Du Quoin Home Lumber v. Illinois Workers Compensation Comm'n ( 2019 )

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).
2019 IL App (5th) 180541WC-U
Order filed December 5, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION
______________________________________________________________________________
DU QUOIN HOME LUMBER, ) Appeal from the
Appellant, ) Circuit Court of
v. ) Perry County
ILLINOIS WORKERS’ COMPENSATION ) No. 18MR74
COMMISSION et al. (Paul Fred, Appellee). )
) Honorable
) Christopher T. Kolker,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Barberis
concurred in the judgment.
ORDER
¶1 Held: (1) By omitting the issue from both its petition for review and statement of
exceptions that it filed with the Illinois Workers’ Compensation Commission
(Commission), respondent has forfeited its statute of limitations defense.
(2) By finding that petitioner sustained a work-related injury on December 23,
2010, and that his current condition of ill-being was causally related to the accident,
the Commission did not make findings that were against the manifest weight of the
evidence.
(3) By finding that petitioner reached maximum medical improvement on June 22,
2012, instead of April 6, 2015, the Commission made a finding that was against the
manifest weight of the evidence.
¶2 The circuit court of Perry County confirmed a decision by the Illinois Workers’
Compensation Commission (Commission) to award workers’ compensation benefits to petitioner,
Paul Fred, for a back injury. Respondent, Du Quoin Home Lumber, appeals. Petitioner cross-
appeals the Commission’s award of 75 2/7 weeks of temporary total disability benefits, contending
he is entitled to 220 4/7 weeks of such benefits.
¶3 Except for the date of maximum medical improvement the Commission used to
determine the period of temporary total disability, we conclude that the Commission’s decision is
not against the manifest weight of the evidence. Therefore, we affirm in part and reverse in part
the circuit court’s judgment confirming the Commission’s decision, and we remand this case to
the Commission with directions to award 220 4/7 weeks, instead of 75 2/7 weeks, of temporary
total disability benefits.
¶4 I. BACKGROUND
¶5 A. The Arbitration Hearing
¶6 1. The Voluntary Dismissal of Four of the Eight Claims
¶7 The arbitration hearing was held on June 13, 2017, and at the beginning of the
hearing, petitioner voluntarily dismissed case Nos. 12-WC-33621, 12-WC-33656, 13-WC-
10222, and 13-WC-10928. That left four remaining claims to be arbitrated: case Nos. 12-WC-
26843, 13-WC-10931, 12-WC-26857, and 13-WC-10760.
¶8 2. The Amendment of Accident Dates
¶9 Also at the beginning of the arbitration hearing, the arbitrator allowed petitioner
to amend the accident dates in three of those four remaining claims. In case No. 12-WC-26843,
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the accident date was amended to December 3, 2010. In case No. 12-WC-26857, the accident
date was amended to February 23, 2007. In case No. 13-WC-10931 (the case under consideration
in this appeal), the accident date was amended to December 23, 2010. Respondent objected to
the amendments, arguing there was no relation back.
¶ 10 3. A Preliminary Discussion of the “Request for Hearing”
¶ 11 Respondent completed the “Request for Hearing” form (see 50 Ill. Adm. Code
§ 9030.40 (2016)) as follows: “Petitioner claims to be entitled to TTD [temporary total
disability)] period(s): 1-13-11 to 4.6-15, representing 220 4/7 weeks. Respondent agrees _____
disputes ---
X and claims _____________.”
¶ 12 At the beginning of the arbitration hearing, the arbitrator interpreted the “Request
for Hearing” as putting into dispute only petitioner’s entitlement to temporary total disability
benefits, not the period of such benefits if he were entitled to them:
“ARBITRATOR LINDSAY: ***
***
Petitioner is claiming temporary total disability benefits from January 13,
2011, to April 6, 2015, a period of 220 4/7th weeks. Respondent does not dispute
the dates of temporary total disability but does dispute liability for the benefits.
There is no claim for temporary partial disability or maintenance. There
are no credits to be provided to Respondent in the event of an award of temporary
total disability. And it is my understanding that there are identical claims of TTD
being made in two of these cases, but Petitioner is not seeking a double recovery,
correct?
[PETITIONER’S ATTORNEY]: That is correct, [J]udge.
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ARBITRATOR LINDSAY: Thank you. The nature and extent of
Petitioner’s injury is in dispute.
So[,] in summary, the issues in dispute in [case No.] 13[-]WC[-]10931 are
accident, notice, causal connection, medical bills, temporary total disability, and
nature and extent. Is that correct?
[PETITIONER’S ATTORNEY]: Yes, Your Honor.
[RESPONDENT’S ATTORNEY]: Yes, Your Honor.” (Emphases added.)
¶ 13 4. The Medical Records Presented in the Arbitration Hearing
¶ 14 a. Du Quoin Chiropractic Center
¶ 15 Petitioner’s medical records dated from 2002, and the first eight or so years of
records came from Du Quoin Chiropractic Center, in Du Quoin, Illinois, where petitioner was
treated by a chiropractor, Robert Eaton. Some of his appointments with Eaton were for lower
back pain, which, judging from the records, waxed and waned from 2002 to 2010.
¶ 16 It also appears from Eaton’s records that, frequently, the pain originated from, or
was associated with, heavy lifting—something petitioner routinely did in his work for
respondent. On March 28, 2007, for instance, petitioner told Eaton that the soreness in his back
began the day before, after he moved some shingles. On July 16, 2007, petitioner reported that
his lower back had been hurting after he did some lifting and that the pain was radiating down
both legs. On September 23, 2008, he described left lower back pain that began about three
weeks earlier, after he moved some lumber at work. The pain dissipated in two or three days,
after the application of ice, but the pain returned soon afterward, this time on the right side and
radiating down the front of the leg, to the knee.
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¶ 17 Eaton treated this right-sided pain with approximately six chiropractic
adjustments, bringing petitioner to 90% improvement.
