Zoie, LLC v. Illinois Workers' Compensation Comm'n ( 2020 )

2020 IL App (5th) 200161WC-U
No. 5-20-0161WC
Order filed December 18, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION
______________________________________________________________________________
ZOIE, LLC, ) Appeal from the Circuit Court
) of Madison County.
Appellant, )
)
v. ) No. 19-MR-849
)
THE ILLINOIS WORKERS’ )
COMPENSATION COMMISSION, et al. ) Honorable
) David W. Dugan,
(Gregory Buckner, Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in
the judgment.
ORDER
¶1 Held: The Illinois Workers’ Compensation Commission’s finding that the current
condition of ill-being of claimant’s low back was causally connected to his work
accident of September 28, 2017, is not against the manifest weight of the evidence.
¶2 Respondent, Zoie, LLC, appeals from an order of the circuit court of Madison County
confirming a decision of the Illinois Workers’ Compensation Commission (Commission). The
Commission granted benefits to claimant, Gregory Buckner, pursuant to the Workers’
2020 IL App (5th) 200161WC-U
Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2016)), finding that claimant sustained his
burden of proving that the current condition of ill-being of his low back was causally connected to
a work accident on September 28, 2017. On appeal, respondent challenges the Commission’s
causation finding, arguing that the grounds cited by the Commission in support thereof are
contradicted by the documentary evidence and witness testimony. We affirm.
¶3 I. BACKGROUND
¶4 Claimant filed an application for adjustment of claim on October 10, 2017, alleging injuries
to his back and body as a whole arising from an accident on September 28, 2017, while working
for respondent. An arbitration hearing on claimant’s application was held on April 16, 2018, before
arbitrator Nancy Lindsay pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2016)).
The issues in dispute included accident, causal connection, temporary total disability (TTD),
medical expenses, and prospective medical care. The following factual recitation is taken from the
evidence adduced at the arbitration hearing.
¶5 A. Accident
¶6 Claimant testified that he began working for respondent as a laborer in October 2016.
Claimant’s job involved heavy labor requiring him to shovel and work with concrete. Claimant
was injured on September 28, 2017, when he was struck by the bucket of a skid-steer loader at
work. Claimant was 41 years old at the time of the accident.
¶7 Regarding the details of the accident, claimant testified that his supervisor, Edward
Everding, directed him to dig out some rock. As claimant was doing so, Everding was operating a
skid-steer loader. Claimant testified that the bucket on the skid-steer loader “swung” and hit him
in the back, knocking him down to one knee. The impact left a mark of diesel grease across the
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back of his shirt. Claimant did not seek medical treatment immediately after the accident and was
able to finish his shift that day. Later that evening, Everding texted claimant to apologize and to
see how he was doing. Claimant responded that he was alright. Claimant went to work the day
after the accident (a Friday) and worked his entire shift. Claimant reported to the emergency room
on Sunday, October 1, 2017. After claimant returned from the emergency room, he sent a text
message to Everding stating that his back was “killing” him and that he needed to rest the next
day. On October 2, 2017, Everding asked claimant if he would be “alright for tomorrow.” Claimant
responded in the affirmative. Claimant worked full shifts on the Tuesday, Wednesday, and
Thursday after the accident. Claimant did not return to work for respondent after Thursday,
October 5, 2017.
¶8 B. Pre-Accident Medical History
¶9 Claimant testified that he had a preexisting history of back problems. Claimant first sought
treatment for his back in 2010. On November 2, 2010, claimant presented to Dr. Michael Klein
with low-back pain for four weeks. Claimant denied radiation of pain to his lower extremities. X
rays were negative. Dr. Klein diagnosed a low-back strain and prescribed Naprosyn.
¶ 10 Almost five years later, on October 20, 2015, claimant presented to the emergency room
with low-back pain. Claimant denied radiation of pain to the legs. The note of that visit states that
“the onset of mid lower back pain was a year ago after working and lifting on the job” and that
claimant “believes that repetitive movements and lifting caused the pain.” However, at the
arbitration hearing, claimant disputed that he hurt his back at work in October 2015 because of
repetitive movements. On October 27, 2015, claimant underwent a lumbar MRI at Twin Rivers
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MRI Center. The MRI showed facet hypertrophy causing mild foraminal stenosis at L4-L5 and
mild-to-moderate foraminal stenosis at L5-S1 with early degenerative disc desiccation at L5-S1.
¶ 11 On December 25, 2015, claimant again presented to the emergency room with a complaint
of low-back pain radiating to the right leg. Claimant indicated that the onset of the pain was gradual
and occurred over six months, with the most recent flare up occurring a week before the visit.
Claimant rated the intensity of the pain at 10/10 and reported difficulty with walking. Claimant
was diagnosed with chronic low-back pain, prescribed pain medication, and instructed to follow
up with an orthopedic surgeon. Claimant testified that he did not follow up with an orthopedic
surgeon because he could manage the pain.
¶ 12 On December 31, 2015, claimant presented to Dr. Madhusudan Vallala for chronic back
pain without radiation to the legs. Claimant denied any injury at that time. He was taking
hydrocodone with some relief of back pain. His MRI was not available for review. Claimant
requested a referral to pain management but did not follow through.
¶ 13 On January 20, 2016, claimant saw Monika Krupska-Buckley, a physician’s assistant in
the office of Dr. Yusuf Mohyuddin, claimant’s primary-care physician. At that time, claimant
complained of “constant” 10/10 back pain with “intermittent” radiation along the posterior aspect
of the right leg into the knee. He was using Vicoprofen for relief. He told Krupska-Buckley that
he had a seasonal job at an asphalt company and wanted to recover from the pain and return to
work. Krupska-Buckley reviewed the MRI findings of October 27, 2015, and discussed treatment
options. Claimant wanted to start with physical therapy and possibly a TENS unit. He was also
given information on medical branch blocks and radiofrequency ablation. On February 2, 2016,
claimant was initially evaluated by physical therapy for 10/10 low-back pain with occasional
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radiation into the right leg. Claimant attended nine therapy sessions. On March 10, 2016, claimant
self discharged from physical therapy. At that time, the therapist documented that claimant was
making some progress, especially with his back pain. Claimant told the physical therapist that he
thought his back was doing better but after being called to work for tree removal he could not
move without pain.
