Opinion
No. 4-17-0606WC
05-01-2018
JASON B. GARRETT, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Liberty Mutual Insurance Group, Inc., Appellee).
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).
Appeal from the Circuit Court of Sangamon County
No. 16 MR 864
Honorable Esteban Sanchez, Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hudson, Harris, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: The decision of the Illinois Workers' Compensation Commission denying the claimant benefits under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2012)) by reason of the claimant's failure to prove that he suffered an accident which arose out of and in the course of his employment is not against the manifest weight of the evidence.
¶ 2 The claimant, Jason B. Garrett, appeals from an order of the circuit court of Sangamon County which confirmed a decision of the Illinois Workers' Compensation Commission
(Commission) denying him benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)) by reason of his failure to prove that he suffered an accident which arose out of and in the course of his employment with Liberty Mutual Insurance Group, Inc. (Liberty Mutual). For the reasons which follow, we affirm the judgment of the circuit court.
¶ 3 The claimant filed two applications for adjustment of claim pursuant to the Act (820 ILCS 305/1 et seq. (West 2012)), seeking benefits for injuries he allegedly sustained while in the employ of Liberty Mutual. The first application for adjustment of claim (case No. 14 WC 6167) alleged a repetitive trauma injury to his low back, which manifested itself on August 29, 2013. As an alternative, the second application for adjustment of claim (case No. 15 WC 18366) alleged an acute trauma injury to his low back after he attempted to arise from a seated position on August 29, 2013. Although both applications for adjustment of claim were based upon the same set of facts, the arbitrator denied the claimant's motion to consolidate the cases for a hearing.
¶ 4 The following factual recitation is taken from the evidence adduced at the arbitration hearing held on July 24, 2015.
¶ 5 The claimant, who was 44 years old at the time of arbitration, worked as a sales representative for Liberty Mutual where he was responsible for soliciting new clients and servicing existing clients. He had been so employed for 17 years. The claimant testified that he began working from home in September or October of 2006. He described the setup of his home office and introduced four black-and-white photographs. The photographs show an L-shaped office desk with a computer monitor positioned in the corner of the "L," a telephone and printer to the left of the monitor, and a computer mouse, office supplies, two stacks of papers, and empty desk space to the right of the computer monitor. An ergonomic office chair is positioned
behind the desk. The claimant testified that he supplied the desk while Liberty Mutual supplied the "docking station" and ergonomic chair, which was specially ordered for him.
¶ 6 The claimant further testified that each sales representative was assigned to work a "lead day" in which they were responsible for responding to all "leads" or requests for insurance quotes from potential clients. The claimant explained that he started work around 7:30 or 8 a.m. on lead days because leads were "remarkably important" and if a sales representative did not respond to leads in a timely manner, Liberty Mutual would penalize that person by redistributing the leads to another agent in the office. He stated that his job was "paperwork intensive" and a significant portion of his job involved talking on the phone, sometimes for hours. The tasks for each phone call varied, but typically required him to use a computer to enter data and generate quotes.
¶ 7 In August 2007, the claimant informed his supervisor that he was experiencing problems with his back, which he "thought" was related to his chair and desk, but "wasn't sure." Liberty Mutual responded by sending a technician to the claimant's home who replaced the hydraulic ram on the chair. Although the claimant acknowledged that the technician "fixed the chair," he stated that the repairs did not resolve his back pain.
¶ 8 In 2009 or 2010, the claimant's supervisor, Lisa Raydant, went to the claimant's home to perform an ergonomic assessment of his office space. Raydant testified that the claimant's "knees were up around his ears" and "it didn't look like he was set up correctly as far as that goes." She explained that the claimant is "very tall" and he was "twisted" and leaning forward when sitting at his desk. Following Raydant's ergonomic assessment, the claimant was given "risers" for his desk and the height of his computer monitor was raised to eye-level.
¶ 9 On November 4, 2011, the claimant presented to Dr. William Payne, an orthopedic surgeon at Springfield Clinic, with complaints of "significant pain" in his low back and numbness and tingling down his left leg. The claimant reported a history of having injured his back four months ago on June 1, 2011, in which he felt immediate pain after swinging a golf club. Physical examination was unremarkable with the exception of a positive straight leg raise on the left. Dr. Payne ordered an MRI of the claimant's lumbar spine and referred him to Dr. Gary Western to be evaluated for a possible epidural steroid injection.
¶ 10 The lumbar spine MRI, taken on November 15, 2011, was interpreted by the radiologist as showing multilevel degenerative changes and "severe left neuroforaminal stenosis at L4-L5 secondary to a left neuroforaminal disc extrusion."
