Josh Rudolfi Successful in Second Arbitration for Back Injury

An employee who was injured lifting propane tanks in the course of his job found that he needed a second spinal surgery, yet the employer refused to pay for it. So the case went into a second arbitration. The employee was awarded a microdiscectomy during the first arbitration. When that did not resolve the problems, he saw a doctor who recommended a fusion surgery. Just like the first time, the employer refused to pay and the case went into arbitration again. Ankin Law attorney Josh Rudolf made sure the employer will pay for the second surgery as well.

1. ILLINOIS WORKERS’ COMPENSATION COMMISSION
DECISION SIGNATURE PAGE
Case Number 22WC
Case Name v. DCC Propane, LLC dba
Hicksgas Propane Sales and Service
Consolidated Cases
Proceeding Type 19(b) Petition
Decision Type Arbitration Decision
Commission Decision Number
Number of Pages of Decision 12
Decision Issued By
Petitioner Attorney Joshua Rudolfi
Respondent Attorney
DATE FILED: 8/25/2025
Signature
INTEREST RATE WEEK OF AUGUST 19, 2025 3.95%

2. STATE OF ILLINOIS )
Injured Workers’ Benefit Fund (§4(d))
)SS.
Rate Adjustment Fund (§8(g))
COUNTY OF WINNEBAGO ) Second Injury Fund (§8(e)18)
None of the above
ILLINOIS WORKERS’ COMPENSATION COMMISSION

ARBITRATION DECISION
19(b)
Case # WC
Emp oyee Pet t oner

v. Consolidated cases: -----

DCC Propane d/b/a
Hicksgas Propane Sale and Service
Employer/Respondent
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 , Arbitrator of the Commission, in the city of
Rockford, on 5/21/2025. 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.
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?
I. What was Petitioner's marital status at the time of the accident?
J. 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?
TPD Maintenance TTD

M. Should penalties or fees be imposed upon Respondent?
N. Is Respondent due any credit?
O. Other
ICArbDec19(b) 4/22 p.1 Web site: www.iwcc.il.gov

3. FINDINGS
On the date of accident, 6/30/2022, Respondent was operating under and subject to the provisions of the Act.
On this date, an employee-employer relationship did exist between Petitioner and Respondent.
On this date, Petitioner did sustain an accident that arose out of and in the course of employment.
Timely notice of this accident 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 $45,760.00; the average weekly wage was $880.00.
On the date of accident, Petitioner was 39 years of age, married with 2 dependent children.
Respondent has paid all reasonable and necessary charges for all reasonable and necessary medical services.
Respondent shall be given a credit of $85,611.74 for TTD, $0.00 for TPD, $0.00 for maintenance, and $0.00
for other benefits, for a total credit of $85,611.74.
Respondent is entitled to a credit of $0.00 under Section 8(j) of the Act.
ORDER
Respondent shall pay Petitioner temporary total disability benefits of $586.67/week for 119 and 1/7 weeks, commencing 7/7/2022
through 5/2/2024 and 12/5/2024 through 5/21/2025, as provided in Section 8(b) of the Act.
Respondent shall pay Petitioner the temporary total disability benefits that have accrued from 7/7/2022 through 5/2/2024 and
12/5/2024 through 5/21/2025, and shall pay the remainder of the award, if any, in weekly payments.
Respondent shall be given a credit of $85,611.74 for temporary total disability benefits that have been paid.
Respondent shall pay Petitioner maintenance benefits of $586.67/week for 30 and 6/7 weeks, commencing 5/3/2024 through
12/4/2024, as provided in Section 8(a) of the Act.
Respondent shall pay to Petitioner penalties of $4,140.00, as provided in Section 19(l) of the Act.
Respondent shall authorize and pay for the L4-L5 microdiskectomy and fusion as recommended by Dr. M along with all
associated reasonable and necessary post-operative medical care.
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.
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.
__________________________________________________
Signature of Arbitrator
ICArbDec19(b) p. 2
AUGUST 25, 2025

4. ‭

STATE OF ILLINOIS )
) SS
COUNTY OF WINNEBAGO )

ILLINOIS WORKERS’ COMPENSATION COMMISSION

)
)
Petitioner, )
)
v. ) Case No. 22WC
)
DCC Propane d/b/a Hicksgas )
Propane Sales and Service, )
)
Respondent. )