¶ 14 Claimant last treated with Dr. Mohyuddin’s office in July 2017. Claimant established
primary care with Dr. Stephen Schuman on September 18, 2017. At his initial consultation with
Dr. Schuman, claimant reported various issues, including pain in the lower midline of the back
with radiation down the right leg and a “pinched nerve” in the right hip. Dr. Schuman’s records
reflect that claimant was taking Vicoprofen, Goody’s Powder, and Ambien. Dr. Schuman noted
that claimant’s functional status was limited by back and joint pain, but claimant denied telling
this to Dr. Schuman. Claimant testified that this was the only time he saw Dr. Schuman prior to
the accident.
¶ 15 C. Post-Accident Medical Treatment
¶ 16 On October 1, 2017, claimant went to the emergency room at St. Luke’s Hospital. Claimant
reported that three days earlier, he was hit in the right lower lumbar and sacral area by a skid-steer
loader bucket at work. Claimant’s chief complaint was low-back pain with some radicular pain
down the back of the right hamstring to the knee. Claimant was ambulatory but reported some pain
with walking. An X ray of the lumbar spine was unremarkable. The physician diagnosed a
lumbosacral strain and prescribed Flexeril and Motrin. Claimant was instructed to follow up with
his primary-care doctor and to see a back specialist if he continued to experience radicular
symptoms. On October 4, 2017, claimant presented to Dr. Schuman. Dr. Schuman documented
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that claimant had increased pain and a reduction of functionality secondary to back pain. Dr.
Schuman diagnosed right low-back pain with sciatica and placed claimant off work until October
9, 2017.
¶ 17 On October 9, 2017, claimant saw Dr. Matthew Gornet. At that time, claimant reported
“low back pain to both sides, both buttocks, both hips, but particularly the right buttock, right hip
and down his right leg to his knee with intermittent symptoms in his left leg.” Claimant stated that
his symptoms were “constant and made worse with bending, lifting, prolonged sitting or standing.”
Claimant related that the current level of severity in his symptoms began on September 28, 2017,
when he was struck in the back and knocked down by the bucket of a skid-steer loader driven by
his supervisor. Claimant reported a prior history of low-back pain two years earlier that was not
related to work. Claimant told Dr. Gornet that he had physical therapy, responded well, and had
been working full duty without restrictions as a laborer until the accident at issue.
¶ 18 Dr. Gornet ordered an MRI of the lumbar spine. The MRI was taken at MRI Partners of
Chesterfield. Dr. Gornet interpreted the MRI as revealing “a strong suggestion” of an annular tear
and disc injury at L5-S1, “[a] subtle suggestion” of an annular tear at L4-L5, and foraminal stenosis
right greater than left at L5-S1. Dr. Gornet’s diagnosis was a disc injury at L5-S1 and potentially
at L4-L5 and aggravation of preexisting foraminal stenosis at L5-S1. He referred claimant for
physical therapy and released claimant to work light duty with a 10-pound lifting restriction, no
repetitive bending, no repetitive lifting, and the ability to alternate between sitting and standing as
needed. Dr. Gornet opined that claimant’s current symptoms were causally related to his
September 28, 2017, work accident.
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¶ 19 Claimant began a course of physical therapy at Multicare Specialists on October 19, 2017.
The initial intake note indicates that claimant’s chief complaint was low-back pain with pain in
the lower extremities bilaterally, right greater than left. Claimant called Dr. Gornet’s office on
November 13, 2017, and spoke to Allyson Joggerst, a physician’s assistant. Claimant reported that
he had been undergoing physical therapy, but he still experienced “low back pain to both sides,
both buttocks and both hips, especially in the right buttock, right hip and down his right leg to his
knee with intermittent symptoms in his left leg.” Claimant was referred to Dr. Helen Blake for
steroid injections.
¶ 20 Claimant followed up with Dr. Gornet on December 18, 2017. He reported that the
injections provided only temporary relief. Dr. Gornet ordered a discogram at L4-L5 and L5-S1,
post discogram CT scan, and an MRI spectroscopy. The discogram was negative at L4-L5, but
there was a posterior central annular tear with concordant 8/10 pain at L5-S1. The post-discogram
CT showed bilateral full-thickness annular tears at L5-S1 with contrast extravasation into the
outermost annular fibers and minimally into the epidural space and a circumferential disc bulge at
L4-L5 resulting in mild bilateral foraminal stenosis, but no central canal stenosis. Dr. Gornet noted
that the positive discogram at L5-S1 was consistent with claimant’s subjective complaints. Dr.
Gornet stated that claimant’s options were to live with the condition or have surgery consisting of
a disc replacement at L5-S1 versus a fusion. Claimant indicated that he wanted to proceed with
surgery.
¶ 21 At respondent’s request, claimant saw Dr. Daniel Kitchens on January 12, 2018, for an
independent medical examination. Dr. Kitchens interviewed claimant, conducted a physical
examination, reviewed medical records dated between November 2010 and December 2017, and
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compared various diagnostic films. Dr. Kitchens prepared a report of his findings dated January
12, 2018.
¶ 22 Claimant told Dr. Kitchens that he was injured at work on September 28, 2017, when he
was hit in the back with a skid-steer loader bucket. Claimant experienced some back discomfort
the day of the accident but was able to complete his shift and work a full shift the following day
(a Friday). Claimant’s pain worsened over the weekend, so he sought treatment at St. Luke’s
Hospital. Claimant did not work on the Monday after the accident, but did work on Tuesday,
Wednesday, and Thursday. Claimant did not report to work on Friday because of increased pain
in the lower back radiating down the right leg to the back of the knee. As of the date of Dr.
