Pisano v. Illinois Workers' Compensation Comm'n

2018 IL App (1st) 172712WC
No. 1-17-2712WC
Opinion filed: December 7, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION
______________________________________________________________________________
WILLIAM PISANO, ) Appeal from the Circuit Court
) of Cook County.
Appellant, )
)
v. ) No. 16-L-50753
)
THE ILLINOIS WORKERS’ )
COMPENSATION COMMISSION et al., ) Honorable
) Daniel J. Kubasiak,
(The City of Chicago, Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in
the judgment and opinion.
OPINION
¶1 Claimant, William Pisano, filed three applications for adjustment of claim seeking
benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) for
injuries he sustained while working for respondent, the City of Chicago. The claims were
consolidated, and the matter proceeded to an arbitration hearing pursuant to section 19(b) of the
Act (820 ILCS 305/19(b) (West 2006)). The arbitrator issued a single decision on all three
claims. Relevant to this appeal, the arbitrator awarded (1) permanent partial disability (PPD)
benefits pursuant to section 8(e) of the Act (820 ILCS 305/8(e)(9), (e)(10) (West 2006)) for
2018 IL App (1st) 172712WC
injuries to claimant’s right wrist and right elbow arising out of the first accident and (2) a wage-
differential award pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2006)) for
an injury to claimant’s right wrist arising out of the second accident. The arbitrator determined
that the injuries from the third accident arose out of and in the course of the vocational-
rehabilitation process for the second accident. As such, the arbitrator concluded that any
permanency benefits were accounted for in relation to the award for the second accident. In
addition, the arbitrator denied claimant’s request for penalties and attorney fees pursuant to
sections 16, 19(k), and 19(l) of the Act (820 ILCS 305/16, 19(k), 19(l) (West 2006)). The Illinois
Workers’ Compensation Commission (Commission) modified the rate and commencement date
of the wage differential awarded for the second accident but otherwise affirmed and adopted the
arbitrator’s decision.
¶2 On judicial review, the circuit court of Cook County confirmed the Commission’s
decision in part and set it aside in part. In particular, the court disagreed with the Commission to
the extent it awarded claimant both a scheduled PPD award pursuant to section 8(e) of the Act
and a wage differential pursuant to section 8(d)(1) of the Act. Relying on Baumgardner v.
Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 274 (2011), and City of Chicago v.
Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 258 (2011), the court held that
claimant should be awarded one type of benefit or the other, but not both. As such, the court
remanded the matter to the Commission with instructions to “evaluate the totality of the evidence
and provide a single award encompassing the full extent of the disability resulting from all
accidents involved in this consolidated case.” The court otherwise confirmed the Commission’s
decision.
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¶3 On remand, the Commission determined that the full extent of claimant’s disability
resulting from all of his accidents warranted a finding of a wage-differential award pursuant to
section 8(d)(1) of the Act. In so finding, the Commission modified its original decision by
vacating the section 8(e) awards. On judicial review, the circuit court confirmed the decision of
the Commission upon remand. Claimant now appeals, raising issues concerning the permanency
awards entered by the Commission and the Commission’s decision to deny his request for
penalties and fees pursuant to sections 16, 19(k), and 19(l) of the Act. For the reasons that
follow, we affirm in part, reverse in part, vacate in part, and reinstate in part the Commission’s
original decision.
¶4 I. BACKGROUND
¶5 Claimant filed three applications for adjustment of claim seeking benefits under the Act
for injuries he sustained while working for respondent. In the first application, case No. 05-WC­
49540, claimant alleged that on October 31, 2005, he injured his right elbow when he slipped on
grease while standing on the platform of a machine. In the second application, case No. 08-WC­
47656, claimant alleged that on December 12, 2007, he aggravated his right wrist when he was
struck by the side mirror of a car while directing traffic around a work area. In his third
application, case No. 11-WC-16653, claimant alleged that on December 6, 2010, he sustained
injuries to both shoulders, his right arm, and the person as a whole after he slipped on ice while
going to a vocational-rehabilitation appointment.
¶6 The claims were consolidated, and the matter proceeded to an arbitration hearing
pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)) over several dates
between January 22, 2013, and September 3, 2013. In all three cases, the parties stipulated to the
accidents. Additionally, in case Nos. 05-WC-49540 and 08-WC-47656, the parties stipulated to
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causation. The issues in dispute involved the nature and extent of the injuries, medical expenses,
maintenance, and causation in case No. 11-WC-16653. In addition, prior to the arbitration
hearing, claimant filed petitions for penalties and attorney fees alleging that respondent had
refused to pay certain medical expenses and maintenance benefits. The following factual
recitation is taken from the evidence presented at the arbitration hearing.
¶7 Claimant testified that the highest level of education he completed was his first year of
high school. During his sophomore year, claimant left high school and briefly attended trade
school. He then joined the Navy but was given a general discharge after six months due to color
blindness. Claimant began working for respondent in 1979 as a roller engineer and eventually
became a hoist engineer in respondent’s water department. Claimant testified that his duties as a
hoist engineer included operating, maintaining, and repairing various types of heavy equipment,
including graders, backhoes, cranes, end loaders, forklifts, Bobcats, and snowblowers. Claimant
testified the lifting requirement for a hoist engineer is up to 100 pounds. Claimant is right
handed.
¶8 A. October 31, 2005, Accident and Medical Treatment
¶9 Claimant testified that while working for respondent on October 31, 2005, he was
directed to a jobsite with his backhoe. While climbing onto the machine, claimant slipped on
grease, fell backwards, and landed on his right arm and right side. Claimant immediately felt
pain and noticed his right arm swell.
¶ 10 Following the accident, claimant sought treatment at MercyWorks, where he was
diagnosed with a right elbow fracture, right wrist contusion, and right shoulder strain. Claimant
was taken off work, prescribed medication, given a sling for his arm, and referred to Dr. William
Heller of Midland Orthopedics. Dr. Heller recommended that claimant refrain from using his
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right arm, prescribed a course of physical therapy, and instructed claimant to follow up in six
weeks.
¶ 11 Claimant returned to MercyWorks on November 8, 2005, with complaints of right hip
pain and increased right wrist pain. A course of therapy was recommended. On December 27,
2005, claimant underwent magnetic resonance imaging (MRI) of the right wrist. The MRI
revealed a triangular fibrocartilage complex (TFCC) tear. Dr. Heller opined the TFCC tear was
due to claimant’s job duties and likely became symptomatic due to the fall. Dr. Heller
administered a cortisone injection to the wrist and recommended continued physical therapy.
Claimant was also referred to Dr. Daniel Nagle. On March 1, 2006, Dr. Nagle performed surgery
on claimant’s right wrist, consisting of an arthroscopy with TFCC debridement. Following
surgery, Dr. Nagle noted that claimant had extensive damage to his right wrist and had three
options—living with the wrist as is, undergoing a partial fusion of the wrist, or undergoing a
panarthrodesis. The physician at MercyWorks instructed claimant to continue treating with Dr.
Nagle and to remain off work. On March 22, 2006, claimant presented to MercyWorks and
reported that his right shoulder, right elbow, and right hip were “fine.”
