Levato v. Illinois Workers' Compensation Commission ( 2014 )

2014 IL App (1st) 130297WCWorkers Compensation
Commission Division
Opinion filed: June 30, 2014
No. 1-13-0297WC
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PHILLIP LEVATO, ) Appeal from the Circuit Court
) of Cook County.
)
Appellant, )
)
v. ) No. 12 L 50746
)
ILLINOIS WORKERS' COMPENSATION )
COMMISSION, et al., ) Honorable
) Daniel T. Gillespie,
(City of Chicago, Appellees). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart concurred in the
judgment and opinion.
OPINION
¶1 The claimant, Phillip Levato, appeals the circuit court order which confirmed the decision
of the Illinois Workers' Compensation Commission (Commission) finding that he failed to prove
that he was permanently and totally disabled after sustaining a lumbar spine injury while in the
employ of the City of Chicago (the City). The claimant also appeals the circuit court order
2014 IL App (1st) 130297WCwhich confirmed the Commission's decision awarding him permanent partial disability (PPD)
benefits for a 35% loss of person as a whole, pursuant to section 8(d)(2) of the Workers'
Compensation Act (Act) (820 ILCS 305/8(d)(2) (West 2006)) instead of wage differential
benefits under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2006)). For the reasons
that follow, we affirm in part, reverse in part, vacate the Commission's decision in part, and
remand the matter to the Commission with directions.
¶2 We are aware that the claimant filed applications for adjustment of claim with the
Commission as the consequence of a February 24, 2004, right toe injury, and a May 14, 2004,
accident which injured his right arm, abdomen and lower back. This appeal, however, does not
involve any issues pertaining to those claims.
¶3 The following factual recitation is taken from the evidence presented at the arbitration
hearing conducted on August 4, 2010, relating to a claim made by the claimant for injuries to his
lower back sustained on September 6, 2006.
¶4 The claimant testified that he began working for the City in 1994 in the Graffiti Unit of
the Streets and Sanitation Department. On September 6, 2006, the claimant injured his lower
back while moving a five-gallon bucket of paint. He saw a physician at Mercy Works the next
day, reporting numbness and tingling and pain shooting down his right leg. On September 14,
2006, the claimant had an MRI, which showed disc dessication at L3-L4 through L5-S1 with
minimal disc bulging at L4-L5, an annual tear at L5-S1, and bilateral facet arthropathy.
2
2014 IL App (1st) 130297WC¶5 In October 2006, the claimant began treating with Dr. Srdjan Mirkovic, who
recommended physical therapy. However, the claimant was told to delay physical therapy for
his back until his toe injury had healed.
¶6 On October 11, 2006, the claimant saw Dr. Charles Slack for a second opinion. Dr. Slack
ordered epidural steroid injections and prescribed Lidoderm patches to treat the claimant's back
pain. In March 2007, the claimant began physical therapy for his back.
¶7 On October 22, 2007, the claimant returned to Dr. Slack, who ordered a second MRI.
The MRI dated October 26, 2007, showed disc desiccation changes at L3-L4, L4-L5, and L5-S1,
with diffuse disc bulging at L3-L4, facet and ligament hypertrophy, and some slight narrowing of
the central canal. It also showed diffuse disc bulges at L4-L5 and L5-S1 with small posterior
disc protrusions that were more pronounced at L5-S1. Dr. Slack ordered diagnostic lumbar facet
blocks to treat the claimant's pain. Dr. Milorad Cupic administered four lumbar facet nerve
block injections to the claimant to treat his lumbar spine pain.
¶8 On January 31, 2008, the claimant and Dr. Slack discussed surgery, but they agreed not
to proceed with surgery as Dr. Slack did not consider him a good surgical candidate.
¶9 On April 1, 2008, the claimant underwent a functional capacity evaluation (FCE), which
determined that he could work at a sedentary physical demand level, meaning he could not lift
more than 10 pounds. However, the evaluator noted that the claimant's subjective complaints
were not consistent with his varying performances on the physical tests, suggesting that he was
not demonstrating his true capabilities on the tests.
3
2014 IL App (1st) 130297WC¶ 10 On April 28, 2008, the claimant saw Dr. Slack, who released him to sedentary work with
a restriction not to lift any more than 10 pounds.