¶ 18 On March 8, 2010, petitioner returned to Eaton with severe pain in his lower back
as well as left sacroiliac joint pain, this time without any radiation of the pain. Eaton wrote that
petitioner had been “steadily *** getting worse for about [three] weeks” but that there had been
“no specific injury to cause it.”
¶ 19 b. Wittenauer Chiropractic
¶ 20 Three or four times, from March 2010 to January 2011, petitioner went to
Wittenauer Chiropractic, in Pinckneyville, Illinois. The first time he went there, on March 30,
2010, he described pain in his neck and left sacroiliac and left lower back pain, all of which
began on February 28, 2010. When the chiropractor, James A. Wittenauer, asked him what made
the pain worse, he answered that “ ‘it [was] when he ben[t] and lift[ed] too much.’ ”
¶ 21 On January 13, 2011, petitioner returned to Wittenauer and reported that since
December 30, 2010, he had been struggling with a “new problem” of right-sided sacroiliac and
sciatic pain, the intensity of which he rated as 10 out of 10.
¶ 22 On January 14, 2011, the right-sided sacroiliac and sciatic pain was at an intensity
of 9 out of 10.
¶ 23 c. Tri-County Chiropractic Centre
¶ 24 On January 26, 2011, petitioner went to Tri-County Chiropractic Centre, in Du
Quoin, where he was asked to fill out a “New Patient History.” He wrote, on this form, that his
chief complaint was right-sided back pain and pain down his right leg. He indicated that the pain
stemmed from an on-the-job injury, but he left the date of the accident blank, explaining that he
did not want to claim workers’ compensation.
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¶ 25 The chiropractor, Douglas Cochran, supplemented this patient history with his
own notes. According to Cochran’s notes, petitioner told him he had been suffering from severe
lower back pain and right leg pain for several weeks, after lifting drywall. This was not the first
time that lifting had put his back out, but such episodes, petitioner reported, were getting worse.
This time, the pain was an 8 or 9 out of 10.
¶ 26 The pain, Cochran noted, was in the region of L3 to S1 and in the right upper
anterior thigh. Lumbar X-rays revealed mild degenerative changes throughout the lumbar spine.
A physical examination yielded a positive straight-leg raise test on the right, positive Lasegue’s
and Braggard’s tests on the right, and right quadriceps weakness. Cochran diagnosed lumbar
discopathy.
¶ 27 After four chiropractic treatments in January and February 2011, Cochran referred
petitioner for magnetic resonance imaging (MRI) of his lumbar spine.
¶ 28 d. The Lumbar MRI
¶ 29 On February 8, 2011, at Cedar Court Imaging in Carbondale, Illinois, petitioner
underwent an MRI of his lumbar spine. The MRI revealed a disc protrusion or mild herniation at
L2-L3, in the right paracentral region of the spinal canal, extending toward the right foramen and
resulting in moderate to severe spinal stenosis and right foraminal stenosis. There was
asymmetric disc bulging at L3-L4, toward the right. At L4-L5, there was moderate to prominent
left facet arthropathy indenting and compressing the left lateral and left posterolateral aspects of
the thecal sac. At L5-S1, there was asymmetric bulging of the disc centrally and posterolaterally
toward the left, extending into the inferior left foramen.
¶ 30 In short, the MRI showed multilevel disc disease with areas of spinal stenosis and
foraminal stenosis.
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¶ 31 e. The Initial Appointment at Heartland Spine Institute
and the Referral for Epidural Steroid Injections
¶ 32 On February 23, 2011, petitioner went to Heartland Spine Institute in Marion,
Illinois, having been referred there by his family doctor, Craig W. Furry, because of pain in the
lower back, right hip, and leg. “This started in January 2011,” according to a note taken by a
physician’s assistant.
¶ 33 A neurosurgeon at the Heartland Spine Institute, Franklin Hayward, examined
petitioner. Hayward noted a decreased range of motion, paralumbar tenderness, sciatic nerve
tenderness on the right, positive straight-leg testing on the right, and decreased sensation in the
S1 distribution. After reviewing the lumbar MRI, Hayward diagnosed a disc protrusion,
asymmetric toward the left, along with multilevel disc bulging and degeneration and right L5-S1
radiculopathy.
¶ 34 Hayward referred petitioner to Southern Illinois Pain Management, in Marion, for
an epidural steroid injection.
¶ 35 f. Southern Illinois Pain Management
¶ 36 On March 2, 2011, petitioner went to Southern Illinois Pain Management, and a
physician there, Julie Sowerby, wrote as follows in her report:
“[Petitioner] has a quite physical job working for a lumber yard. He reports that
he has noticed gradually increasing back pain with the work that he does over a
number of years. He states that he is a delivery person, and has to lift and move
packets of shingles, which are quite heavy. He reports that his back pain began
upon awakening from sleep on January 12, 2011. He did not have any new injury
or trauma at that time. He does note difficulty performing his job duties due to his
low back and leg pain. *** He states that prior to this morning in January when he
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awakened with pain, he did not have the leg symptoms that he currently has.”
¶ 37 g. The Lumbar CT Scan and X-Ray
¶ 38 After receiving two epidural steroid injections, which gave him, at best, only
temporary relief, petitioner returned to Hayward and told him he could take the pain no longer
and that he wanted surgery.
¶ 39 Preliminarily to the surgery, Hayward referred petitioner to Memorial Hospital of
Carbondale, Illinois, for a lumbar computed tomography (CT) scan and a flexion/extension
radiograph of the lumbar spine.
¶ 40 On May 18, 2011, petitioner went to Memorial Hospital and underwent a lumbar
myelogram and post myelogram CT scan. It revealed disc herniations at L2-L3 and L3-L4,
lateralizing to the right; severe degenerative changes to the facet joints at L4-L5; a mild disc
bulge at L4-L5; minimal anterolisthesis; and a disc bulge at L5-S1.
¶ 41 Lumbar X-rays from the same date confirmed that there was spondylolisthesis at
L4-L5.