¶ 12 On April 21, 2006, claimant underwent a functional capacity evaluation (FCE). The FCE
was considered valid and placed claimant at the light-to-medium physical-demand level with
lifting restrictions of 55 pounds from floor to waist on an occasional basis and 30 pounds from
waist to overhead on an occasional basis. This did not meet the job demands of a hoist engineer,
which requires a heavy physical-demand level with lifting of 100 pounds occasionally and 50
pounds frequently. On May 11, 2006, Dr. Nagle discharged claimant with permanent restrictions
pursuant to the April 2006 FCE. Initially, respondent was unable to accommodate these
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restrictions, so claimant remained off work. However, respondent eventually found a position for
claimant as a mail van driver.
¶ 13 On July 11, 2006, Dr. Nagle reevaluated claimant’s right wrist and recommended
claimant continue with the restrictions outlined in the FCE. Dr. Nagle next evaluated claimant on
October 10, 2006. At that time, claimant complained of pain in his right wrist and elbow and
occasional popping and clicking in his right elbow. Dr. Nagle indicated that absent additional
surgical intervention, claimant had reached maximum medical improvement (MMI) with
permanent light-duty restrictions. He instructed claimant to return on an as-needed basis.
¶ 14 Claimant returned to Dr. Nagle’s office on March 22, 2007. Claimant told Dr. Nagle that
he wanted to return to his position as a hoist engineer. Dr. Nagle felt claimant’s situation had
improved, and he recommended a repeat FCE, which was performed on April 4, 2007. The FCE
indicated that claimant could lift 100 pounds from floor to waist and 50 pounds from waist to
overhead, which met the physical-demand level required of a hoist engineer. On May 10, 2007,
claimant presented to Dr. Nagel and reported that, since the FCE, he had developed wrist pain.
At that time, Dr. Nagel voiced disagreement with the finding of the April 2007 FCE and
recommended that claimant refrain from activities that require him to heavily and repetitively
axially load the wrist while it is in an extended position or lift more than 50 pounds from the
waist to the shoulder.
¶ 15 On May 14, 2007, claimant returned to MercyWorks, where he was found to be at MMI,
discharged, and instructed to return to limited-duty work with permanent restrictions. On July 26,
2007, Dr. Nagle received a job description for the hoist engineer position. Dr. Nagle noted that
the job description made no mention of lifting 50 pounds above shoulder level. Accordingly, in a
note dated July 27, 2007, Dr. Nagle authorized claimant to return to the regular duties of a hoist
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engineer as outlined in the job description he received. That same day, claimant was authorized
to return to work full duty by MercyWorks. Claimant returned to work for respondent driving a
graffiti blaster.
¶ 16 B. December 12, 2007, Accident and Medical Treatment
¶ 17 On December 12, 2007, claimant was working graffiti detail when his right hand was
struck by the side mirror of a car as he was directing traffic. Claimant testified that he was
evaluated at MercyWorks, where the physician told him “you’re already injured, it’s aggravated”
and authorized claimant to return to work. On March 11, 2008, claimant went to MercyWorks
with complaints of increased pain while performing routine job duties. At that time, claimant was
diagnosed with a right wrist strain. He was placed on light duty with instructions to use a wrist
splint and not to lift more than 25 pounds. Respondent was unable to accommodate the
restrictions. Claimant continued to complain of pain and was placed in therapy on April 22,
2008. On May 6, 2008, the physicians at MercyWorks discontinued claimant’s therapy and
referred him to Dr. Nagle.
¶ 18 On June 17, 2008, Dr. Nagle recommended use of a wrist splint along with anti-
inflammatory medication and a return to work with no lifting more than 50 pounds above the
shoulder. Claimant subsequently informed Dr. Nagle that the 50-pound restriction “was causing
some difficulty with his return to work.” Accordingly, on June 20, 2008, Dr. Nagel amended his
return to work authorization to provide that claimant “is able to regular duty work [sic] as a hoist
engineer.” Meanwhile, an FCE performed on June 30, 2008, indicated claimant was capable of
working at a medium physical-demand level, which was below the level needed to return to his
job as a hoist engineer. Claimant underwent another round of physical therapy and work
hardening. On September 15, 2008, the physicians at MercyWorks discharged claimant from
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their care at MMI with restrictions of no lifting more than 35 pounds occasionally and 20 pounds
frequently. Respondent was unable to accommodate claimant’s restrictions.
¶ 19 On September 25, 2008, claimant participated in a vocational-rehabilitation meeting with
respondent’s department of human resources. Claimant met with Edward Steffan of EPS
Rehabilitation on July 29, 2009, to begin a job-search program. After that initial meeting with
Steffan, claimant met with Duane Bigelow to discuss job-search strategies. Claimant continued
to meet with Bigelow on a weekly basis throughout 2009 and 2010.
¶ 20 C. December 6, 2010, Accident and Medical Treatment
¶ 21 On December 6, 2010, claimant was injured when he slipped on ice and fell to the ground
as he was exiting his car to go to a vocational-rehabilitation session with Bigelow. Claimant was
carrying his vocational worksheets at the time. Claimant testified that he immediately felt pain in
his back, neck, and bilateral shoulders. Claimant sought care from Dr. Paul Prinz on December
16, 2010. Dr. Prinz prescribed an MRI of the neck and both shoulders. On December 24, 2010,
Dr. Prinz noted the cervical MRI showed significant stenosis at multiple levels, the left shoulder
MRI revealed a labral tear, and the right shoulder MRI was positive for a labral tear and a partial
tear of the supraspinatus tendon. After his review of the MRI films, Dr. Prinz referred claimant
to Dr. Michael Maday for further evaluation of the shoulders and to Dr. Francisco Espinosa for
further evaluation of the neck and back.
¶ 22 Dr. Maday examined claimant on January 14, 2011, and diagnosed bilateral partial
thickness tears of the supraspinatus tendons. Claimant declined Dr. Maday’s recommendation for
an injection on the basis it would provide only temporary relief. As a result, Dr. Maday
prescribed a home exercise program and instructed claimant to return in one month. Claimant
saw Dr. Espinosa on January 25, 2011. Dr. Espinosa ordered an MRI of the lumbar spine. He
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eventually diagnosed cervical degenerative disc disease and lumbar degenerative disc disease.
Dr. Espinosa determined that no surgical intervention was required. Instead, he recommended a
course of physical therapy and home exercises.
¶ 23 On January 31, 2011, Dr. Michael Kornblatt examined claimant at respondent’s request.
With respect to claimant’s bilateral shoulders, Dr. Kornblatt diagnosed a work-related strain with
preexisting acromioclavicular arthritis and rotator cuff tendonitis. Dr. Kornblatt concluded that
the strain was causally related to the December 6, 2010, accident but the preexisting arthritis and
tendonitis were unrelated. In Dr. Kornblatt’s view, claimant would reach MMI with respect to
the bilateral shoulders after about four weeks of physical therapy and “possibly” one subacromial
injection. With respect to claimant’s cervical spine, Dr. Kornblatt diagnosed a work-related
cervical strain and preexisting degenerative disc disease. Dr. Kornblatt related the cervical strain
to the accident of December 6, 2010. Dr. Kornblatt opined that claimant would reach MMI with
respect to the cervical spine after three to four weeks of physical therapy. With respect to
claimant’s lumbar spine, Dr. Kornblatt diagnosed mild lumbar strain. He opined that the lumbar
condition was causally related to the work accident of December 6, 2010, and that claimant
would reach MMI with respect to this condition after one session of physical therapy. Dr.
