All Sealants v. Illinois Workers Compensation Comm'n ( 2019 )

2019 IL App (3d) 190110WC-U
No. 3-19-0110WC
Order filed December 26, 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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION
____________________________________________________________________________
ALL SEALANTS, ) Appeal from the Circuit Court
) of Will County,
Plaintiff-Appellant, )
)
v. ) No.18-MR-1250
)
THE ILLINOIS WORKERS’ COMPENSATION )
COMMISSION, et al., )
) Honorable
) John C. Anderson,
(Robert Eppenstein, Defendant-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 Commission’s decision that claimant’s condition of ill-being was caused by
his employment was not against the manifest weight of the evidence given
conflicting medical and other evidence; award of temporary total disability was not
contrary to the manifest weight of the evidence; and record supported contention
that treatment rendered by alleged third doctor was for a medical emergency.
¶2 I. INTRODUCTION
2019 IL App (3d) 190110WC-U
¶3 Respondent, All Sealants, appeals an award of benefits to claimant, Robert Eppenstein, in
accordance with the provisions of the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1
et seq. (West 2014)). For the reasons that follow, we affirm.
II. BACKGROUND
¶4 The following evidence was presented at the arbitration hearing. Claimant first testified
that he had been employed as a “roofer/waterproofer” from 2009 to August 31, 2015. He had been
working for respondent for about two years at the time of his accident. His job required him to lift
from 50 to 200 pounds. It also involved climbing. He was injured on August 31, 2015, when he
fell at work.
¶5 Claimant acknowledged that prior to this injury, he had received treatment and taken
medication for his lower back. In 2013, he saw an osteopath, Dr. Mark McKeigue, for “back pain
and some symptoms that went into [his] right ankle and right leg and occasional weakness in [his]
right leg.” He was prescribed Vicodin and a muscle relaxer. He underwent physical therapy in
April 2013. McKeigue referred claimant to Dr. Hurley, a neurosurgeon, who evaluated claimant
but did not recommend surgery. He recommended an injection. Claimant’s medical records
“show that [he] had some pain in [his] back [and] right leg” and he “continued seeing these doctors
and [having] injections occasionally.” He also engaged in further physical therapy in 2013.
¶6 In January 2014, claimant began seeing Dr. Larry Majera at Pain Treatment Centers of
Illinois. Majera prescribed Norco and administered “transforaminal epidural steroid injections.”
In June 2014, claimant had a “medial branch block of his lower back.” Claimant stated that
physical therapy was successful and that he was not missing any time from work due to his back
or right leg, which included heavy lifting.
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¶7 In November 2014, claimant slipped and fell at home. He sought emergency care at Joliet
Doctors Clinic, where he saw Dr. Mark Henley. He prescribed hydrocodone and Norco. Henley
recommended that claimant follow up with Hurley; however, claimant did not do so, because he
was in the process of moving and switching doctors.
¶8 In January 2015, claimant started treating with Dr. Okpareke, as he was “having pain in
[his] back, lower back, and right leg.” He administered epidural steroid injections in February
2015 and March 2015. Okpareke referred claimant to Dr. Kouloumberis, a neurosurgeon.
However, the injections left claimant feeling “[p]retty good.” Claimant did not feel he needed
surgery, so he did not see Kouloumberis. Claimant identified his W-2 form from 2015, which
showed he earned $31,482.46 working for respondent between April 2015 and August 31, 2015.
Claimant testified that he had stopped taking narcotic pain killers in May 2015.
¶9 Medical records indicate that claimant sought care at the Silver Cross Hospital emergency
room for “neck pain and dizziness” on August 10, 2015. He also was seen there for the same
issues on August 23, 2015. Claimant testified that, nevertheless, he continued to perform his job
up to August 31, 2015. A doctor attributed claimant’s headaches and dizziness to the
overconsumption of Monster energy drinks. Claimant stopped drinking them, and his symptoms
went away. Up until the time of the accident, he had not missed any workdays due to his right leg
or back. He was able to get “relief through treatment.” His condition “was not something that
was constant.”
