Opinion
No. 2-17-0278
04-04-2018
FRED HARMON, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION and KANE COUNTY FOREST PRESERVE, Appellees.
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 by Rule 23(e)(1).
Appeal from the Circuit Court of Kane County.
No. 16-MR-803
Honorable David Akemann, Judge, Presiding.
JUSTICE BARBERIS delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the judgment.
ORDER
¶ 1 Held: (1) The Commission's finding that the claimant reached MMI as of March 12, 2012, was not against the manifest weight of the evidence; (2) the Commission's finding that the claimant's condition of ill-being along with the medical treatment rendered after March 12, 2012, was not causally related to his work accident was not against the manifest weight of the
evidence; (3) the Commission's finding that the claimant failed to establish that he was PTD was not against the manifest weight of the evidence; and (4) the Commission's determination that the claimant was not entitled to penalties was not against the manifest weight of the evidence; however, (5) the Commission's finding regarding the claimant's periods of TTD benefits was against the manifest weight of the evidence.
¶ 2 The claimant, Fred Harmon, filed an application for adjustment of claim pursuant to the Illinois Workers' Compensation Commission Act (Act) (820 ILCS 305/1 et seq. (West 2008)) seeking benefits for a cervical spine injury sustained on August 23, 2008, while employed by the Kane County Forest Preserve (KCFP).
¶ 3 On April 7, 2015, the arbitrator found that the claimant sustained an undisputed work injury on August 23, 2008, that caused a cervical condition and resulted in multiple surgeries. The claimant was awarded medical expenses; temporary total disability (TTD) benefits for 115 weeks; and lifetime permanent and total disability (PTD) benefits with the potential for cost-of-living adjustments. However, the claimant was denied attorney's fees and other penalties.
¶ 4 The claimant filed a petition for review before the Illinois Workers' Compensation Commission (Commission). On June 20, 2016, the Commission issued a unanimous decision modifying and otherwise affirming the arbitrator's decision. Specifically, the Commission found that the August 23, 2008, work injury necessitated only the April 9, 2009, surgery, and that claimant reached maximal medical improvement (MMI) on March 12, 2012. The claimant was awarded medical expenses through March 12, 2012; TTD benefits for 49 2/7 weeks; and permanent partial disability (PPD) benefits for 40%
loss of use of person for 200 weeks, with no cost-of-living adjustments. The claimant was not entitled to attorney's fees or other penalties.
¶ 5 The claimant filed a petition for judicial review in the circuit court of Kane County. On March 21, 2017, the court confirmed the Commission's decision.
¶ 6 BACKGROUND
¶ 7 The following factual recitation is taken from the evidence adduced at the arbitration hearings on November 18, 2014, December 19, 2014, and February 6, 2015.
¶ 8 On December 5, 2006, the claimant sustained a work-related injury to his spine, which necessitated surgery to the cervical region at C4-5 and C5-6 on April 1, 2008. The claimant testified that he was able to perform his employment tasks, but he did not have the same strength in his arms and shoulders that he had had before the accident. According to the claimant, he also noticed neck stiffness while performing daily activities from May through July 2008, but continued to work full-duty through August 23, 2008.
¶ 9 On August 23, 2008, the date of the incident on appeal, the claimant went to close the park gates at a forest preserve in Kane County. The claimant testified that he successfully lifted one arm of the gate, which weighed roughly 100 pounds, but as he closed the second gate, it dropped, struck his stomach, and forced him to the ground. Following this incident, the claimant experienced neck, back, and shoulder pain and was unable to turn his head. The claimant was transported to Delnor Community Hospital and had x-rays and an MRI taken.
¶ 10 The claimant testified that he was 68 years old, a retired policeman, and was currently receiving a pension and social security benefits. The claimant was hired by
KCFP in 2000 and did not have a condition that precluded him from full-time work. As a KCFP officer, he patrolled the Kane County forest preserves, issued tickets, made arrests, and secured park gates.
