A City of Chicago Department of Forestry worker was awarded cervical and knee replacement surgery as well as medical and ttd benefits. Attorney Scott Goldstein of Ankin Law Office also ensured that the City of Chicago pay penalties for the way they handled the respondent's case.

1. ILLINOIS WORKERS' COMPENSATION COMMISSION
NOTICE OF 19(b)/8(a) ARBITRATOR DECISION
Case#
15WC011389
DACIOLAS, KENNETH Employee/Petitioner
15WC032525 17WC015385 17WC015386
CITY OF CHICAGO. DEPT OF FORESTRY Employer/Respondent
On 12/20/2019, an arbitration decision on this case was filed with the Illinois
Workers' Compensation Commission in Chicago, a copy of which is enclosed.
If the Commission reviews this award, interest of 1.55% shall accrue from the
date listed above to the day before the date of payment; however, if an employee's
appeal results in either no change or a decrease in this award, interest shall not accrue.
A copy of this decision is mailed to the following parties:
1067 ANKIN LAW OFFICE LLC SCOTT GOLDSTEIN 10 N DEARBORN ST SUITE 500
CHICAGO, IL 60602
0010 CITY OF CHICAGO DONALD TAYLOR CHITTICK 30 NLASALLE ST SUITE 800 CHICAGO, IL
60602
STATE OF ILLINOIS
SS.
COUNTY OF Cook
Injured Workers' Benefit Fund ($4(d)) Rate Adjustment Fund ($8(g))
Second Injury Fund ($8(e)18) None of the above
ht

2. ILLINOIS WORKERS' COMPENSATION COMMISSION
· ARBITRATION DECISION
19(b), 8(a)
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Kenneth Daciolas Employee Petitioner
Case # 15 WC 11389, 15 WC 32525,
17 WC 15385, 17 WC 15386 Consolidated cases: N/A
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City of Chicago - Department of Forestry
Employer/Respondent ::
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An Application for Adjustment of Claim was filed in this matter,
and a Notice of Hearing was mailed to each party. The matter
was heard by the Honorable Charles Watts, Arbitrator of the
Commission, in the city of Chicago, on 10/4/19. After reviewing
all of the evidence presented, the Arbitrator hereby makes
findings on the disputed issues checked below, and
attaches those findings to this document.
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DISPUTED ISSUES A Was Respondent operating under and
subject to the Illinois Workers' Compensation or Occupational
Diseases Act? B. Was there an employee-employer
relationship? c. Did an accident occur that arose
out of and in the course of Petitioner's
employment by Respondent? D. What was the date
of the accident? E. Was timely notice of the accident given
to Respondent? F. Is Petitioner's current condition of
ill-being causally related to the injury? G. What were
Petitioner's earnings? H. What was Petitioner's age at the
time of the accident? 1. What was Petitioner's marital
status at the time of the accident? J. X Were the
medical services that were provided to Petitioner reasonable
and necessary? Has Respondent
paid all appropriate charges for all reasonable and necessary
medical services? K. Is Petitioner entitled to any prospective
medical care? . L. What temporary benefits are in dispute? :
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DTPD D Maintenance
TTD M. Should penalties or fees be imposed upon

4. Respondent? N. O is Respondent due any credit?
0. Other
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. ICArbDec19(b) 2/10 100 W. Randolph Street #8-200 Chicago, IL 60601 312/814-6611
Toll-free 866/352-3033 Web site: www.iwcc. il.gov Downstaie offices: Collinsville 618/346-3450
Peoria 309/671-3019 Rockford 815/987-7292 Springfield 217/785-7084
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IV
FINDINGS
On the date of accidents, 3/10/14, 6/3/15, 3/15/17, 4/3/17 Respondent was operating
under and subject to the
provisions of the Act. On these dates, an employee-employer
relationship did exist between Petitioner and Respondent. On these
dates, Petitioner did sustain accidents that arose out of and in the course of employment.
Timely notice of the accidents was given to Respondent. Petitioner's
current condition of ill-being is causally related to the accident. In the year preceding
the injury, Petitioner earned various amounts; the average weekly wage was $1,380.86
(3/10/14 injury), $1,415,58 (6/3/15 injury), $1,465.52 (3/15/17 injury), $1,468.00
(4/3/17 injury). On the date of accident, Petitioner was 44 years of age, married with 1
dependent children. Respondent has not paid all reasonable and necessary charges for all
reasonable and necessary medical services. Respondent shall be given a credit of
$110,352.84 for TTD, $0 for TPD, $0 for maintenance, and $0 for other benefits, for a
total credit of $110,352.84 Respondent is entitled to a credit of $0 under Section 8(j) of
the Act.
ORDER