FINDINGS OF FACT

This matter previously proceeded to Arbitration pursuant to Sections 19(b) and 8(a) of the
Illinois Workers’ Compensation Act. Arbitrator N took evidence on May 17, 2023
and issued a decision on July 17, 2023. Pet. Ex. #1 and Transcript of Arbitration, hereinafter
referred to as “R”, at 6. Arbitrator N found that Petitioner was injured in an accident on
June 30, 2022 while in the course and scope of his employment by Respondent when he lifted a
propane gas tank. Id. at 3. Petitioner sought medical care for a lumbar spine condition and was
eventually recommended for a microdiskectomy surgery at L4-L5 and L5-S1 by Dr. M
on March 27, 2023. Id. at 7. Respondent denied this prior surgery based on an IME with Dr.
r on November 7, 2022, who opined that Petitioner sustained a soft-tissue injury
and required no further medical care. Arbitrator N found Petitioner’s current condition of
ill-being to be causally related to his undisputed accident and awarded Petitioner the surgery as
recommended by Dr. M , along with certain medical bills and TTD benefits. Id. 8-11.
Penalties and fees were denied. Id. The decision became final on August 17, 2023 and payment of

5. ‮

the award was made on January 2, 2024. Resp. Ex. #5, pp. 10-11. The Arbitrator hereby
incorporates the facts contained in Petitioner’s Exhibit #1, the previous arbitration decision, into
this current decision.
Petitioner sought follow up care with Dr. M on November 27, 2023. Pet. Ex. #2, pp.
29. Dr. M noted that Petitioner’s exam remained unchanged, confirmed his prior
recommendation for surgery, and kept Petitioner off work. Id. at 29, 227 On December 16, 2023,
Petitioner underwent a Left L4-L5 foraminal diskectomy and a Left L5-S1 posterolateral
microdiscectomy with laminotomy, foraminotomy and partial facetectomy. Id. at 105-106.
Petitioner followed up with Dr. M on December 28, 2023. Id. at 26. Dr. M
noted that Petitioner’s radicular pain down the left leg had resolved, recommended physical
therapy, and continued Petitioner off work. Id. at 26, 225.
Petitioner testified that he underwent physical therapy at Therapy from January
22, 2024 through March 27, 2024. R 10.
Petitioner followed up with Dr. M on January 29, 2024. Pet. Ex. #2, pp. 22. Dr.
M noted that Petitioner’s radiculopathy had resolved but that he was still experiencing
residual numbness and weakness in the left leg. Id. Dr. M recommended to advance physical
therapy to work conditioning and continued Petitioner off work. Id. at 22, 223.
On February 29, 2024, Dr. M again noted decreased sensation in the left L4
distribution and weakness in the left quadriceps. Id. at 19. He again recommended work
conditioning. Id. On March 28, 2024, Petitioner again complained of residual numbness in the left
leg and pain in the lower back with activity to Dr. M . Id. at 16. Dr. M recommended
continued work conditioning, an FCE, and continued Petitioner off work. Id. at 16, 221.

6. ‬

On April 22, 2024, Petitioner underwent an FCE at Therapy. Id. at 198-216. The
FCE was found to be valid and placed Petitioner at the Light Demand Level, with a lifting
restriction of 25 lbs. Id.
On May 2, 2024, Dr. M noted that Petitioner had continued residual numbness in his
left leg and released Petitioner with permanent restrictions pursuant to the valid FCE. Id. at 13,
219.
Petitioner testified that he was not taken back to work by Respondent with restrictions and
began a job search. R 12. Petitioner looked for work from July 12, 2024 through the week of
November 18, 2024. Pet. Ex. #3. Petitioner testified that he was unable to get a position with any
of the companies listed. R 13. Petitioner testified on cross-examination that he looked for work
until Dr. M placed him back off work, but he cannot recall whether it was a telephone call
or email. R 21-22. Petitioner looked for jobs in sales and positions that were within his restrictions.
R 30-31. Petitioner testified that he followed up on leads, but did not note all telephone calls or
contact with potential employers on his submitted job logs. R 44.
Petitioner testified that throughout this time he continued having pain in his lower back
and numbness in his left leg. R 13. On October 28, 2024, Petitioner returned to see Dr. M .
Pet. Ex. #2, pp. 11. Dr. M noted that Petitioner was still complaining of residual numbness
in the left L4 distribution to the medial aspect of the left leg. Id. He further noted pain radiating
down the left groin to the anterior thigh with numbness, tingling, and weakness. Id. Dr. M
ordered an MRI of the lumbar spine. Id. An MRI of the lumbar spine performed on December 3,
2024 revealed a shallow disc protrusion measuring 3 mm at L4-L5 with mild central canal
encroachment and mild/moderate/severe left foraminal encroachment along with a mild focal
central disc protrusion 2 mm at L5-S1. Id. at 99-100.