Kitchens’s examination, claimant continued to experience pain in the lower back radiating down
the right leg to the back of the knee as well as occasional pain in the left buttock and down to the
back of the left knee. Claimant submitted a pain diagram to Dr. Kitchens in which he rated his pain
at 10 on a 10-point scale. Claimant reported that he had undergone conservative treatment without
significant improvement. Claimant reported a prior history of “stiffness” in his back and a “pinched
nerve” in his right hip, but denied a prior history of leg pain. Claimant told Dr. Kitchens that he
was taking Flexeril and Tylenol #4, but denied taking narcotics for his back pain. Claimant denied
any prior injuries or time off work due to pain.
¶ 23 Upon physical examination, Dr. Kitchens noted that claimant had a good range of motion
of his lumbar spine but reported some discomfort into his right lower back when twisting to the
right. Dr. Kitchens documented a decreased range of motion with extension and minimal pain with
flexion of the lumbar spine. Straight-leg raising was negative bilaterally. According to Dr.
Kitchens’s summary of the available medical records he reviewed, claimant had a pre-accident
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history of back pain with occasional radiation into the right leg. The medical records also indicated
that claimant was taking narcotics to treat this pain. The medical notes dated after the accident
indicate that claimant complained of pain in the lower back radiating down the right leg to the back
of the knee as well as intermittent symptoms in his left leg. Dr. Kitchens reviewed MRIs of the
lumbar spine dated October 27, 2015 (pre-accident), and October 9, 2017 (post-accident), and
found no significant differences between the films.
¶ 24 Dr. Kitchens’s diagnoses were lumbar degenerative disc disease at L5-S1 with
restrolisthesis and foraminal stenosis as well as chronic low-back and radicular pain. Relying on
the available medical records, Dr. Kitchens opined that claimant’s condition was preexisting and
that the work incident of September 28, 2017, neither caused any diagnosis with regard to his low
back, including degenerative disc disease, nor aggravated any preexisting condition in claimant’s
low back. Dr. Kitchens further opined that the care claimant received after September 28, 2017,
was not related to, or caused by, the alleged work incident, but rather was for his preexisting
condition of degenerative disc disease at L5-S1. In addition, Dr. Kitchens opined that claimant was
not in need of additional medical treatment with regard to his low back as it related to the alleged
work incident of September 28, 2017, and that claimant could return to work without restrictions.
Finally, Dr. Kitchens, noting that claimant had failed conservative management for his condition
of lumbar degenerative disc disease prior to September 28, 2017, opined that he was a surgical
candidate with regard to his lower back prior to the date of injury and that the surgery for which
he is now a candidate is the same procedure that would have been performed prior to the date of
the accident.
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¶ 25 On February 22, 2018, and March 15, 2018, Dr. Kitchens authored addendums to his
January 12, 2018, report after receiving additional medical records. Dr. Kitchens indicated that a
review of the additional medical records did not change his opinions.
¶ 26 Claimant last saw Dr. Gornet on April 9, 2018. Dr. Gornet reiterated his opinion that
claimant’s lumbar condition was related to his work accident, stating that the accident rendered a
disc injury at L5-S1 symptomatic and aggravated claimant’s preexisting facet arthropathy. Dr.
Gornet further noted that he conducted a search on the Illinois Prescription Monitoring Program
website and did not find any evidence of claimant taking narcotics prior to the alleged accident of
September 28, 2017. Further, Dr. Gornet noted that claimant brought additional medical records
with him, including “MRI reports from Twin Rivers,” physical therapy notes, and “notes from Dr.
Stephen Schuman, some of which [Dr. Gornet] already has.” Dr. Gornet wrote that there was
nothing in these additional records that would cause him to change his causation opinion.
¶ 27 D. Testimony of Edward Everding
¶ 28 Everding testified that he is employed by respondent as a foreman/supervisor. Prior to
working for respondent, Everding was employed by XL Contracting (XL), where he did concrete
and asphalt work. While employed by XL, Everding worked with claimant, who he characterized
as a “good employee.” When Everding left XL, he asked claimant to come work for respondent.
¶ 29 Everding testified that on September 28, 2017, he and claimant were filling trenches with
asphalt. Everding was operating a skid-steer loader. As Everding turned the vehicle, the side of the
steel bucket struck claimant. Everding exited the vehicle and asked claimant if he was okay.
Claimant responded affirmatively. Everding testified that claimant did not ask for medical
attention, “laughed at” the incident, and went back to work. After the accident, Everding noticed
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diesel fuel marks on claimant’s shirt near his right shoulder. Claimant finished his shift and
returned the next day, working his entire shift. Everding testified that claimant did not work the
Monday after the accident, but worked a full shift on Tuesday, Wednesday, and Thursday.
Everding did not notice anything unusual on those days, stating “everything was the same, he was
as he always was.”
¶ 30 Everding testified that prior to the accident, while working for both XL and respondent, he
occasionally observed claimant “hunched over.” Moreover, claimant was always complaining that
he had back problems and would occasionally lay down on the ground and stretch out during
breaks because of problems with his back. Nevertheless, Everding could not recall claimant
missing any time from work due to low-back problems prior to the September 2017 accident.
¶ 31 Everding further testified that when he sent the initial text message to claimant after the
accident, he thought he had initiated physical contact with claimant. However, the next day he had
a conversation with Jason Hasty, another worker, who indicated that claimant was getting out of
the hole and backed into the bucket of the skid-steer loader. Everding testified that he did not see
any part of claimant’s body hit the ground. Notwithstanding, Everding acknowledged that given
his vantage point, it could be possible that claimant went down on one knee.
¶ 32 E. Testimony of Jason Hasty
¶ 33 Jason Hasty testified that he works for respondent as a laborer. Previously, Hasty worked
for XL, where claimant was a coworker. Hasty had known claimant for about three years and
characterized claimant as a “good,” “dependable,” and “hard working” employee.
¶ 34 Hasty witnessed the accident. He indicated that he was about eight feet away from claimant
at the time. Hasty testified that Everding was in the skid-steer loader placing asphalt in a hole.