¶ 11 On August 28, 2008, the claimant underwent a second MRI of the cervical spine. Shortly thereafter, Dr. Brayton reviewed the MRI and recommended physical therapy. The claimant attended on nine physical therapy sessions from October 3, 2008, to November 6, 2008, and remained off of work during this period.
¶ 12 On November 7, 2008, Dr. Brayton examined the claimant and found that he had recovered from the C4-C5 and C5-C6 disc herniation sustained in the December 5, 2006, work injury, but had a new disc herniation at C3-C4. Dr. Brayton believed that the new injury was caused by the August 23, 2008, work accident. Dr. Brayton recommended surgery to the C3-C4 level and re-exploration of the previous fusion sites at C4-C5 and C5-C6. Dr. Brayton opined that the December 5, 2006, accident resulted in surgery on April 1, 2008, due to C4-C5 and C5-C6 disc herniation, and that the second work accident on August 23, 2008, resulted in surgery on April 9, 2009, due to a C3-C4 disc herniation.
¶ 13 On November 13, 2008, the claimant requested a second opinion from Dr. Johnson, a neurosurgeon. The claimant testified that he was told to remain off work and continue with the prescribed conservative care plan. That same day, Dr. Lanoff conducted a section 12 examination of the claimant, at KCFP's request. Dr. Lanoff determined that the claimant's cervical disc herniation at C3-C4 was related to the August 23, 2008, work accident, and that the possible right shoulder impingement and
subacromial bursitis was secondary to the work injury. Dr. Lanoff noted that the claimant reported that he was fully functional until August 23, 2008. The claimant a subacromial injection to the right shoulder and Dr. Lanoff recommended physical therapy. Dr. Lanoff also concluded that the claimant could return to modified work duty, however, he was instructed to avoid overhead lifting and right-handed work, and to refrain from lifting more than 15 pounds.
¶ 14 On November 24, 2008, the claimant received a letter from KCFP offering him modified duty within Dr. Lanoff's parameters. On December 1, 2008, the claimant returned to work with modified duty.
¶ 15 On January 22, 2009, Dr. Lanoff re-examined the claimant and suggested that he receive injections or proceed with surgery. The claimant was not at MMI at this time. On March 18, 2009, the claimant underwent a third cervical MRI, and he continued to work modified duty. Upon a review of the MRI, Dr. Brayton recommended surgery after he found evidence of a large disc herniation at C3-4.
¶ 16 The claimant testified that on April 7, 2009, his sergeant, Bill Glisson, informed him that he was no longer a policeman. Following this communication, the claimant walked off the job.
¶ 17 On April 9, 2009, according to Dr. Brayton's operative report, the claimant underwent surgery to re-explore and remove plating from the C4-C5 and C5-C6 fusion site, as well as a cervical discectomy, decompression, and fusion with plating and screws at C3-C4. The claimant testified that following surgery, he was unable to swallow and eat. Consequently, a tube was inserted from below his sternum to his stomach. As a
result, the claimant remained inpatient until April 18, 2009. The claimant testified that he required speech therapy and continued liquid tube feeding with assistance of a home health care nurse. From May 28, 2009, through July 9, 2009, the claimant attended seven physical therapy sessions, and the feeding tube remained in place during this time. On July 19, 2009, the feeding tube was removed, and he continued physical therapy until September 4, 2009.
¶ 18 On September 4, 2009, Dr. Brayton examined the claimant and recommended work conditioning for four hours per day, three days a week, for six weeks. From September 25, 2009, through November 17, 2009, the claimant attended work conditioning; however, Dr. Brayton discontinued work conditioning because of neck and left shoulder complications, as well as swallowing difficulties. Dr. Brayton later ordered a repeat cervical MRI and recommended physical therapy.
¶ 19 On December 10, 2009, Dr. Brayton expressed in a letter to Dr. Hamada that the claimant met the criteria for light duty work but indicated that "this [could not] be allowed until he [was] independent of the Norco." The payment of TTD benefits continued.
