Opinion
4-21-0159WC
12-29-2021
ETHAN BARNETT, Plaintiff-Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. Diversatech Metal Fab, Inc., Defendant-Appellee.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County. No. 20-MR-119 Honorable Paul Lawrence, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment.
ORDER
HUDSON JUSTICE
¶ 1 Held: Where evidence was conflicting, Commission's decision that claimant failed to prove he was permanently totally disabled on an odd-lot theory was not contrary to the manifest weight of the evidence.
¶ 2 I. INTRODUCTION
¶ 3 Claimant, Ethan Barnett, appeals the judgment of the circuit court of McLean County confirming the decision of the Illinois Workers' Compensation Commission (Commission) finding that he failed to prove he was permanently totally disabled based on an odd-lot theory. This case was before this court on a previous appeal by claimant. See Barnett v. Illinois Workers' Compensation Comm 'n, 2019 IL App (4th) 180788WC-U. In the earlier appeal, we noted that the Commission neglected to perform part of the analysis pertaining to the odd-lot theory. Id. ¶ 53. Following remand, this case now returns to us, and, for the reasons that follow, we affirm.
¶ 4 II. BACKGROUND
¶ 5 The parties are aware of the facts, and we set them forth in great detail in our original order in this matter. See Barnett, 2019 IL App (4th) 180788WC-U, ¶¶ 6-48. We will not do so again here. Instead, we will discuss the salient facts as they pertain to the issue presented in this appeal.
¶ 6 It has already been established and is no longer in dispute that claimant sustained an injury arising out of and in the course of his employment with respondent, Diversatech Metal Fab, Inc. Pertinent here, the arbitrator awarded permanent total disability (PTD) benefits of $431.91 per month. Id. at ¶ 3. The Commission vacated the arbitrator's PTD award and instead found that claimant was entitled to a permanent partial disability (PPD) award representing 50% loss of the person as a whole in the amount of $259.15 per week for 250 weeks. In his initial appeal, claimant asserted that the Commission's decision to replace the PTD award with the PPD award was contrary to the manifest weight of the evidence.
¶ 7 This court first rejected claimant's contention that he proved he was entitled to PTD benefits by a preponderance of the medical evidence, finding the Commission's decision on this issue to not be contrary to the manifest weight of the evidence. Id. ¶ 51. We then went on to consider the odd-lot category. Id. ¶ 52. There are two ways for a claimant to show that he or she fits within this category: "[A]n employee generally fulfills the burden of establishing that he or she falls into the odd-lot category by showing a diligent but unsuccessful search for employment or 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, 2012 IL App (3d) 100783WC, ¶ 34. That claimant did not engage in any sort of job search is not in dispute, so only the latter method of proof is at issue.
¶ 8 Thus, we noted, "[C]laimant had to demonstrate that because of his age, training, education, experience, and condition, there are no available jobs for a person in his circumstance." Barnett, 2019 IL App (4th) 180788WC-U, ¶ 52. Unfortunately, "the Commission never addressed whether claimant established that he fell into the odd-lot category by demonstrating that because of his age, training, education, experience, and condition, there are no available jobs for a person in his circumstance." Id. ¶ 53. We continued, "Instead, after finding that claimant failed to show a diligent, but unsuccessful job search, the Commission terminated its analysis." While, as the Commission pointed out on remand, it made some factual findings that were relevant to this issue, it never actually conducted this portion of the analysis. Accordingly, we remanded the case to allow it to fully address the second prong of the odd-lot analysis.
¶ 9 On remand, the Commission noted that in its original decision in this matter, it found that claimant had failed to establish he was entitled to PTD by setting forth medical evidence proving his disability or by showing that he conducted a diligent but unsuccessful job search. However, it acknowledged that it never addressed the second prong of the odd-lot theory of proving entitlement to PTD.
