Gene Lilley v. Daimler Chrysler

employee failed to present expert medical evidence to establish the occupational disease claim. I write separately to state my strenuous objection to the administrative law judge's unnecessary dicta regarding the characteristics of a permanently and totally disabled individual that appears in the first paragraph under the heading Nature and Extent of Permanent Disability.

The administrative law judge begins his overly simplistic generalization by noting that the permanent total disability issue is moot. He should have stopped there but he goes on to share his ideas about the way permanent total disability "typically" or "usually" presents. In his recitation of the factors that contribute to the inability to compete in the open labor market, the administrative law judge fails to mention intellectual capacity, learning or training ability, prior work experience or age. These factors are often relied upon by vocational experts in reaching their conclusions about employability and are relied upon by courts in upholding permanent total disability findings. A proper determination of an employee's ability to compete in the open labor market is not confined to consideration of physical factors as the administrative law judge's dicta suggests.

John J. Hickey, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged October 12, 2001
5. State location where accident occurred or occupational disease was contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: alleged lumbar spine

1. Nature and extent of any permanent disability: None
2. Compensation paid to-date for temporary disability: None
3. Value necessary medical aid paid to date by employer/insurer? None

Employee: Gene Lilley Injury No.: 01-169238

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Disputed
3. Weekly compensation rate: PPD $\ 329.42
4. Method wages computation: Disputed

1. Amount of compensation payable:

60 weeks from Employer

(Stettled)

1. SIF liability: None

TOTAL:

-0-

1. Future requirements awarded: N/A

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Gene Lilley

Injury No.: 01-169238

Dependents: N/A

Before the

This case involves a disputed low back injury, together with alleged Second Injury Fund ("hereafter") liability, resulting to Claimant on January 8, 2000. Employer admits Claimant was employed on said date and previously settled its risk of liability. The SIF remains a party. Both parties are represented by counsel.

1. Accident;
2. Medical causation;
3. Incidence of occupational disease;
4. Future medical care;
5. Permanent disability;
6. Second Injury Fund liability;
7. Rate of compensation.

1. Claimant Gene Lilley is 49 years old. He resides in Livingston, IL. Claimant is a high school graduate, having taken the normal high school curriculum. Claimant has no formal education, academic or vocational, beyond high school.
2. Claimant was employed by DaimlerChrysler as an assembler for approximately 23 years until his termination from employment in or around 2003. While employed by DaimlerChrysler Claimant commuted from his home in Livingston, IL on a daily basis.

1. Claimant filed a workers’ compensation claim against his employer for an alleged injury to his low back on or about 8/30/94 (#94-127663). Claimant states that this injury occurred when he was installing sliding doors on minivans, and he experienced a "pop" in his back.
2. Claimant states that he had no problems with his back prior to 1994, and concedes that he had no other significant preexisting disabilities prior to 1994.
3. Claimant presented at employer’s infirmary on 8/30/94 with complaints of low back pain. Claimant states that no treatment was afforded him by employer’s medical department, but medical records from employer’s medical department entered into evidence indicate that Claimant was evaluated by company physician and prescribed Flexeril. Records indicate that Claimant was seen by company doctor for follow up visits on 9/1/94 and 9/6/94. Diagnosis was lumbar strain. (EE Ex. A-E).
4. Claimant underwent series of radiographs of the lumbar spine at Community Memorial Hospital, Staunton, IL on 8/31/94 at the request of Nicholas Pineda, M.D., Claimant’s primary care physician. The opinion of the reviewing radiologist was mild degenerative arthrosis and mild lumbar scoliosis. (EE Ex. A-A.)
5. Dr. Pineda’s medical records indicate that on 10/22/96 Claimant reported to Dr. Pineda that he had awakened the previous Friday morning (10/18/96) with low back pain, and that Claimant had reported this to the company doctor on Monday (10/21/96). Claimant underwent a second series of radiographs of the lumbar spine at

Community Memorial Hospital, Staunton, IL on 11/4/96 at the request of Dr. Pineda. The opinion of the reviewing radiologist was minimal anterior marginal spurring diffusely in the lumbar spine. Claimant was referred to Craig Beyer, M.D., an orthopedic specialist. (EE Ex. A-A, pp. 3-5.)

1. Claimant was examined by Dr. Beyer on 11/19/96. On Dr. Beyer's intake questionnaire Claimant indicated that he had sustained accidents on 8/31/94 and 10/25/96. On a subsequent page of the patient questionnaire Claimant indicated that he woke up with back pain on 10/25/96 and had sprained his back at work two years earlier from repetition. Dr. Beyer's initial impression was that Claimant had mechanical back pain, and he recommended that Claimant undergo a physical therapy program of paraspinal strengthening, abdominal strengthening, and flexibility training. Dr. Beyer further recommended that Claimant quit smoking, lose weight and become better conditioned. Dr. Beyer issued work restrictions for Claimant and started him on anti-inflammatory medication. (EE Ex. A-B.)
2. Claimant underwent a physical therapy evaluation on 11/25/96 by Anderson Rehab Services, Maryville, IL. The evaluator recommended that Claimant undergo physical therapy sessions twice weekly for two or three weeks, in addition to home exercises. The treatment plan was approved by Dr. Beyer. (EE Ex. A-B.)
3. Claimant returned to Dr. Beyer on 12/31/96. Dr. Beyer noted significant progress and cleared Claimant to return to work without restriction on 1/6/97. (EE Ex. A-B.)
4. Records from employer's medical department indicate that Claimant visited medical department with complaints of ongoing low back pain on 1/6/97, 2/12/97, 2/26/97, 3/11/97, 3/12/97, 5/20/97, 5/31/97, 8/28/97, 9/17/97, 10/6/97, 10/21/97, 11/11/97, 11/18/97 and 12/9/97. Records indicate that on 3/11/97 Claimant complained of burning sensation at right hip. (EE Ex. A-E.).
5. Claimant was referred to Matthew F. Gornet, M.D., for further evaluation and treatment in 4/97. Dr. Gornet ordered an MRI of Claimant's lumbar spine which was performed on 4/15/97 at DePaul Health Center. The radiologist's impression was mild pedicle spinal stenosis, otherwise unremarkable. The radiologist noted the absence of evidence of discrete disc herniation or nerve root impingement. (EE Ex. A-C.)
6. Claimant was seen by Dr. Gornet on 4/28/97. Dr. Gornet opined that Claimant had a herniated disc at L4-5 with right side encroachment on the neuro foreamen, along with congenital stenosis of the spine. Dr. Gornet noted that Claimant's symptoms had improved significantly with the use of a Medrol Dosepak. Dr. Gornet recommended a walking regimen. (EE Ex. A-D.)
7. Claimant continued to treat with Dr. Gornet during 1997. On 10/17/97 Dr. Gornet noted that Claimant's symptoms were mostly in the low back and right thigh. Dr. Gornet imposed work restrictions of no significant standing or walking, and sitting 80 % of the time. On 11/17/97 Dr. Gornet noted that Claimant was off work due to the restrictions he had imposed. Dr. Gornet recommended another MRI. (EE Ex. A-D.)
8. Claimant underwent a second lumbar spine MRI on 11/25/97 at Barnes-Jewish West County Hospital. The radiologist's impression was of moderate degenerative disc disease at L4-5 and L5-S1, with end plate changes at L5. A small right paracentral disc protrusion was seen at L4-5, along with a moderate central disc protrusion at L5-S1. No significant spinal stenosis was seen at either level, and no neural foraminal stenosis was eviden