Kornblatt further opined that claimant was capable of performing job-search activities, including
searching for employment online, completing resumes, contacting potential employers via
telephone, and meeting with vocational counselors. Dr. Kornblatt also concluded that claimant
was capable of driving as long as he was not under the influence of medication. Finally, Dr.
Kornblatt felt that claimant was capable of returning to work full time with a 25-pound lifting
restriction and no over-the-shoulder work.
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¶ 24 Claimant followed up with Dr. Maday on February 11, 2011. Dr. Maday prescribed a
course of physical therapy. On February 21, 2011, claimant began physical therapy for his
bilateral shoulders, neck, and lumbar spine. On May 27, 2011, claimant returned to Dr. Maday’s
office with complaints of right shoulder pain. Dr. Maday recommended continued therapy and
home exercises and instructed claimant to refrain from heavy lifting and extensive driving. On
July 1, 2011, claimant was discharged from physical therapy with a home exercise plan. On
September 1, 2011, claimant presented to MercyWorks. At that time, he was diagnosed with a
strain of the right wrist. He was discharged at MMI and authorized to return to work with a
lifting restriction of 30 pounds.
¶ 25 Claimant testified that despite being placed on restricted light duty and complying with
respondent’s job-search requirements, his benefits were suspended on June 4, 2011. Benefits
were reinstated after a section 19(b) appearance before an arbitrator on August 19, 2011. See 820
ILCS 305/19(b) (West 2006).
¶ 26 D. Claimant’s Current Condition
¶ 27 Claimant testified that he continues to experience pain in his wrist, elbow, and bilateral
shoulders. Claimant wears a brace on his right wrist, especially while driving. He also has
decreased range of motion in both shoulders and his wrist. Cold and damp weather cause
problems as well. Claimant testified that he also continues to have stiffness and pain involving
the neck, low back, and right hip.
¶ 28 E. Watchman Position
¶ 29 On August 15, 2011, claimant received a letter from Ashley Pak of respondent’s
department of water management informing him that he is “able to return to work within [his]
restrictions to the position of Watchman, at $19.24.” The letter further provided that the job offer
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“is contingent upon the successful completion of the Willing and Able Questionnaire, confirming
your readiness to perform the duties of the position.” Claimant was instructed to contact Pak “to
begin the initial phase of the employment process.”
¶ 30 Claimant testified that he contacted Pak, reported as instructed, and completed a
questionnaire indicating he was willing and able to perform the duties of a watchman. 1 Claimant
agreed that Pak contacted him on August 31, 2011, to ask if he was willing to do the job but
denied that he was offered a job or instructed to get fingerprinted. Claimant told Pak that he
wanted to discuss the watchman position with Dr. Maday and Dr. Nagle.
¶ 31 Claimant’s request to see Dr. Nagle was denied, but claimant was authorized by
respondent to see Dr. Maday. Claimant told Dr. Maday that he was offered a job as a watchman.
Claimant presented Dr. Maday with a job description for a watchman that was posted by
respondent online as part of a bid announcement. Claimant expressed concern that the position
would require him to “confront somebody.” Dr. Maday wrote: “[Claimant] returns today and
apparently was offered a job as a watchman. Part of the job required possibility [sic] of contact
with suspects and possibility [sic] of heavy lifting. He is continuing to complain of pain.” Based
on the job description, Dr. Maday felt that there may be portions of the watchman position that
would violate claimant’s light-duty restrictions.
¶ 32 Claimant testified that despite Dr. Maday’s concerns, he pursued the watchman position.
However, in a letter dated November 28, 2011, respondent’s attorney indicated that the
watchman position was no longer available. Claimant testified that respondent paid him
1
The questionnaire admitted into evidence is dated August 15, 2008. Claimant testified that more
likely than not this was an error and the correct date was August 15, 2011. As discussed later, however,
Pak denied this was a possibility in her testimony.
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maintenance until May 5, 2012, when he began receiving a wage-differential benefit of $684 per
week.
¶ 33 F. Testimony of Ashley Pak
¶ 34 Ashley Pak is an administrative services officer for respondent and is involved in the
process of hiring watchmen for the water department. Pak testified that the hiring process begins
when she receives a list of candidates. Pak contacts every candidate on the list and requests that
he or she come to her office to complete a “willing and able questionnaire.” The questionnaire
details the responsibilities of the watchman position. To be hired, a candidate must express that
he or she is willing and able to perform every aspect of the watchman position. Following
completion of the questionnaire, the next step is for the candidate to be fingerprinted. If the
candidate “pass[es] the fingerprint,” job offers are extended to the candidates in the order their
names appear on the list.
¶ 35 Pak identified a “willing and able questionnaire” signed by claimant and dated August
15, 2008. Pak had no record whether claimant was sent for fingerprinting in 2008. Pak testified
that her next contact with claimant was in 2011, when she received a list of about 50 eligible
candidates for the watchman position, including claimant, from respondent’s committee on
finance. At that time, there were between 11 and 15 watchman position openings. On August 15,
2011, Pak sent claimant a letter requesting he complete a “willing and able questionnaire” for a
watchman position in the water department. On August 30 or 31, 2011, Pak telephoned claimant
to inform him that he needed to be fingerprinted. Claimant told Pak that he would not come in
for fingerprinting until he spoke with his lawyer and doctor. Pak never heard from claimant after
that phone call. Pak testified that the watchman position “would have been [claimant’s] if he had
completed the whole process” and that she explained this to claimant.
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¶ 36 On cross-examination, Pak acknowledged that, as an employee for respondent, claimant
had previously been subject to fingerprinting and a background check. Pak testified that she was
unable to find a letter from 2008 asking claimant to complete the “willing and able
questionnaire” and that claimant did not complete a “willing and able questionnaire” in 2011.
Pak testified that it is possible that claimant was verbally requested to complete the questionnaire
in 2008. Pak did not believe that claimant presented to her office in 2011 and wrote the wrong
date on the questionnaire. Pak agreed that at no time did she take any steps to determine if a
watchman position was an appropriate job for claimant. She also testified that claimant was
never issued a letter offering him a watchman position.
¶ 37 G. Testimony of James Boyd
¶ 38 James Boyd, a certified vocational rehabilitation counselor and vocational evaluator,
provided a vocational assessment of claimant. Boyd reviewed claimant’s medical records,
education, and work history. Boyd also performed a battery of vocational testing and conducted a
transferable-skills analysis.
¶ 39 Boyd testified that while claimant had some good skills in terms of verbal reasoning,
reading ability, reading comprehension, and vocabulary, there were several challenges to
claimant returning to the work force. Given his long work history with one employer, claimant
has few transferable skills and does not have a variety of training or work experiences that could
match lighter types of jobs or physical restrictions. Moreover, an IQ test measuring nonverbal
reasoning placed claimant in the lower fifth percentile. Testing also revealed lower scores in
mechanical reasoning, visual problem solving, auditory comprehension, typing, and manual
dexterity. Furthermore, testing showed that claimant is not interested in a wide range of jobs,
although he expressed some interest in scientific types of jobs.