¶ 42 h. The Back Surgery
¶ 43 On June 23, 2011, petitioner underwent back surgery. The surgeon, Hayward,
performed transforaminal interbody fusions at L4-L5 and L5-S1, on the right; a laminectomy and
discectomy at L3-L4, on the right; and a laminectomy at L2-L3, on the right.
¶ 44 On September 2, 2011, petitioner returned for a follow-up examination. Hayward
described him as “ecstatic” and very pleased with the outcome of the surgery.
¶ 45 5. Vaught’s Opinions
¶ 46 In April 2015, at the request of his attorneys, petitioner underwent an examination
by a neurosurgeon, Kevin A. Vaught, at Regional Brain & Spine, in Cape Girardeau, Missouri.
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During the examination, petitioner told Vaught he had suffered two work-related accidents, one
in December 2010 and the other in January 2011, both involving the carrying of sheet rock. On
both occasions, as he was carrying the sheet rock, he was assailed with a stinging and aching
sensation in his back, and the pain got worse. He had intermittent back problems before then.
¶ 47 Vaught opined that petitioner’s lower back and leg problems were related to those
two sheet-rock lifting incidents. The disc herniation at L3-L4 on the right “was a direct result of
that work-related injury.” In addition to causing the disc herniation, the accidents aggravated
preexisting degenerative changes, particularly the foraminal stenosis and the spondylolisthesis.
The surgery Hayward had performed was, in Vaught’s opinion, reasonable and necessary to
repair the work-related injury.
¶ 48 In his deposition of June 28, 2015, Vaught further opined that petitioner had
reached maximum medical improvement.
¶ 49 6. Crane’s Opinion
¶ 50 In September 2015, after Vaught’s deposition, another neurosurgeon, Benjamin P.
Crane, performed a records review for respondent. Crane was unable to causally relate
petitioner’s lower back condition to any specific work accident mentioned in the records, and
consequently, Crane was unable to say that any specific work accident had necessitated the back
surgery.
¶ 51 While explaining his inability, from the records review, to draw a causal line to
any specific accident at work, Crane admitted he was at a disadvantage in that he had not taken a
history directly from petitioner. Obtaining a history from the patient was, in Crane’s view, just
about the most important thing he did when he met a patient. Crane admitted that if the history
petitioner had given Vaught were accurate—if petitioner had indeed suffered the lifting accidents
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noted in Vaught’s report—those accidents could have caused petitioner’s lower back condition.
¶ 52 When asked whether Cochran’s note from January 26, 2011, that petitioner’s
symptoms began after lifting drywall was reconcilable with a comment Cochran made, in his
report, that there was no reference to any injury at work, Crane was equivocal. He admitted there
was a distinct possibility that Cochran was referring to a work-related accident in his note of
January 26, 2011, but even so, Crane reiterated, the medical records did not specify a date when
such an accident occurred.
¶ 53 Etiology aside, Crane made clear he was offering no opinion on the
reasonableness and necessity of any of the medical treatment petitioner had received. Crane
merely opined that the treatment was not causally related to any work accident that was
specifically documented in petitioner’s medical records.
¶ 54 7. Petitioner’s Testimony
¶ 55 Petitioner was the sole witness to testify in the arbitration hearing.
¶ 56 He testified that for approximately 16 years, until January 12, 2011, he worked for
respondent as a delivery handler. In that position, he filled customers’ orders for shingles, sheet
rock, lumber, windows, doors, concrete, concrete blocks, and any other building materials. He
would get an order off the board, pick up the materials, and deliver them to customers. The
shingles he handled and delivered came in packages weighing between 75 and 95 pounds per
bundle. The sheet rock he handled and delivered weighed approximately 100 to 275 pounds per
package, depending on the width of the sheet rock.
¶ 57 His first work-related lifting accident was in February 2007. He was pulling
material out of a bin—it was lumber, if he remembered correctly—and he heard something give
way in his lower back, and he felt back pain that was at a level of 6 out of 10. He went to his
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boss, Bruce Zoller, who told him to take it easy. His back kept getting worse, and he told Zoller
he needed to go to a chiropractor. Zoller told him to go ahead and do so. Petitioner received
some chiropractic treatment from Eaton, initially paying for it out of his own pocket. He then
approached Zoller and objected that since this was a workers’ compensation matter, it was not
right that he, petitioner, should have to pay for chiropractic treatment out of his own pocket.
Zoller responded that because he, Zoller (or, perhaps, by implication, respondent), paid for group
health insurance, he wanted to keep it off workers’ compensation. Zoller promised he would
speak with Eaton and that Eaton would continue providing chiropractic treatment. Petitioner
testified that but for this conversation with Zoller, he would have filed a claim for workers’
compensation.
¶ 58 After some further chiropractic adjustments, petitioner was able to return to full
duty, without restrictions.
¶ 59 Then, sometime between October 2007 and September 2008, petitioner hurt his
back again, this time while lifting shingles. He returned to Eaton, and again Zoller agreed to pay
for chiropractic treatment by Eaton—the same arrangement as before—and again petitioner
refrained from filing a claim for workers’ compensation. He did not miss any work, and he
eventually returned to full duty, without restrictions.
¶ 60 In March 2010, petitioner returned to Eaton, but he did not think the treatment
that time was for any work-related accident.
¶ 61 Petitioner recalled seeing Wittenauer, too, on March 30, 2010, but he thought it
was for the shoulder and the upper back instead of the lower back. When asked if he would
disagree with the medical (or chiropractic) records if they stated he was suffering from left-sided
sciatic pain in March 2010, petitioner answered in the negative. But he testified he continued
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working for respondent at full duty, without any restrictions, into December 2010.
¶ 62 The job-ending back problems began, by petitioner’s account, in early December
2010. On December 3, 2010, he delivered an order to Alongi’s Restaurant, in Du Quoin. It was
eleven 12-foot long sheets of drywall and some two-by-fours. (Petitioner reviewed the
corresponding work order, petitioner’s exhibit No. 10, to which he had lacked access after his
employment with respondent ended. Once he reviewed this work order and other work orders
provided to his attorney, he was better able to pinpoint the dates of injury. He could remember
what happened, but without referring to the work orders, he was fuzzy on the dates.)