¶ 11 On November 21, 2011, the claimant saw Dr. Western for an initial evaluation. The doctor took a history from the claimant, reviewed the MRI scan, and recommended an epidural steroid injection at L5-S1, which was administered on December 8, 2011.
¶ 12 On April 25, 2013, almost a year-and-a-half later, Rachel Weygandt, an administrative assistant and "safety specialist" at Liberty Mutual, conducted an ergonomic assessment at the claimant's request. She testified that she performed the assessment over the phone by reading questions from an ergonomic assessment form and recording the claimant's answers. She stated that the claimant did not mention that he was having back or leg pain, did not report any problems with his chair or desk, and did not otherwise bring anything noteworthy to her attention. Weygandt stated that if the claimant had any problems or concern, she would have worked to correct them.
¶ 13 On May 6, 2013, the claimant returned to Dr. Western, complaining of pain and numbness in his buttock, radiating down his left leg. The claimant told the doctor that bending,
walking, and sitting aggravated the pain "a lot." Physical examination revealed tenderness to palpation in the lumbar spine and SI joint on the left side, a positive straight-leg raise on the left, and a significant antalgic gait. Dr. Western diagnosed the claimant with lumbar stenosis and left lower extremity radiculopathy in the L5-S1 distribution. The doctor prescribed medication for pain and ordered a left L5-S1 transforaminal epidural steroid injection, which was administered on May 9, 2013.
¶ 14 The claimant followed up with Dr. Western on May 13, 2013, reporting no improvement. Dr. Western noted that the claimant had no new injuries and that his condition "may be getting worse." The doctor ordered a new MRI and prescribed medication. The MRI, taken May 21, 2013, disclosed a "large L2-L3 disc herniation on the left side causing the lateral recess stenosis." The scan also showed moderate to severe degenerative loss of disc height at T12-L1.
¶ 15 On May 22, 2013, the claimant returned to Dr. Western as instructed. After reviewing the MRI findings with the claimant, Dr. Western recommended a second epidural injection. The doctor wrote in his notes, however, that if the injection did not relieve the claimant's pain, he would refer him to a spine surgeon for evaluation. Dr. Western administered a left L3-L4 transforaminal epidural steroid injection the following day.
¶ 16 The claimant testified that, on August 29, 2013, the date of the accident at issue, it was his "leads day" and he began work around 7:30 or 8 a.m. He stated that he remained at his desk the entire day, with the exception of getting up one time to use the restroom. When asked how he was positioned while working that day, the claimant testified as follows:
"it was a position where if I am on the phone talking to a client, I am inputting their data [and] I have to twist my body to the left to access my computer and if I was on the phone talking to a client I was—and I was inputting their data I was
leaning forward and I was twisted to input their data into the computer. That's what I did for nearly the entire day."
The claimant stated that he worked in this position "all the time" and "was always twisted." According to the claimant, he began experiencing pain early in the day and it became progressively worse, "like being cramped and riding in a car for a long period of time." The claimant testified that, around 3 p.m., he attempted to rise from his chair to "fetch some paper" for his printer, but could not stand because his back and left leg were "in so much pain." He testified that he eventually stopped working around 4:30 p.m. and had to call his wife to help him stand and walk to bed. The claimant stated that he reported the injury to his supervisor, Brittany Brinkmann, the following morning, and remained "in bed all day."
¶ 17 On September 2, 2013, the claimant went to the emergency department at Heartland Regional Medical Center with complaints of pain in his left lower back. The treatment notes state that the claimant's symptoms began two days ago, came on gradually, and have increased in intensity. Following a physical examination, the claimant was diagnosed with sciatica. He was prescribed pain medication, a muscle relaxer, a Medrol Dose Pak, and instructed to see his family doctor within five days.
¶ 18 On September 3, 2013, the claimant saw Dr. Payne, reporting a "sudden severe worsening" of pain in his left lower extremity after attempting to rise from a seated position while at work. Dr. Payne continued the claimant's Medrol Dosepak, prescribed oxycodone, Flexeril, and Colace, and ordered an MRI. The MRI of the claimant's lumbar spine, taken on September 9, 2013, showed (1) interval worsening of L3 nerve root compression from large left lateral L2-L3 disc extrusion and (2) additional chronic degenerative changes.
¶ 19 In a follow-up visit on September 12, 2013, Dr. Payne noted that the MRI disclosed a herniation at L2-L3 that was "much larger with inferior migration of his fragment" and recommended a L2-L3 microdiscetomy at the claimant's "earliest convenience."
