Bolingbrook Police Department v. Illinois Workers’ Compensation Commission and Michael Toles
On February 17, 2009, Officer Michael Toles of the Bolingbrook Police was working when he claimed he injured his back. Officer Toles filed a workers compensation claim. The Application for Adjustment of Claim alleged that he injured his back while he was lifting his duty bag at home into his personal vehicle. “[T]he duty bag weighed approximately 40 pounds and contained the equipment he used as a police officer on patrol, including [a] Kevlar helmet, gas mask, vehicle and criminal codes, incident reports, extra ammunition, his handcuffs, and ‘a few extra items.’” Id. at p. 2. According to the decision, the bag also contained incident reports, a flashlight, and other items necessary for his duties as a police officer. Id. at p. 14. According to the appellate court’s opinion, Officer Toles testified that he injured himself when he was readying himself to go to work. While in the process of doing so, he put on his uniform, put on his coat, and proceeded to his garage. As he turned to lift his duty bag to put it in the trunk of his car, he felt a sharp pain in his lower back. He described the pain as “incapacitating”, and “[h]e had to ‘hobble’ back into his house bent over.” Id. at p. 3.
Okay, you might be saying to yourself. Why are you writing about this case?
There are several interesting aspects of this case from an Illinois workers’ compensation lawyer’s point of view.
One interesting aspect is that the injury Mr. Toles allegedly sustained occurred in Officer Toles’ own garage, before he even departed for work. He was simply preparing to go to work, just like every other Illinois citizen who has a routine when preparing to go to work. True, as part of his daily routine, he lugged around his police gear, which makes his routine a little unique. But, I was unable to locate any other Illinois Workers Compensation Case in which an award of benefits was given to an employee while loading equipment, tools, or material into his vehicle while in his house, home, or residence. How is Mr. Toles’ lifting of his duty bag different than the carpenter that has to put his saws in the back of his pickup? Or the roofer and the painter that have to place their ladder on top of or in the bed of their truck. How about the plumber that has to put his plumbing equipment into his vehicle? How about the lawyer who has to load boxes of discovery or his trial briefcase into his car? Okay, bad example. Anyway, you get the drift. Perhaps he was awarded benefits simply because he was a police officer? I wonder whether or not the carpenter, roofer, painter, or attorney would have been treated similarly and awarded benefits.
A second very interesting aspect of this case is that Mr. Toles had significant treatment history relating to his back, right up until the week he claims he was injured while preparing to go to work. He had what was referred to as a “‘a severe lower back condition’”, suffered from a history of sciatica problems, and had routinely seen a chiropractor. Id. at p. 4. He had seen a chiropractor as early as 2002. His symptoms had included right-sided low back pain, right sciatic nerve complaints, sharp pain and tightness in his low back, and low back pain radiating to the right hip and lower extremity. Id. MRI’s had already revealed that he had degenerative disc disease with radiculopathy, and a disc herniation at the L5-S1 level. Id. at pp. 5, 20.
In addition to the previous diagnosis and symptomatolgy, there was some evidence in the case, that surgery had already been recommended and that Mr. Toles had decided to pursue the surgery recommended by his treating physician, Dr. Nicholas Mataragas . The claimant testified that at a visit with Dr. Mataragas on February 13, 2009, they discussed “‘[a]ll of [his] treatment options’”. He denied, however, that this included surgery. His doctor testified though that they probably did discuss surgery at that visit. Id. at p. 5. Evidence, in the way of a telephone log from Mr. Toles’ physical therapist, also contradicted Mr. Toles’ testimony that he had not already committed to surgery. The log from that telephone call on February 1, 2009, suggested that Mr. Toles decided to discontinue his physical therapy and that surgery was probably going to be within the next 2 weeks. Id. at p. 6. A discharge summary prepared by the physical therapist also supports this sequence of events. Id. At the hearing, Mr. Toles denied telling his physical therapist before February 17, 2009, that he was discontinuing therapy and proceeding with surgery. Either way, Mr. Toles already had a pretty jacked up back before his alleged injury on February 17, 2009.
Surprising to this Illinois Workers Compensation lawyer, the Commission awarded benefits. More surprising was the fact that the Commission ordered the employer to pay for the surgery – a surgery that might have already been suggested, planned, and was no doubt inevitable. This is surprising to this attorney, even though he does plaintiff’s work, and that it is a favorable decision for me and my clients moving forward. One of the reasons it was so shocking to me, was because I recently prosecuted a claim that was similar in many respects, but they denied the prophylactic surgery recommended to my client. The case is similar in that my client had, without question, what can be similarly characterized as an already bad back, which included bulging discs and severe degenerative disc disease. Unlike Mr. Toles though, until her injury, surgery had not been recommended.
The basis for the Commission awarding benefits and ordering the surgery? An Increase in pain and increased pressure on Officer Toles’ disc from lifting the duty bag, which could have caused additional injuries or worsening of the disc condition. Id. at p. 9. An additional finding was that alleged injury on February 17, 2009, caused an aggravation or exacerbation of his preexisting condition. Id. at p. 20. No doubt, my client’s injury also caused increased pressure on her spinal cord. In fact, she suffered a cord contusion as a result of her injuries. Her treating physician also suggested that his surgery would relieve pressure on her spinal cord, increase the volume of spinal fluid to her already damaged spinal cord, and promote better blood flow around her cord. It was also legally concluded that her injury aggravated or exacerbated her preexisting condition.
Why the difference in outcomes? My gut tells me that the major difference was that Mr. Toles was a police officer, and that this played a major factor in the decision. Another major difference is that the appellate court was asked to affirm the Commission’s decision that had awarded the surgery and benefits. This means that the Commission’s decision would only be reversed if the employer could show that the Commission’s decision was against the manifest weight of the evidence. In my client’s case, we won at Arbitration, but lost at the Commission level, which meant that we had the burden of proof of showing that the Commission’s decision was against the manifest weight of the evidence. So, again, why the discrepancy? Again, I say the discrepancy is largely the fact that Mr. Toles was an officer of the law. It would appear that this fact, and this fact alone, shaped the outcome of this case.