¶ 20 From January 22, 2010, through March 10, 2010, the claimant attended 16 physical therapy sessions. On March 29, 2010, he underwent a fourth cervical MRI. On May 20, 2010, the claimant returned to Dr. Brayton with complaints of pain and fatigue over the left paraspinous muscles. Dr. Brayton recommended injections after he suspected that the claimant's symptoms were attributable to facet pain.
¶ 21 Dr. Brayton then referred the claimant to Dr. Grosskopf, an orthopedic surgeon, due to ongoing left upper extremity complaints. On September 24, 2010, Dr. Grosskopf examined the claimant and administered an injection. According to the claimant, the injection provided little relief. On October 27, 2010, Dr. Grosskopf surmised that the claimant's left upper extremity complaints were emanating from the cervical region.
¶ 22 On November 5, 2010, Dr. Lochmueller, an ear, nose, and throat specialist, examined the claimant, noting that the claimant had 50% improvement with swallowing, and that he expected gradual improvement.
¶ 23 On December 17, 2010, Dr. Brayton examined the claimant and recommended medical-based therapy, which included pool therapy and equipment. Dr. Brayton's December 17, 2010, letter to Dr. Hamada indicated that he did "not feel it is reasonable to expect [the claimant] to return to work in any capacity of law enforcement, even sedentary work requiring performance of paperwork." Dr. Brayton's based his opinion on the claimant's left-handed dominance due to radicular symptoms in his left arm and his use of narcotics for cervical spine pain. As a result, Dr. Brayton concluded that the claimant was permanently disabled from his occupation.
¶ 24 On May 11, 2011, the claimant retained the services of a vocational counselor, Joseph Belmonte (Belmonte), who conducted a vocational assessment. The claimant provided Belmonte his work history and educational background. The claimant testified that he was 72 years old and had worked as a Chicago police officer for 29 years. The claimant at one point had the ability to perform electrical, plumbing, heating, and air
conditioning services, and had been a licensed pilot. According to the claimant, he had earned his high school diploma when he was 60 years old.
¶ 25 Based on Belmonte's vocational assessment, he concluded that the claimant was unable to perform a job identified in the labor market based on Dr. Brayton's December 17, 2010, work restrictions, the claimant's skill level, educational and employment history, and his age. Belmonte also determined that the claimant was not a candidate for vocational rehabilitation with no accessible labor market. Given Dr. Brayton's work restrictions, Belmonte found no basis to perform a labor market survey.
¶ 26 Following Belmonte's vocational assessment, the claimant testified that he continued to visit Dr. Brayton due to persistent swallowing difficulties and choking, progressively increasing neck pain, and bilateral shoulder pain. In October 2011, the claimant underwent a fifth cervical MRI and a video esophagram. On November 4, 2011, after a review of the MRI, Dr. Brayton recommended a cervical re-exploration from C3-C7 with plate removal and revision of the microforaminotomies based on changes at the C3-C4 level and the claimant's ongoing complaints. Dr. Brayton related the claimant's need for surgery to his work-related injury.
¶ 27 Throughout 2011, the record demonstrates that the claimant received TTD benefits from KCFP, despite the Commission's subsequent finding that Dr. Brayton had released the claimant to light duty on December 10, 2009. On March 12, 2012, the claimant underwent a section 12 examination with Dr. Zelby, at KCFP's request. At that time, Dr. Zelby determined that the claimant was at MMI and capable of light to medium
work with occasional lifting between 25 to 30 pounds or frequent lifting between 15 to 20 pounds. On May 23, 2012, the claimant's TTD benefits ended.
¶ 28 In July 2012, the claimant underwent a vocational evaluation with vocational expert, Ed Rascati (Rascati), at the KCFP's request. In contrast to Belmonte's opinion, Rascati's recommended a labor market survey after he found that the claimant was capable of security dispatch or customer service. KCFP did not offer the claimant vocational retraining or job placement assistance.