¶ 20 Meanwhile, on September 26, 2013, Erin Steinacher, an occupational therapist, performed another ergonomic assessment of the claimant's workspace at the request of Liberty Mutual. Steinacher testified that she found several issues with the claimant's workspace, which could lead to back problems and increased spinal pressure. She conceded that she did not review the claimant's medical records and also acknowledged that anyone can adjust a computer monitor. She also stated that she did not observe any defects in the claimant's desk or chair and there was nothing in his workspace that prevented him from getting up or stretching.
¶ 21 On September 30, 2013, Dr. Payne operated on the claimant's low back, performing a laminotomy and microdiscectomy at L2-L3. The record reveals that the claimant treated post-operatively with Dr. Payne and his nurse practitioner, Jennifer Nichelson, who prescribed a course of physical therapy and kept the claimant off of work.
¶ 22 In a post-operative record of December 26, 2013, Dr. Payne noted that the claimant had been going to physical therapy three times per week but continued to experience left lower extremity radicular pain. He also wrote in his notes that the claimant's pain started at the end of a work day after sitting at his desk in a forward-leaning position for seven or eight hours and he could not stand due to "severe pain down the left leg." According to Dr. Payne's records, the claimant stated that a "workspace expert" came to his home office and found "multiple different seating and visualizing problems." Dr. Payne discussed the link between disc herniation and sitting with the claimant and opined as follows:
"We know that sitting in a chair, leaning forward in a chair puts some of the highest pressure on discs as far as positions go. I think prolonged sitting can be a link to his disc herniation of the lumbar spine. Obviously, he has had herniation there before and problems with the back, but those have resolved without surgical intervention. Clearly, before we did surgery, he had very large significant change in disc herniation in the lumbar spine, so I think there is a link there with the seating at work and his back problems."
Dr. Payne also noted that he discussed the possibility of having the claimant return to work part-time, but the claimant stated going back to work part-time was not an option based upon the nature of the business.
¶ 23 In his deposition, Dr. Payne testified that he saw photographs of the claimant's home office and that the claimant spent "a lot of time at his desk turned to the side in a flexed position," which can exert "pressures in the low back and stuff." The doctor explained that twisting causes some of the fibers in the annulus to become tense and others to become lax, "and it's thought that that predisposes to herniation." There are anatomical studies about orientation of fibers and where they are stressed; the greatest pressure was caused sitting flexed forward at the waist. However, Dr. Payne did not "know of any study that describes a certain position where people have more disc herniations." Dr. Payne indicated that the initial herniation caused a weak point in the annulus which made the claimant's new herniation more likely. Dr. Payne opined that the manner in which the claimant was sitting in his chair was a "bad ergonomic position" and "was a factor in the fusion."
¶ 24 On cross-examination, Dr. Payne acknowledged that the claimant had a pre-existing degenerative disc disease and that, in 2011, the claimant related his back pain to golf. He also
agreed that, on May 1, 2013, the claimant complained of pain radiating into the left leg and was referred to Dr. Western. Dr. Payne testified that, when he saw the claimant on September 3, 2013, the claimant reported a sudden worsening of his symptoms after moving from a sitting to standing position, which may or may not place greater stress on discs. The doctor conceded that the act of rising from a seated position would be the same as getting up from a toilet or dining room chair.
¶ 25 The record reveals that the claimant continued to treat with Dr. Payne. In a treatment note dated February 6, 2014, the claimant reported that he returned to work to set up a new chair and desk that Liberty Mutual had provided to him and, after working for one hour, he had severe back pain. Dr. Payne diagnosed worsening left lower extremity radicular pain status post microdiscectomy and ordered a new MRI. The MRI of the claimant's lumbar spine, taken on February 18, 2014, showed no evidence of a recurrent disc herniation. In a follow-up visit on February 20, 2014, Dr. Payne reviewed the lumbar spine MRI, opined that the claimant had epidural fibrosis, and referred the claimant to Dr. Koteswara Narla for pain management.
¶ 26 On March 7, 2014, the claimant presented to Dr. Narla for pain management. The doctor obtained a history from the claimant, reviewed the MRI from May 21, 2013, and recorded a clinical impression of "[p]ersistent pain in the lumbar area radiating into the left lower limb, status post L2-L3 hemilaminectomy and a large discectomy ***." He began the claimant on gabapentin and told him to follow up in a "couple of months."