¶ 11 On October 16, 2008, the claimant was examined by Dr. Samuel Chmell, an orthopedic
surgeon, at the request of his attorney. Regarding the lumbar spine, Dr. Chmell diagnosed the
claimant with traumatic aggravation of degenerative disc disease of the lumbosacral spine and
right lower extremity radiculopathy. He also noted that the claimant had diminished range-of-
motion in his shoulder post-surgical repair, and traumatic arthritis/hallux rigidus in his right big
toe joint. Based on the claimant's medical history and examination, Dr. Chmell opined that the
claimant required ongoing pain treatment and was "fully disabled for gainful employment on a
permanent basis." He stated that, in arriving at his opinion, he relied "heavily upon the results of
the functional capacity evaluation [and] also upon [his] examination of the [claimant]."
¶ 12 Steven Blumenthal, a vocational rehabilitation specialist who evaluated the claimant,
reported that he completed the eighth grade, lacked computer skills, had experience only as a
laborer and cable installer, and that he was unable to sit, stand, or drive for any length of time.
On general educational testing, the claimant performed around the high school or community
college level, demonstrating an ability to learn on-the-job skills. However, based on the
claimant's work history, education, vocational testing, and medical history and exams,
Blumenthal opined that "there is not a stable labor market for him to obtain competitive
employment" and that the claimant "is not seen as a good candidate for vocational rehabilitation
services."
4
2014 IL App (1st) 130297WC¶ 13 The City submitted a labor market survey report prepared by Patrick Conway of Genex,
stipulating that Conway never met or tested the claimant before rendering his opinion. Conway's
report stated that he located 15 prospective employers which had positions appropriate for the
claimant and that the positions paid between $8 and $20 per hour.
¶ 14 The claimant testified that the City informed him that he was required to look for
employment and submit a list of at least 10 jobs he applied for on a weekly basis. He stated that
he complied with the City's requirement and had applied for over 200 jobs. He admitted he
applied randomly to employers, some of which were not hiring at the time he submitted an
application. The claimant stated that the City never offered him vocational services to assist with
his job search.
¶ 15 At the time of the arbitration hearing, the claimant stated that his toe and foot swell and
cause him to lose his balance. He testified that he cannot raise his right shoulder "very high" and
the joint "pops and clicks." He stated that he requires a cane to walk because it helps take
pressure off his back, and he cannot traverse stairs easily or walk more than half a block without
his back "locking up." The claimant testified that, at times, he cannot get out of bed and that it
takes him three hours to get ready in the morning. He stated he has his son ties his shoes because
he cannot bend down.
¶ 16 Following the hearing on August 4, 2010, the arbitrator found that the claimant sustained
accidental injuries arising out of and in the course of his employment and ordered the City to pay
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2014 IL App (1st) 130297WChim 75 weeks of PPD benefits under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2)1 (West
2006)) for 15% loss of use of a person as a whole. The arbitrator further found that the claimant
was not permanently and totally disabled under section 8(f) of the Act (820 ILCS 305/8(f) (West
2006)) and that he was not entitled to wage differential benefits under section 8(d)(1) of the Act
(820 ILCS 305/8(d)(1) (West 2006)). The arbitrator found that the claimant's injuries did not
render him permanently and totally disabled and were not the type "generally associated with
wage differential or odd-lot awards."
¶ 17 In his decision, the arbitrator specifically noted that he did not find Dr. Chmell’s opinion
that the claimant was permanently and totally disabled credible, considering he claimed to have
relied on the FCE that determined that the claimant was employable at the sedentary demand
level. Similarly, the arbitrator did not find Blumenthal's opinion that the claimant was totally
disabled to be credible because he failed to consider evidence of the claimant's symptom
magnification. Further, the arbitrator also noted that the claimant appeared "quite at ease and
casual in court" and "sported a rather impressive suntan for someone" claiming to be "constantly
in bed, sleep deprived, and in intractable pain." He found the claimant's self-directed job search
unimpressive as it consisted of contacting employers who were not hiring.
1
The arbitrator's decision states the person-as-a-whole benefit was awarded under section
8(e) of the Act; however, person-as-a-whole benefits are addressed in section 8(d)(2) of
the Act.
6
2014 IL App (1st) 130297WC¶ 18 The claimant sought a review of the arbitrator’s decision before the Commission. On
November 2, 2011, the claimant filed a petition to supplement his prayer for relief to include a
request for wage differential benefits under section 8(d)(1) of the Act. On December 28, 2011,
the Commission denied the claimant's petition. On May 4, 2012, the Commission modified the
arbitrator's decision, increasing the claimant’s PPD benefits to 35% loss of use of a person as a
whole. In its decision, the Commission agreed with the arbitrator that the claimant had failed to
prove he was permanently and totally disabled. Further, the Commission agreed that both Dr.