¶ 29 On November 14, 2012, the claimant complained to Dr. Brayton that he was experiencing persistent neck and shoulder pain, as well as left shoulder tremors. Dr. Brayton ordered an EMG/NCV study, flexion/extension x-rays of the cervical spine, and a sixth cervical MRI. On November 20, 2012, Dr. Bukowy performed the claimant's EMG/NCV study. The claimant also met with Dr. Brayton that date and the third surgery was discussed.
¶ 30 Although the claimant denied any new injury or trauma, he acknowledged that he had played a computer chess game two to three times a month for several hours while lying in bed or sitting in a chair. The claimant testified that after 30 minutes he would shift positions and then walk for five minutes before he resumed the game. On December 21, 2012, the claimant reported that he jumped up out of his chair and felt a sharp, severe neck pain while playing the computer chess game.
¶ 31 Following this incident, he was admitted to Delnor Community Hospital underwent x-rays and an MRI of the cervical spine. The claimant was subsequently
discharged on December 25, 2012, with instructions to take Hydrocodone and follow-up with Dr. Brayton.
¶ 32 In summer 2013, the claimant assisted his 95-year-old mother after she suffered a stroke. The claimant cooked, cleaned, and supported her while she walked. The claimant explained that his mother was also assisted by several service providers on a daily basis. The claimant claimed that he did not suffer from neck or left shoulder pain at that time.
¶ 33 The claimant testified that he sought treatment at Delnor Community Hospital for uncontrollable pain in his neck and left upper extremity in September 2013. The claimant testified that there was no new injury that caused these symptoms. On September 10, 2013, Dr. Brayton performed a C3-C7 decompressive laminectomy with bilateral foraminotomies and facet fusion with bone graft on the claimant. After surgery, the claimant received inpatient occupational and physical therapy at Marian Joy Rehabilitation Hospital. The claimant was then transferred to Central DuPage Hospital where he was diagnosed with intractable cervical neuropathic pain due to ongoing and unbearable pain. Shortly thereafter, the claimant was transferred to Delnor Community Hospital and remained inpatient for 11 days.
¶ 34 On January 21, 2014, the claimant underwent a repeat vocational assessment with Belmonte. Belmonte concluded that the claimant could not perform any job identified in the labor market based on the claimant's educational and employment history, level of transferable skills, and his age.
¶ 35 From December 12, 2013, through February 17, 2014, the claimant attended physical therapy. The records show that claimant's therapy was suspended because he developed pneumonia.
¶ 36 The records and the claimant's testimony demonstrate that he intermittently visited Dr. Hamada for conditions unrelated to his cervical and upper extremity complaints. In 2012, he noted that stress and persistent neck and shoulder pain caused his spouse to move out of the house. As of September 24, 2014, Dr. Hamada found that the claimant's musculoskeletal disorder precluded him from working because he could not sit for longer than 30 minutes, had no strength distally in his left hand, exhibited tremors and weaknesses, and had chronic neck pain and tightness. Shortly thereafter, Dr. Brayton examined the claimant and concluded that it was unreasonable to consider him capable of gainful employment because of his severe spinal cord injury, constant pain, daily reliance on narcotics, hypertonia, tremors, and persistent myelopathy.
¶ 37 On November 10, 2014, Dr. Brayton completed an employability assessment. He indicated that the claimant could not engage in (1) occasional carrying; (2) frequent lifting; (3) pushing or pulling; (4) climbing or balancing; (5) stooping, crawling, kneeling or crouching. Additionally, Dr. Brayton concluded that the claimant was unable to (1) perform reaching and handling; (2) work in extreme cold or heat; (3) work in wetness or humidity; (4) perform work that involved jolting, jarring, or vibration; (5) work above 6 feet; (6) work around chemicals or with machines: and (7) that he would need to alternate at will between sitting, standing, and walking.