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¶ 40 Boyd’s primary recommendation for claimant was computer training. He testified that
areas of employment that may be suitable for claimant included sales, customer service, parts
clerk, and forklift operations. Boyd noted that claimant had conducted a job search involving at
least 10 job contacts per week over several years. Nevertheless, claimant was provided very few
interviews and no job offers. According to Boyd, the result of the job search indicated that absent
retraining, a stable labor market does not exist for any of claimant’s skills. Boyd opined that
claimant has no transferable skills to alternate jobs within his physical capability. He further
opined that claimant has a very limited and specific type of training that is not applicable to work
he is currently or potentially qualified for and there is considerable wage loss. Boyd explained
that even an entry-level job in the $12-per-hour range was not achievable absent additional
computer training. Boyd testified that claimant has expressed a desire to go back to work and his
three years of consistent job searching is an indication that he wants to work.
¶ 41 On cross-examination, Boyd acknowledged that, even if someone expresses little interest
in a particular field, it does not mean that they would not be qualified and capable of working in
that area. Boyd noted, for instance, that claimant only placed in the fifth percentile in the
technology-skill area but most of his work history as a hoist engineer was in that area. It was
Boyd’s understanding that a watchman position was offered to claimant. Boyd testified that there
is a “wide variance” of what a watchman position requires. Boyd was asked whether
respondent’s watchman position would be appropriate for claimant. Boyd testified that
“[r]egardless of the lifting requirement or lack thereof, there were a couple of other things on this
job description that did not jive with the results of [his] vocational testing.” This includes
auditory comprehension, reasoning and problem solving, response to emergency situations, and
dealing with multiple variables at the job.
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¶ 42 H. Testimony of Edward Steffan
¶ 43 Edward Steffan is a certified rehabilitation counselor hired by respondent to provide
services to claimant. Steffan was assisted by Duane Bigelow, another certified rehabilitation
counselor. Claimant received vocational rehabilitation services from Steffan and Bigelow
between July 2009 and August 2011. Steffan did not perform any aptitude or vocational testing
because claimant was not a candidate for any type of advanced training. Steffan oversaw
claimant’s compliance with a request by respondent’s committee on finance that he fill out a job
log and submit it weekly.
¶ 44 Steffan opined that claimant was both “employable and placeable.” Steffan noted that
claimant had a lifting restriction of 30 pounds occasionally, which would place him in the
medium exertional level. Steffan opined that claimant could secure employment within his
physical capacity in customer service, in a counter parts position, as a service writer at a
mechanical repair organization, or as a forklift driver and earn between $10 and $20 per hour.
Claimant believed that he could secure employment utilizing his heavy equipment operation skill
to find work earning up to $41 per hour. Steffan agreed that claimant would benefit from
computer training.
¶ 45 Steffan testified that the position of watchman is classified as sedentary, unskilled work
in the Dictionary of Occupational Titles. The position typically involves monitoring security
footage and calling 911 or other assistance if necessary but does not require physical
confrontations. Steffan opined that, if there was a watchman position available that did not
require physical confrontation, had a 30-pound lifting restriction, called for monitoring security
footage and walking the premises, and required calling 911 if there was an unauthorized
individual on the property, claimant would be qualified for the job.
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¶ 46 On cross-examination, Steffan testified that, in the two-year period that vocational
rehabilitation was authorized by respondent, he personally met with claimant only twice. Steffan
confirmed that claimant was required to and did submit job-search logs to respondent every
week. Claimant made 1100 job contacts but received no job offers. Respondent never provided
Steffan with a job description for a watchman and never asked Steffan if a watchman position
would be appropriate for claimant. Steffan acknowledged that a watchman is not always a
sedentary job and that some watchmen function as security guards. Steffan was unaware if
respondent offered claimant a job as a watchman. Steffan had not reviewed the job duties of a
watchman with respondent, so he had no opinion whether a watchman position would be an
appropriate job for claimant.
¶ 47 I. Testimony of Daniel Misch
¶ 48 Daniel Misch is the foreman of construction laborers for respondent’s department of
water management and handles security for the department. Misch testified that the watchman
position involves sitting at a department facility, answering phones, contacting the command
center every hour, monitoring cameras, logging trucks in and out, and calling 911 and the
command center if any unusual activity is observed. Misch testified that the watchman position
does not involve lifting over 30 pounds or overhead lifting and that the only pushing and pulling
required would involve opening and closing a door. Misch added that the position does not
require the physical apprehension of trespassers. Misch testified that, if a watchman observes an
unauthorized individual on the premises, he or she is instructed to call 911 and the command
center. Misch acknowledged that there are some watchman positions that require driving.
¶ 49 On cross-examination, Misch confirmed that claimant applied for a watchman position,
but he was not involved in the hiring process and did not know if claimant was ever hired. Misch
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was not consulted to determine if claimant could work as a watchman. Further, he could not
determine whether claimant was qualified to work the position, as he was not aware of
claimant’s restrictions.
¶ 50 J. Arbitrator’s Decision
¶ 51 On November 15, 2013, the arbitrator issued a single decision on all three claims. With
respect to case No. 05-WC-49540, the arbitrator found that claimant sustained a fracture to the
right elbow and an injury to the right wrist as a result of the October 31, 2005, accident. The
arbitrator determined that the right elbow healed without complication. The right wrist injury
consisted of a TFCC tear, which required surgery, but claimant was ultimately released to
employment. The arbitrator awarded claimant 50.6 weeks of PPD benefits, representing a 20%
loss of use of his right arm based on the right elbow fracture (820 ILCS 305/8(e)(10) (West
2006)) plus an additional 61.5 weeks of PPD benefits, representing a 30% loss of use of his right
hand based on the injury to the right wrist (820 ILCS 305/8(e)(9) (West 2006)). Regarding
medical expenses, the arbitrator noted that claimant submitted medical bills from Dr. Maday and
ATI Physical Therapy. However, the underlying balances from these providers were paid
through claimant’s group insurance carrier, and the parties agreed at the arbitration hearing that
respondent is entitled to a credit of $10,040.97 under section 8(j) of the Act (820 ILCS 305/8(j)
(West 2006)). Accordingly, the arbitrator concluded that respondent had paid all appropriate
charges for reasonable and necessary medical services and was not liable for any additional
medical bills.
¶ 52 With respect to case No. 08-WC-47656, the arbitrator acknowledged that claimant was
restricted from working as a hoist engineer. Nevertheless, the arbitrator concluded that claimant
failed to prove by a preponderance of the evidence that he is permanently and totally disabled or
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that there is no stable labor market for his skills given his injuries. The arbitrator explained that
respondent made a bona fide job offer to claimant for one of several watchman positions, which
would have paid $19.24 per hour. However, claimant failed to complete the application process,
so the jobs were offered to other candidates. Based on these findings, the arbitrator determined
that claimant’s injuries from the accident of December 12, 2007, caused a loss of earnings and
awarded him a PPD benefit in the form of a wage differential pursuant to section 8(d)(1) of the
Act (820 ILCS 305/8(d)(1) (West 2006)) in the amount of $616.45 per week from August 30,
2011, through the duration of the disability. The arbitrator also declined claimant’s request for
penalties and attorney fees pursuant to sections 16, 19(k), and 19(l) of the Act (820 ILCS 305/16,
19(k), 19(l) (West 2006)).