Chmell's and Blumenthal's opinions lacked credibility because they did not acknowledge that the
FCE demonstrated that the claimant could work at a sedentary demand level and that the
evaluator noted evidence of symptom magnification. The Commission did not comment on the
claimant's eligibility for wage differential benefits.
¶ 19 The claimant sought judicial review of the Commission's decision in the circuit court of
Cook County. On January 10, 2013, the circuit court confirmed the Commission's decision. The
claimant now appeals.
¶ 20 The claimant first argues that the Commission's finding that he was permanently partially
disabled instead of permanently totally disabled is against the manifest weight of the evidence.
We disagree.
¶ 21 The question of whether a claimant is permanently and totally disabled is one of fact to
be resolved by the Commission, and its resolution of the issue will not be disturbed on appeal
unless it is against the manifest weight of the evidence. Ceco Corp. v. Industrial Comm'n, 95 Ill.
7
2014 IL App (1st) 130297WC2d 278, 288-89, 447 N.E.2d 842 (1983). For a finding of fact to be contrary to the manifest
weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v.
Industrial Comm'n, 228 Ill. App.3d 288, 291, 591 N.E.2d 894 (1992). Whether a reviewing court
might reach the same conclusion is not the test of whether the Commission's determination of a
question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test
is whether there is sufficient evidence in the record to support the Commission's determination.
Benson v. Industrial Comm'n, 91 Ill.2d 445, 450, 440 N.E.2d 90 (1982).
¶ 22 In Ceco, the supreme court held that:
“[A]n employee is totally and permanently disabled when he ‘is unable to make
some contribution to the work force sufficient to justify the payment of wages.’
[Citations]. The claimant need not, however, be reduced to total physical incapacity
before a permanent total disability award may be granted. [Citations]. Rather, a person is
totally disabled when he is incapable of performing services except those for which there
is no reasonable stable market. [Citation].” Ceco, 95 Ill. 2d at 288-89.
¶ 23 Alternatively, if a claimant's disability is "not so limited in nature that he is not obviously
unemployable, or if there is no medical evidence to support a claim of total disability, to be
entitled to PTD benefits under the Act, the claimant has the burden of establishing the
unavailability of employment to a person in his circumstances; that is to say that he falls into the
'odd-lot' category." Ameritech Servs., Inc. v. Illinois Workers' Comp. Comm'n, 389 Ill. App. 3d
191, 203-04, 904 N.E.2d 1122, 1133 (2009). The claimant can satisfy his burden of proving that
he falls into the “odd-lot” category by (1) showing diligent but unsuccessful attempts to find
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2014 IL App (1st) 130297WCwork or (2) by showing that he will not be regularly employed in a well known branch of the
labor market. Id.¶ 24 Here, we cannot find that the Commission's decision that the claimant was not
permanently and totally disabled is against the manifest weight of the evidence. The FCE
demonstrated that the claimant was able to perform at a sedentary physical demand, and Dr.
Chmell's opinion, which he stated was based on the FCE, contradicted the very clear conclusions
of the FCE. Further, neither Dr. Chmell nor Blumenthal mentioned the evidence of the
claimant's symptom magnification noted by the FCE evaluator. The Commission, having found
the opinions of Dr. Chmell and Blumenthal unpersuasive, was left to consider: the FCE report;
Conway's report noting several sedentary positions, including administrative "desk" jobs in a
variety of industries, that were suitable for the claimant; the April 28, 2008, medical record of
Dr. Slack, who released the claimant to sedentary work; and the testimony of the claimant
himself, who the Commission found lacked credibility. The Commission also found the
claimant's job search was "unimpressive" as he applied to companies that were not hiring. Thus,
the evidence supports the Commission's determination that the claimant was not permanently
and totally disabled under either a medical or an "odd-lot" theory. Accordingly, we will not
disturb the Commission's finding that the claimant was permanently and partially disabled.
¶ 25 In an alternative argument, the claimant asserts that he should have been awarded wage
differential benefits under section 8(d)(1) of the Act instead of the award for 35% loss of the
person as a whole under section 8(d)(2) of the Act. The City argues that the claimant is not
entitled to an award pursuant to section 8(d)(1) because he "did not present evidence supporting
a wage-differential award." Although we render no opinion on whether the claimant is entitled
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2014 IL App (1st) 130297WCto an award under section 8(d)(1), we conclude that the Commission should have decided the
issue on the merits.