¶ 10 On August 31, 2015, claimant was working for respondent at Highland Park Hospital on a
construction job. He had not taken any narcotic pain medication that day. He “was waterproofing
below-grade foundation walls and footings.” Claimant was wearing a toolbelt that weighed
between 20 and 30 pounds. Claimant “was standing on the upper footing of a foundation wall.”
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The area was wet, and claimant slipped. He landed on the lower right side of his back, which
struck a concrete ledge. Claimant also sustained a wrist injury.
¶ 11 Claimant reported the accident and sought emergency care at Concentra. A drug test
showed no narcotics or barbiturates in claimant’s system. Claimant stated that he was able to work
at that time without narcotics. Claimant had been prescribed narcotics on August 10, 2015, and
August 23, 2015, however he had stopped taking them when his head and neck symptoms resolved.
Following this accident, claimant “came under the care of Hinsdale Orthopedics,” where he saw
Kelly Burgess, a physician’s assistant, and Dr. Cary Templin, a surgeon.
¶ 12 Claimant testified that following the accident, his symptoms changed. While he had
previously had problems with his back and right leg, the symptoms were now “constant.” Physical
therapy in September 2015 failed to provide relief and actually made things worse. Narcotics were
prescribed.
¶ 13 On September 25, 2015, claimant saw Dr. Banino at the Loyola Medical Center for pain
management. He also went to Pain Treatment Centers of Illinois on October 2, 2015, where he
saw Dr. Majera. Claimant explained that he went to Loyola because he could not get an
appointment with Pain Treatment Centers of Illinois for several weeks. A discogram was
performed on November 5, 2015, by Dr. Abusharif.
¶ 14 On November 9, 2015, Dr. Julie Wehner examined claimant on respondent’s behalf.
Claimant testified that Wehner spent “less than five minutes” examining him.
¶ 15 According to claimant, Majera’s notes from November 9, 2015, indicate that claimant had
to discontinue physical therapy “due to worsening pain in [his] low back, radiating into [his]
buttocks, thigh and calf” at Templin’s direction. Claimant received a “transforaminal epidural
steroid injection,” which provided “very mild” relief.
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¶ 16 On April 28, 2016, Templin recommended surgery, which was performed on May 4, 2016.
Claimant explained that “injections, physical therapy, medications, [and] rest” did not provide any
real relief. Such things resulted in “some success” prior to the accident. After the surgery, claimant
noted that the “constant shooting [pain] down [his] leg was gone.” Claimant reported to Templin
on June 9, 2016, that his leg pain and numbness were gone, though his back was still sore. On
July 21, 2016, Templin ordered physical therapy. Claimant had to wear a brace for five weeks
following the surgery. At the time of the arbitration hearing, claimant described his right leg and
buttocks as “good,” but also that his “back is still a little sore, stiff.”
¶ 17 Claimant has two special needs children. Prior to the accident, he was an “involved
parent”—he would pick them up, change them, and feed them. Since the accident, he has not been
able to do so. Claimant testified that he takes 180 tablets of Norco per month—one every four
hours. He is “very, very weak” compared to prior to his fall. He had not been released to work
by the time of the hearing and is restricted to lifting nothing heavier than a gallon of milk.