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Claimant was instructed to get out of the way. According to Hasty, when claimant “stepped back
out of the hole he hit the front of the bucket of the skid-steer with part of his right arm.” Hasty
testified that claimant was not knocked to the ground, but the impact left a diesel-fuel stain on
claimant’s shirt. He also acknowledged, however, that one “could barely walk up to [the bucket]
and brush against it and it would leave a big stain.” After the accident, Hasty asked claimant if he
was “OK or if he needed any kind of help or to call 911.” According to Hasty, claimant “just kind
of laughed it off,” stated that he was okay, and finished his shift for the day.
¶ 35 Hasty was aware that claimant had preexisting back problems. He noted that “[s]ometimes
[claimant] would complain saying his back hurt and then sometimes he would sit down on the
ground and lay back and stretch *** and then grab at *** his hip area.” Hasty testified that, from
time to time, claimant would also talk about his back problems when they worked at XL stating
“[s]ometimes in between trucks when we’d catch a break he would stretch his back.” When Hasty
came to work for respondent, claimant was still talking about his back problems and trying to
stretch his back on the ground.
¶ 36 F. Testimony of Virgil Knight
¶ 37 Virgil Knight testified that he worked with claimant at both XL and respondent. Knight
testified that claimant was a good, dependable employee. Knight did not see claimant’s accident.
Further, he did not see or talk to claimant after the accident. However, while working at XL, Knight
observed claimant “stretched out, laying down wanting to stretch out his back and complaining
about back pain.” Knight also saw claimant laying down and stretching while in the employ of
respondent. Knight testified that about 7 to 10 days prior to the accident, claimant told him he was
having back problems and asked Knight what he should do. Knight recommended that claimant
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see a chiropractor. Claimant, however, never mentioned that he went to a chiropractor or a doctor.
Knight also testified that he could not recall claimant ever missing work prior to the September
2017 accident.
¶ 38 G. Testimony of Ebony Buckner
¶ 39 Ebony Buckner has been married to claimant for 21 years. Buckner testified that claimant
occasionally complained about his back and sought medical treatment both before and after the
September 2017 accident. Buckner also acknowledged that claimant took narcotic pain medication
for his low back prior to September 28, 2017. According to Buckner, however, claimant’s back
had “gotten really worse” after the accident. She explained that claimant can “barely do anything
like he used to” and he is always in pain. She testified that while claimant had right leg pain prior
to his accident, he did not have left leg pain prior to the accident. Buckner also testified that
claimant never missed work because of his back prior to the accident at issue.
¶ 40 H. Deposition Testimony of Dr. Gornet
¶ 41 Dr. Gornet testified by deposition on March 26, 2018, and March 30, 2018. Dr. Gornet’s
deposition testimony closely tracked the information documented in his records of claimant’s
visits. Dr. Gornet’s diagnosis was a disc injury at L5-S1 and potential aggravation of preexisting
foraminal stenosis at L5-S1. Dr. Gornet opined that the work accident claimant described “at
minimum *** aggravated his condition of foraminal narrowing or his potential disc pathology.”
He noted that the mechanism of injury reported by claimant “could easily aggravate or cause
further injury to his disc internally.” Dr. Gornet also noted that the initial medical records from the
emergency room and claimant’s primary-care physician days after the accident were consistent
with trauma resulting in increased pain. Moreover, he testified that although he did not reference
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claimant’s 2015 MRI in his initial treatment note, he compared the 2015 film with the MRI taken
in 2017 and concluded that the more recent film shows a larger annular tear. Dr. Gornet stressed
that while claimant had a preexisting condition, he had been able to work and function prior to the
accident.
¶ 42 Dr. Gornet reviewed Dr. Kitchens’s report. Dr. Gornet could not explain Dr. Kitchens’s
conclusion that claimant’s accident did not constitute an aggravation of his underlying condition
given that he sought medical treatment, reported a change in symptoms, and required subsequent
treatment. Dr. Gornet reasoned that the fact that claimant developed bilateral radicular pain, which
was not present prior to the accident, underscored the fact that his condition changed after the
accident at work. In further review of Dr. Kitchens’s report, Dr. Gornet noted that while
degeneration can cause annular tears and herniations, it does not mean that degeneration caused
the tears in this situation. Dr. Gornet opined that mechanical load caused the disc pathology, not
degeneration. Finally, Dr. Gornet disagreed with Dr. Kitchens’s opinion that claimant was a
surgical candidate prior to the accident. He explained that the need for surgery is based on a
patient’s symptoms, quality of life, and failure of conservative care. Prior to the accident, claimant
benefited from conservative care and was able to work full duty.
¶ 43 On cross-examination, Dr. Gornet testified that he reviewed an MRI from October 27,
2015. He did not know when he received the film and did not believe he referenced the MRI in the
treatment notes of claimant’s visits. Dr. Gornet also reviewed other medical records from before
the accident. He had a record from Dr. Schuman from 10 days before the accident, but did not
mention that record in his treatment notes. Dr. Gornet testified that, if it had been demonstrated
that claimant could not work his job because of low-back pain prior to the accident, it would
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support that claimant had an active significant problem. However, he did not know whether that
would change his opinions. Dr. Gornet explained that every laborer has flares of back pain, but the
critical issue is whether he or she could continue to work.
¶ 44 Dr. Gornet further testified on cross-examination that he reviewed Dr. Kitchens’s IME
report and the records therein. Dr. Gornet stated that there was nothing in those records that
changed his opinion in this case. Dr. Gornet testified that, to the extent that his medical file was
missing certain medical records, Dr. Kitchens summarized those records in his report and his
causation opinion therefore took those records into account. Dr. Gornet acknowledged that he
probably did not have those records when he made his initial causation opinion on October 9,
2017, but noted that he rendered a causation opinion on multiple occasions.
¶ 45 I. Deposition Testimony of Dr. Kitchens
¶ 46 Dr. Daniel Kitchens, a neurosurgeon, testified by deposition on April 4, 2018. Dr.