7. 

Petitioner followed up with Dr. M on December 5, 2024 to review the MRI. Id. at 8.
Dr. M noted continued left lumbar radiculopathy in the L4 distribution with numbness and
tingling. Id. Dr. M recorded a positive femoral stretch on the left and decreased sensation in
the L4 distribution. Dr. M read the MRI and diagnosed Petitioner with a recurrent left L4-
L5 herniated disc, which Dr. M related to Petitioner’s original work injury. Id. Dr. M
recommended to redo the L4-L5 microdiskectomy and proceed with a fusion at that level. Id.
Petitioner was again placed off work. Id. at 190.
On January 20, 2025, Respondent sent Petitioner for an IME with Dr. .
Resp. Ex. #2. Dr. reviewed Petitioner’s medical records, including dictations from Dr.
M throughout 2023 and 2024 as well as the operative report and FCE report. Id. Dr.
noted that Petitioner felt 20% improved since the first surgery and that Petitioner was
recommended for another surgery, but did not know what was being proposed. Id. Physical
examination revealed tenderness throughout the lumbar spine and Petitioner reported severe pain
upon testing. The updated MRI was noted but films were not available. Id. Dr. diagnosed
Petitioner with chronic mechanical back pain, status post-microdiskectomy, and pre-existing
degenerative disc disease. Id. Dr. noted that Petitioner’s physical examination does not
correlate with his prior MRI, but she had not reviewed his most recent December 2024 MRI. Id.
She believes that Petitioner is magnifying his symptoms and suggests that because he has been
diagnosed with a recurrent disc herniation, but has not been working, there could be an “alternative
cause” of the recurrent herniation. Id.
Petitioner testified that between his May 2, 2024 release by Dr. M and his October
28, 2024 return to Dr. M he did not have any accidents, falls, motor vehicle accidents, or
injuries. R 15. Petitioner testified that the pain/numbness in his leg never fully went away. R 19.

8. 

Petitioner testified that he would have the proposed surgery performed immediately if it were
awarded by the Arbitrator. R 16.

CONCLUSIONS OF LAW
The Arbitrator adopts the above Statement of Fact in support of the Conclusions of Law set
forth below.
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 Commission, 44 Ill. 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 Ill.
2d 490 (1972).
It is the function of the Commission to judge the credibility of the witnesses and to resolve
conflicts in the medical evidence and assign weight to witness testimony. O’Dette v. Industrial
Commission, 79 Ill.2d 249, 253, 403 N.E.2d 221, 223 (1980); Hosteny v. Workers’ Compensation
Commission, 397 Ill. App. 3d 665, 674 (2009). Internal inconsistencies in a claimant’s testimony,

9. 

as well as conflicts between the claimant’s testimony and medical records, may be taken to indicate
unreliability. Gilbert v. Martin & Bayley/Hucks, 08 ILWC 004187 (2010).
In the case at hand, the Arbitrator observed Petitioner during the hearing and finds him to be
a credible witness. The Arbitrator compared Petitioner’s testimony with the totality of the evidence
submitted and did not find any material contradictions that would deem the witness unreliable.

Issue F, whether Petitioner’s current condition of ill-being is causally related to the injury, the
Arbitrator finds as follows:

The Arbitrator finds that Petitioner’s current condition of ill-being is causally related to his
undisputed June 30, 2022 work accident. Petitioner’s case proceeded to Arbitration and the
Arbitrator found that his low back condition was related to that accident. Pet. Ex. #1, pp. 8-9.
Petitioner underwent the awarded microdiscectomy surgery on December 16, 2023. Following
surgery, Dr. M ’s medical notes all record complaints of continued numbness and weakness
in Petitioner’s left leg. Petitioner testified credibly that this pain/numbness has never gone away.
R 19. Dr. M notes in his December 5, 2024 office note that he believes the recurrent
herniation at L4-L5 is related to the original work accident. Pet. Ex. #2, pp. 8. The only evidence
against a finding of causal connection is the IME report of Dr. . Resp. Ex. 2. The
Arbitrator finds that Dr. ’s opinion is flawed. Dr. did not review Petitioner’s updated
MRI films or report, nor did she review the actual surgical recommendation made by Dr. M ,
noting that she reviewed only the work status note. Id. at 3, 5-6. Dr. goes on to state that
because Petitioner denies a new injury it suggests an “alternative cause” for the “recurrent HNP.”
Id. at 6. This is mere conjecture with no support found in the record. The Arbitrator does not find
this opinion persuasive. Dr. M ’s opinion, together with Petitioner’s credible testimony that

