KIMBERLY Y LEWIS, Applicant
MARINER POST ACUTE NETWORK, Employer
ILLINOIS NATIONAL INS CO, Insurer
Mariner Post Acute Network and Illinois National Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 19, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the work injuries the applicant sustained to her neck and right shoulder on June 24, 2001.
The commission has carefully reviewed the entire record in this matter and hereby makes the following modification to the administrative law judge's INTERLOCUTORY ORDER:
Delete the final paragraph of the administrative law judge's INTERLOCUTORY ORDER and substitute the following sentence therefor:
"Jurisdiction is reserved for such further findings and orders as may be warranted."
The rest and remainder of the administrative law judge's INTERLOCUTORY ORDER, as well as his FINDINGS OF FACT AND CONCLUSIONS OF LAW, are affirmed and reiterated as if set forth herein.
Now, therefore, this
The administrative law judge's INTERLOCUTORY ORDER is modified to confirm with the foregoing; and that INTERLOCUTORY ORDER, as modified, as well as the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, are affirmed.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed October 21, 2008
lewiski . wrr : 185 : 6 ND § 5.29
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondents assert that the applicant is not credible in this matter. They assert that she deliberately manipulated the worker's compensation system by quitting her part-time, DVR-sponsored employment with a group home for the developmentally disabled (Windy Oaks Group Home). They additionally assert that as of September 25, 2006, the DVR "stood willing" to assist her with additional reemployment services, but that the applicant chose not to accept these services. The commission carefully reviewed all the evidence of record, and agreed with the administrative law judge's finding that the credible evidence demonstrates that as a result of her work injuries sustained on June 24, 2001, the applicant is permanently and totally disabled.
The credible evidence demonstrates that the applicant's work injuries have resulted in substantial and permanent physical pain and physical restrictions. This is evident from the ongoing treatment records of Dr. Douglas Milosavljevic, as well as the credible, permanent physical restrictions assessed by Dr. Coran and Dr. Kohns. Dr. Vanessa Chang submitted an unrebutted psychiatric opinion that credibly diagnoses a major depressive disorder attributable to the effects of the work injuries. Dr. Chang links this depression to the applicant's difficulty coping with her physical pain, which in turn has been credibly diagnosed as a permanent fixture of her future life. As noted by the administrative law judge, the applicant's pain and medication regimen cause problems with her ability to concentrate and with her sleep. She is also dyslexic with low-average intelligence. Her prior work experience involved medium-to-heavy levels of exertion, and her only formal training is that of a CNA. She can no longer physically perform the duties of a CNA.
The applicant's vocational expert, Kevin Schultz, took all these relevant factors into account, and credibly opined that the applicant is permanently and totally disabled. Respondents have failed to rebut the applicant's prima facie case by demonstrating that she ". . . is actually employable and that there are actual jobs available to [her]."(1) If at some point in the future, respondents are able to demonstrate such employability and job availability, the interlocutory nature of the commission's order would allow further review of the finding of permanent total disability.(2)
Respondents assert that the applicant could have remained in her sheltered employment with Windy Oaks Group Home, and that she deliberately quit that employment in order to pursue her claim for permanent total disability. However, the credible evidence supports the inference that she ended that employment due to her work-injury-related physical and mental limitations, and in accordance with the original DVR plan for this trial employment. A DVR case file note dated May 25, 2006, indicates that the DVR arranged this part-time employment for the applicant ". . . so that she can see if she is capable of maintaining a position." This DVR note also indicated that: "She will end her work experience on August 31." That is the date the applicant did end her work at Windy Oaks. Another DVR case note dated August 25, 2006, recounted that a Windy Oaks representative had informed DVR that he was "not certain" he would keep the applicant on staff after her work experience was complete. The applicant credibly testified that she could not handle the physical demands of the job. Contrary to respondents' assertions, DVR counselor Amy Buchaklian wrote on October 31, 2007, that while the applicant was at Windy Oaks she struggled with performing job tasks and had difficulty controlling her mental health.(3) Buchaklian further noted that the applicant's DVR case file was then closed because it was not felt that she would benefit from the agency's services. Buchaklian cited the applicant's low IQ, fourth grade reading level, and difficulty with concentration in concluding that she was not a candidate for any retraining program. The credible evidence demonstrates that the applicant is permanently and totally disabled as a result of her work injuries sustained on June 24, 2001.
cc:
Attorney James Pitts
Attorney Michael Frohman
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