¶ 10 The Commission found that claimant had failed to show his entitlement to a PTD award under that theory as well. The Commission first noted that claimant was 21 years old at the time of the accident, had only a tenth-grade education, and only had work experience involving manual labor. It noted a functional capacity evaluation (FCE) claimant underwent on January 21, 2016, found that claimant "functioned mostly at the medium work level, but only at the sedentary level in endurance." While claimant was classified "mostly in the medium work demand level," he "also demonstrated abilities in the sedentary, light, and heavy levels depending on the activity." Moreover, claimant terminated the evaluation after four hours, which "is a half day of work." The Commission noted that the evaluation was terminated due to claimant's subjective complaints rather than being stopped by the therapist due to "any objective physical findings."
¶ 11 The Commission further found that Dr. Rinella (who examined claimant on behalf of respondent), in a report dated August 13, 2015, recommended an FCE in August 2014, which claimant "apparently refused." Rinella then opined that claimant should be placed on a "40 pound lifting/carrying restriction and a [80 pound] pushing/pulling limit." He added that such pushing and pulling should make up no more than a third of claimant's workday. He based these restrictions on a work-conditioning program claimant had previously undergone.
¶ 12 The Commission then considered the opinions of Dr. Eilers. Eilers examined claimant at the request of claimant's attorney. He opined that claimant would not be able to perform heavy labor, stating, "At the very best he may be able to intermittently do sedentary type tasks." Eilers believed claimant could not work a full eight-hour day due to his need to "always change positions." These deficits were permanent. The Commission observed that Eilers relied on claimant's subjective complaints in forming his opinions. Eilers opined that claimant was permanently and totally disabled. However, in an earlier report, Eilers opined that a fusion might allow claimant to perform sedentary work. Rinella recommended such a surgery, but claimant declined to have it.
¶ 13 The Commission then stated that the issue in this case turned on the "competing voc[ational] rehab[ilitation] counselors." It noted that claimant's counselor, Gustafson, opined that claimant was not employable. Respondent's counselor, Hammond, opined that claimant was employable. Everyone-the counselors and doctors-agreed that claimant could not return to his previous employment at the heavy physical demand level. Moreover, both counselors agreed that the skills claimant obtained in his previous employment were not transferrable to a job he could perform. Gustafson opined that an employer likely would not hire claimant for an entry-level clerical job, as he was incapable of working an eight-hour day. Claimant would not be suitable for office work given his past work experience. To obtain suitable skills, Gustafson stated that claimant would have to be retrained at a community college.
¶ 14 Hammond identified several jobs he believed claimant could perform in the $8.50 to $13 per hour range. This included "telephone/switchboard jobs, assembly line jobs through temp agencies, spray painting, sterilizing medical equipment, and janitorial jobs." Hammond stated that the positions he identified allowed for "change of positions and occasional sitting/standing." Hammond believed that Gustafson's recommendation for further education or training was inconsistent with Gustafson's opinion that claimant was not employable. He added, "if you can attend school full time, you can work full time." Hammond further opined that an employer would train claimant for a clerical position, particularly data entry.
¶ 15 The Commission found Hammond to be more persuasive than Gustafson. It noted that Hammond relied on his interpretation of claimant's FCE, which was more restrictive regarding claimant's abilities than those imposed by Rinella. It criticized Gustafson's reliance on the opinion of Eilers because Eilers "was mistakenly under the impression that [claimant] had 'multiple surgeries,' when he had only one." It also noted the inconsistency in Gustafson's opinion that claimant was unable to work yet able to attend community college and be retrained. The Commission found that claimant's limited education and limited employment experience weighed in favor of an award of PTD. However, it further found that claimant's "extremely young age" and "his 'condition' based on the FCE, Dr. Rinella's evaluation, and Mr. Hammond's assessment, are factors which support employability." Therefore, based on "the entire record before [it]," the Commission concluded that claimant had not shown he was entitled to PTD and again found that claimant was entitled to a PPD award representing 50% loss of the person as a whole in the amount of $259.15 per week for 250 weeks. On judicial review, the circuit court of McLean County confirmed the Commission's decision. This appeal followed.