¶ 53 With respect to case No. 11-WC-16653, the arbitrator found that claimant’s injuries from
the fall on December 6, 2010, arose out of and in the course of the vocational-rehabilitation
process in connection with the accident of December 12, 2007. As such, the arbitrator
determined that any permanency benefits were accounted for under case No. 08-WC-47656.
¶ 54 K. Commission’s Decision
¶ 55 Both parties appealed. On May 29, 2015, the Commission issued a decision modifying in
part and affirming and adopting in part the arbitrator’s decision. The Commission affirmed and
adopted the arbitrator’s decision with respect to case Nos. 05-WC-49540 and 11-WC-16653. The
Commission modified the arbitrator’s decision with respect to case No. 08-WC-47656. In this
regard, the Commission found that the arbitrator’s award of a wage differential under section
8(d)(1) of the Act was appropriate, thereby affirming the arbitrator’s finding that claimant failed
to prove he was permanently and totally disabled and that there was no stable labor market for
him. In doing so, the Commission found that the arbitrator’s determination that claimant was
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offered a watchman position was supported by the record. However, the Commission concluded
that the arbitrator incorrectly determined the rate and commencement date of the wage
differential. Accordingly, the Commission modified the wage-differential rate to $668.27 per
week with a commencement date of August 15, 2011.
¶ 56 L. Circuit Court Decision
¶ 57 Both parties timely appealed the Commission’s decision to the circuit court of Cook
County. On February 16, 2016, the circuit court issued an opinion and order concluding that the
Commission’s findings as to case Nos. 05-WC-49540 and 11-WC-16653 were not against the
manifest weight of the evidence. With respect to case No. 08-WC-47656, the court confirmed the
Commission’s decision in part and set it aside in part. The court confirmed the Commission’s
findings that claimant did not prove entitlement to an odd-lot permanent total disability award,
that claimant was made a bona fide offer for the watchman position, and that he was not entitled
to any penalties and fees. However, the court disagreed with the Commission’s decision to award
claimant both scheduled PPD awards pursuant to section 8(e) of the Act and a wage differential
pursuant to section 8(d)(1) of the Act. Relying on Baumgardner, 409 Ill. App. 3d 274, and City
of Chicago, 409 Ill. App. 3d 258, the court held that claimant should be awarded one type of
benefit or the other, but not both. The court remanded the matter to the Commission with
instructions to “evaluate the totality of the evidence and provide a single award encompassing
the full extent of the disability resulting from all accidents involved in this consolidated case.”
¶ 58 M. Commission Decision on Remand
¶ 59 On October 28, 2016, in accordance with the circuit court’s order, the Commission
reconsidered and reevaluated the totality of the evidence and issued a decision on remand. The
Commission determined that the full extent of claimant’s disability resulting from all of his
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accidents warranted a finding of a wage-differential award pursuant to section 8(d)(1) of the Act,
commencing August 15, 2011. In so finding, the Commission modified its May 29, 2015,
decision by vacating the section 8(e) awards of 20% loss of use of the right arm and 30% loss of
use of the right hand in case No. 05-WC-49540. The Commission also corrected a clerical error
in the calculation of benefits.
¶ 60 N. Circuit Court Decision Following Remand
¶ 61 Claimant sought judicial review of the Commission’s remand decision in the circuit court
of Cook County. The circuit court found that all issues were resolved by the court’s previous
February 16, 2016, order and, as such, were “law of the case” and could not be disturbed. It
therefore confirmed the decision of the Commission upon remand. This appeal by claimant
ensued.
¶ 62 II. ANALYSIS
¶ 63 On appeal, claimant raises a number of issues. First, he argues that the Commission’s
original determination that he is entitled to both scheduled PPD benefits pursuant to section 8(e)
of the Act and a wage-differential benefit pursuant to section 8(d)(1) of the Act was proper.
Second, he argues that the Commission erred in not awarding him permanent and total disability
(PTD) benefits. Third, claimant contends that the Commission erred in failing to award him a
separate PPD award for the injuries he sustained in the 2010 fall. Finally, claimant argues that
the Commission erred in failing to award penalties and attorney fees based on respondent’s
failure to pay certain medical expenses and maintenance benefits. We address each argument
separately.
¶ 64 A. One Award
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¶ 65 Claimant first argues that the Commission’s original determination that he is entitled to
both scheduled PPD benefits pursuant to section 8(e) of the Act and a wage-differential benefit
pursuant to section 8(d)(1) of the Act was proper because he injured multiple body parts in
different accidents.
¶ 66 We initially observe that where, as here, the circuit court sets aside the Commission’s
original decision and the Commission enters a new decision on remand, our initial inquiry on
appeal from the circuit court order confirming the decision on remand is whether the circuit court
erred in reversing the Commission’s original decision. Vogel v. Industrial Comm’n, 354 Ill. App.
3d 780, 785-86 (2005). The determination whether a claimant is entitled to separate awards
presents a question of fact. See Village of Deerfield v. Illinois Workers’ Compensation Comm’n,
2014 IL App (2d) 131202WC, ¶ 44 (observing that a determination as to the type of permanency
award requires resolution of factual matters). We review the Commission’s factual
determinations under the manifest-weight-of-the-evidence standard. Village of Deerfield, 2014
IL App (2d) 131202WC, ¶ 44; Baumgardner, 409 Ill. App. 3d at 278-79. A finding of fact is
against the manifest weight of the evidence only if an opposite conclusion is clearly apparent.
Village of Deerfield, 2014 IL App (2d) 131202WC, ¶ 44.
¶ 67 In its original decision, the Commission awarded a scheduled PPD award under section
8(e)(10) of the Act for the injury claimant sustained to his right elbow in the first accident, a
scheduled PPD award under section 8(e)(9) of the Act for the injury claimant sustained to his
right wrist in the first accident, and a wage-differential award under section 8(d)(1) of the Act for
the injury claimant sustained to his right wrist in the second accident. As noted, claimant argues
that the Commission properly entered separate awards because he suffered multiple injuries to
multiple body parts in multiple accidents. We agree with claimant in part.
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¶ 68 The outcome of this case is controlled by our decision in Baumgardner, 409 Ill. App. 3d
274. In that case, the parties stipulated that the claimant sustained work-related injuries to his
right knee in April 1996 and May 1998 and that the condition of ill-being in his right leg was
causally related to the injuries sustained on those two dates. The claims were consolidated, and
the arbitrator issued a single decision awarding the claimant a wage differential for the duration
of this disability pursuant to section 8(d)(1) of the Act. The Commission affirmed the arbitrator’s
decision with a modification to correct a clerical error. The claimant appealed, arguing that, in
addition to the wage-differential award, he was entitled to a scheduled PPD award under section
8(e)(12) of the Act for the injury he sustained in April 1996. This court affirmed the
Commission’s decision, holding that its denial of a scheduled PPD award under section 8(e) of
the Act was not against the manifest weight of the evidence. Baumgardner, 409 Ill. App. 3d at
280-81. In support of our decision, we noted that sections 8(d)(1) and 8(e) of the Act
contemplate a single determination as to the permanency of a claimant’s condition as a result of
an employment accident. See 820 ILCS 305/8(d)(1) (West 2006) (providing that the Commission
may award a claimant a wage-differential benefit “except in cases compensated under the
specific schedule set forth in paragraph (e) of this Section”); 820 ILCS 305/8(e) (West 2006)
(stating in relevant part that a claimant may be granted a scheduled award “but shall not receive
any compensation under any other provisions of this Act”). Thus, we held that “where a claimant
has sustained two separate and distinct injuries to the same body part and the claims are
consolidated for hearing and decision, it is proper for the Commission to consider all of the
evidence presented to determine the nature and extent of his permanent disability as of the date
of the hearing.” (Emphasis added.) Baumgardner, 409 Ill. App. 3d at 279-80.