¶ 27 On March 12, 2014, the claimant was examined by Dr. Timothy Van Fleet at Liberty Mutual's request. Dr. Van Fleet obtained a history from the claimant, performed a physical examination, reviewed the medical records of Drs. Payne and Western, as well as the MRIs of November 15, 2011, May 21, 2013, November 27, 2013, and February 18, 2014. Physical
examination revealed that the claimant is 6 feet, 4 inches in height, weighs 380 pounds, and has a BMI of 46.3, which is considered morbidly obese. Dr. Van Fleet diagnosed the claimant as morbidly obese, status post lumbar discectomy. He opined that the claimant's weight had "every bit to do with his underlying condition" as "[h]is weight creates a significant hazard for his lumbar disc spaces, especially with sitting as this loads his disc spaces more considerably than either standing or lying down." Regarding causation, Dr. Van Fleet noted that "[i]t is difficult to determine if the [claimant] sustained a lumbar disc prolapse as a result of sitting in his chair at work." He explained that:
"Based upon his description it would appear so, however, the gentleman has had longstanding difficulties with his back that are, in my opinion, not entirely related to his workplace, but related more towards his home environment and his morbid obesity. He is at a greater likelihood, in my estimation, of sustaining an injury to the disc space while attempting to referee in a soccer game than sitting at work."
Dr. Van Fleet reasoned that the claimant is a "very large individual" and getting out of any chair can certainly create a situation that is hazardous to the claimant's disc space, but it is not necessarily related to sitting in his office chair. The doctor explained that the claimant is at risk while sitting in a car, sitting at the dinner table, and sitting down at night and relaxing. Dr. Van Fleet concluded that the claimant had reached maximum medical improvement with respect to his low back, and could return to full duty work with no restrictions.
¶ 28 On April 29, 2014, the claimant returned to Dr. Payne, reporting no improvement. Dr. Payne questioned whether the claimant's low back condition would return "to normal" and stated that "this is as good as he will probably get." He gave the claimant permanent restrictions, released him from care, and told him to follow-up on an as-needed basis.
¶ 29 On June 27, 2014, the claimant followed up with Dr. Narla with continued complaints of pain in his low back and left leg. Dr. Narla agreed with Dr. Payne that "this might be the maximum medical improvement *** as far as medications are concerned." He gave the claimant a home exercise program and scheduled a follow-up appointment in three months.
¶ 30 On September 11, 2014, the claimant returned to Dr. Payne reporting that he reinjured his back two days ago after his left leg gave out while going up stairs. The claimant told Dr. Payne that he twisted, tried to grab the railing, but "kind of fell down the stairs." Dr. Payne ordered a new MRI, which disclosed a "very large disc herniation." In a follow-up visit on October 7, 2014, Dr. Payne discussed surgical options with the claimant but ultimately prescribed a course of conservative treatment consisting of physical therapy and epidural steroid injections.
¶ 31 The claimant saw Dr. Payne on November 18, 2014, reporting no relief from the injections. Given the claimant's "extreme radicular pain" and having failed conservative treatment, the claimant elected to proceed with surgery.
¶ 32 On December 22, 2014, Dr. Payne operated on the claimant, performing a laminectomy and fusion at L2-L3. The postoperative diagnoses were spinal stenosis and recurrent herniated nucleus pulposus at L2-L3. The claimant treated with Dr. Payne postoperatively. According to the doctor's notes dated February 3, 2015, the claimant had increased his activity and was walking up to two miles a day. The claimant also reported that he could sit for about 30 minutes before having to get up, stretch his back, and walk around. Dr. Payne eventually released the claimant to part-time work of two hours per day with restrictions of no sitting more than 15 minutes.
¶ 33 At the arbitration hearing, the claimant presented the testimony of Alysha Davis Barth, a certified ergonomic assessment specialist and physical therapist who works at Advanced
Physical Therapy. Barth testified that she performed an ergonomic assessment of the claimant's workstation based upon photographs the claimant provided to her. She testified that the claimant's knees could not fit under the desk and his chair was too far from the desk, forcing him to lean forward to reach the keyboard. Barth explained that if one sits in an awkward position, the protective structures of the discs break down and can cause the discs to herniate. Barth acknowledged that she met the claimant when he came to her workplace and that her report was based on her review of the photos and depositions, and not any medical reports. She also conceded that the claimant could have moved his computer monitor to a better position.
¶ 34 The claimant's wife, Monica Garrett, testified that the claimant did not have problems with his back before they moved into their current residence in 2006. She stated that the claimant looked uncomfortable while working in his home office as his legs did not fit under the desk and he had to reach across the desk and continuously move back and forth to his computer. She also corroborated the claimant's testimony that, on August 29, 2013, the claimant was working in the home office and "hollered" for her because he could not get up. She testified that she helped him get into bed where he remained through the next day.