5. Medical
benefits
Respondent shall pay reasonable and necessary medical services of $33,120.19, as
provided in Section 8(a) of the Act.
Respondent shall pay reasonable and necessary medical services, pursuant to the medical fee
schedule, of $33,120.19 See Petitioner's Exhibit #1 , as provided in Sections 8(a) and 8.2 of the Act.
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Respondent shall pay reasonable and necessary medical services of $33,120.19, as provided in
Sections 8(a) and 8.2 of the Act.
Respondent shall be given a credit of $0.00 for medical benefits that have been paid, and
Respondent shall hold petitioner harmless from any claims by any providers of the services for which
Respondent is receiving this credit, as provided in Section 8() of the Act.
Temporary Total
Disability
Respondent shall pay Petitioner temporary total disability benefits of (1) $920.57 for dates 3/14/14
to 3/20/14 for a period of 1 week, (2) $943.72 for dates 6/4/15 to 12/23/16 for a period of 81 2/7
weeks, and (3) $978.67 for dates 4/5/17 to 10/4/19 for a period of 130 3/7 weeks as provided in
Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from
3/14/14 through 10/4/19, and shall pay the remainder of the award, if any, in weekly
payments.
Respondent shall be given a credit of $110,352.84 for temporary total disability
benefits that have been paid.
Penalties
Respondent shall pay to Petitioner penalties of $25,610.23, as

6. provided in Section 16 of the Act; $64,02 as provided in
Section 19(k) of the Act; and $10,000.00, as
provided in Section 19(1) of the Act.
Prospective Medical Care
The Arbitrator awards Petitioner the cervical
(C5-6) posterior foraminotomy surgery
prescribed by Dr. Sean Salehi on March 1, 2019.
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The Arbitrator awards Petitioner the right knee
total knee replacement surgery consultation
with Dr. Dennis Nam. If Dr. Nam agrees with Dr.
Bush-Joseph that the total knee replacement surgery is
warranted, the right knee total knee replacement
surgery is awarded.
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The Arbitrator further awards Petitioner all
post-surgical care following his surgeries required for
him to achieve Maximum Medical Improvement
(MMI) status pursuant to Section 8(a) of the Act.

7. In no instance shall this award be a bar to
subsequent hearing and determination of an
additional amount of : medical benefits or compensation for
a temporary or permanent disability, if any.
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RULES REGARDING APPEALS Unless a party files a
Petition for Review within 30 days after receipt of this
decision, and perfects a review in accordance with the Act
and Rules, then this decision shall be entered as the decision
of the Commission...)
STATEMENT OF INTEREST RATE If the Commission
reviews this award, interest at the rate set forth on the Notice
of Decision of Arbitrator shall accrue from the date
listed below to the day before the date of payment;
however, if an employee's appeal results in either no
change or a decrease in this award, interest shall not
accrue.
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December 20, 2019
Signature of Arbitrator
Date
ICArbDec 19(b)
DEC 2 0 2019
Kenneth Daciolas
15 WC 11389 15 WC 32525 17.WC 15385 17 WC 15386
ON
City of Chicago
STATEMENTS OF FACTS
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3/10/14 Injury (15 WC 11389)
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Petitioner was working for the City of Chicago -
Department of Forestry on the injury date.
Petitioner lacerated his left index finger while cutting a tree
branch. A gas powered saw lacerated