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¶ 69 Applying the principles of Baumgardner to the facts of this case, we find it necessary to
analyze separately the injuries to claimant’s right elbow and his right wrist. With respect to the
right elbow, we conclude that the Commission’s original determination that claimant was
entitled to PPD benefits under section 8(e)(10) of the Act is not against the manifest weight of
the evidence because claimant sustained only one injury to this body part. In this regard, the
record establishes that, following the first accident, claimant was diagnosed with a right elbow
fracture, right wrist contusion, and right shoulder strain. The Commission found that the elbow
healed without complication and awarded PPD benefits for that injury. Although claimant sought
compensation for two additional accidents and all three claims were tried together, none of the
other accidents involved an injury to claimant’s right elbow. Significantly, claimant was
diagnosed with a right wrist strain as a result of the second accident and injuries to the shoulders,
neck, and back as a result of the third accident. The Commission awarded the wage differential
for the injury sustained in the second accident, which, as noted above, involved only claimant’s
right wrist. As the foregoing demonstrates, the Commission did not award both a scheduled PPD
award under section 8(e)(10) of the Act and a wage-differential award under section 8(d)(1) of
the Act for the injury to claimant’s right elbow. Thus, the Commission’s original finding that
claimant was entitled to a scheduled PPD award under section 8(e)(10) of the Act for the injury
he sustained to his right elbow on October 31, 2005, is not against the manifest weight of the
evidence. See Village of Deerfield, 2014 IL App (2d) 131202WC, ¶¶ 52-55 (holding that
although claims were consolidated for hearing, the Commission properly awarded both a section
8(d)(1) award and a section 8(d)(2) award where the claimant sustained injuries to distinct body
parts as a result of successive accidents). Therefore, we reinstate the scheduled PPD award under
section 8(e)(10) entered by the Commission in its original decision.
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¶ 70 With respect to the right wrist, the record shows that claimant sustained two accidents—
one on October 31, 2005, and the other on December 12, 2007. The claims were consolidated for
hearing and decision. The Commission awarded both a scheduled PPD award under section
8(e)(9) of the Act and a wage-differential award under section 8(d)(1) of the Act for the injuries
to claimant’s right wrist. As this court held in Baumgardner, however, the plain language of the
Act provides that compensation is proper under either section 8(e) or 8(d)(1), but not both at
once. Baumgardner, 409 Ill. App. 3d at 279; see also General Electric Co. v. Industrial Comm’n,
89 Ill. 2d 432, 437 (1982). Accordingly, in light of the plain language of the Act and our holding
in Baumgardner, we hold the Commission’s original award of a PPD benefit under section
8(e)(9) of the Act for the October 31, 2005, injury to claimant’s right wrist is against the
manifest weight of the evidence and must be vacated. 2 Since there was sufficient evidence to
support a finding that claimant was entitled to a wage-differential award, we affirm that award.
City of Chicago, 409 Ill. App. 3d at 266.
¶ 71 In short, we hold that claimant is entitled to a scheduled award of PPD benefits pursuant
to section 8(e)(10) of the Act for the injury to his right elbow as a result of the October 31, 2005,
2
In setting aside in part the Commission’s original decision, the circuit court cited both
Baumgardner and City of Chicago, 409 Ill. App. 3d 258. In City of Chicago, we recognized that, where a
claimant has sustained two separate and distinct injuries to the same body part and the claims are
consolidated for hearing and decision, there may be situations that would permit the Commission to
delineate and apportion the nature and extent of permanency attributable to each accident. City of
Chicago, 409 Ill. App. 3d at 265. However, City of Chicago involved benefits under sections 8(d)(1) and
8(d)(2) of the Act. In contrast, the benefits at issue in both Baumgardner and this case involved sections
8(d)(1) and 8(e) of the Act. And, as noted above, the statutory provisions at issue here contemplate a
single determination as to the permanency of a claimant’s condition where the claimant sustains two
separate and distinct injuries to the same body part and the claims are consolidated for hearing and
decision. Thus, even if we could delineate a separate condition of ill-being attributable to each accident,
the Act would prohibit us from doing so in this case. For this reason, the holding in City of Chicago is not
applicable here.
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work accident and a wage-differential pursuant to section 8(d)(1) of the Act for the injuries to his
right wrist as a result of the October 31, 2005, and December 12, 2007, work accidents.
¶ 72 B. PTD Benefits
¶ 73 Claimant next argues that the Commission erred in not finding him permanently and
totally disabled. An employee is permanently and totally disabled if he or she is obviously
unemployable, i.e., unable to make some contribution to industry sufficient to justify the
payment of wages or there is medical evidence to establish a claim of permanent and total
disability. Sharwarko v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st)
131733WC, ¶ 53; Lanter Courier v. Industrial Comm’n, 282 Ill. App. 3d 1, 10 (1996) (Rarick, J.,
concurring in part and dissenting in part). However, an employee need not be reduced to
complete physical incapacity to be entitled to PTD benefits. Ceco Corp. v. Industrial Comm’n,
95 Ill. 2d 278, 286-87 (1983). If an employee’s disability is limited and it is not obvious that the
employee is unemployable, the employee may nevertheless demonstrate an entitlement to
PTD by proving he or she fits within the “odd lot” category. Westin Hotel v. Industrial Comm’n,
372 Ill. App. 3d 527, 544 (2007). The odd-lot category consists of employees who, “though not
altogether incapacitated for work, [are] so handicapped that [they] will not be employed
regularly in any well-known branch of the labor market.” Valley Mould & Iron Co. v. Industrial
Comm’n, 84 Ill. 2d 538, 547 (1981) (citing 2 Arthur Larson et al., Workmen’s Compensation
§ 57.51, at 10-164.24 (1980)). An employee generally fulfills the burden of establishing that he
or she falls into the odd-lot category in one of two ways: (1) by showing a diligent but
unsuccessful search for employment or (2) by demonstrating that because of age, training,
education, experience, and condition, there are no available jobs for a person in his or her
circumstance. Professional Transportation, Inc. v. Illinois Workers’ Compensation Comm’n,
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2012 IL App (3d) 100783WC, ¶ 34; Alano v. Industrial Comm’n, 282 Ill. App. 3d 531, 534-35
(1996). If an employee makes this showing, the burden shifts to the employer to show that some
kind of suitable work is available to the employee. Westin Hotel, 372 Ill. App. 3d at 544. This
issue presents a question of fact, which we review under the manifest-weight-of-the-evidence
standard. Professional Transportation, Inc., 2012 IL App (3d) 100783WC, ¶ 33. A decision is
against the manifest weight of the evidence only if an opposite conclusion is clearly apparent.