¶ 26 As noted earlier, the claimant filed a petition to supplement the prayer for relief in the
statement of exceptions he filed before the Commission to raise the alternative argument of his
entitlement to an award of wage differential benefits. That petition was denied, and the
Commission never addressed the wage-differential issue on the merits. However, section 19(e)
of the Act provides that the Commission shall "review the decision of the Arbitrator and all
questions of law or fact which may appear from the statement of facts or transcript of evidence."
820 ILCS 305/19(e) (West 2006). We believe that the question of the claimant's entitlement to
an award under section 8(d)(1) appears from the evidence of record in this case.
¶ 27 The Act provides for various types of compensation. Section 8(d) of the Act specifies two
distinct types of compensation. Section 8(d)(1) involves a wage-differential award (820 ILCS
305/8(d)(1) (West 2006)), and section 8(d)(2) involves a percentage-of-the-person-as-a-whole
award (820 ILCS 305/8(d)(2) (West 2006)). Our supreme court has expressed a preference for
wage-differential awards over scheduled awards. See Gallianetti v. Industrial Comm'n, 315 Ill.
App. 3d 721, 727, 734 N.E.2d 482, 487 (2000) (citing General Electric Co. v. Industrial
Comm'n, 89 Ill.2d 432, 438, 433 N.E.2d 671 (1982)). "As a general matter, section 8(d)(2)
applies to those cases in which a claimant suffers injuries that partially incapacitate him from
pursuing the usual and customary duties of his line of employment, but do not cause him to
suffer an impairment of earning capacity." Gallianetti, 315 Ill. App. 3d at 728-29. Section
8(d)(2) may also apply in circumstances where a claimant suffers an impairment of earning
capacity but waives his right to recover under section 8(d)(1). Id.- 10 -
2014 IL App (1st) 130297WC¶ 28 To qualify for a wage differential award, the claimant must prove a partial incapacity that
prevents him from pursuing his usual and customary line of employment and an impairment of
earnings. In this case, evidence of both appears in the record. The opinions of Dr. Chmell and
Blumenthal along with the results of the claimant's FCE all support the proposition that the
claimant is incapacitated to a level which prevents him from pursuing his usual and customary
employment for the City. On the issue of earnings impairment, the Commission fixed the
claimant's average weekly wage at $1,145.35, and Conway, the City's own witness, fixed the pay
for positions appropriate for the claimant's present condition between $8 and $20 per hour.
¶ 29 Nothing in the record suggests that the claimant explicitly waived his right to a wage
differential award. Nevertheless, the City argues that he waived his right to an award under
section 8(d)(1) by failing to introduce evidence in support of a wage differential award before the
arbitrator. Gallianetti, 315 Ill. App. 3d at 729; Freeman United Coal Mining Co. v. Industrial
Comm'n, 283 Ill. App. 3d 785, 791, 670 N.E.2d 1122 (1996). However, on the issue of the
claimant having failed to present "any evidence regarding his entitlement to a wage differential
award" (Gallianetti, 315 Ill. App. 3d at 729), our reading of the record discloses that the claimant
introduced evidence of his incapacitation and the amount he was earning at the time of his injury,
and the City supplied evidence regarding the claimant's post-accident earning capacity.
¶ 30 As the record discloses an issue concerning the propriety of a wage differential award, we
believe that the Commission was obliged to resolve the question, especially in the face of the
claimant's petition requesting such alternate relief. We, therefore, reverse that portion of the
circuit court's judgment which confirmed the Commission's award of PPD benefits for 35% loss
of use of a person as a whole, vacate the Commission's PPD award, and remand the matter to the
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2014 IL App (1st) 130297WCCommission's with directions to decide the claimant's entitlement to a wage differential award on
the merits. We wish to be clear that we are not instructing the Commission on the conclusion it
should reach on remand, only that it should decide the issue. In the event that Commission
determines that the claimant is entitled to a wage differential award, it should make the award.
If, on the other hand, the Commission decides that he is not entitled to a wage differential ward
under section 8(d)(1) of the Act, it is directed to reinstate its award of PPD benefits for 35% loss
of use of a person as a whole under section 8(d)(2).
¶ 31 Based upon the foregoing analysis, we: reverse that portion of the circuit court's
judgment which confirmed the Commission's award of PPD benefits for 35% loss of use of a
person as a whole; affirm the circuit court’s judgment in all other respects; vacate that portion of
the Commission’s decision which awarded the claimant PPD benefits pursuant to section 8(d)(2)
of the Act; and remand this matter back to the Commission with directions.
¶ 32 Circuit court judgment affirmed in part and reversed in part.
¶ 33 Commission decision vacated in part and cause remanded to the Commission.
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