9. his left index finger and Petitioner was sent to Presence
Medical Group for treatment
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(Pet. Ex. #4).
6/3/15 Injury (15 WC 32525)
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Petitioner was working for the City of Chicago -
Department of Forestry on the injury date.
Petitioner injured his left shoulder on that
date when the saw he was using got stuck
in a tree
branch. The weight of the branch pulled on Petitioner's left
arm causing injury to Petitioner's left
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shoulder. The Petitioner injured his left
shoulder rotator cuff on the 6/3/15 injury date.
Petitioner
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treated with Dr. Bernard Bach at Midwest Orthopedics at
Rush for his left shoulder work injury

10. (Pet. Ex. #6). Dr. Bach performed two surgeries on
Petitioner's left shoulder (11/3/15 and
6/2/16). Petitioner was released to return to work by Dr.
Bach with no restrictions on December
20, 2016 and Petitioner returned to work for Respondent.
3/15/17 Injury (17 WC 15385)
Petitioner was working for the City of Chicago -
Department of Forestry on the injury date.
Petitioner was pulling on a tree branch on that day
when he injured his neck and his left thumb.
On March 1, 2017 Petitioner was working in a bucket attached to a
truck when the bucket
suddenly dropped jarring the Petitioner's body. However, Petitioner clarified at trial
that his
significant symptoms did not start until after the March 15, 2017 incident. Both incidents were in
March of 2017. The Respondent sent Petitioner for medical care for his injury to U.S.
Health
Works on the injury date (Pet. Ex. #3). Petitioner sought follow up care for
his neck injury with
Dr. Gary Shapiro (Pet. Ex. # 5). The Petitioner saw Dr. Shapiro
on October 24, 2017. Dr.

11. Shapiro ordered Petitioner off work pending a cervical MRI test that
he ordered. The Petitioner's
cervical MRI was not authorized initially. Petitioner did have the cervical MRI on
July 28, 2018
(Pet. Ex. #8). Petitioner testified Respondent would not authorize follow up
care with Dr.
Shapiro so he switched physician's to Dr. Sunavo Dasgupta at Elmwood Park Medical (Pet.
Ex.
#9, #10). Dr. Dasgupta referred Petitioner for follow up
orthopedic care for his cervical spine to
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Dr. Sean Salehi. Dr. Salehi initially evaluated the Petitioner on
December 10, 2018. Dr. Salehi
diagnosed Petitioner with work related cervical spondylosis (Pet. Ex.
#2). Petitioner saw Dr.
Salehi in follow up on March 1, 2019 (Pet. Ex. #2). Dr. Salehi recommended cervical spine
surgery for Petitioner at the March 1, 2019 appointment (Pet. Ex.
#2). The Petitioner has not had
the surgery but he testified he wished to have the surgery when it is authorized so
his neck can
get better and he can get back to work
(TR. at 17).
Respondent did not call any witnesses at trial to rebut Petitioner's testimony.
Respondent
sent Petitioner for an IME with Dr. Rahul Gokhale on August 2,
2017. Dr. Gokhale agrees

12. Petitioner's cervical symptoms are a work related aggravation of a prior
condition.
4/3/17 Injury (17 WC
15386)
Petitioner was working for the City of Chicago - Department of
Forestry on the injury date.
Petitioner twisted his right knee while stepping over tree branches
while working for Respondent
on April 3, 2017. Petitioner testified he stepped on
some tree brush causing his foot to slide
forward and his right knee to twist (TR. at 19).
Petitioner testified to two prior ACL surgeries on
his right knee. Petitioner was evaluated at US
Healthworks for his right knee injury on April 4,
2017 (Pet. Ex. #3). Petitioner followed up with Dr. Charles
Bush- Joseph for evaluation of his
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right knee injury on August 1, 2017 (Pet. Ex. #
11). Petitioner was familiar with Dr. Bush
Joseph from prior right knee injuries that he
treated with Dr. Bush-Joseph for. Dr.