¶ 38 Dr. Brayton concluded, however, that the claimant could (1) stand and walk 1 hour per day; (2) handle communication capacities of 3 to 5 hours per day; and (3) work 75% inside and 25% outside. Dr. Brayton noted that the claimant could also sit for up to 30 minutes and stand for 15 minutes before a positional change was needed. Dr. Brayton also determined that the claimant's medications, especially Norco, impacted his ability to work an eight hour shift and that he would be limited at work due to dizziness and drowsiness. Dr. Brayton concluded that the claimant was unable to work.
¶ 39 The claimant testified that he experienced temporary relief after he took Norco, Lorazepain, Relafen, and Flexeril on a daily basis. However, the claimant continued to choke and cough from scar tissue in the cervical region. He testified that he could not perform carpentry or electrical tasks that he had done before; that his neck stiffened up while he drove; and that he suffered from pain in his left shoulder and numbness his left arm. However, the claimant testified that he had driven a vehicle for 90 minutes, cut grass on a riding lawn mower, pulled weeds, and used a hedge trimmer, although he was forced to stop often due to neck pain. The claimant explained that he could not stand or sit for prolonged periods of time and had difficulty sleeping. The claimant testified that he participated in home therapy exercises due to considerable atrophy in his arms, and that he occasionally used an electronic cervical collar and a cane to walk.
¶ 40 On April 7, 2015, the arbitrator found that the claimant sustained a cervical condition from an undisputed work injury on August 23, 2008. The arbitrator awarded the claimant $40,707.36 in medical expenses; schedule provisions; TTD benefits from August 24, 2008, through November 24, 2008; April 9, 2009, through December 10,
2009; as well as September 10, 2013, through December 19, 2014, (for a total of 115 weeks); and PTD for $634.57 per week for life that commenced on December 20, 2014, with potential eligibility for cost-of-living adjustments. The arbitrator denied attorney's fees under section 16(a) of the Act and additional compensation under sections 19(k) and 19(l) of the Act. See 820 ILCS 305/16(a), 19(k), 19(l) (West 2008).
¶ 41 The claimant filed a petition for review before the Commission. On June 20, 2016, the Commission issued a unanimous decision modifying and otherwise affirming the arbitrator's decision. Specifically, the Commission modified the arbitrator's decision finding that the August 23, 2008, work injury necessitated the April 9, 2009, surgery, and that the claimant had reached MMI on March 12, 2012. As a result, all medical treatment rendered after March 12, 2012, was the result of non-occupational cervical spondylosis and an intervening event, specifically when the claimant experienced pain after playing a computer chess game.
¶ 42 The Commission awarded the claimant medical expenses through March 12, 2012; TTD benefits from August 24, 2008, through November 30, 2008; and April 9, 2009, through December 10, 2009, (for a total of 49 2/7 weeks); and PPD benefits for 40% loss of use of person for a period of 200 weeks, with no cost-of-living adjustments. Moreover, the claimant was not entitled to attorney's fees or other penalties.
¶ 43 The claimant filed a petition for judicial review in the circuit court of Kane County. On March 21, 2017, the court confirmed the Commission's decision. This appeal followed.
¶ 44 ANALYSIS
¶ 45 The purpose of the Act is to protect employees against risks and hazards that are peculiar to the nature of the work they are employed to do. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). "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 at the time of the claimant's injury in order to justify compensation." Springfield Urban League v. Illinois Workers' Compensation Comm'n, 2013 IL App (4th) 120219WC, ¶ 25.
¶ 46 In resolving questions of fact, it is within the province of the Commission to assess the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from the evidence. The relevant inquiry is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other might reach an opposite conclusion. Land & Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 592 (2005). Despite this standard, Commission findings are not unassailable or entitled to complete deference. Mechanics Universal Joint Div., Borg-Warner Corp. v. Indus. Comm'n, 21 Ill. 2d 535, 538 (1961). Indeed, judicial courts are obligated to impartially examine the evidence and reverse an order unsupported by the facts. Kawa v. III. Workers' Comp. Comm'n, 2012 IL App (1st) 120469WC ¶ 79, (2013). However, "[f]or a finding of fact to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent from the record on appeal." City of Springfield v. Illinois Workers' Compensation Comm'n, 388 Ill. App.
