Can an employee receive workers’ compensation benefits if he refuses a job offer that, on the surface, falls within his medical restrictions?
In a Sept. 23, 2022, decision by the Appellate Court of Illinois, the job offer the employee received acknowledged the restrictions, but there was a question as to whether it would really incorporate them into the position, so the court upheld a Workers’ Compensation Commission decision allowing benefits.
Twisted his arm when co-worker dropped cylinder
Benjamin Smith worked 50 hours per week as a foreman for Asplundh Brush Control, a job that required him to use tools and equipment to clear brush and trees. Equipment used included mowers, excavators, tractors, track chippers and chainsaws, all of which vibrated during operation.
On April 3, 2015, Smith was carrying a cylinder up a hill with a co-worker in the rain. The co-worker slipped in the mud and dropped his end of the cylinder. This caused Smith to drop his end, twisting his right arm backwards as he did so. When the injury occurred, he said he felt a tear in his right elbow.
‘Give it the weekend and see how you feel’
Smith reported the injury to his manager, but he didn’t seek immediate medical treatment because he was told to “give it the weekend” and see how he felt on Monday. However, by Monday the condition of his right elbow worsened and he sought medical treatment. Initially, Smith saw Dr. Michael Pannunzio who diagnosed cubital tunnel syndrome and recommended surgery.
An electromyography study was conducted in May 2016, revealing further evidence of cubital tunnel syndrome. Smith continued to suffer pain from the injury.
On June 9, 2016, Dr. Pannunzio performed a surgery and placed Smith on light-duty work restrictions. Smith also began occupational therapy. At a follow-up appointment in July 2016, Smith told Dr. Pannunzio he was still in pain, but the doctor noted that he still expected Smith’s condition to improve.
The occupational therapist noted in August 2016 that Smith still reported soreness and numbness in his right elbow and hand. Dr. Pannunzio noted that Smith performed well on a grip test but continued to exhibit less strength in his dominant right hand than his left hand. Despite that, he noted that he planned to release Smith to unrestricted activities in about a month.
Still having difficulty with vibrating equipment
During a follow-up appointment in September 2016, Dr. Pannunzio saw improvement, but Smith said he was still having difficulty using vibrating tools and mowing his lawn. The doctor found that Smith would require work restrictions until his grip strength improved. He kept Smith restricted to no use of power or vibrating tools and no climbing or crawling. In October 2016, Dr. Pannunzio released Smith to unrestricted activities, but directed him to report back with any concerns.
Smith had gotten a light-duty job at Goodwill and continued to work there. He didn’t attempt to return to work for Asplundh. On Nov. 2, 2016, Smith called Dr. Pannunzio’s office with complaints of numbness and tingling in his right hand, which weakened his grip while using vibrating tools and mowers. On that date, the doctor revised Smith’s work restrictions to again include no use of vibrating tools or mowers.
‘That job always entails running a chainsaw’
On Nov. 11, 2016, Asplundh sent Smith a text message offering him a job as an equipment operator. The job would see Smith operating a tractor for 50 to 60 hours per week on a project in Jacksonville, Illinois. Smith refused the offer, saying the job didn’t fall within his work restrictions since it would require him to operate a vibratory mower and chainsaw.
Smith explained that running a mower for Asplundh “always entails running a chainsaw” and that the tractor he’d be using vibrated significantly while mowing over heavy trees. After this, Dr. Pannunzio declared Smith at maximum medical improvement and continued his work restrictions.
At an independent medical examination with Dr. Gregory Merrell, the doctor noted Smith had carpal tunnel syndrome as well as the problems stemming from the elbow injury. However, Dr. Merrell said the carpal tunnel wasn’t related to the elbow injury, so likely wouldn’t be covered by workers’ compensation. Further, Dr. Merrell found that while Smith’s grip strength hadn’t fully returned, Smith’s arm was still reasonably functional.
Evidence proved employee’s assumptions were correct
Smith filed a workers’ compensation claim for his elbow injury along with a separate claim for his carpal tunnel syndrome. An arbitrator consolidated the claims and found Smith had a compensable elbow injury resulting in an award of maintenance and wage-differential benefits. The arbitrator said Asplundh’s job offer wasn’t viable since it failed to take Smith’s restrictions into account. The Illinois Workers’ Compensation Commission affirmed the arbitrator’s decision and so did a circuit court.
On appeal with the Appellate Court of Illinois, Asplundh argued the commission erred by awarding Smith benefits since he declined its job offer. The company claimed the job it offered didn’t require use of chainsaws or vibrating equipment.
However, like the commission, the appeals court found there was sufficient evidence proving Smith’s point about how the tractor controls vibrated during use and the fact that chainsaw use was an assumed job duty. Likewise, the appeals court found Dr. Pannunzio’s medical opinion more convincing than Dr. Merrell’s, so it upheld the award.