13. Bush-Jospeh
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evaluated Petitioner and noted that the only indicated
surgical procedure for Petitioner's injury is
right knee total knee replacement (Pet. Ex. #11). Dr.
Bush-Joseph kept Petitioner in a sedentary
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work capacity as of August 1, 2017 (Pet. Ex. #11). Dr.
Bush-Joseph referred Petitioner for a
surgical consultation with Dr. Dennis Nam on January 31,
2018 for consideration of a right knee
total knee replacement surgery (Pet. Ex. #11). Petitioner
has not had the right knee surgical
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consultation with Dr. Nam or right knee total knee
replacement surgery to date. Petitioner is waiting for
authorization to be evaluated by Dr. Nam and to
proceed with surgery.
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14. Respondent sent Petitioner for an IME for his right knee
injury with Dr. Pietro Tonino on
July 31, 2017. Dr. Tonino does feel that Petitioner
aggravated his prior knee condition with his
April 3, 2017 work injury. Dr. Tonino recommended further
treatment and a light duty restriction
for Petitioner at the time of the IME.
CONCLUSIONS OF LAW
The Arbitrator adopts the Finding of Facts in support of the
Conclusions of Law.
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Section 1(b)3(d) of the Act provides that, in order to obtain
compensation under the Act,
the employee bears the burden of showing, by
a preponderance of the evidence, that he or
she has sustained accidental injuries arising out
of and in the course of the employment. 820
ILCS

15. 305/1(b)3(d). To obtain compensation under the Act,
Petitioner has the burden of proving, by a
preponderance of the evidence, all of the elements of his
claim (O'Dette v. Industrial
Commission, 79 11. 2d 249, 253 (1980)), including that there is
some causal relationship
between his employment and his injury. Caterpillar Tractor Co. v. Industrial Commission, 129
IlI. 2d 52,63 (1989). An injury is accidental within the
meaning of the Act when it is traceable
to a definite time, place, and cause and occurs in the course of
employment, unexpectedly and
without affirmative act or design of the employee. Mathiessen & Hegeler
Zinc. Co. V. Industrial
Board, 284 Ill. 378
(1918).
Decisions of an arbitrator shall be based exclusively on the evidence in
the record of the
proceeding and material that has been officially noticed. 820 ILCS 305/1.1(e). The
burden of
proof is on a claimant to establish the elements of his right to compensation, and unless
the
evidence considered in its entirety supports a finding that
the injury resulted from a cause
connected with the employment, there is no right to recover. Board of
Trustees v. Industrial

16. Commission, 44 I11. 2d
214 (1969).
Credibility is the quality of a witness which renders
his evidence worthy of belief. The
arbitrator, whose province it is to evaluate witness credibility, evaluates the demeanor of
the
witness and any external inconsistencies with his testimony. Where a claimant's
testimony is
inconsistent with his actual behavior and conduct, the Commission has held that an award
cannot
stand. McDonald v. Industrial Commission, 39 Ill. 2d 396 (1968);
Swift v. Industrial
Commission, 52 111. 2d 490 (1972). While it is true that an employee's uncorroborated
testimony
will not bar a recovery under the Act, it does not mean that the employee's testimony
will always
support an award of benefits when considering all the testimony and
circumstances shown by the
totality of the evidence. Caterpillar Tractor Co. v. Industrial Commission, 83 I11,
2d 213 (1980).
Internal inconsistencies in a claimant's testimony, as well as conflicts
between the claimant's
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testimony and medical records, may be taken to indicate
unreliability. Gilbert v. Martin &