¶ 63 At Alongi’s Restaurant on December 3, 2010, petitioner recalled, he had hold of
one end of a package of sheet rock. Sheet rock would wobble and bow in the middle when you
took it off the forklift, and that is what the 275-pound package did on this occasion: It bowed and
jerked, almost taking petitioner to the ground. He felt something give way in his lower back, and
there was a burning, stinging sensation in his back that he rated as 10 out of 10. Never before had
he suffered such intense pain; these symptoms were different from those he experienced nine
months earlier, in March 2010. Petitioner notified Zoller, who told him to take it easy and go to
the chiropractor. Petitioner continued to work, albeit on modified duty. He did not immediately
seek treatment; he wanted to see if he would improve during the Christmas and New Year’s
holidays.
¶ 64 Petitioner continued working until the Christmas break, and his symptoms did not
go away. On December 23, 2010 (as he was reminded by the work order labeled petitioner’s
exhibit No. 11), he made a delivery of sheet rock to a customer named Carl Goldman. Not only
did he deliver sheet rock to Goldman’s house that day, but he picked up some returns. While
helping to carry out of the house three pieces of sheet rock weighing 75 pounds apiece, petitioner
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had to duck low to exit a doorway, and he felt his back pop again in the same place as at
Alongi’s Restaurant; again the pain was 10 out of 10. He notified Zoller of the accident, and as
before, Zoller told him to take it easy and that the holidays were coming up and maybe he would
get better over the holidays.
¶ 65 Petitioner’s back condition was unimproved after the holidays. On January 10,
2011, he got up to go to work and found he was unable to bend over and put on his socks. He
sought treatment at Wittenauer Chiropractic. When asked, in the arbitration hearing, if he had
told anyone at Wittenauer Chiropractic about his workplace injury, he answered he thought he
had but that he could not swear to having done so.
¶ 66 Eventually, after lumbar injections, petitioner underwent back surgery, which
helped. He testified, however, that he still was unable to lift over 50 pounds and that ongoing
pain still prevented him from doing any stooping. His days as a delivery handler were over.
¶ 67 On cross-examination, petitioner was inconsistent as to whether he made any
deliveries after getting hurt in early December 2010. He testified he sat around at work and could
not do much. When asked about a delivery of wooden boxes to Taylor Brothers on December 21,
2010 (as shown by a work order), he explained that he drove the delivery truck to Taylor
Brothers but that other employees unloaded the boxes.
¶ 68 Petitioner also testified, on cross-examination, that his last day of work for
respondent was January 10, 2011. But then he was shown a delivery ticket for January 11, 2011,
and he agreed that his initials were on the ticket—he had no explanation.
¶ 69 It was petitioner’s recollection that he never saw a doctor in March 2010. When
shown Eaton’s records from March 2010, he testified there was another “Steve [sic] Fred” in Du
Quoin whom Eaton must have treated.
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¶ 70 Petitioner agreed there was no incident or accident in January 2011. It was his
testimony that by January 10, 2011, his pain was so bad he no longer could stand it and he could
not even drive. He related that pain to the two incidents in December 2010. He knew for certain
he was injured at Alongi’s Restaurant on December 3, 2010, and at Carl Goldman’s house on
December 23, 2010. He denied simply picking those two dates at random. It was just that he
could not remember the exact date of the injury until he was shown the work tickets.
¶ 71 Petitioner also denied that his lower back pain developed in 2007 and continued
until he quit working in January 2011. He insisted, rather, that his lower back pain resolved in
2008 and that he was reinjured in December 2010.
¶ 72 It was “fair to say,” petitioner admitted, that he knew all along, before reviewing
the work tickets, where he had been injured: at Alongi’s Restaurant and at Goldman’s house; he
just had been unable to pinpoint the dates. The work order tickets helped him to identify the
dates of his injuries as December 3 and 23, 2010.
¶ 73 When asked why he had filed so many workers’ compensation claims if he knew,
all along, that he had been injured at Alongi’s Restaurant and at Goldman’s, petitioner answered
he did not know but that perhaps it was on the advice of his attorneys that he had done so. In any
event, once he was provided the work order tickets, he knew exactly when he had been injured.
He always had known where, and the work order tickets confirmed when.
¶ 74 B. The Arbitrator’s Decision
¶ 75 For 12 reasons, the arbitrator found petitioner to be a less than credible witness
and his testimony to be “largely self-serving.”
¶ 76 First, in the arbitrator’s view, the medical records cast doubt on petitioner’s
testimony that Zoller’s alleged opposition to the filing of workers’ compensation claims had
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made petitioner not “want to mention a work accident to any doctors.” Petitioner must have been
willing enough to do so, the arbitrator concluded, because his medical records from as far back
as 2002 contained references to work-related accidents.
¶ 77 Second, petitioner testified that in September 2008 he had no complaints in the
right side of his back or in his leg, whereas records from Eaton’s office showed otherwise.
¶ 78 Third, after admitting, on direct examination, that he received treatment in March
2010, petitioner denied, on cross-examination, that he received any treatment that month—and
he even went so far as to suggest that there was another “Steve Fred” in Du Quoin who must
have received the treatment.
¶ 79 Fourth, in his testimony, petitioner denied suffering gradually increasing back
pain from his job duties, and he voluntarily dismissed his claims based on repetitive trauma. In
March 2011, however, he told Sowerby “ ‘he ha[d] noticed gradually increasing back pain with
the work he [did] over a number of years.’ ”
¶ 80 Fifth, petitioner testified that after hurting his back at Alongi’s Restaurant on
December 3, 2010, he was unable to do any more lifting and carrying of construction materials
and that his symptoms did not abate as he performed “modified duty,” such as driving the
delivery truck. The arbitrator had a hard time squaring that testimony with petitioner’s further
testimony that he injured his back on December 23, 2010, as he was carrying sheet rock out of
Goldman’s house.