¶ 18 On cross-examination, claimant first agreed that after a few initial visits, the injury to his
wrist required no further treatment. Claimant saw his family physician, Dr. Chan, on September
3, 2015, as he could not get an appointment to a pain specialist immediately. Chan prescribed
Norco. On September 26, 2015, he saw Dr. Banino at an immediate care center. Claimant stated
that he “was pretty close to having to go to the emergency room.” Claimant acknowledged that
he had been seeing a chiropractor for 10 or 11 years—Dr. Burkhart. Several months before the
accident, Burkhart treated claimant’s lower back. Claimant has not seen Burkhart since the
accident. Claimant was asked whether he would disagree with records from his August 10, 2015,
visit to Silver Cross Hospital that state he reported “right-leg or right-foot numbness.” He stated
that while he did not recall doing so, he did not “have any disagreement with the records if they
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reflected that.” Claimant agreed that, prior to the accident, Okpareke told him that he might need
surgery if his condition did not improve. At the time of the hearing, claimant had an appointment
scheduled with Templin.
¶ 19 On redirect-examination, claimant testified that after Okpareke advised him that he might
need surgery if his condition did not improve, his condition did, in fact, improve. He no longer
needed pain medication and “was carrying on a normal life.”
¶ 20 Claimant submitted the evidence deposition of Dr. Templin. Templin testified that he is
an orthopedic surgeon and that his practice focuses on the spine. Claimant has been his patient
since September 2, 2015. Templin opined that claimant’s condition of ill-being was causally
related to his at-work accident on August 31, 2015. He was not aware of any physician
recommending claimant undergo surgery prior to the accident. Claimant’s visit to Silver Cross
Hospital in August 2015 did not alter his opinion. Templin had examined claimant the day before
his deposition. Claimant had significant back and leg pain. Templin’s diagnosis was L5-S1
spondylolysis, L5 radiculopathy on the right side, and degenerative disks at L4-L5 and L5-S1.
Templin authored a report where he opined that claimant’s fall aggravated a pre-existing condition,
which had previously been amenable to non-operative treatment. Claimant’s use of medication
increased after the accident. Templin noted that in 2014, claimant had been using a significant
amount of pain medication but had tapered off until the accident occurred.
¶ 21 Templin further opined that claimant has been disabled from working since the accident.
The treatment claimant received after the accident is causally related to it. Templin was scheduled
to perform a fusion at L5-S1 on claimant the week after the deposition to stabilize the
spondylolysis. Since the accident, claimant has not responded to non-operative care. Templin
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testified that this was not a “four to six week back strain,” as claimant was still symptomatic eight
months later.
¶ 22 On cross-examination, Templin testified that claimant saw Dr. Okpareke in January 2015
complaining of low-back and right-leg pain. Okpareke administered pars injections. A pars
injection “goes right into where the fracture is to try to calm down the inflammation.” An epidural
injection, conversely, is “more directed to the nerve.” Templin testified that it would not be
unreasonable to attempt a pars injection prior to the fusion; however, he added that it would not
be a permanent fix. It could possibly bring claimant back to a “baseline condition.” Further, MRIs
performed on January 8, 2015 (before the accident), and September 4, 2015 (after the accident),
showed no significant changes. The only changes from before the fall to after are claimant’s
increased pain level and his non-responsiveness to non-operative care. Templin agreed that both
are based upon claimant’s subjective complaints. By “aggravated,” Templin meant that he had
formerly been “able to work and carry on his life” and after the fall, “his symptoms have worsened
to a degree” and “have not improved with appropriate non-operative care.”
¶ 23 On redirect-examination, Templin explained that the “medical reason” claimant was
experiencing pain was spondylolysis and degenerative disk disease. These conditions can cause
pain down the leg and in the lower back. This medical condition was aggravated by claimant’s
fall. Templin had no reason to disbelieve claimant’s subjective complaints. On recross-
examination, Templin explained that by “aggravate” he meant that claimant’s condition had been
made symptomatic and not necessarily a change in the diagnosis.
¶ 24 Respondent submitted the evidence deposition of Dr. Julie Wehner, a board-certified
orthopedic surgeon specializing in spine surgery. Wehner saw claimant on one occasion on
November 9, 2015, and subsequently prepared three reports. She explained that “spondylolysis”
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refers to a crack in the spine, specifically “in the pars portion of the vertebral body.” It occurs in
about six percent of the population, typically developing in the teenage years. Some people
experience symptoms immediately. Others may never have pain and then be involved in an
accident much later in life, which causes the symptoms to manifest. Symptoms are diverse, and
include lower-back pain, pain radiating down the leg, and pain radiating into the buttock.