17. Bayley/Hucks, 08 ILWC 004187 (2010).
The Arbitrator finds, after observing Petitioner testify at trial,
that Petitioner was entirely
credible. He testified in a manner consistent with the
medical records, incident reports and all
other documentary evidence admitted as exhibits. Petitioner's
demeanor at trial and the manner
in which he answered questions was entirely sincere. There
were no witnesses offered by
Respondent to refute any testimony given by Petitioner.
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IN REGARD TO (F), WHETHER PETITIONER'S CURRENT CONDITION OF
ILL BEING IS CAUSALLY RELATED TO HIS WORK INJURIES, THE
ARBITRATOR FINDS THE FOLLOWING FACTS IN SUPPORT OF THE
PETITIONER:
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Petitioner bears the burden of proving by a preponderance of the
evidence all of the
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elements of his claim. R & D Thiel y. Workers'
Compensation Comm'n, 398 Ill. App. 3d 858,
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867 (2010). Among the elements that the Petitioner must
establish is that his condition of ill
being is causally connected to his employment. Elgin Bd. of
Education U-46 v. Workers'
Compensation Comm'n, 409 Ill. App. 3d 943, 948 (2011).
The workplace injury need not be the
sole factor, or even the primary factor of an injury, as long as it
is a causative factor. Sisbro, Inc.
v. Indus. Comm'n, 207 111. 2d 193, 205 (2003).
"A chain of events which demonstrates a previous
condition of good health, an accident,
and a subsequent injury resulting in a disability may be
sufficient circumstantial evidence to
prove a causal connection between the accident and the
employee's injury.” Int'l Harvester v.
Industrial Comm'n, 93 I11. 2d 59, 63-64 (1982). If a
claimant is in a certain condition, an
accident occurs, and following the accident, the claimant's

19. condition has deteriorated, it is
plainly inferable that the intervening accident caused the
deterioration.
Schroeder v. Ill.
Workers' Comp. Comm'n, 79 N.E.3d 833, 839 (I11.
App. 4th 2017).
All of Petitioner's injuries are causally related to his work injuries for the
Respondent as follows:
1. Petitioner injured his left index finger on March 10, 2014 when a work saw lacerated
his left index finger. Petitioner was sent to Presence Medical Group for treatment
(Pet. Ex. #4). Respondent did not contest
causation for this injury at trial.
Accordingly, the Arbitrator finds Petitioner's current
condition of ill being in his left
index finger causally related to his March 10, 2014
work accident.
2. Petitioner injured his left shoulder on June 3, 2015 cutting a
branch when his saw got
stuck, Petitioner testified that the weight of the branch pulled his arm and
causing a
tear in his shoulder. Petitioner underwent two surgeries on his left shoulder
performed
by Dr. Bernard Bach (Pet. Ex. #6). Respondent

20. did not contest causation for this
injury at trial. Accordingly, the Arbitrator finds Petitioner's current condition
of ill
being in his left shoulder causally related to his June 3,
2015 work accident.
3. Petitioner injured his cervical spine on March 15, 2017. Petitioner was
pulling on a
tree branch on that day when he injured his neck and his left thumb. On March
1,
2017 Petitioner was working in a bucket attached to a truck when the bucket
suddenly
dropped jarring the Petitioner's body. However, Petitioner
clarified at trial that his
significant symptoms did not start until after the March
15, 2017 incident. Both
incidents were in March of 2017. Petitioner sought treatment on the date of
his injury,
March 15, 2017 at U.S. Healthworks, a facility he was sent to by
Respondent (Pet.
Ex. #3). The records from U.S. Healthworks document the March 1,
2017 incident,
but confirm that Petitioner's cervical symptoms started on
March 15, 2017 (Pet. Ex.
#3). This is consistent with Petitioner's trial testimony. Petitioner sought follow up

21. care with Dr. Gary Shapiro for his cervical injury.
Petitioner then sought a second
opinion for his cervical injury at Elmwood
Park Medical Center and the physician at
that facility, Dr. Sunavo Dasgupta,
referred Petitioner to Dr. Sean Salehi, an
orthopedic spine surgeon (Pet. Ex. #9,10).
Petitioner has a cervical MRI that
demonstrates stenosis at the C5-6 level with
corresponding nerve root impingement
(Pet. Ex. #8). On December 10, 2018 Dr. Salehi
personally reviewed Petitioner's
MRI films and felt the MRI demonstrated
bilateral foraminal stenosis at C5-6 (Pet.
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Ex. #2). Dr. Salehi diagnosed