¶ 81 Sixth, petitioner “could not even get his story straight when being seen by his own
examining physicians.” When seen by Hayward on February 23, 2011, he gave Hayward an
onset date of “January 2011,” with no further details. When seen by Sowerby on March 2, 2011,
he gave Sowerby an onset date of January 12, 2011, saying that he felt back pain upon
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awakening.
¶ 82 Seventh, it was petitioner’s testimony that Cochran had referred him to Hayward.
Not only did Cochran’s records fail to corroborate that testimony, but according to Hayward’s
records, it was Furry, not Cochran, who had made the referral to Hayward. Given that Furry was
the referring doctor, the arbitrator was unable to understand why Furry’s records were never
produced in the arbitration hearing.
¶ 83 Eighth, petitioner went into the arbitration hearing knowing that not only the dates
of injury but also “the mechanisms of the injury” were in dispute. Nevertheless, even though he
testified that two other workers had helped him deliver sheet rock to Alongi’s Restaurant on
December 3, 2010, when he allegedly injured his back, he never subpoenaed or called either of
those witnesses, nor did he give any explanation for this omission.
¶ 84 Ninth, although petitioner was unsure he had told Wittenauer about his accident
of December 3, 2010, he testified he had told Cochran and also Hayward’s assistant, Chris
Hodges, “about hurting his back at work.” And yet, the arbitrator asserted, “[n]one of the records
of these treaters corroborates Petitioner’s testimony.” (Earlier in her decision, however, the
arbitrator made the following finding of fact: “Dr. Cochran noted [on January 26, 2011,] that
Petitioner had been experiencing severe lower back pain and right lower extremity pain and had
been unable to work for the past two weeks due to his pain. Petitioner stated he first noticed his
pain after lifting drywall and that this had happened before but was getting worse.” It is unclear
why, in the arbitrator’s view, the phrase “first noticed his pain after lifting drywall” was not a
reference to “hurting his back at work.”)
¶ 85 Tenth, according to Vaught’s report, petitioner told him that physical restrictions
recommended by Hayward prevented him from returning to work. And yet, in Hayward’s
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records, there was no mention of any permanent restrictions—and, apparently, petitioner
neglected to tell Vaught that he “never returned to Dr. Hayward for a final release.”
¶ 86 Eleventh, according to petitioner’s testimony, Vaught recommended that he use
ice every 20 minutes. That testimony was uncorroborated by Vaught’s report and deposition.
¶ 87 Twelfth, petitioner had “voiced complaints and limitations at trial [that]
essentially mirrored those imposed by [his] examining physician, Dr. Vaught,” but Vaught had
“provided no reason as to why the permanent restrictions were necessary.” The arbitrator was
under the impression that Vaught thought the restrictions had come from Hayward and that
Vaught was simply deferring to Hayward. But Hayward, “when last seeing Petitioner after his
surgery,” had written that petitioner was doing “ ‘extremely well’ ” and that he had “tolerable
pain complaints at most.” And when Vaught did his examination, he found petitioner’s condition
to be “normal[,] with only subjective complaints being noted.” As far as the arbitrator could see,
“[t]here was no corroboration by any credible objective evidence for Petitioner’s testimony
regarding any current limitations and difficulties.”
¶ 88 Because of those perceived difficulties in petitioner’s evidence, the arbitrator
found as follows: “Petitioner failed to prove he sustained an accident on December 23, 2010[,]
that arose out of and in the course of his employment with Respondent. This conclusion is based
upon Petitioner’s lack of credibility and the lack of corroboration of an accident having occurred
as alleged.”
¶ 89 C. The Commission’s Decision
¶ 90 On June 8, 2018, the Commission affirmed and adopted the arbitrator’s denial of
the claims in case Nos. 12-WC-26843, 12-WC-26857, and 13-WC-10760, for which separate
decisions had been issued.
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¶ 91 In case No. 13-WC-10931, however, a majority of the Commission reversed the
arbitrator’s decision. The Commission found, contrary to the arbitrator’s decision, that petitioner
sustained a work-related injury on December 23, 2010.
¶ 92 The Commission disagreed with the arbitrator that petitioner was not credible.
“The delivery slips reveal[ed] that Petitioner made a delivery on December 23, 2010[,] and his
testimony relative to the accident was supported by the medical records.” In the Commission’s
view, respondent had “had offered no credible evidence to impeach Petitioner’s credibility.”
¶ 93 While finding petitioner to be a believable witness, the Commission
acknowledged that “there [were] discrepancies in the medical records, as to the date of accident.”
The Commission found, however, that “those discrepancies [were] not determinative of
Petitioner’s claim.” After all, he “testified that he injured himself while making a delivery on
December 23, 2010,” and “[t]he delivery slips reveal[ed] that [he] did, in fact, make a delivery
on December 23, 2010.” He further testified that upon injuring his back when making the
documented delivery on December 23, 2010, “he then notified Mr. Zoller of the accident and
was instructed to take it easy while on his vacation.” The Commission observed that respondent
had “chose[n] not to call Mr. Zoller to rebut Petitioner’s testimony.” Petitioner “attempted to
work through his pain upon his return from vacation and only sought treatment once his pain
became unbearable.” The record of January 26, 2011, from Tri-County Chiropractic Centre
“reveal[ed] that Petitioner first had pain while lifting drywall while working.” Therefore, the
Commission found it to be proven, by “credible evidence,” that on December 23, 2010,
petitioner “sustained an accident arising out of and in the course of his employment” and that
“there [was] no credible evidence disputing the causal connection.”
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¶ 94 Even respondent’s own expert, Crane, admitted “that the lifting incident as
described could cause back and leg pain, and aggravate Petitioner’s condition,” and Crane
further admitted “that the need for surgery would be related to the accident, if Petitioner did
sustain an accident.” It was just that, in Crane’s view, “there was no accident mentioned in the
records.” That belief was erroneous, the Commission noted, because “the medical records, as
early as January 2011, reference[d] a work injury.” Thus, petitioner “sustained a work-related
accident,” and his “condition [was] causally related to the accident.”