3d 297, 315 (2009); see also Swartz v. Industrial Comm'n, 359 Ill. App. 3d 1083, 1086 (2005).
¶ 47 A. MMI Determination at March 12, 2012
¶ 48 The claimant contends first that the Commission's finding that he reached MMI on March 12, 2012, was against the manifest weight of the evidence. On March 12, 2012, the claimant underwent a section 12 examination with Dr. Zelby. Dr. Zelby determined that the claimant was at MMI and capable of light to medium work with occasional lifting between 25 to 30 pounds and frequent lifting between 15 to 20 pounds. Dr. Zelby testified that the claimant had a normal neurologic exam, that his fusions had healed, and that he had lifted 25 pounds in physical therapy. Thus, Dr. Zelby opined that the claimant did not need further spine treatment irrespective of cause. Based on the foregoing, we cannot find that the Commission's finding was against the manifest weight of the evidence.
¶ 49 B. Causal Relation to Medical Treatment Post-MMI Determination
¶ 50 Next, the claimant contends that the Commission's determination was against the manifest weight of the evidence where it found that his current condition of ill-being was not causally related to the August 23, 2008, work injury. Specifically, the claimant asserts that the medical evidence demonstrated that the August 23, 2008, accident necessitated the September 10, 2013, surgery, not just the April 9, 2009, surgery, and that playing a computer chess game was not an intervening event. We, however, find ample evidence to support the Commission's finding.
¶ 51 "Whether a causal relationship exists between a claimant's employment and his injury is a question of fact to be resolved by the Commission ***." R & D Thiel v. Illinois Workers' Compensation Comm'n, 398 Ill. App. 3d 858, 867 (2010). "In resolving such issues, it is the function of the Commission to decide questions of fact, judge the credibility of witnesses, and resolve conflicting medical evidence." R & D Thiel, 398 Ill. App. 3d at 868. The relevant inquiry is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other might reach an opposite conclusion. Land & Lakes Co., 359 Ill. App. 3d at 592.
¶ 52 Here, the Commission weighed the opinions of Dr. Brayton and Dr. Zelby, and ultimately determined that Dr. Zelby's opinions were more persuasive. The Commission observed that Dr. Brayton's testimony underreported the claimant's abilities, which the claimant had addressed in his testimony. In particular, Dr. Brayton opined that the claimant could only sit for 30 minutes and stand for 15 minutes before he needed a positional change, and that he needed to walk around while he worked. However, the claimant testified that he had driven a vehicle for 90 minutes, cut grass on a riding lawn mower, pulled weeds, and used a hedge trimmer, although forced to take frequent breaks due to neck pain. The Commission also noted that Dr. Brayton's testimony was less persuasive where his answers appeared to change depending on the attorney who asked the question.
¶ 53 Dr. Zelby testified that the claimant had a normal exam on March 12, 2012, and that further treatment was unnecessary given that the C3-C4, C4-C5, and C5-C6 fusions had healed. Dr. Zelby testified that Dr. Brayton fused only C6-C7, and that Dr. Brayton
did not add anything biomechanically to the spine when he applied additional screws. Thus, Dr. Zelby opined that there was no relationship between the claimant's August 23, 2008, work injury and the September 10, 2013, surgery. Rather, Dr. Zelby testified that the September 10, 2013, surgery was due to degenerative changes in the cervical spine. Likewise, Dr. Brayton admitted that the claimant's cervical osteoarthritis progressed between 2008 and 2013 even without any trauma. Considering the claimant's medical history and the progressive nature of his cervical arthritis, Dr. Brayton was unable to state within a reasonable degree of medical and surgical certainty that the claimant's August 23, 2008, work injury was a factor in his need for the September 10, 2013, surgery.