¶ 25 Claimant told Wehner that he sometimes wore a back brace prior to the accident. She noted
that a patient wears a brace for symptom control. Claimant’s wrist injury had resolved by the time
Wehner examined him. Wehner stated that claimant “had been getting narcotics from multiple
physicians in very high doses.” She continued, “[I]f somebody has already been using high doses
of narcotics, their pain complaints may not be a hundred percent accurate.” Her review of
claimant’s medical records indicated that he had “a lot of preexisting back problems and
treatments.” She diagnosed “right low back pain with some right leg radiculopathy with mildly
positive straight leg raising and a radiographic finding of a spondylolysis, which was a
preexisting condition.” Claimant had some “moderately positive Waddell findings.” Waddell
signs are tests to detect symptom magnification. Wehner also felt that claimant was self-
limiting and “not giving a full effort.”
¶ 26 Wehner testified that physical therapy and epidural shots were reasonable; however, the
discogram was premature. Normally, a discogram is not performed until six months after an injury,
to give the injury time to heal. Here, it was performed only two months after claimant’s at-work
accident. Wehner added that it might have been reasonable if based on claimant’s symptoms
predating the accident, but then it would have been unrelated to the accident.
¶ 27 Wehner opined that claimant’s condition was caused by an incident in 2013. He was
“lifting a child” and “developed onset of back pain and right leg pain.” She further opined that it
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was not caused by this at-work accident of August 31, 2015. She noted that the areas he was
complaining about after the accident were the same as the ones giving him problems before the
accident. Further, his earlier “pain complaints were high, meaning that he was using high doses
of narcotics to take care of his pain complaints prior to the injury.” Finally, there were no changes
revealed by a clinical examination, and radiographic findings were the same before and after the
accident.
¶ 28 Wehner also opined that claimant’s condition of ill-being was not aggravated by the
accident. She asserted that “[t]here was no substantial change in subjective complaints, the clinical
exam, or the radiographic findings.” Further, according to Wehner, claimant “was symptomatic
immediately prior to this date and he had substantial treatment prior to this also that had not
resulted any—in resolution of his pain yet.” Wehner opined that the condition was not
“accelerated” by the accident either. Claimant had already had recommendations for surgery prior
to the accident, and conservative treatment had failed. She further stated that claimant’s subjective
complaints and radiographic findings had not changed following the accident.
¶ 29 On cross-examination, Wehner agreed that she only examined claimant on one occasion.
She stated that it was not possible to tell if a patient was experiencing symptoms simply from
reviewing a radiographic image. Spondylolysis can be a pain generator, as can spondylolisthesis
(“spondylolisthesis” is spondylolysis where the vertebrae has slipped). A direct trauma could
make an asymptomatic patient symptomatic; it could also make a less symptomatic patient more
symptomatic.
¶ 30 Wehner acknowledged that claimant’s records show gaps where he was not getting new
prescriptions for narcotics; however, she pointed out that he had access to large quantities that may
have carried him through those times. Wehner conceded that the records available to her did not
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indicate claimant received any treatment between June 24, 2014, and November 18, 2014. He was
never given formal work restrictions prior to the accident. She agreed that claimant was working
full duty from April 2015 until the date of the accident. Moreover, Wehner acknowledged that
claimant’s medication “was working to relieve some of his symptoms” and he “reported subjective
improvements.” However, she stated that claimant’s pain never went away and “he still had high
levels of pain.”
¶ 31 Wehner acknowledged that she noted only two Waddell findings. Generally, three are
required before it is deemed clinically significant. She agreed that claimant had an organic basis
for his pain. Wehner further agreed that prior to the accident, no doctor had recommended surgery.