¶ 95 The Commission found, however, that petitioner reached maximum medical
improvement as of June 22, 2012. It was on that date that he last sought medical care from
Hayward, and an X-ray at that time “revealed good placement of the hardware following the
surgery.” His complaints had become tolerable, or so he reported to Hayward in so many words,
and he was to follow up in a year. He never did follow up or seek further medical treatment
(although, according to petitioner’s testimony, that was because he no longer had medical
insurance); rather, he retired and henceforth did not look for work. Therefore, the Commission
decided to award petitioner temporary total disability benefits from January 13, 2011, which was
the last day he worked, through June 22, 2012, the day he last sought medical treatment.
¶ 96 In sum, the Commission ordered respondent to make the following payments to
petitioner: (1) $277.20 per week for a period of 75 2/7 weeks (January 13, 2011, through June
22, 2012), representing the period of temporary total incapacity for work under section 8(b) (820
ILCS 305/8(b) (West 2018)); (2) $249.48 per week for a period of 125 weeks, as provided in
section 8(d)(2) of the Act (id. § 8(d)(2)), for 25% loss of use of the man as a whole, considering
that petitioner “underwent an L4-L5 and L5-S1 fusion, an L3-L4 discectomy, and an L2-L3
laminectomy resulting in permanent restrictions”; (3) all reasonable and necessary medical
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expenses under section 8(a) (id. § 8(a)) and subject to the medical fee schedule; and (4) interest
under section 19(n) (id. § 19(n)), if any.
¶ 97 Commissioner Lamborn dissented from the reversal of the arbitrator’s decision in
case No. 13-WC-10931 (the Goldman accident). He considered the arbitrator’s decision to be
“well[-]reasoned, persuasive[,] *** and grounded in the record,” and he would have affirmed the
arbitrator’s decision in its entirety.
¶ 98 D. The Circuit Court’s Decision
¶ 99 The parties sought judicial review in the circuit court of Perry County.
¶ 100 On October 17, 2018, the circuit court confirmed the Commission’s decision,
finding it was “not against the manifest weight of the evidence” and “not erroneous as a matter
of law.”
¶ 101 II. ANALYSIS
¶ 102 A. Respondent’s Appeal
¶ 103 1. Relation Back
¶ 104 In case No. 13-WC-10931 (which is the case under discussion in this appeal), the
application for adjustment of claim originally alleged an accident date of January 4, 2011, and
the arbitrator allowed petitioner, over respondent’s objection, to amend the application by
substituting December 23, 2010, as the date of the accident. Respondent’s objection to this
change was that (1) the amended application would fail to relate back to the original application
and (2) since it now was June 13, 2017, the claim in the amended application would be barred by
the three-year statute of limitations (820 ILCS 305/6(d) (West 2010)). See Illinois Institute of
Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 160 (2000) (using a
relation-back analysis in a workers’ compensation case in which the arbitrator had allowed a
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claimant to amend her application). The arbitrator’s overruling of this relation-back objection
was, respondent argues, a reversible error.
¶ 105 Petitioner replies initially by pointing out that respondent, in its petition for
review and statement of exceptions, never challenged the arbitrator’s relation-back ruling or
raised the statute of limitations; consequently, petitioner argues, respondent has procedurally
forfeited this affirmative defense. See Pantle v. Industrial Comm’n, 61 Ill. 2d 365, 367 (1975)
(“The defenses of waiver and estoppel may properly be raised and proved to nullify the effect of
[the statute of limitations in the Worker’s Compensation Act],” and filing a claim within the
statutory period of limitations is “not a jurisdictional requirement.”); McRaith v. BDO Seidman,
LLP, 391 Ill. App. 3d 565, 584 (2009) (“[A] statute of limitations is an affirmative defense,
which may be forfeited if not timely raised by the defendant.”).
¶ 106 Respondent counters that the omission of this issue in its petition for review and
statement of exceptions makes no difference because “the Illinois Workers’ Compensation Act
expressly requires the Commission to review all questions of law or fact which appear from the
statement of facts or transcript of evidence.” Specifically, respondent quotes from section 19(e)
of the Act: “If a petition for review and agreed statement of facts or transcript of evidence is
filed, *** the Commission shall promptly review the decision of the Arbitrator and all questions
of law or fact which appear from the statement of facts or transcript of evidence.” 820 ILCS
305/19(e) (West 2018). Respondent also quotes from section 19(b): “The jurisdiction of the
Commission to review the decision of the arbitrator shall not be limited to the exceptions stated
in the Petition for Review.” 820 ILCS 305/19(b) (West 2018).
¶ 107 Just because the Commission has jurisdiction to raise questions that are unraised
in the petition for review, it does not necessarily follow that the Commission has a duty to do so.
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To our knowledge, no published decision has ever interpreted section 19(b) and (e) as requiring
the Commission, on its own initiative, to raise an issue that a party refrains from raising in either
its petition for review or its statement of exceptions. Cf. Klein Construction/Illinois Insurance
Guaranty Fund v. Illinois Workers’ Compensation Comm’n, 384 Ill. App. 3d 233, 238 (2008) (in
his petition for review, the claimant had raised all the issues upon which the Commission ruled,
and the Commission was correct to rule upon those issues even though the claimant had filed no
statement of exceptions); Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1026 (2005) (the
claimant raised an issue in his statement of exceptions but not in his petition for review; the
Commission erred by holding that the claimant had waived the issue). It goes against sound
appellate procedure to hold back issues from the Commission and afterward spring them on
appeal. For that reason, in Jetson Midwest Maintenance v. Industrial Comm’n, 296 Ill. App. 3d
314, 315-16 (1998), we agreed with the Commission that the claimant in that case had waived
(or procedurally forfeited) an issue “by failing to raise it in the petition for review or in a timely
statement of exceptions.” (Emphasis added.) The supreme court has held that “[a]rguments not
raised before the Commission are waived on appeal.” R.D. Masonry, Inc. v. Industrial Comm’n,
215 Ill. 2d 397, 414 (2005). If, after raising an issue with the arbitrator, a party leaves the issue
out of both its petition for review and its statement of exceptions, a party thereby signifies to the
Commission that the party has abandoned that issue. Requiring the Commission, in such
circumstances, to address the issue anyway would go against R.D. Masonry and would press the
Commission into service as an advocate for the parties.