Kitchens’s deposition testimony closely tracked the information documented in his reports. Dr.
Kitchens testified that he reviewed medical records dating back to November 2, 2010. Dr. Kitchens
testified that Dr. Gornet’s medical record dated October 9, 2017, did not reference that claimant
had seen Dr. Schuman on September 18, 2017, undergone an MRI of his low back prior to
September 28, 2017, or taken narcotics prior to September 28, 2017. Dr. Kitchens did not see
anything in Dr. Gornet’s file that referenced that claimant’s function had been limited at work prior
to September 28, 2017, because of pain. Dr. Kitchens reviewed MRIs of claimant’s back dated
October 27, 2015, and October 9, 2017. Dr. Kitchens did not see any evidence of a disc herniation
at any level on either film. Additionally, he did not see any medically significant differences upon
comparison of the two MRIs.
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¶ 47 Dr. Kitchens’s diagnosis with regard to claimant’s low back was “a history of chronic
lower-back pain, and *** lumbar degenerative disc disease at L5-S1.” In response to a question as
to his diagnosis, if any, for claimant’s low back prior to the September 28, 2017, accident, Dr.
Kitchens stated “lumbar degenerative disc L5-S1, foraminal stenosis as noted on the MRI from
2015, [and] history of chronic lower-back pain.” Dr. Kitchens opined that none of these diagnoses
were related to or associated with the alleged work accident of September 28, 2017. Dr. Kitchens
further opined that the alleged industrial accident did not aggravate or exacerbate any low-back
condition that existed prior to September 28, 2017, and that the alleged accident did not cause a
need for the treatment claimant received on or after September 28, 2017. Dr. Kitchens further
opined that claimant was a surgical candidate prior to the accident based on the diagnosis of
chronic back and right leg pain, lumbar degenerative disc disease, foraminal stenosis at L5-S1, and
the failure of conservative measures, i.e., pain management and narcotic pain medication. Dr.
Kitchens testified that the surgery recommended for which claimant was a candidate prior to
September 28, 2017, is the same type of surgery that he is a candidate for after the alleged accident
on September 28, 2017. In Dr. Kitchens’s view, claimant was symptomatic and in need of
treatment other than pain medication at least as of September 18, 2017, 10 days prior to the
accident.
¶ 48 Regarding the discogram performed by Dr. Gornet, Dr. Kitchens opined that discograms
are “unreliable and *** subject to observer bias” because they are dependent on the technique of
the practitioner and rely on the complaints of the patient. Dr. Kitchens cited an article that indicated
that annular tears are a normal consequence of lumbar degenerative disc disease. Comparing an
annular tear to a disc herniation, Dr. Kitchens explained that the former is a minor defect within
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the annulus of the disc while the latter is a complete disruption of the annulus with protrusion of
the nucleus from its natural space.
¶ 49 On cross-examination, Dr. Kitchens acknowledged that people who perform heavy labor
experience aches and pains from time to time. However, he did not believe that heavy labor affects
the development of degenerative disc disease. In the records he received, Dr. Kitchens
acknowledged that there was no mention of back pain between November 2, 2010, and October
20, 2015, and on November 2, 2010, claimant did not report radiation into the legs.
¶ 50 Dr. Kitchens also acknowledged that prior to the accident, claimant did not mention
constant radiating pain or pain in the left leg, he had not been referred for surgery, and he was
capable of working full duty as a laborer. He acknowledged that Dr. Schuman saw claimant both
before and after the accident and he indicated claimant had increased pain and reduced
functionality after the accident. Dr. Kitchens also testified that every medical provider that has
seen claimant since being struck by the skid-steer loader has documented increased back pain and
pain down the right or left leg. Further, he acknowledged that claimant had not returned to his
baseline since the injury occurred and that there can be an increase in pain without a change in
MRI findings. Finally, Dr. Kitchens opined that claimant’s post-accident treatment, except for the
emergency-room visit and follow-up with his primary-care physician, was for the diagnosis of
degenerative disc disease and not related to the accident.
¶ 51 J. Claimant’s Testimony
¶ 52 Claimant acknowledged that he took narcotic pain medication for his back prior to the
accident at work and that he would “stretch out” at work to alleviate his pain. He denied telling
Dr. Kitchens that he did not take narcotic pain medication. As of the hearing, claimant testified
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that he no longer took narcotic pain medication because Dr. Gornet had forbidden it. Claimant
further acknowledged that he previously had difficulty sleeping and with prolonged
sitting/standing due to low-back pain. Notwithstanding, while claimant admitted to previous right-
sided back and leg pain, he testified that he never had left leg pain. Moreover, claimant explained
that the accident worsened his condition and he could not “continue to labor with the pain” he was
experiencing. Claimant also testified that he never filed a workers’ compensation claim previously
and never lost time at work due to back or leg pain.
¶ 53 K. Arbitrator’s Decision
¶ 54 The arbitrator concluded that claimant sustained an accident arising out of and in the course
of his employment with respondent on September 28, 2017. Nevertheless, the arbitrator denied
benefits on the basis that claimant failed to sustain his burden of proving that the current condition
of ill-being of his lumbar spine was causally related to the accident. In support of this finding, the
arbitrator cited credibility issues with claimant, particularly that the history claimant provided to
Dr. Gornet was “faulty and incorrect.” In this regard, the arbitrator noted that Dr. Gornet’s records
do not reflect that claimant told him that he had been taking narcotics, had undergone an MRI of
his low back prior to the work accident, had requested a referral for pain management for low-
back and right-leg pain, had been referred to an orthopedic surgeon for his low-back and right-leg
pain following an emergency-room visit on December 25, 2015, or had been seen by Dr. Schuman
10 days before the accident with complaints of low-back pain. Given this record, the arbitrator
found that Dr. Gornet’s opinion on causation was unpersuasive because it was based on inaccurate
information from claimant. The arbitrator acknowledged that claimant was working full duty prior
to the accident but discounted this fact because he was on pain medication and frequently had to
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lie down or rest due to ongoing complaints. Finally, the arbitrator determined that the causation
opinion of Dr. Kitchens was entitled to more credit because he was the only physician who had
access to all the available medical information that predated the work accident.