Professional Transportation, Inc., 2012 IL App (3d) 100783WC, ¶ 33.
¶ 74 In this case, claimant does not argue that he is obviously unemployable, and he cites no
medical evidence to establish that he is permanently and totally disabled. Thus, claimant was
required to establish that he falls into the odd-lot category. Claimant asserts that he both
presented evidence of a diligent but unsuccessful search for employment and established that
because of his age, training, education, experience, and condition there are no available jobs for a
person in his circumstance. It is undisputed that claimant conducted a job search. Boyd testified
that claimant’s search involved making at least 10 job contacts per week over several years.
According to Boyd, however, the job search was fruitless, yielding very few interviews and no
job offers. Steffan confirmed that claimant conducted a multiyear job search under his
supervision. During this period of time, claimant made 1100 job contacts but received no job
offers. Based on this evidence, we find that claimant established a diligent but unsuccessful job
search. Accordingly, the burden shifted to respondent to show that some kind of suitable work is
available to claimant. Claimant summarily concludes that respondent did not meet its burden.
We disagree. We hold that respondent met its burden by presenting evidence that claimant is
employable as a watchman.
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¶ 75 In this regard, Steffan testified that claimant had a lifting restriction of 30 pounds
occasionally, which would place him at the medium physical-demand level. This is consistent
with the restrictions imposed by MercyWorks in September 2011. According to Misch’s
testimony, the duties of the watchman position fit within these restrictions. Misch testified that
no aspect of the watchman position involved lifting over 30 pounds. He also noted that the
position does not require any overhead lifting and that the only pushing or pulling would be
opening or closing a door. On August 15, 2011, claimant was sent a letter advising that there was
a job as a watchman within his restrictions paying $19.24 per hour. The letter indicated that the
job offer was contingent upon completion of a “willing and able questionnaire” confirming
claimant’s readiness to perform the duties of the position. Claimant testified that he did complete
the questionnaire as instructed. Pak followed up with claimant at the end of August. At that time,
Pak advised claimant that he would be hired for the position once he completed a fingerprinting
process. Claimant informed Pak that he would consult with his doctor and attorney but never
followed up with Pak.
¶ 76 Claimant denies that there was any actual job offer. However, the Commission is charged
with assessing the credibility of the witnesses, resolving conflicts in the evidence, assigning
weight to be accorded the evidence, and drawing reasonable inferences from the evidence.
Bolingbrook Police Department v. Illinois Workers’ Compensation Comm’n, 2015 IL App (3d)
130869WC, ¶ 52. The Commission weighed the evidence and determined that claimant was
presented with a bona fide job offer for the watchman position. This finding is supported by the
testimony of Pak and Misch. This finding is also supported by the fact that claimant informed
both Dr. Maday and Boyd that he had been offered a watchman position.
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¶ 77 Claimant argues that further proof that he was not offered a watchman job is that
respondent continued to pay him full maintenance benefits until May 2012, about nine months
after the job offer was allegedly made. However, as claimant readily acknowledges, the
voluntary payment of benefits is not an admission of liability. See 820 ILCS 305/8(a), (b)(7)
(West 2006); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 408 (2005). Moreover,
the record suggests that the parties were engaged in discussions regarding a potential resolution
of the status of the watchman position during part of this period. As such, the Commission could
reasonably reject this argument.
¶ 78 Claimant also disputes that the watchman position is suitable employment for him. In
support of this argument, claimant asserts that Dr. Maday stated that he could not meet the job
requirements of a watchman. Dr. Maday prepared a note dated August 26, 2011, indicating that
part of the watchman position “required possibility [sic] of contact with suspects and possibility
[sic] of heavy lifting.” Dr. Maday’s opinion was based on a bid announcement claimant obtained
independently online as well as claimant’s concern that he would have to confront somebody as
part of the watchman duties. As noted above, however, respondent presented testimony from
Misch addressing Dr. Maday’s concerns about the scope of the watchman position. Misch
confirmed that no aspect of the watchman position involved lifting over 30 pounds, overhead
lifting, or the physical apprehension of trespassers. Misch noted that if an unauthorized
individual is observed on the premises, the watchman is instructed to call 911 and the command
center.
¶ 79 Claimant also directs us to Boyd’s testimony in support of his contention that he is unable
to perform the duties of a watchman. Boyd noted that there is a “wide variance” of what a
watchman position requires. Boyd stated that “[r]egardless of the lifting requirement or lack
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thereof, there were a couple of things on [the] job description that did not jive with the results of
[claimant’s] vocational testing.” This included auditory comprehension, reasoning and problem
solving, response to emergency situations, and dealing with multiple variables at the job.
However, Steffan testified that claimant was employable and placeable. Further, although Steffan
acknowledged that he did not review the job description for the watchman position, he confirmed
that such a position would be suitable employment for claimant if the position did not require
physical confrontation, had a 30-pound lifting restriction, called for monitoring security footage
and walking the premises, and required calling 911 if there was an unauthorized individual on
the property. This is consistent with the duties of the watchman position as described by Misch.
Again, the Commission weighed the evidence and the credibility of the witnesses and determined
that the position of a watchman was suitable for claimant. Bolingbrook Police Department, 2015
IL App (3d) 130869WC, ¶ 52. This finding was not against the manifest weight of the evidence.
Accordingly, we affirm the Commission’s finding that claimant was not entitled to PTD benefits.
¶ 80 C. PPD Benefits
¶ 81 Next, claimant argues that the Commission erred in failing to award PPD benefits for the
injuries he sustained to his neck and bilateral shoulders as a result of the December 2010 fall. In
a workers’ compensation case, the employee has the burden of establishing, by a preponderance
of the evidence, the extent and permanency of his or her injury. Chicago Park District v.
Industrial Comm’n, 263 Ill. App. 3d 835, 843 (1994). An employee is entitled to PPD benefits
when a work accident leaves him or her “permanently partially incapacitated from pursuing his
or her usual and customary employment, and is reasonably certain to permanently prevent the
[employee] from earning as much as the [employee] would have earned absent the injury.”
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DiFoggio v. Retirement Board of the County Employees Annuity & Benefit Fund, 156 Ill. 2d 377,
379 (1993).
¶ 82 Initially, claimant asserts that, because it is undisputed that he injured his neck and
shoulders as a result of his 2010 fall, the Commission’s finding with respect to permanency
presents a question of law subject to de novo review. We disagree. The fact that the accident
itself was undisputed does not necessarily mean that the nature and extent of the injured
employee’s disability was also undisputed. To the contrary, prior to the commencement of
testimony in this case, both parties agreed that the issues in dispute with respect to the December
6, 2010, accident were “causation, medical, and permanency.” (Emphasis added.) The nature and
extent of an injured employee’s disability is a factual question, the resolution of which is
peculiarly in the province of the Commission’s expertise, and its determination of the issue will
not be disturbed on appeal unless it is against the manifest weight of the evidence. Illinois Forge,
Inc. v. Industrial Comm’n, 95 Ill. 2d 337, 343 (1983); Shockley v. Industrial Comm’n, 75 Ill. 2d
189, 193 (1979). A decision is against the manifest weight of the evidence only if an opposite
conclusion is clearly apparent. Westin Hotel, 372 Ill. App. 3d at 539.