¶ 35 The claimant testified that he currently has difficulty sitting in any position, standing for more than a few minutes, and walking. He stated that everything he does is difficult and he cannot do his job. On cross-examination, the claimant conceded that he never requested a new desk or chair from Liberty Mutual and that Liberty Mutual does not control his house or otherwise have access to it without permission. He also admitted that he set up his home office and acknowledged that he could have rearranged his desk. He stated, however, that space was limited and he "had no other place to put the paperwork." On re-direct, the claimant testified that
he complained about his office chair and requested an ergonomic assessment from Raydant, but his request was never acted upon.
¶ 36 Liberty Mutual presented the testimony of the claimant's supervisor, Brickmann. Brickmann stated that the claimant advised her that he was undergoing medical treatment for his back in 2013, but he never reported that his condition was work related. She also testified that, prior to his alleged work accident of August 2013, the claimant never requested a new office chair or desk. Brickmann acknowledged, however, that the claimant eventually told her that he thought his low back pain was related to his workstation and eventually requested an ergonomic assessment to determine whether he needed a new chair.
¶ 37 Following a hearing held pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2012)), the arbitrator issued a decision in case No. 14 WC 6167, finding that the claimant failed to prove that he suffered a repetitive trauma injury that arose out of and in the course of his employment. The arbitrator found that the claimant "failed to place into evidence any specific and detailed information concerning his work activities, including the frequency, duration, [and] manner of performing [each duty]." She also noted the claimant's morbid obesity. The arbitrator further determined that the claimant's claim of a repetitive trauma injury lacked supporting medical opinion testimony. Although Drs. Payne and Van Fleet opined that the claimant's low back condition may have been caused, at least in part, by the repetitive sitting in a twisted position, the arbitrator did not credit Drs. Payne's and Van Fleet's opinions because neither doctor had a detailed and accurate understanding of the claimant's work activities. As a consequence, the arbitrator denied the claimant benefits under the Act. The arbitrator did not issue a decision in case No. 15 WC 18366 or otherwise address the claimant's alternative theory
that he sustained an acute trauma injury on August 29, 2013, when he attempted to stand from a seated position in his office chair.
¶ 38 The claimant filed for a review of the arbitrator's determination before the Illinois Workers' Compensation Commission (Commission). The Commission granted the claimant's motion to consolidate, and on September 13, 2016, it issued a unanimous decision, modifying the arbitrator's decision in part and affirming and adopting it in part. In that portion of the decision modified, the Commission found that the claimant failed to prove that he suffered an acute traumatic injury that arose out of his employment because the act of standing up from a seated position was not a risk peculiar to the claimant's work or a risk to which the claimant was exposed to greater degree than the general public by reason of his employment. The Commission otherwise affirmed the arbitrator's finding that the claimant failed to prove he sustained accidental injuries under a theory of repetitive trauma.
¶ 39 The claimant filed a petition for judicial review of the Commission's decision in the circuit court of Sangamon County. On August 3, 2017, the circuit court entered an order confirming the Commission's decision. This appeal followed.
¶ 40 Before addressing the claimant's assignments of error, we address Liberty Mutual's contention that the claimant's brief on appeal should be stricken and his appeal dismissed for failing to comply with Supreme Court Rule 341 (eff. July 1, 2017). The purpose of the rules governing the contents of briefs is to require the parties before the appellate court to present orderly and clear arguments so that this court can properly identify and dispose of the issues raised. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 7. All of the rules governing the content of appellate briefs are requirements, not mere suggestions. Id. Where an appellant's brief contains numerous Rule 341 violations and, in particular, impedes our review of
the case at hand because of them, it is our right to strike that brief and dismiss the appeal. Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 18.
¶ 41 Turning to the specific flaws with the claimant's brief on appeal, Rule 341(h)(1) requires a brief to contain a points and authorities statement consisting of "the headings of the points and subpoints as in the Argument, with the citation under each heading of the authorities relied upon or distinguished, and a reference to the page of the brief on which each heading and each authority appear." Ill. S. Ct. R. 341(h)(1) (eff. July 1, 2017). The points and authorities section of the claimant's brief on appeal lists none of the subsections into which his argument is organized. Further, although the claimant's points and authorities section includes citations to the cases relied upon, they are listed in the order in which they appear in his brief and not in "as near as may be in the order of their importance," as required by Rule 341(h)(1).
¶ 42 Supreme Court Rule 341(h)(3) (eff. July 1, 2017) requires an appellant's brief to include "[a] statement of the *** issues presented for review." Although the claimant's brief contains a section entitled "Issues Presented for Review," it identifies the single, broad issue of whether the Commission erred by "failing to grant compensability to the [claimant's] claim." The claimant's 45-page argument section, however, addresses several issues including, inter alia: whether he sustained his burden of proving a repetitive trauma injury, whether he sustained an acute trauma injury that arose out of his employment, and whether his low back condition is causally related to his employment activities.