¶ 108 Admittedly, section 19(e) requires the Commission to “review *** all questions
of law or fact which appear from the statement of facts or transcript of evidence” (820 ILCS
305/19(e) (West 2018)), but the sentence imposing that requirement begins with a condition,
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namely, the filing of a petition for review: “If a petition for review and agreed statement of facts
or transcript of evidence is filed, *** the Commission shall promptly review the decision of the
Arbitrator and all questions of law or fact which appear from the statement of facts or transcript
of evidence.” Id. “The Petition for Review shall contain a statement of the petitioning party’s
specific exceptions to the decision of the arbitrator.” Id. § 19(b). An “exception” is another word
for an “objection,” and “a specific objection waives all other unspecified grounds.” People v.
Cuadrado, 214 Ill. 2d 79, 89 (2005). By omitting the relation-back objection from both its
petition for review and its statement of exceptions, respondent signified it was waiving that
objection (see id.)—and, again, “[a]rguments not raised before the Commission are waived on
appeal” (R.D. Masonry, 215 Ill. 2d at 414).
¶ 109 2. The Sufficiency of the Evidence
¶ 110 The arbitrator makes some valid points about inconsistencies in petitioner’s
testimony and contradictions between his testimony and the medical records. Even so, as the
appellate court has held:
“It is the province of the Commission to weigh and resolve conflicts in
testimony, including medical testimony, and to choose among conflicting
inferences therefrom. [Citations.] It is only when the decision of the Commission
is without substantial foundation in the evidence or its finding is manifestly
against the weight of the evidence that the findings of the Commission should be
set aside.” Dexheimer v. Industrial Comm’n, 202 Ill. App. 3d 437, 442-43 (1990).
The arbitrator identified some real problems in petitioner’s case, but they are not, as a matter of
law, fatal problems. The evidence is not all on one side. Some substantial points in petitioner’s
favor can be made.
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¶ 111 First, until December 2010, petitioner was doing his job, which entailed a lot of
heavy lifting, e.g., packages of shingles weighing between 75 and 95 pounds and packages of
sheet rock weighing 100 to 275 pounds. Surely, it took a strong back to do that job. Granted,
petitioner had intermittent back pain from 2008 to December 2010, but, arguably, if he had the
full extent of back problems before December 2010 that the MRI showed him to have in
February 2011, it seems implausible that he would have been able to perform such back-breaking
labor.
¶ 112 Second, petitioner had an objectively observable injury of the spine, as shown in
the MRI and the CT scan, and experts on both sides, Vaught and Crane, agreed the injury could
have been caused by heavy lifting.
¶ 113 Third, on January 26, 2011, petitioner told Cochran he had been suffering from
severe lower back pain and right leg pain for several weeks, after lifting drywall, and that he had
been unable to work for the past two weeks because of his pain.
¶ 114 Fourth, petitioner testified he told Zoller, on December 23, 2010, that he had
injured his back carrying sheet rock out of Goldman’s house and that Zoller told him to take it
easy and see if his back got better over the holidays.
¶ 115 Fifth, respondent never called Zoller to dispute petitioner’s testimony. Although
the arbitrator criticized petitioner for failing to call corroborating witnesses, these missing
witnesses were under respondent’s control, and respondent called none of them to rebut
petitioner’s testimony. Under the missing witness rule, if a party fails to produce a witness the
party could have produced and if the following propositions hold true, it may be inferred that the
witness’s testimony would have been unfavorable to that party: (a) the witness was under the
party’s control and could have been produced by the exercise of reasonable diligence, (b) the
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witness was not equally available to the adverse party, (c) a reasonably prudent person under the
same or similar circumstances would have produced the witness if the person believed the
testimony would be favorable, and (d) no reasonable excuse for the failure has been shown.
Shvartsman ex rel. Shvartsman v. Septran, Inc., 304 Ill. App. 3d 900, 903 (1999). Zoller and
other employees of respondent were more available to respondent than to petitioner. These
employees would have been naturally aligned with their employer; one would expect that, in
their testimony, they would have been as favorable to respondent as truthfulness would have
allowed. See Santucci Construction Co. v. County of Cook, 21 Ill. App. 3d 527, 534 (1974) (“his
relationship with one of the parties is such that the witness would ordinarily be expected to favor
him”).
¶ 116 Why allow petitioner’s testimony to go unrebutted if two or three other employees
were firsthand witnesses to what happened on December 23, 2010? If, on that date, when
carrying sheet rock out of Goldman’s house, petitioner suddenly was stricken with back pain that
he described as the absolute maximum, 10 out of 10, surely the coworker on the other end of the
sheet rock would have noticed some outward manifestation of such extreme pain. And surely, if
in fact the coworker noticed nothing out of the ordinary, respondent would have deemed it
worthwhile to call this coworker and have him so testify. But respondent did not call this
coworker, and the omission was unexplained. See Shvartsman, 304 Ill. App. 3d at 903; Santucci,
21 Ill. App. 3d at 534.
¶ 117 Likewise, if, contrary to petitioner’s testimony, petitioner did not tell Zoller on
December 23, 2010, that he injured his back or if Zoller had no memory of petitioner’s doing so,
respondent surely would have deemed it worthwhile to call Zoller and have him so testify. And if
in fact Zoller did not discourage petitioner from claiming workers’ compensation, respondent
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surely would have, at a minimum, a reputational interest in calling Zoller and having him so
testify. But respondent did not call Zoller, and, again, the omission was unexplained. See
Shvartsman, 304 Ill. App. 3d at 903; Santucci, 21 Ill. App. 3d at 534.