22. Petitioner with cervical spondylosis
(Pet. Ex. #2). Dr.
DE 12
Salehi’s notes indicate that Petitioner's cervical
condition is secondary to Petitioner's
described work injury (Pet. Ex. #2). Petitioner
previously had a neck injury years ago
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but did not have the symptoms he
currently does prior to his March 15,
2017 work injury (TR. at 26). Petitioner
testified that he currently has stiffness,
pain, and some numbness in his arm
that he did not have prior to his March
15, 2017 work injury (TR. at 26).
Petitioner testified that he has had those

23. symptoms consistently in his
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neck since the March 15, 2017 work
injury (TR. at 26). Petitioner's trial
testimony was unrebutted as
Respondent did not call any witnesses
at trial.
Respondent did send Petitioner for an IME on
August 2, 2017 with Dr. Rahul
Gokahle. Dr. Gokhale opined that
Petitioner's cervical injury is work related by
way
of an aggravation of a pre-existing condition.
Accordingly, all of the medical evidence
points to a causal connection between

24. Petitioner's current condition of ill
being in his cervical spine and his
March 15, 2017
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work injury. The Arbitrator finds Petitioner's current
condition of ill being in his
cervical spine is causally connected to his March 15, 2017 work injury
with the
Responden
t.
4. Petitioner's current condition of ill being in his right knee is causally
connected to his
April 3, 2017 work injury with the Respondent. Petitioner twisted his right
knee while
stepping over tree branches while working for Respondent on April 3,
2017.
Petitioner testified he stepped on some tree brush
causing his foot to slide forward
and his right knee to twist (TR. at 19). Petitioner testified to two
prior ACL surgeries
on his right knee. Petitioner was evaluated at US Healthworks
for his right knee
injury on April 4, 2017 (Pet. Ex. #3). Petitioner followed up with Dr.
Charles Bush

25. Joseph for evaluation of his right knee injury on August 1, 2017 (Pet.
Ex. # 11).
Petitioner was familiar with Dr. Bush-Joseph from
prior right knee injuries that he
treated with Dr. Bush-Joseph for. Petitioner testified to having
no pain in his right
knee prior to his April 3, 2017 work injury (TR. at
26). Petitioner testified to
consistent pain and numbness in his right knee since his April 3,
2017 work injury
(TR. at 27). Petitioner did testify candidly about
prior surgeries that he had, in the past, on his
right knee. However, the prior surgeries were
years ago and Petitioner
was back to working on a full duty basis prior to his April 3, 2017
work injury.
Petitioner's testimony in regards to his right knee injury
was unrebutted.
Respondent sent Petitioner to an IME for his April 3, 2017
work injury with Dr.
Pietro Tonino. In the July 31, 2017 IME report, Dr. Tonino
agrees that Petitioner's
right knee injury is causally related to his April 3, 2017 work
accident.
Accordingly, all of the medical evidence points to

26. a causal connection between
Teen
Petitioner's current condition of ill being in his right knee and his April
3, 2017 work
injury. The Arbitrator finds Petitioner's current
condition of ill being in his right
knee is causally connected to his April 3, 2017
work injury with the Respondent.
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IN REGARD TO (J), WHETHER
PETITIONER'S MEDICAL TREATMENT
WAS REASONABLE AND NECESSARY
AND HAS RESPONDENT PAID ALL.
APPROPRIATE CHARGES FOR THE REASONABLE AND
NECESSARY MEDICAL SERVICES, THE
ARBITRATOR FINDS THE FOLLOWING
FACTS IN SUPPORT OF THE PETITIONER:
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Petitioner's medical for his injuries was