¶ 16 III. ANALYSIS
¶ 17 The sole issue raised in this appeal is whether the Commission's finding that claimant failed to establish that he is entitled to PTD under an odd-lot theory by virtue of his age, skill, training, and work history is contrary to the manifest weight of the evidence. See Sharwarko v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 131733WC, ¶ 52. A decision is contrary to the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Dye v. Illinois Workers' Compensation Comm'n, 2012 IL App (3d) 110907WC, ¶ 10. Evaluating the credibility of witnesses, weighing testimony, resolving conflicts in the evidence, and drawing inference from the evidence are matters primarily for the Commission. Schafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 38.
¶ 18 Generally, an employee is totally disabled when he or she can make no contribution to industry sufficient to warrant a wage. A.M.T.C of Illinois v. Industrial Comm'n, 77 Ill.2d 482, 487 (1979). Where "a claimant's disability is of such a nature that he is not obviously unemployable, or there is no medical evidence to support a claim of total disability, the burden is upon the claimant to prove by a preponderance of the evidence that he fits into an 'odd lot' category; that being an individual who, although not altogether incapacitated, is so handicapped that he is not regularly employable in any well-known branch of the labor market." Sharwarko, 2015 IL App (1st) 131733WC, ¶ 53. This burden can be met in two ways:" (1) by showing diligent but unsuccessful attempts to find work, or (2) by showing that, because of his age, skills, training, and work history, he will not be regularly employed in a well-known branch of the labor market." Id. (citing Westin Hotel v. Industrial Comm'n, 372 Ill.App.3d 527, 544 (2007)). Here, only the latter method is at issue.
¶ 19 Before proceeding further, we note that respondent argues that our decision affirming certain findings of the Commission during the earlier appeal is now the law of the case. This doctrine holds that "where an issue is once litigated and decided, that should be the end of the matter and the unreversed decision of a question of law or fact made during the course of litigation settles that question for all subsequent stages of the suit." Irizarry v. Industrial Comm 'n, 337 Ill.App.3d 598, 606 (2003) (quoting McDonald's Corp. v. Vittorio Ricci Chicago, Inc., 125 Ill.App.3d 1083, 1086-87 (1984)). Respondent contends that this doctrine applies to our affirmance of the Commission's determination that Rinella and Hammond were more persuasive than Gustafson and Eilers. The second prong of the odd-lot theory has not yet been addressed at any stage of this proceeding. The credibility of witnesses has not been addressed with reference to this theory. Cf. Sienna at Old Orchard Condominium Ass 'n. v. Sienna at Old Orchard, L.L. C, 2018 IL App (1st) (quoting People v. Paterson, 154 Ill.2d 414, 468 (1992)) ("Under the law-of-the-case doctrine, generally, a rule established as controlling in a particular case will continue to be the law of the case, as long as the facts remain the same." (Emphasis added.)). Therefore, we decline to apply the doctrine under the current circumstances.
¶ 20 Initially, we note that the Commission rejected the testimony of Gustafson, articulating two reasons for why it did so. First, it found that Gustafson relied on a flawed medical opinion. Second, it noted that Gustafson's opinions were inherently self-contradictory in that while he opined that claimant was unable to work, he also opined that claimant could seek retraining at a community college. Indeed, if claimant can be retrained to a suitable job, it is inferable that he is not permanently disabled. Given that the Commission had a principled basis for rejecting Gustafson's opinions, we cannot say that an opposite conclusion to the Commission's is clearly apparent regarding Gustafson's credibility. Since claimant bears the burden of proving he falls within the odd-lot category (City of Chicago v. Illinois Workers' Compensation Comm'n, 373 Ill.App.3d 1080, 1090 (2007)), this finding would be enough to resolve this appeal adversely to claimant.