¶ 43 The claimant's brief is also deficient under Rule 341(h)(6), which directs that a statement of facts should "contain the facts necessary to an understanding of the case, stated accurately and fairly *** and with appropriate reference to the pages of the record on appeal." Ill. S. Ct. R. 341(h)(6) (eff. July 1, 2017). In this case, the statement of facts in the claimant's brief contains
sporadic references to the pages of the record, and is particularly deficient in providing citations to the medical evidence. Additionally, many of the facts are introduced for the first time in the brief's Argument section, in violation of Rule 341(h)(7)'s requirement that "[e]vidence shall not be copied at length" in the Argument section of a brief.
¶ 44 A reviewing court is entitled to have the issues clearly defined and be provided with meaningful argument; it "is not simply a depository into which a party may dump the burden of argument and research." People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56. Appellate briefs which do not satisfy Rule 341 "do not merit consideration on appeal and may be rejected for that reason alone." Housing Authority of Champaign County v. Lyles, 395 Ill. App. 3d 1036, 1040 (2009). Based upon the deficiencies mentioned above, the claimant's appeal is subject to dismissal.
¶ 45 Notwithstanding the claimant's noncompliance with Rule 341, we may consider his appeal where, as here, we have the benefit of cogent decisions of the arbitrator and Commission, as well as a brief filed by Liberty Mutual, which shored up some of the claimant's deficiencies. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). Although we are not dismissing this appeal, we may "disregard portions of a brief that do not comply with the supreme court rules." Country Preferred Insurance Co. v. Groen, 2017 IL App (4th) 160028, ¶ 12.
¶ 46 Turning to the merits, we first address whether the Commission erred in finding that the claimant failed to establish an acute trauma injury that arose out of his employment. The claimant maintains that his low back injury was compensable because it resulted from an employment-related risk. Specifically, he contends his accidental injuries arose out of his employment because the act he was performing at the time of his accident—arising from a seated
position to retrieve paper for his printer—was in furtherance of his duties for Liberty Mutual. We disagree.
¶ 47 Initially, we note that the claimant disagrees with the standard of review outlined above. Instead, he maintains that this court should review this case under the de novo standard of review because "all experts believed the awkward seating position that [he] was in, caused the injury." See, e.g., Johnson v. Illinois Workers' Compensation Comm'n, 2011 IL App (2d) 100418WC, ¶ 17 (courts "apply a de novo standard of review when the facts essential to our analysis are undisputed and susceptible to but a single inference, and our review only involves an application of the law to those undisputed facts."). He alternatively asserts that the clearly-erroneous standard should apply. Here, however, we find that the facts necessary to our resolution of this appeal—and the inferences to be drawn therefrom—are very much in dispute. Thus, we decline to apply the de novo or clearly-erroneous standards. Instead, we apply the well-settled, manifest-weight-of-the-evidence standard, applicable when reviewing the Commission's factual determinations.
¶ 48 "To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment." Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 203 (2003). Both elements must be present to justify compensation. First Cash Financial Services v. Industrial Comm'n, 367 Ill. App. 3d 102, 105 (2006). Whether an injury arises out of and in the course of the claimant's employment is a question of fact to be resolved by the Commission, and we will not disturb its determination unless it is against the manifest weight of the evidence. Metropolitan Water Reclamation District of Greater Chicago v. Workers' Compensation Comm'n, 407 Ill. App. 3d 1010, 1013 (2011). For a finding of fact to be contrary to the manifest
weight of the evidence, an opposite conclusion must be clearly apparent. Durand v. Industrial Comm'n, 224 Ill. 2d 53, 64 (2006). "The appropriate test is whether there is sufficient evidence in the record to support the Commission's finding, not whether this court might have reached the same conclusion." Chicago Transit Authority v. Illinois Workers' Compensation Comm'n, 2013 IL App (1st) 120253WC, ¶ 24.
¶ 49 " 'In the course of employment' refers to the time, place and circumstances surrounding the injury." Sisbro, 207 Ill. 2d at 203. In this instance, there is no dispute that the claimant's injury occurred "in the course" of his employment. The issue here is whether the Commission erred in finding that the claimant's injury was not one "arising out of" of his employment.
¶ 50 "The 'arising out of' component is primarily concerned with causal connection" and is satisfied when the claimant shows "that the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury." Id. "For an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment." Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 45 (1987). "[I]f the injury results from a hazard to which the employee would have been equally exposed apart from the employment, or a risk personal to the employee, it is not compensable." Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 59 (1989).