27. reasonable and necessary and Respondent
has
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not paid all appropriate charges. Petitioner's
treatment has consisted of doctor's visits,
physical
therapy, diagnostic testing, injections, and
surgeries. All of these treatment measures are
standard, reasonable and necessary medical
treatments required for Petitioner to achieve
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Maximum Medical Improvement (MMI) for his
injuries. Petitioner has $33,120.19 in
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outstanding medical bills related to his work
injuries (Pet. Ex. #1). The Arbitrator awards
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Petitioner payment of the $33,120.19 in
outstanding medical bills to be paid to Petitioner
direct,
as part of the trial award, pursuant to the Illinois
Fee Schedule,
IN REGARD TO (K), IS PETITIONER ENTITLED
TO ANY PROSPECTIVE MEDICAL CARE,
THE ARBITRATOR FINDS THE
FOLLOWING FACTS IN SUPPORT OF
THE PETITIONER:
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The Arbitrator awards Petitioner the cervical
surgery prescribed by Dr. Sean Salehi on
March 1, 2019 and the right knee total knee

29. replacement surgery consultation with Dr.
Dennis
Nam prescribed by Dr. Charles Bush-Joseph
(Pet. Ex. #2, #11). If Dr. Nam agrees with his
partner, Dr. Bush-Joseph, that the total knee
replacement surgery is warranted, the Arbitrator
ам
awards the right knee total knee
replacement surgery. In addition, the
Arbitrator awards all post
surgical medical care, including physical therapy, required for Petitioner to
achieve Maximum
Medical Improvement (MMI) pursuant to Section 8(a) of the Act.
IN REGARD TO (L), WHAT TEMPORARY BENEFITS ARE IN DISPUTE, THE ARBITRATOR
FINDS THE FOLLOWING FACTS IN SUPPORT OF THE PETITIONER:
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The Arbitrator awards Petitioner TTD benefits for three time periods totaling 212 5/7
weeks: (1) 3/14/14- 3/20/14, (2) 6/4/15-12/23/16, and
(3) 4/5/17- 10/4/19. The TTD periods of

30. 3/14/14-3/20/14 and 6/4/15- 12/23/16 were stipulated to by the
parties at trial.
The third period of TTD from April 5, 2017 to the trial date of October 4,
2019 is
aw
awarded by the Arbitrator as well. This is the TTD period following
Petitioner's March 2017
neck injury and April 2017 right knee injury. Respondent stipulated at trial
that Petitioner should
be paid TTD from April 5, 2017 to November 24, 2017 only. Respondent
stopped paying
Petitioner TTD as of November 24, 2017 with no legal basis for
termination of his TTD benefits.
Petitioner was still actively treating for his right knee injury and his
neck injury. On August 1,
2017 Petitioner's orthopedic knee physician, Dr. Charles Bush-Joseph provided
Petitioner a light
duty work restriction indicating Petitioner can only work in a sedentary duty capacity
(Pet. Ex.
#11). This restriction is pending a visit with Dr. Dennis Nam for an evaluation for a right
knee
total knee replacement surgery which Respondent has not
authorized the visit with Dr. Nam to
date so the sedentary work restriction for Petitioner's right knee remains in place.
Petitioner

31. testified that he remains under the light duty restriction for his
right knee prescribed by Dr. Bush Joseph on August 1,
2017. Respondent has not accommodated Petitioner with
light duty work.
VUI
Petitioner has also been in an off work or light duty status for his neck
beginning October
24, 2017 by Dr. Gary Shapiro, continuing with Dr. Sunavo
Dasgupta at Elmwood Park Medical,
2
and at present by Dr. Sean Salehi (Pet. Ex. #2, #5, #9,
#10). Respondent has not accommodated
Petitioner with light duty work for his neck injury (TR.
at 18).
Respondent presented no witnesses to rebut
Petitioner's testimony of no light duty work
available for him. Further, Respondent's IME physicians
both agreed Petitioner's injuries are
work related and Dr. Tonino agreed Petitioner should only
work in a light duty capacity.
Accordingly, the Arbitrator awards Petitioner TTD
benefits for three time periods totaling