¶ 32 On redirect-examination, Wehner testified that claimant received prescriptions for
hydrocodone, a muscle relaxant, ibuprofen, and a Medrol Doespak (a steroid) in August 2015
before the accident. She noted that his report of paresthesia to the right foot on August 10, 2015,
at the Silver Cross Hospital emergency room was consistent with the complaints he had had about
his back dating to 2013. Despite medial branch blocks giving him “significant pain relief prior to”
the accident, he did not receive any after the accident. On recross-examination, Wehner agreed
that on claimant’s August 15, 2015, visit to Silver Cross Hospital, there is no diagnosis of lumbar
spine pathology; rather, the records state “back pain.” In fact, claimant underwent a CT scan of
the cervical spine, and “the clinical indication for that was right-sided neck pain for 10 days.” She
further agreed that this is a “different pathology than lumbar pathology.”
¶ 33 The arbitrator first noted that it was undisputed that claimant suffered a work-related
accident on August 31, 2015. He found that claimant’s current condition of ill-being is causally
related to that accident. Prior to the accident, claimant had worked full duty for five months. After
the accident, the arbitrator noted, he was taken off work immediately and, as of the time of the
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hearing, had not been released to full duty. The arbitrator acknowledged that claimant had a pre-
existing lower-back and lower-right extremity condition; however, prior to the accident, no one
had ever recommended surgery. Moreover, work restrictions had never been imposed. The
arbitrator expressly found “the opinions of Dr. Templin to be more credible, reliable, and
persuasive” and sufficient “to satisfy [claimant’s] burden of proof regarding the issue of
causation.” He then found the treatment claimant received to be reasonable and necessary and
entered an award “subject to the fee schedule.” The arbitrator also awarded 55-3/7 weeks
temporary total disability (TTD) of $1069.01 per week.
¶ 34 The Commission adopted the decision of the arbitrator in its entirety and remanded for
further proceedings, if any, in accordance with Thomas v. Industrial Comm’n, 78 Ill. 2d 327(1980). One commissioner dissented. He noted that claimant’s post-accident diagnostic testing
was not different from earlier such testing, and he believed that claimant’s condition of ill-being
resulted entirely from his pre-existing condition. The trial court confirmed, and this appeal
followed.
¶ 35 III. ANALYSIS
¶ 36 On appeal, respondent raises three issues. First, it contests the Commission’s conclusion
concerning causation. Second, it alleges error in the Commission’s award of TTD. Third, it argues
that the Commission erred in awarding medical expenses.
¶ 37 A. CAUSATION
¶ 38 Respondent first challenges the Commission’s decision regarding causation. Causation
presents a question of fact. Certi-Serve, Inc. v. Industrial Comm’n, 101 Ill. 2d 236, 244 (1984).
Thus, we will only disturb a decision of the Commission regarding causation if it is contrary to the
manifest weight of the evidence. Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 538
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(2007). A decision is contrary to the manifest weight of the evidence only if an opposite conclusion
is clearly apparent. Teska v. Industrial Comm’n, 266 Ill. App. 3d 740, 741-42 (1994). Resolving
conflicts in the evidence is primarily a matter for the Commission. Bernardoni v. Industrial
Comm’n, 362 Ill. App. 3d 582, 597 (2005). Furthermore, it is for the Commission, as trier of fact,
to assess the credibility of witnesses. O’Dette v. Industrial Comm’n, 79 Ill. 2d 249, 253 (1980).
Moreover, we owe substantial deference to the Commission’s resolution of medical issues, as its
expertise in this arena has long been recognized. See Long v. Industrial Comm’n, 76 Ill. 2d 561,
566 (1979). Finally, we note that, while the burden is upon a claimant to prove his or her case by
a preponderance of the evidence before the Commission (A.M.T.C. of Illinois Inc. v. Industrial
Comm’n, 77 Ill. 2d 482, 488 (1979)), on appeal, the appellant—here respondent—bears the burden
of affirmatively establishing an error warranting reversal (TSP-Hope, Inc. v. Home Innovators of
Illinois, Inc., 382 Ill. App. 3d 1171, 1173 (2008)).