¶ 51 Consistent with these principles, this court has categorized the risks to which an employee may be exposed as: "(1) risks that are distinctly associated with the employment; (2) risks that are personal to the employee; and (3) neutral risks that do not have any particular employment or personal characteristics." Metropolitan, 407 Ill. App. 3d at 1014. As indicated by the relevant case authority, employment-related risks are compensable while personal risks
typically are not. Further, "[i]njuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public." Id. "Such an increased risk may be either qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public." Id.
¶ 52 In this case, the Commission found that the claimant failed to prove an injury arising out of his employment because his act of rising, or attempting to rise, from his chair did not expose him to a greater risk of injury than the general public. In other words, the Commission determined that the claimant's injury was the result of a noncompensable neutral risk—that is, the claimant's injury did not result from an employment-related risk.
¶ 53 Here, the claimant's job duties as a sales representative required him to use a computer, fill out forms, and answer telephone calls. He was allegedly injured at work when he attempted to rise from a seated position. Although the claimant was at work, the act he was performing when injured was not one he was instructed to perform or had a duty to perform. Nor did the Commission find the act of standing from a seated position to be incidental to, or required by, the claimant's assigned job duties. The fact that the claimant had to rise from his chair to retrieve paper does not warrant an opposite conclusion. Thus, the risk of injury at issue was simply not one "distinctly associated" with the claimant's employment. See Noonan v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 152300WC, ¶ 21 (the act of reaching for a dropped pen while sitting in a chair was not "distinctly associated" with the claimant's job duties where the claimant had no duty to perform the act and was never instructed to perform the act).
¶ 54 The claimant primarily relies on Mytnik v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 152116WC, in support of his position that his injury resulted from an employment-related risk. In Mytnik, the claimant worked on an assembly line where he installed rear suspensions on vehicles using an articulating arm to fasten bolts and brackets. At the time of his injury, the claimant was reaching down to grab a bolt that had fallen on the assembly line when he felt pain down the right side of his back and hip. Id. ¶¶ 5, 7. On review, this court found, "[w]hile the act of 'bending' may be an act performed by the general public on a daily basis, the evidence established that bolts would regularly fall out of the articulating arm during the assembly process" and that the "claimant had to 'run down there, bend over, reach and *** pick it up before the [rotating platform] r[an] it over.' " Id. ¶ 45. We concluded, therefore, that "picking up fallen bolts was an integral part of the claimant's job" and that the risk to which the claimant was exposed was necessary to the performance of his job duties at the time of his injury. Id.
¶ 55 We find Mytnik to be factually distinguishable from the present case as the claimant in Mytnik was performing acts his employer might reasonably have expected him to perform when fulfilling his job duties—i.e., picking up a fallen bolt to prevent the platform from jamming. Evidence presented in this case, however, failed to establish that the claimant's actions—rising from a seated position in his office chair—was an act that Liberty Mutual might reasonably have expected him to perform incident to his duties as an insurance sales representative. We decline to find the claimant's risk of injury in the present case to be distinctly associated with his work for Liberty Mutual. Instead, we agree with the Commission's finding that the risk of standing from a seated position is one which the claimant would have been equally exposed to apart from his work for Liberty Mutual. Thus, it presents a neutral risk and is compensable only when the
claimant establishes that he was quantitatively or qualitatively exposed to the risk to a greater degree than the general public.
¶ 56 This court has stated that "[e]mployment related risks associated with injuries sustained as a consequence of a fall are those to which the general public is not exposed such as the risk of tripping on a defect at the employer's premises, falling on uneven or slippery ground at the work site, or performing some work related task which contributes to the risk of falling." First Cash Financial Services, 367 Ill. App. 3d at 106. Here, no evidence was presented as to any defective condition in the desk or chair, which would have contributed to the claimant's injury. Specifically, the evidence reflected only that the claimant had been sitting in an ergonomic chair that was specifically ordered for him following an ergonomic assessment. See Board of Trustees of the University of Illinois v. Industrial Comm'n, 44 Ill. 2d 207, 214-15 (1969) (holding that the claimant's injury was not caused by a risk incidental to the employment where he "simply turned in his chair and suffered the injury" and where "[t]here was no suggestion that the chair was defective or unusual in any way"); see also Hopkins v. Industrial Comm'n, 196 Ill. App. 3d 347, 351-52 (1990) (the claimant's back injury did not arise out of his employment where he simply turned in his chair and suffered injury). The claimant's action of rising from his chair, without more, is insufficient to establish a work-related cause to his accidental injury.