32. 212 5/7 weeks: (1) 3/14/14-3/20/14, (2) 6/4/15-12/23/16,
and (3) 4/5/17-10/4/19,
IN REGARD TO M, SHOULD PENALTIES OR FEES BE
IMPOSED UPON RESPONDENT, THE ARBITRATOR
FINDS THE FOLLOWING FACTS IN SUPPORT OF THE
PETITIONER:
The unreasonable and vexatious nature of the
Respondent's conduct warrants the payment of
20% attorney's fees under Section 16 of the Act and
penalties under Section 19(k).
:
;
In determining whether to impose penalties and
assess attorney fees under Workers'
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.
...
..
.:
..
.
Compensation Act for an employer's nonpayment of
workers' compensation benefits, the test is
whether an employer's conduct is reasonable under the
circumstances presented. Miller v.
Industrial Com'n, App., 255 111. App.3d 974, 979-80
(1993). A higher standard is required for the

33. imposition of section 19(k) penalties and section 16 attorney
fees than an award of additional
compensation under section 19(1). McMahan v.
Industrial Comm'n, 183 111.2d 499, 514 (1998).
Where, however, the overwhelming weight of the evidence
supports a finding of causal
::::
connection, refusal to pay benefits is unreasonable and
vexatious. General Refractories v. Indus,
Comm’n, 55 Ill.App.3d 925, 931 (Ill. App.3d 1994).
).
HA WEITE!
.::
In General Refractories, the Court affirmed the imposition of
penalties under Section 19(1)
and Section 16 attorneys' fees where the overwhelming
weight of the evidence supported a
finding that the injury was an exacerbation of a preexisting
condition rather than a product of the
natural degeneration process. General Refractories, 55
I11.App.3d at 932. The respondent relied upon the fact that
the Petitioner was a candidate for back surgery prior to his work

34. accident in refusing to pay benefits. Id. at 931. The
appellate court affirmed the award of penalties because
there was direct medical evidence identifying the work injury
as the exacerbating force. Id.
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ere YV
In this case, the Respondent has no medical evidence to rely on in
refusing to pay Petitioner
TTD or authorize and pay for his medical treatment. In
fact, both of Respondent's Section 12
physicians agree: (1) that Petitioner sustained a work related injury, (2) that
Petitioner was not at
MMI as of the date of the IME exam, and (3) Petitioner warranted further
medical care for his
injuries. Further, Respondent presented no witnesses at trial to rebut the
Petitioner's credible
testimony. Respondent could have ordered follow up Section 12 examinations for
Petitioner to
address his current work restrictions and medical treatment recommendations but chose not to
do
so. While it appears that Respondent made a mistake when it failed to look at
Petitioner's
medical condition and four separate workers' compensation claims as a
whole when making
decisions to cut off TTD, that cannot save Respondent from penalties.
Simply put, if Petitioner

35. cannot return to work because of one claimed injury, Respondent cannot take the position
that
Petitioner could return to work because with regard to a
separate injury there was a dispute.
was
Accordingly, all of the evidence in this case weights in Petitioner's favor and in
favor of
penalties and attorney's fees being awarded against Respondent for
unreasonable and vexatious
conduc
t.
There is 97 weeks of unpaid TTD benefits to Petitioner based on a TTD rate of
$978.67
(AWW on 4/3/17 injury date is $1,468.00) for a total of $94,930.99 in unpaid
TTD benefits. In
addition, there is $33,120.19 in unpaid medical bills. The total trial
award is $128,051.18.
The Arbitrator awards the 19(k) penalty of 50% of the total trial award or
$64,025.59.
The Arbitrator awards Section 16 attorney's fees at 20% of
the total trial award or $25,610.23
In addition, penalties under Section 19(1) are awarded.
Section 19(1) is awarded at $30.00 per
day for late payment of TTD up to a maximum of

36. $10,000.00. Pursuant to Section 19(1), a delay
in payment of TTD for more than 14 days creates a
rebuttable presumption of unreasonable
delay in payment of TTD benefits. In this case, Respondent
was 679 days late (November 25,
.
T
2017 to October 4, 2019) in paying Petitioner's
TTD benefits. The 19(1) penalty for 679 days of
VLLL
late TTD payment ($20,370.00) is reduced to the
statutory maximum of $10,000.00. The
Arbitrator awards the maximum $10,000.00 penalty
against Respondent pursuant to Section
19(1).
....