¶ 83 Based on the record before us, the Commission’s decision claimant was not entitled to a
separate PPD award for the injuries to his neck and shoulders as a result of the December 6,
2010, accident was not against the manifest weight of the evidence. In denying claimant PPD
benefits for the December 6, 2010, accident, the Commission relied on the opinion of Dr.
Kornblatt. Dr. Kornblatt diagnosed (1) a strain to the bilateral shoulders with preexisting
acromioclavicular arthritis and rotator cuff tendonitis, (2) a cervical strain with preexisting
cervical degenerative disc disease, and (3) a mild lumbar strain. Dr. Kornblatt opined that only
the strains to the bilateral shoulders, cervical spine, and lumbar spine were related to the
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December 6, 2010, accident. He recommended conservative treatment for these conditions and
concluded that claimant would reach MMI after about four weeks of treatment. The record
shows that claimant attended several sessions of physical therapy following Dr. Kornblatt’s
examination. Claimant was released from physical therapy in July 2011. It is true that claimant
continued to have bilateral shoulder complaints following his release from therapy. However,
given Dr. Kornblatt’s opinion regarding the timing of claimant’s expected recovery, the
Commission could have reasonably concluded that claimant had completely recovered from the
work-related injury without any residual disability and that any remaining symptoms were solely
the result of his unrelated, preexisting conditions and not the strain caused by the December 6,
2010, accident. Thus, we find no error.
¶ 84 D. Penalties and Attorney Fees
¶ 85 Lastly, claimant asserts that he is entitled to penalties and attorney fees pursuant to
sections 16, 19(k), and 19(l) of the Act (see 820 ILCS 305/16, 19(k), 19(l) (West 2006)) for
respondent’s failure to pay certain medical expenses and maintenance. The intent of sections 16,
19(k), and 19(l) is to implement the Act’s purpose to expedite the compensation of industrial
workers and to penalize employers who unreasonably, or in bad faith, delay or withhold
compensation due an employee. Avon Products, Inc. v. Industrial Comm’n, 82 Ill. 2d 297, 301
(1980). Awards under section 16 and 19(k) are proper only if the employer’s delay in making
payment is unreasonable or vexatious. McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 504-05
(1998). That is, the refusal to pay must result from bad faith or improper purpose. McMahan, 183
Ill. 2d at 515. An award under section 19(l) is more in the nature of a late fee, so an award under
that section is appropriate if an employer neglects to make payment without good and just cause.
McMahan, 183 Ill. 2d at 515; Dye v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d)
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110907WC, ¶ 15. The employer has the burden of showing that it had a reasonable belief that the
delay was justified. Roodhouse Envelope C. v. Industrial Comm’n, 276 Ill. App. 3d 576, 579
(1995). Whether to impose penalties and attorney fees under the foregoing provisions is a
question of fact for the Commission subject to the manifest-weight standard of review.
Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975,
983 (2009). A decision is against the manifest weight of the evidence only if an opposite
conclusion is clearly apparent. Westin Hotel, 372 Ill. App. 3d at 539.
¶ 86 In this case, the arbitrator found that respondent’s actions did not rise “to the level of
unreasonable or vexation [sic].” Thus, she denied penalties and attorney fees. The Commission
affirmed and adopted the arbitrator’s finding without comment.
¶ 87 Claimant first argues that the Commission erred in failing to award penalties and fees for
respondent’s failure to pay certain medical expenses. Specifically, claimant alleges that
respondent failed to pay $794.66 in expenses billed by Dr. Nagle and $10,040.97 in expenses
billed by ATI Physical Therapy. 3 According to claimant, respondent did not present any
evidence to justify its failure to pay these bills. Respondent contends that the record
demonstrates that the bills in question were paid by claimant’s group insurer. We agree with
respondent.
¶ 88 At the arbitration hearing, claimant’s attorney represented that there remained
outstanding two medical bills, one for $794.66 from Dr. Maday and the other for $9346.31 from
ATI Physical Therapy. Respondent asserted that $10,040.97 of these bills had been paid through
the group medical plan for which it was entitled to a credit under section 8(j) of the Act (820
3
At the arbitration hearing, claimant represented that the unpaid bills were from Dr. Maday in the
amount of $794.66 and ATI Physical Therapy in the amount of $9346.31. We presume that the
discrepancies with respect to the payees and bill amounts made on appeal are typographical errors.
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ILCS 305/8(j) (West 2006)). The parties agreed that respondent should receive a credit for the
medical expenses paid by the group insurance. The arbitrator noted that this left only $100 in
unpaid out-of-pocket expenses. Both parties again agreed. Thus, only $100 in medical expenses
were in dispute. However, in her decision, the arbitrator determined that respondent had paid all
reasonable and necessary medical expenses related to all three accidents. The Commission
affirmed this finding. Given this record, we cannot say that the Commission’s decision not to
impose penalties and attorney fees for the nonpayment of medical expenses was against the
manifest weight of the evidence.
¶ 89 Claimant further argues that the Commission erred in failing to award penalties and
attorney fees due to respondent’s failure to pay maintenance benefits without justification for the
period from June 4, 2011, through August 19, 2011, and from May 5, 2012, through the date of
the arbitration hearing. Again, we disagree. The arbitrator found that neither party presented
evidence as to what sums were paid for what benefits. As a result, the arbitrator found there was
no evidence to determine what credits are owed to respondent or what sums had been paid to
claimant. In other words, based on the evidence before it, the arbitrator was unable to determine
that, in fact, maintenance benefits had not been paid without justification. As noted, the
Commission affirmed and adopted this aspect of the arbitrator’s decision. Based on the record,
we cannot say that the Commission’s finding was improper. We note additionally that although
respondent ceased paying maintenance benefits on May 5, 2012, it began paying a wage
differential at that time. The Commission could have reasonably concluded that respondent’s
decision to substitute the maintenance benefit for a wage differential did not warrant the
imposition of penalties given that respondent made a bona fide offer to employ claimant as a
watchman.
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¶ 90 III. CONCLUSION
¶ 91 Based upon the foregoing analysis, we: (1) reverse that portion of the circuit court’s order
of February 16, 2016, which set aside that portion of the Commission’s original decision
awarding claimant scheduled PPD benefits pursuant to section 8(e)(10) of the Act as a result of
the injury to claimant’s right elbow on October 31, 2015, and a wage differential pursuant to
section 8(d)(1) of the Act as a result of the December 12, 2007, accident; (2) vacate that part of
the Commission’s decision on remand vacating the scheduled PPD benefits awarded under
section 8(e)(10) of the Act as a result of the October 31, 2015, accident; (3) vacate that portion of
the circuit court’s order of September 12, 2017, which confirmed that portion of the
Commission’s decision on remand vacating the scheduled PPD benefits awarded under section
8(e)(10) of the Act as a result of the October 31, 2005, accident; (4) reinstate that portion of the
Commission’s original decision awarding claimant a scheduled PPD benefit pursuant to section
8(e)(10) of the Act for the injury to claimant’s right elbow as a result of the October 31, 2005,
accident; and (5) affirm the circuit court’s order of September 12, 2017, in all other respects.
¶ 92 Affirmed in part, reversed in part, vacated in part, and Commission’s original decision
reinstated in part.
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