¶ 57 Additionally, we agree with the Commission's finding that no work-related task contributed to the claimant's risk of injury. In this instance, the claimant points to the fact that he was standing up to retrieve paper for the printer so he could print out forms as an aspect of his employment which contributed to his risk of injury. However, the risk posed by standing from a seated position is no greater than if the claimant had been standing to retrieve any other object, including one wholly personal to him. See Noonan, 2016 IL App (1st) 152300WC, ¶ 30 ("the
risk posed from reaching for a pen while sitting in a rolling chair is no greater than if claimant had been reaching to retrieve any other object, including one wholly personal to him."). As a result, the Commission's finding that the claimant's employment did not expose him to a neutral risk to a greater degree than the general public is not against the manifest weight of the evidence.
¶ 58 Under the circumstances presented, we conclude that the Commission's finding that the claimant failed to establish an acute injury arising out of his employment was not against the manifest weight of the evidence.
¶ 59 We next address the Commission's finding that the claimant failed to sustain his burden of proof on the alternative theory that he suffered a repetitive trauma injury that arose out of and in the course of his employment. A claimant seeking benefits under a repetitive trauma theory must meet the same burden of proof as a claimant alleging a single, accidental injury. Peoria County Bellwood Nursing Home v. Industrial Comm'n, 115 Ill. 2d 524, 530 (1987). Moreover, even though a repetitive trauma is not traceable to a specific time, place, or cause, it is still essential that a claimant establish a specific date on which the injury is deemed to have occurred. Three "D" Discount Store v. Industrial Comm'n, 198 Ill. App. 3d 43, 47 (1989). To prevail under a repetitive trauma theory, a claimant must establish that his work duties were sufficiently repetitive in nature, occurrence, and force so as to cause a gradual breakdown of the claimant's physical condition. Williams v. Industrial Comm'n, 244 Ill. App. 3d 204, 211 (1993). Whether a claimant has established his entitlement to benefits under a repetitive trauma theory is a question of fact for the Commission to determine, and its decision will not be overturned on appeal unless it is against the manifest weight of the evidence. Three "D" Discount Store, 198 Ill App. 3d at 47.
¶ 60 The claimant asserts that he suffered a repetitive trauma, which manifested in his injury of August 29, 2013, as a result of sitting in a "forward flexed and twisted" position with his "knees around his ears." However, the Commission affirmed and adopted the arbitrator's finding that the claimant failed to prove a repetitive trauma injury occurred. Although the claimant testified that his work duties were diverse, the Commission noted that he spent no time detailing his specific work duties and provided "no details" regarding the number of leads he had to follow-up on; the amount of work he processed; or the time he spent working on his computer, completing paperwork, and talking on the phone. The Commission also observed that the claimant failed to offer any evidence as to how often he worked at home, as opposed to visiting existing or potential clients in the field, and the number of clients he had. In short, the Commission found that the claimant provided no specific or detailed information concerning his work activities, including the frequency, duration, or manner in which he performed them.
¶ 61 The Commission also found that the claimant's claim of a repetitive trauma injury lacked supporting medical opinion testimony. Although Drs. Payne and Van Fleet opined that the claimant's preexisting degenerative disc disease could have been aggravated, at least in part, by the repetitive sitting at work, the Commission did not credit their opinions because they did not have a sufficient understanding of the claimant's job activities. Additionally, neither Dr. Payne nor Dr. Van Fleet elaborated on their causal connection opinion during their depositions, and it is not clear what particular work activities they found contributed to the claimant's condition of ill-being. Indeed, both doctors agreed that the act of standing from a seated position is the same regardless of whether it is performed while at work, or at the dinner table.
¶ 62 Finally, the Commission noted that the claimant focused on the ergonomic set-up of his office and advanced the theory that sitting in a chair caused the breakdown of the protective
structure of his low back, resulting in the disc herniation. Rejecting this theory, the Commission reasoned that "proof of a bad ergonomic condition and a particular condition of ill-being" is not sufficient to prove a compensable accident. More specifically, it found "no evidence directly relating [the claimant's] work station to his herniation" and, as a consequence, any finding that his work station was the cause of his herniation necessarily would be based on conjecture or speculation.
¶ 63 It is the function of the Commission to decide questions of fact, to judge the credibility of witnesses, and to resolve conflicting medical evidence. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980). Here, the Commission determined that the clamant failed to sustain his burden of proving by a preponderance of the evidence that he sustained a repetitive trauma injury to his low back. Given the evidence presented, we cannot say an opposite conclusion from that reached by the Commission was clearly apparent.
¶ 64 For the foregoing reasons, we affirm the judgment of the circuit court of Sangamon County which confirmed the Commission's decision denying the claimant benefits pursuant to the Act.
¶ 65 Affirmed.