¶ 55 L. Commission’s Decision
¶ 56 Claimant sought review of the arbitrator’s decision with the Commission. A majority of
the Commission reversed the decision of the arbitrator, finding that claimant sustained his burden
of proving the current condition of ill-being of his lumbar spine was causally related to the work
accident. In support of its finding, the Commission acknowledged that claimant had a significant
preexisting condition of ill-being of his lumbar spine prior to the September 28, 2017, accident.
The Commission observed, however, that prior to the accident, claimant received only
conservative treatment, there was no recommendation for surgery, claimant was able to work in
his heavy-labor job without restrictions, and claimant did not miss any work due to his back issues.
In addition, the Commission determined that the opinion of Dr. Kitchens was “somewhat
inconsistent and *** not as persuasive as [the opinion] of Dr. Gornet.” In this regard, the
Commission noted that Dr. Kitchens testified that the accident did not exacerbate or aggravate
claimant’s condition and that none of claimant’s post-accident treatment was reasonable and
necessary. However, he later conceded that the initial post-accident visit to the emergency room
was a legitimate evaluation of claimant’s injury. The Commission also observed that, after the
accident, claimant consistently reported a new symptom of bilateral pain radiating into the legs
and an inability to function at the level he did prior to the accident. Further, a week after the
accident, Dr. Schuman noted that claimant was experiencing increased pain and a reduction in
functional ability.
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¶ 57 The Commission acknowledged that there were some discrepancies in the testimony about
the severity of the contact between the skid-loader bucket and claimant. However, the Commission
noted that all the witnesses admitted that claimant came into contact with the bucket. Moreover,
the Commission concluded that the fact that claimant had significant preexisting lumbar pathology
made it more likely that even a relatively minor impact could result in a significant increase in
symptomology necessitating treatment, leading to claimant being taken off work, and resulting in
Dr. Gornet’s recommendation for surgery.
¶ 58 Given its finding, the Commission awarded claimant 27-6/7 weeks of TTD benefits (see
820 ILCS 305/8(b) (West 2016)) and $45,382.40 as reasonable and necessary medical expenses
(see 820 ILCS 305/8(a) (West 2016)). In addition, the Commission ordered respondent to authorize
and pay for prospective medical treatment recommended by Dr. Gornet to treat claimant’s lumbar
spine (see 820 ILCS 305/8(a) (West 2016)). Finally, the Commission remanded the matter to the
arbitrator for further proceedings pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327 (1980).
¶ 59 Commissioner Simpson dissented. She would have affirmed and adopted the decision of
the arbitrator, which she characterized as well reasoned.
¶ 60 M. Circuit Court’s Decision
¶ 61 Thereafter, respondent sought judicial review of the Commission’s decision in the circuit
court of Madison County. Following briefing and argument, the circuit court issued an order
confirming the decision of the Commission. Respondent filed a timely notice of appeal.
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¶ 62 II. ANALYSIS
¶ 63 A. Motion to Strike
¶ 64 In its reply brief, respondent contends that the statement of facts in claimant’s brief violates
Illinois Supreme Court Rules 341(h)(6) and 341(i) (eff. May 25, 2018) in that it “mischaracterizes
facts,” “unfairly asserts arguments and comments,” and is not supported by citation to the record
on appeal. Respondent moves to strike claimant’s statement of facts or his brief in its entirety. We
do not find the alleged violations serious enough to hinder our review. Accordingly, we deny the
motion to strike. Nevertheless, we will disregard any inappropriate statements.
¶ 65 B. Causation
¶ 66 Turning to the merits, respondent argues that the Commission’s finding that the current
condition of ill-being of claimant’s low back is causally connected to his September 28, 2017,
work accident is against the manifest weight of the evidence. According to respondent, the grounds
cited by the Commission in support of its causation finding are contradicted by the documentary
evidence and witness testimony.
¶ 67 The purpose of the Act is to protect an employee from any risk or hazard which is peculiar
to the nature of the work he or she is employed to do. Hosteny v. Illinois Workers’ Compensation
Comm’n, 397 Ill. App. 3d 665, 674 (2009). To recover compensation under the Act, an employee
must prove by a preponderance of the evidence all elements of his or her claim, including that he
or she sustained an industrial injury and that a causal connection exists between the injury and his
or her employment. Boyd Electric v. Dee, 356 Ill. App. 3d 851, 860 (2005). An occupational
activity need not be the sole or principal causative factor, as long as it was a causative factor in the
resulting condition of ill-being. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 205 (2003);
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Freeman United Coal Mining Co. v. Industrial Comm’n, 308 Ill. App. 3d 578, 586 (1999). Whether
a causal relationship exists between a claimant’s employment and his or her condition of ill-being
is a question of fact. Certi-Serve, Inc. v. Industrial Comm’n, 101 Ill. 2d 236, 244 (1984);
Bolingbrook Police Department v. Illinois Workers’ Compensation Comm’n, 2015 IL App (3d)
130869WC, ¶ 52. It is the function of the Commission to decide questions of fact, judge the
credibility of witnesses, and resolve conflicts in the evidence. Hosteny, 397 Ill. App. 3d at 674.
This is especially true with respect to medical issues, to which we owe heightened deference to
the Commission because of the expertise it possesses in the medical arena. Long v. Industrial
Comm’n, 76 Ill. 2d 561, 566 (1979). As a reviewing court, we cannot reject or disregard
permissible inferences drawn by the Commission simply because different or conflicting
inferences may also reasonably be drawn from the same facts, nor can we substitute our judgment
for that of the Commission on such matters unless the Commission’s findings are against the
manifest weight of the evidence. Zion-Benton Township High School District 126 v. Industrial
Comm’n, 242 Ill. App. 3d 109, 113 (1993). A decision is against the manifest weight of the
evidence only if an opposite conclusion is clearly apparent. Ravenswood Disposal Services v.