¶ 39 Here, ample evidence supports the Commission’s decision. As the Commission noted (in
adopting the arbitrator’s decision), despite his pre-existing condition, claimant was able to work
full duty in the months leading up to his accident. After the accident, claimant was taken off work
and has never been returned to full duty. Moreover, prior to the accident, surgery had never been
recommended. We also note that claimant testified to the deterioration in his physical condition,
particularly that while he had previously had problems with his back and right leg, the symptoms
were now “constant.” Treatments that had previously provided relief no longer did so after the
accident. Thus, there was evidence in the record showing a deterioration in claimant’s condition
coincident with the accident. This is sufficient to support an inference of causation. Schroeder v.
Illinois Workers’ Compensation Comm’n, 2017 IL App (4th) 160192WC, ¶ 26 (“That is, if a
claimant is in a certain condition, an accident occurs, and following the accident, the claimant’s
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condition has deteriorated, it is plainly inferable that the intervening accident caused the
deterioration.”). The Commission also expressly chose to credit Templin’s opinions over those of
Wehner. Given the state of the record, we cannot say that the Commission's decision is contrary
to the manifest weight of the evidence.
¶ 40 Respondent, nevertheless, contends that the Commission “ignored” a number of facts in
reaching its decision. For example, respondent asserts, “The Commission ignored comments in
the records that prior to the instant accident, [claimant] experienced pain in his back and right leg
when lifting his children.” However, the Commission’s decision states, “Dr. Wehner opined that
[claimant’s] condition of ill-being was related to lifting his child in 2013 and not from any work
injury in August 2015.” Clearly, the Commission was aware of and accounted for this fact—
apparently attributing little weight to it. Similarly, respondent complains that the Commission
“ignored that [claimant] had had symptoms since at least 2013.” To the contrary, the Commission
expressly found, “In January 2013[, claimant] saw Dr. McKeigue and reported back pain with
symptoms that went into his right leg and ankle.” The Commission also noted that claimant had
been treating with a chiropractor since 2008. Indeed, the Commission’s ultimate finding on
causation was that the accident aggravated a pre-existing condition, and, as noted above, there
were sufficient facts in the record to support that conclusion. The Commission’s decision indicates
that it was well aware of the details of this pre-existing condition. In short, that the Commission
resolved some factual questions adversely to respondent does not mean that it “ignored” any
material facts; it simply chose to attribute less weight to them than respondent would like.
¶ 41 Respondent also attacks claimant’s credibility, pointing to two prior statements asserted to
be inconsistent with his testimony that his back condition after the accident worsened such that it
interfered with his work and social life. Respondent points to a statement contained in the records
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of Dr. McKeigue from January 21, 2014, that claimant’s “symptoms worsened” and “affected his
everyday activities.” Records of Dr. Hurley dated May 21, 2013, also stated that claimant’s
condition was having a “significant” effect on his activities of daily living. The Commission could
have reasonably interpreted claimant’s testimony regarding his post-accident condition as referring
to a difference in degree or magnitude of symptoms. Moreover, there is no indication that these
earlier statements concern a condition that was “constant,” like claimant’s condition after the
accident. As such, these earlier statements would not be truly inconsistent. In any event, assessing
credibility is primarily a matter for the Commission (O’Dette, 79 Ill. 2d at 253), and we perceive
nothing here that would render its decision contrary to the manifest weight of the evidence.