¶ 21 Claimant argues that the Commission should have credited the restrictions imposed by Dr. Patel. The Commission did not mention Patel's opinions in the course of rendering its decision. Those restrictions were based on claimant's 2016 FCE, which imposed more stringent restrictions than a 2013 work-conditioning report relied on by respondent's vocational expert and medical examiner (40 pounds lifting, 80 pounds pushing and pulling, and no restriction on sitting or standing). Claimant states that these restrictions were occasional material handling, 43 pounds to the waist, 28 pounds to the shoulder, 18 pounds overhead; carrying 28 pounds; pushing 88 pounds; pulling 79 pounds; frequent lifting to the waist of 23 pounds, shoulder of also 23 pounds, and carrying of 14 pounds; occasional sitting, standing, walking, and reaching; avoid bending, squatting, climbing, kneeling, crawling, repetitive activity, high intensity activity, and "all constant activity performance"; and limit activity to four hours. The Commission questioned this last restriction, pointing out that the FCE was terminated due to claimant's subjective complaints rather than being stopped by the therapist due to "any objective physical findings." This finding is supported by the record. Moreover, these restrictions still allow claimant to engage in substantial activity, and he does not explain how they would have precluded him from performing the sorts of jobs identified by Hammond. As such, even if we were to find that the Commission should have credited these restrictions, we would nevertheless hold that its decision was not contrary to the manifest weight of the evidence.
¶ 22 Moreover, there was substantial evidence in the record indicating claimant was not totally disabled from working. Rinella opined that claimant "is clearly not disabled." Claimant complains that Rinella's opinions were based on a 2013 work-conditioning report rather than the 2016 FCE which imposed greater restrictions. However, any defect in the basis for an expert's testimony goes to the weight to which it is entitled. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 38. Assigning weight to evidence is a matter primarily for the Commission. Schafer, 2011 IL App (4th) 100505WC, ¶ 38. The Commission was aware of these purported deficiencies and chose to credit Rinella's opinion nevertheless. Claimant notes that Rinella recommended that he avoid manual labor; Rinella considered assembly line work, janitorial services, and working as a picker or packer to be manual labor. We note that Hammond identified other jobs beyond these, such as switchboard jobs and sterilizing medical equipment. Moreover, even Eilers opined that a fusion might allow claimant to perform sedentary work. Gustafson opined the FCE restrictions were more consistent with a light level than medium, as believed by Rinella, which would be inconsistent with claimant being totally disabled.
¶ 23 Most importantly, Hammond opined that there was a stable labor market in which claimant could find employment. Hammond based his opinions on his interpretation of claimant's FCE, which was more restrictive than the limitations Rinella felt were appropriate. He identified a number of positions, which were full-time; however, he stated that there were usually part-time positions available through temporary agencies. Hammond acknowledged that he was not aware of Rinella's opinion that claimant should avoid manual labor and did not review the restrictions recommended by Patel. Generally, the weight to which an expert's opinion is entitled depends on the factual basis for that opinion. Snelson v. Kamm, 204 Ill.2d 1, 27 (2003). Thus, it was a matter for the Commission, in the first instance, to assign weight to Hammond's testimony in light of these purported defects. Id. Here, the Commission chose to credit Hammond's opinions, and we cannot say that any of these alleged problems with their basis are so significant as to render the Commission's decision contrary to the manifest weight of the evidence. Moreover, as we noted above, even if the Commission had disregarded Hammond's opinion, its rejection of Gustafson's opinion would be dispositive as claimant bore the burden of proof in the action below. Westin Hotel, 372 Ill.App.3d at 544.
¶ 24 Indeed, claimant's brief is basically an invitation for us to reweigh the evidence in this case. This would be improper, as" [i]t is not the prerogative of the reviewing court to reweigh the evidence and substitute its judgment for that of the Commission." Setzekorn v. Industrial Comm 'n, 353 Ill.App.3d 1049, 1055 (2004). Undoubtedly, claimant can muster support for his position in the opinions of Gustafson, Patel, and Eilers. Conversely, respondent can point to the opinions of Hammond and Rinella. Resolving conflicts in the evidence is primarily a matter for the trier of fact, here, the Commission. Schafer, 2011 IL App (4th) 100505WC, ¶ 38. Given the conflicting evidence in this case, we cannot say that an opposite conclusion to the Commission's is clearly apparent. Admittedly, there were some deficiencies in the bases of respondent's experts' opinions; however, that is also true of those supporting claimant. As noted, Eilers believed claimant underwent multiple surgeries and Gustafson suggested claimant could be retrained at a community college. In short, the Commission's decision is not against the manifest weight of the evidence.
¶ 25 IV. CONCLUSION
¶ 26 In light of the following, the judgment of the circuit court of McLean County is affirmed.
¶ 27 Affirmed.