Illinois Workers’ Compensation Comm’n, 2019 IL App (1st) 181449WC, ¶ 15.
¶ 68 Applying the foregoing standards, we find ample evidence to support the Commission’s
causation finding. It is undisputed that claimant suffered from preexisting problems with his
lumbar spine prior to the work accident. Claimant’s pre-accident complaints involved mainly low-
back pain with intermittent radiation to the right leg. Claimant was treated conservatively with
pain medication and physical therapy. There is no indication that claimant was prescribed surgery
or that his symptoms caused him to miss work. Indeed, when Dr. Schuman examined claimant 10
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days prior to the accident, he did not order any tests, make any referrals, or take claimant off work
because of his complaints. The accident at issue occurred on September 28, 2017, when claimant
was hit by a steel skid-steer bucket at work. Claimant was able to finish his shift the day of the
accident and work a full shift the following day. However, his pain became more severe in the
days that followed. On October 1, 2017, claimant presented to the emergency room, where he was
diagnosed with a lumbosacral strain, prescribed medication, and instructed to follow up with his
primary-care physician, Dr. Schuman. Claimant saw Dr. Schuman on October 4, 2017. Dr.
Schuman documented increased pain and a reduction in claimant’s functional status secondary to
back pain. Dr. Schuman took claimant off work until October 9, 2017. Five days after his
appointment with Dr. Schuman, claimant saw Dr. Gornet. At that time, claimant’s symptoms were
“low back pain to both sides, both buttocks, both hips, but particularly the right buttock, right hip
and down his right leg to his knee with intermittent symptoms in his left leg.” Claimant stated that
his symptoms were “constant and made worse with bending, lifting, prolonged sitting or standing.”
Claimant reported similar symptoms when he sought physical therapy in October 2017 and when
he saw Dr. Kitchens in January 2018. Dr. Gornet concluded that claimant’s current condition of
ill-being was causally connected to the work accident. Dr. Kitchens did not.
¶ 69 Based on this record, the Commission could reasonably conclude that the condition of ill-
being of claimant’s lumbar spine was aggravated or accelerated by the work accident. The
evidence establishes that after the injury the magnitude and nature of claimant’s complaints and
need for treatment changed as did his ability to perform his job. Prior to the accident, claimant
complained of low-back pain with intermittent radiation to the right lower extremity, he was
treated conservatively, and he did not miss any work due to back pain. Following the accident,
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claimant reported increased pain. In addition, he developed constant radiation of pain in the right
leg and symptoms involving the left leg, he experienced a decrease in his functional status
secondary to back pain, he was placed on work restrictions, and his treating physician
recommended surgery. Evidence in the record showing a deterioration in the claimant’s condition
coincident with an accident is sufficient to support an inference of causation. See Schroeder v.
Illinois Workers’ Compensation Comm’n, 2017 IL App (4th) 160192WC, ¶ 26 (noting that “if a
claimant is in a certain condition, an accident occurs, and following the accident, the claimant’s
condition has deteriorated, it is plainly inferable that the intervening accident caused the
deterioration”).
¶ 70 The Commission credited the causation opinion of Dr. Gornet over that of Dr. Kitchens.
The Commission concluded that Dr. Kitchens’s opinions “were somewhat inconsistent” and “not
as persuasive” as those of Dr. Gornet. There is ample evidence to support this conclusion. In this
regard, we note that despite Dr. Kitchens’s opinion that claimant’s current condition of ill-being
was not causally connected to the work accident, he acknowledged that claimant had not returned
to baseline since the September 28, 2017, accident and that claimant experienced changes in his
status since the accident. In this regard, Dr. Kitchen testified that prior to the accident, claimant
did not report constant radiation of pain into his right leg, he did not complain of left leg pain at
all, he had not been referred to surgery, and he was capable of working full duty as a laborer. The
medical records establish that, after the accident, however, claimant reported increased pain and
new symptoms involving the left leg, he experienced a decrease in his functional status secondary
to back pain, he was placed on work restrictions, and his treating physician recommended surgery.
It is true that Dr. Kitchens testified that a comparison of claimant’s 2015 and 2017 MRIs revealed
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no significant medical differences and that Dr. Kitchens opined that claimant was a candidate for
surgery even prior to the accident. Yet, Dr. Kitchens conceded that a patient can experience an
increase in pain without a change in MRI findings and that he would not recommend surgery for
a patient who can manage his or her symptoms with conservative treatment. In this case, the
evidence of record clearly suggests that, prior to the accident, claimant was able to manage his
back symptoms with conservative treatment. Given this state of the record, the Commission’s
finding that the September 28, 2017, accident aggravated claimant’s preexisting condition and
caused new symptoms was a reasonable conclusion. Stated differently, the Commission’s decision
is not against the manifest weight of the evidence because a conclusion opposite that of the
Commission is not clearly apparent.
¶ 71 Respondent nevertheless insists that the Commission’s reliance on Dr. Gornet’s opinion
was misplaced because he “did not have a proper history from [claimant] and failed to review any
and/or all the prior relevant records and a 2015 MRI.” In contrast, respondent asserts that Dr.
Kitchens “had a full and accurate medical history, reviewed all the prior medical records, and
compared a 2015 and 2017 MRI.” In support of this claim, respondent cites to claimant’s medical
records prior to September 28, 2017, and argues that that Dr. Gornet “did not know” about
numerous aspects of claimant’s medical history, including claimant’s history of prior back pain,
his visit with Dr. Schuman for low-back pain 10 days before the accident, and his use of narcotic
pain medication prior to the accident. We note initially that some of respondent’s assertions are
belied by the record. For instance, Dr. Gornet stated that he reviewed Dr. Kitchens’s report and
the records contained therein (which contained a comprehensive review of claimant’s prior
history) and that he had a record from Dr. Schuman dated 10 days before the accident. Dr. Gornet
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testified that neither the fact that claimant had episodic back pain prior to the accident nor anything
in Dr. Kitchens’s report would change his causation opinion. Moreover, claimant testified that he
told Dr. Gornet that he was taking narcotic medication. And although Dr. Gornet’s treatment note
of April 9, 2018, indicates that the state’s website on narcotics did not show any evidence of
claimant taking narcotics prior to his alleged accident of September 28, 2017, Dr. Gornet testified
that it was his understanding that claimant was taking narcotic pain medication “[i]ntermittently”
prior to the accident. We also observe that the Commission’s decision notes that the arbitrator
found that claimant “had credibility issues in not relating to Dr. Gornet the extent of his prior
lumbar condition and that he was taking narcotic pain medication.” Thus, to the extent that Dr.