¶ 118 There is a risk in allowing unfavorable testimony to go unrebutted: The trier of
fact might choose to believe the unrebutted testimony. Not every reasonable trier of fact would
have to disbelieve petitioner. By crediting petitioner’s testimony and finding he sustained a
work-related injury on December 23, 2010, the Commission did not make a finding that was
against the manifest weight of the evidence. See Rechenberg v. Illinois Workers’ Compensation
Comm’n, 2018 IL App (2d) 170263WC, ¶ 39.
¶ 119 There is also evidence in the record to justify the finding that petitioner’s current
condition of ill-being is causally related to the accident of December 23, 1010. To quote from the
arbitrator’s findings of fact, “Dr. Vaught confirmed on further cross-examination that his
causation opinions were related to alleged accidents in either December of 2010 or January of
2011.” And to quote again from the arbitrator’s findings of fact, “Dr. Crane testified that, to a
reasonable degree of medical certainty, if Petitioner suffered the two work accidents described to
Dr. Vaught in December of 2010, those accidents might or could have caused or aggravated
Petitioner’s low back condition.” “It is well[-]established that a finding of a causal relationship
may be based upon a medical expert’s opinion that an accident ‘could have’ or ‘might have’
caused an injury.” Price v. Industrial Comm’n, 278 Ill. App. 3d 848, 853 (1996).
¶ 120 B. Petitioner’s Cross-Appeal
¶ 121 The parties, by petitioner’s understanding, stipulated, at the beginning of the
arbitration hearing, that the period of temporary total disability benefits would be 220 4/7 weeks
if petitioner were found to be eligible for such benefits at all, and therefore, he argues, the
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Commission erred by awarding him only 75 2/7 weeks of such benefits. Respondent denies
entering into any such stipulation.
¶ 122 “A stipulation is an agreement between parties or their attorneys with respect to
an issue before the [tribunal].” (Internal quotation marks omitted.) Wisam 1, Inc. v. Illinois
Liquor Control Comm’n, 2014 IL 116173, ¶ 42. Although a stipulation need not be in any
particular form, the stipulation must be “clear, certain, and definite in its material provisions,”
and it must “be assented to by the parties or those representing them.” In re Marriage of Galen,
157 Ill. App. 3d 341, 344 (1987). The proposition to which respondent’s attorney assented,
judging by the transcript of the arbitration hearing, was that “temporary total disability” was one
of “the issues in dispute,” not that “the dates of temporary total disability” were undisputed.
¶ 123 Granted, the arbitrator stated, “Respondent does not dispute the dates of
temporary total disability,” and respondent did not gainsay that statement. Instead of considering,
however, the doctrine of estoppel by silence (see Windcrest Development Co. v. Giakoumis, 359
Ill. App. 3d 597, 605 (2005)), which petitioner really does not argue (he argues, instead, a
stipulation), we choose to review on the merits the Commission’s finding that petitioner reached
maximum medical improvement on June 22, 2012.
¶ 124 Maximum medical improvement marks the end of the period of temporary total
disability benefits. See 820 ILCS 305/8(b) (West 2016); Interstate Scaffolding, Inc. v. Illinois
Workers’ Compensation Comm’n, 236 Ill. 2d 132, 142 (2010). In choosing June 22, 2012, as the
cutoff date, the Commission relied on two facts.
¶ 125 First, petitioner never returned to Hayward after the visit of June 22, 2012. In his
testimony, however, petitioner explained why: he lacked medical insurance and could not afford
another visit. This explanation was unrebutted and was not inherently incredible. After all,
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petitioner used to have medical insurance through respondent, and his employment with
respondent had been terminated. It appears from the record, then, that it was a lack of funds
instead of a stabilizing of his medical condition that caused petitioner to stop seeing Hayward.
See Interstate, 236 Ill. 2d at 142.
¶ 126 Second, after June 22, 2012, petitioner did not look for employment. But “an
argument focusing on whether the claimant is available for work in some other capacity and
could and should have sought alternative employment misses the mark in [temporary total
disability] cases. The dispositive question is whether the claimant’s condition had stabilized”
(internal quotation marks omitted) (Freeman United Coal Mining Co. v. Industrial Comm’n, 318
Ill. App. 3d 170, 177-78 (2000)) or, in other words, whether “he is as far recovered or restored as
the permanent character of his injury will permit” (Archer Daniels Midland Co. v. Industrial
Comm’n, 138 Ill. 2d 107, 118 (1990)).
¶ 127 The only evidence on that question came from Vaught. On April 6, 2015, he
examined petitioner, took a history from him, and reviewed his medical records. After doing so,
Vaught placed permanent physical restrictions on petitioner, including a 50-pound limit on
lifting, and Vaught wrote in his report, and subsequently reiterated in his deposition, that the date
of maximum medical improvement was, in his opinion, April 6, 2015. Vaught’s opinion in that
respect was unopposed by any other expert. Respondent’s expert, Crane, having never examined
petitioner, was unable to opine on maximum medical improvement. Hayward never suggested
that June 22, 2012, was the date of maximum medical improvement. Rather, he believed it would
be at least one more year before petitioner could be released from care and that, besides, before
even considering releasing petitioner, Hayward would want him to undergo another CT scan and
a flexion/extension X-rays of his lumbar spine.
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¶ 128 Because the records from Hayward’s office militate against a finding that
petitioner had reached maximum medical improvement on June 22, 2012, the Commission’s
finding to that effect is against the manifest weight of the evidence. See Interstate, 236 Ill. 2d at
142. The clear preponderance of the evidence is that April 6, 2015, instead, is the date of
maximum medical improvement.
¶ 129 III. CONCLUSION
¶ 130 For the foregoing reasons, we affirm in part and reverse in part the circuit court’s
judgment and remand this case with directions. We reverse the judgment insomuch as it confirms
the Commission’s award of 75 2/7 weeks of temporary total disability benefits, and we remand the
case to the Commission with directions to award, instead, 220 4/7 weeks of temporary total
disability benefits. Otherwise, the judgment is affirmed.
¶ 131 Affirmed in part and reversed in part; cause remanded with directions.
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