¶ 42 Respondent spend much effort pointing out similarities in claimant’s condition before and
after the accident. While such similarities undoubtedly exist, there were differences as well,
particularly regarding claimant’s ability to work and responsiveness to treatment. In light of such
conflicting evidence, we cannot say that an opposite conclusion to the Commission’s is clearly
apparent. That is, the Commission’s decision on causation is not against the manifest weight of
the evidence.
¶ 43 B. TEMPORARY TOTAL DISABILITY
¶ 44 Respondent contends that the award of TTD in this case should be limited to the period
running from September 1, 2015, to October 12, 2015, to reflect that the August 31, 2015, accident
caused only a “strain/sprain/contusion” of limited duration and that claimant’s ongoing condition
of ill being is attributable solely to his pre-existing condition. This argument is entirely dependent
on the success of respondent’s first argument. As we have rejected respondent’s first argument,
we reject this argument as well.
¶ 45 C. MEDICAL EXPENSES
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¶ 46 Regarding medical expenses, respondent argues that the treatment claimant received is not
causally related to his at-work accident of August 31, 2015. For the reasons set forth above in our
discussion of the causation issue, we reject the basic premise of this argument.
¶ 47 Respondent also argues that claimant exceeded his choice of two doctors allowed by the
Act when he saw Dr. Babino. See 820 ILCS 305/8(a) (West 2014); Courier v. Industrial Comm’n,
282 Ill. App. 3d 1, 7-9 (1996). This issue raises a question of fact, subject to review using the
manifest-weight standard, meaning we will reverse only if an opposite conclusion is clearly
apparent. Absolute Cleaning/SVMBL v. Illinois Workers’ Compensation Comm’n, 409 Ill. App.
3d 463, 468-469 (2011). Claimant counters that his visit to Babino was for emergency medical
treatment, which provides an exception to the two-doctor rule. See Comfort Masters v. Illinois
Workers’ Compensation Comm’n, 382 Ill. App. 3d 1043, 1046 (2008).
¶ 48 While the Commission did not make an express finding on this issue , it did note claimant’s
testimony “that he presented to Loyola [where Babino was employed] because of the wait time to
be seen at Pain Treatment Centers of [Illinois] and his excruciating pain.” From this, the
Commission could reasonably conclude that claimant’s need for pain management was an
emergency as contemplated by section 8(a) of the Act. We find Wolfe v. Industrial Commission,
138 Ill. App. 3d 680 (1985), instructive here. In that case, the claimant argued that his trip to an
emergency room should not have been considered his second choice of a doctor because his regular
physician was not available to treat him at the time he made the visit. Id. at 688. The Commission
rejected this argument—and this court affirmed—because the record did not support the claimant’s
contention that his doctor was not available. Id. at 689. Here, conversely, claimant testified that
he went to Loyola because he could not get an appointment with Pain Treatment Centers of Illinois
for several weeks. The Commission was, of course, entitled to credit this testimony. See Hosteny
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v. Illinois Workers’ Compensation Comm’n, 397 Ill. App. 3d 665, 674 (2009). Given this
testimony, we certainly cannot say that the Commission’s decision is against the manifest weight
of the evidence.
¶ 49 Additionally, respondent blatantly asserts, “These bills should further be reduced pursuant
to the Medical Fee schedule and only be awarded if unpaid.” Respondent makes no attempt to
explain which awards do not comply with the fee schedule or which awarded expenses were
already paid. It has oft been stated that “[a] reviewing court is entitled to have issues clearly
defined with pertinent authority cited and cohesive arguments presented [citation], and it is not a
repository into which an appellant may foist the burden of argument and research [citation]; it is
neither the function nor the obligation of this court to act as an advocate or search the record for
error [citation].” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993). Therefore, we deem this
argument forfeited.
¶ 50 IV. CONCLUSION
¶ 51 In light of the foregoing, the order of the circuit court of Will County confirming the
decision of the Commission is affirmed. We remand this cause pursuant to Thomas, 78 Ill. 2d 327.
¶ 52 Affirmed; cause remanded.
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