Gornet did not review every single pre-injury medical record, the Commission was aware of and
accounted for this fact, apparently attributing little weight to it.
¶ 72 Respondent also asserts that Dr. Gornet’s opinion is unreliable because he did not have
access to claimant’s pre-accident MRI at the time he rendered his opinion in October 2017. Dr.
Gornet testified at his deposition that although he did not reference the 2015 MRI in his initial
progress note, he saw both the 2015 and 2017 MRIs and that a comparison of the two films
demonstrated that the more recent film shows a larger annular tear. Respondent also suggests that
Dr. Gornet’s history that claimant “responded” to physical therapy after he injured his back in
2015 is incorrect. However, a physical therapy note related to claimant’s last visit on March 10,
2016, states that claimant “was making some progress with therapy, especially with his back pain,
when he stopped coming in.” Thus, Dr. Gornet’s impression was a reasonable one based on the
record on appeal. We perceive nothing cited by respondent in its brief that compels a conclusion
that the Commission improperly credited Dr. Gornet over Dr. Kitchens.
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¶ 73 Respondent spends much effort pointing out similarities in claimant’s condition before and
after the accident. For instance, respondent asserts that claimant was treated for “10/10” pain prior
to the accident, the same level of pain described after the accident. Respondent also asserts that
prior to the accident, claimant stated that his pain was worse with standing and sitting, which is
the same complaint claimant reported after the accident. While such similarities undoubtedly exist,
there were differences as well, particularly regarding claimant’s additional symptoms in his left
leg, his ability to work, and the recommendations for conservative treatment versus surgical
intervention. See Schroeder, 2017 IL App (4th) 160192WC, ¶ 30 (finding that consistent reports
of pain before and after the accident did not compel reversal of Commission’s causation finding
where the claimant also experienced changes in her ability to work). Considering such conflicting
evidence, we cannot say that an opposite conclusion is clearly apparent.
¶ 74 Respondent also questions the severity of claimant’s left leg problems after the accident,
asserting that his reports were sporadic. Respondent notes, for instance, that when claimant
reported to the emergency room on October 1, 2017, the physician did not document any symptoms
of the left leg. Respondent also asserts that Dr. Schuman’s office note of October 4, 2017, does
not reference any left leg complaints. Further, although Dr. Gornet’s record of October 9, 2017,
references intermittent symptoms in the left leg, the majority of Dr. Gornet’s records do not
reference any left leg symptoms. While the medical notes do not consistently reference claimant’s
left-leg symptoms, we observe that claimant’s principal complaints centered on his low back and
right lower extremity. Nevertheless, the evidence was undisputed that claimant’s left leg symptoms
developed after the accident. Claimant and his wife testified as much. Further, such a history was
documented in Dr. Gornet’s initial progress note of October 9, 2017, the physical therapist’s intake
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note of October 19, 2017, Joggerst’s note of November 13, 2017, and Dr. Kitchens’s initial report
of January 12, 2018. We perceive nothing here that would render the Commission’s decision
contrary to the manifest weight of the evidence.
¶ 75 Respondent also disputes the Commission’s finding that claimant did not miss work due to
back pain prior to September 28, 2017. In support of this argument, respondent directs us to the
progress note of January 20, 2016, in which Krupska-Buckley wrote that claimant “would like to
recover from this episode of back pain in order to return to work.” Respondent, however, ignores
the previous sentence of Krupska-Buckley’s note in which she stated, “[claimant] has a seasonal
job at an asphalt company.” (Emphasis added.) In other words, to the extent these remarks could
be interpreted as indicating that claimant was not working when he saw Krupska-Buckley, the
Commission could have reasonably concluded that it was due to the seasonality of his position and
not because of his back pain. This also completely ignores the undisputed testimony of claimant,
claimant’s wife, and claimant’s coworkers that claimant did not miss work prior to the accident
due to back pain. We therefore find respondent’s reliance on this passage misplaced.
¶ 76 Respondent also suggests that the impact suffered by claimant was insufficient to cause an
injury to his low back. The Commission addressed this argument. Significantly, the Commission
noted that while there were some discrepancies in the testimony about the severity of the contact
between claimant and the skid-loader bucket, all the witnesses admitted that claimant came into
contact with the bucket. Further, the Commission reasoned that the fact that claimant had
significant preexisting lumbar pathology made it more likely that even a relatively minor impact
could result in a significant increase in symptomology necessitating treatment, leading to claimant
being taken off work, and resulting in Dr. Gornet’s recommendation for surgery. As Dr. Gornet
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explained at his deposition, “being struck by something unexpectedly can cause [a person] easily
to twist and cause a disc injury or aggravate an underlying condition.” Given this record, the
Commission could reasonably conclude that the mechanism of injury was sufficient to cause an
injury to claimant’s low back. Respondent’s attack on the Commission’s decision along this line
is thus misplaced.
¶ 77 In short, given the state of the record, we cannot say that a conclusion opposite that of the
Commission is clearly apparent or that, in turn, its decision is contrary to the manifest weight of
the evidence.
¶ 78 III. CONCLUSION
¶ 79 For the reasons set forth above, we affirm the judgment of the circuit court of Madison
County, which confirmed the decision of the Commission. This cause is remanded to the
Commission for further proceedings pursuant to Thomas, 78 Ill. 2d 327.
¶ 80 Affirmed and remanded.
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