10. 

he has continued to experience numbness/weakness in the left leg since surgery, which is noted in
all of his office visits with Dr. M, establishes a causal connection.

Issue K, whether Petitioner is entitled to any prospective medical care, the Arbitrator finds as
follows:

Petitioner is awarded surgery as recommended by Dr. M along with all reasonable
and necessary post-operative care. Dr. M diagnosed Petitioner with a recurrent left L4-L5
herniated disc, which Dr. M relates to Petitioner’s original work injury. Dr. M
recommended to redo the L4-L5 microdiskectomy and proceed with a fusion at that level.
Respondent has introduced the IME report of Dr. . Dr. is board certified in
sports medicine, does not perform spine surgeries, did not review the updated MRI, and does not
know what procedure is currently being recommended by Dr. M because Respondent did
not provide the medical notes to her. Accordingly, the Arbitrator finds the opinion of Dr. M
to be more persuasive and better comport with the medical evidence produced at trial. The
Arbitrator therefore awards surgery as recommended by Dr. M along with all reasonable and
necessary post-operative care.

Issue L, whether Petitioner is entitled to temporary benefits, the Arbitrator finds as follows:

TTD

The Arbitrator finds that Petitioner has been unable to work and is entitled to TTD benefits
from July 7, 2022 through May 2, 2024 and from December 5, 2024 through May 21, 2025, a
period of 119 and 1/7 weeks less the stipulated credit for benefits paid. Petitioner’s medical records
establish that he has been in an off-work status for those periods per Dr. M . Respondent’s

11. 

IME doctor, Dr. , does not address work status. Accordingly, benefits for these
periods and ongoing is proper.

Maintenance
The Arbitrator finds that Petitioner is entitled to maintenance benefits from May 3, 2024
through December 4, 2024, for 30 and 6/7 weeks. Petitioner was released pursuant to a valid FCE
on May 2, 2024. When Respondent confirmed they could not accommodate these restrictions,
Petitioner started a self-directed job search. (see generally) Pet. Ex. #3. Petitioner started this job
search on July 12, 2024 and sought work each week through the week ending November 25, 2024.
Id. On December 5, 2024, Petitioner was again placed off work by Dr. M , renewing his
entitlement to TTD benefits. Petitioner testified that Dr. M instructed him to be off work
before the December 5, 2024 visit, but does not recall whether that was a telephone call or email.
Regardless, Petitioner continued looking for work on his own, which entitles him to maintenance
benefits for this period.

Issue M, whether penalties or fees should be imposed upon Respondent, the Arbitrator finds as
follows:

The Arbitrator finds that Petitioner is entitled to penalties under Section 19(l). The Section
19(l) penalty is in the nature of a late fee. Assessment of the penalty is mandatory if the payment
is late, for whatever reason, and the employer or its carrier cannot show an adequate justification
for the delay. Mechanical Devices v. Indust. Comm'n, 344 Ill. App. 3d 752, 763 (4
th
Dist. 2003)
The test for determining whether the employer or its carrier had adequate justification for delaying
payment is that of objective reasonableness. D.J. Masonry Co. v. Indust. Comm'n. 295 Ill. App.
3d 924, 935 (1
st
Dist. 1998) Additionally, where the overwhelming weight of medical testimony is

12. 

in favor of compensation, the employer's refusal to pay can be deemed unreasonable. (Id.) In this
case, the prior award was not paid until January 2, 2024, which is 138 days after becoming final.
Resp. Ex. #5, pp. 10-11. Section 19(l) provides that penalties in the amount of $30 per day are
warranted as a “late fee”. Accordingly, Petitioner is awarded $4,140.00 pursuant to Section 19(l).
Arbitrator denies penalties under Section 19(k) and Section 16, because Respondent relied
on Dr. ’s IME opinion to deny benefits, which was not unreasonable or vexatious.