, claimant's January 10, 2019, work accident increased claimant's pain symptoms and accelerated his need for surgery.

¶ 28 Respondent first maintains that there is substantial evidence showing that claimant had prior complaints of radiating pain similar to his post-accident complaints. In support thereof, respondent directs us to claimant's testimony that, prior to the date of the accident, he had pain

18

and numbness in his right biceps and in his right shoulder. However, this description differs from the type of pain claimant described after the accident, i.e., extreme pain and numbness radiating from the neck into the arm. Thus, respondent's argument is not well taken. Respondent also asserts that the videos admitted into evidence at the arbitration hearing depict claimant experiencing incidents of radiating pain similar to his post-accident complaints, including claimant opening and closing his right hand, lifting and then dropping his right arm, and rubbing his right biceps and forearm. As noted above, however, while claimant admittedly experienced symptoms prior to the accident, he testified that the intensity and scope of his complaints after the accident were more severe.

¶ 29 Respondent next asserts that Dr. Weiss viewed the videos of claimant's driving practices on the date of the accident and expressed that claimant was experiencing pain and difficulty with his right arm and hand prior to the accident. Respondent also asserts that Dr. Mulconrey's testimony provides compelling evidence that, prior to the accident, claimant experienced complaints and symptoms of radiating pain similar to his post-accident complaints. Dr. Mulconrey did testify that claimant's pre-accident symptoms, as described to him at the arbitration hearing (Dr. Mulconrey did not view the videos), were consistent with patients who have pain and dysfunction in the arm and with his findings that resulted in his opinion for surgery. However, as noted above, claimant acknowledged experiencing symptoms prior to the accident, but testified that the intensity and scope of the symptoms after the accident were more severe. Respondent cites no evidence to contradict claimant's testimony that his symptoms intensified after the accident.

¶ 30 Respondent also contends that the Commission's statement that there was no evidence indicating a medical recommendation for surgery prior to the accident is not supported by the evidence. We disagree. Respondent points to nothing in claimant's medical records supporting a

19

recommendation prior to the accident. Although both Dr. Weiss and Dr. Mulconrey suggested that if claimant would have presented prior to the accident with a lack of pain and the ability to work, he would have been a surgical candidate, this was merely a hypothetical as claimant did not consult Dr. Mulconrey (or any other doctor) for complaints involving his right upper extremity prior to the accident. See Sisbro, Inc., 207 Ill.2d at 215 (noting that factual findings must be supported by the record and not based on mere speculation or conjecture).

¶ 31 Finally, respondent contends that the Commission's finding that the evidence showed that the work accident caused an increase in claimant's pain symptoms and accelerated his need for surgery is not supported by the evidence. We disagree. First, as noted above, although claimant was having difficulties and pain involving his right arm prior to the accident, there was evidence to support the Commission's finding that the work accident caused an increase in claimant's pain symptoms. In this regard, claimant testified that the intensity and scope of his pain increased following the January 10, 2019, accident. Second, as Dr. Mulconrey explained, it was claimant's complaints of pain-complaints that arose while performing his work duties-that led claimant to seek medical attention, and, in turn resulted in the recommendation for surgery. As Dr. Mulconrey noted, the purpose of the proposed surgery is not only to alleviate the weakness claimant experiences but also the pain that manifested after the accident. If claimant had not experienced the pain incident on January 10, 2019, he would not have sought medical care and received a surgery recommendation.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Tazewell County, which confirmed the decision of the Commission. This matter is remanded to the Commission for further proceedings pursuant to Thomas, 78 Ill.App.3d 327.

20

¶ 34 Affirmed and remanded.

21

---------

Notes:

Video recordings of claimant's driving activities on January 10, 2019, including at the time of the accident, were presented at the arbitration hearing and admitted into evidence. The recordings were not included in the record on appeal. During oral argument, respondent moved to supplement the appellate record with the video recordings. Claimant did not object, and, in a separate order, we granted respondent's motion.

In its brief, respondent suggests that the evidence on the issue of causal connection is undisputed, so the Commission's decision should be reversed as a matter of law. It is true that, if the facts are undisputed and subject to but a single inference, the de novo standard of review applies. Mlynarczyk v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 12041WC, ¶ 15. However, as we explain in this disposition, there were differing medical opinions on the causation issue. Thus, application of the de novo standard of review would not be appropriate in this case.

---------