¶ 54 Furthermore, we agree with the Commission that the claimant's December 2012 hospitalization following his chess playing incident was not causally related to the August 23, 2008, incident. In holding so, the Commission determined that the injury that caused the four-day hospitalization was an intervening event based on the claimant's own statement that he jumped up out of his chair and immediately felt sharp, severe neck pain. Additionally, both Drs. Zelby and Brayton agreed that degenerative disc disease could have caused a herniated disc from a number of non-occupational activities, such as coughing and sneezing.
¶ 55 After reviewing the conflicting medical opinions and the evidence regarding MMI, we cannot say that the Commission's reliance upon Dr. Zelby's opinion was against the manifest weight of the evidence. The Commission considered the conflicting medical opinions on causation and evaluated their credibility based on the strength of the
respective testimonies. Accordingly, we conclude that the Commission's findings were not against the manifest weight of the evidence.
¶ 56 C. TTD Stipulation
¶ 57 The claimant contends next that the Commission's finding was against the manifest weight of the evidence where it determined that the claimant was eligible for TTD benefits only through December 10, 2009, the date of the claimant's removal from the labor market. Specially, the claimant argues that he is entitled TTD benefits until October 13, 2014.
¶ 58 A claimant is TTD from the time an injury incapacitates his or her from work until such time as he or she is as far recovered or restored as the permanent character of injury will permit. Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 542 (2007). In determining whether a claimant is no longer entitled to continue receiving TTD benefits, the primary consideration is whether the claimant's condition has stabilized and he or she is capable of returning to the workforce. Holocker v. Illinois Workers' Compensation Comm'n, 2017 IL App (3d) 160363WC, ¶ 40 (citing Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n, 236 Ill. 2d 132, 146 (2010)). Other consideration will be given to such factors as whether the claimant has been released to return to work, the medical opinion testimony regarding the present extent of his injuries, and "most importantly, whether the injury has stabilized." Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 760 (2003). The period of TTD is a question of fact, and as such, the Commission's decision regarding whether a claimant has reached MMI will
not be overturned on appeal unless it is against the manifest weight of the evidence. Nascote Industries v. Industrial Comm'n, 353 Ill. App. 3d 1067, 1072 (2004).
¶ 59 First, the claimant argues that the Commission is without authority to award TTD benefits for a lesser period of time. KCFP indicated on the hearing form that TTD was from September 9, 2008, through October 27, 2008, and April 9, 2009, through May 23, 2012. The claimant argued that he was entitled to TTD from August 24, 2008, through November 30, 2008, and April 9, 2009, through October 13, 2014. However, KCFP now asserts that the parties never reached an agreement regarding the periods of TTD, as it was clearly at issue on the hearing form.
¶ 60 The Commission made a factual determination that no stipulation existed, and thus, concluded that they are not bound by a party's assertion. As a result, the Commission determined that regardless of KCFP's assertion that TTD benefits continued through May 23, 2012, they are not bound by that date. We disagree.
¶ 61 The applicable administrative regulation regarding requests for hearing is contained in section 9030.40 of Title 50 of the Illinois Administrative Code (50 Ill. Adm. Code 9030.40 (2016)). That section reads as follows:
"Before a case proceeds to trial on arbitration, the parties (or their counsel) shall complete and sign a form provided by the Workers' Compensation Commission called Request for Hearing. *** The completed Request for Hearing form, signed by the parties (or their counsel), shall be filed with the Arbitrator as the stipulation of the parties and a settlement of the questions in dispute in the case." (Emphasis added.) 50 Ill. Adm. Code 9030.40.
The language of section 9030.40 indicates that assertions made on a request for hearing form are binding on the parties. See Walker v. Industrial Comm'n, 345 Ill. App. 3d 1084,
1088 (2004) (a party may not argue for a suspension of TTD benefits effective on a date prior to a date it previously asserted was an appropriate date for suspension)). A review of the request for hearing form indicates that KCFP asserted that the claimant's TTD benefits ended on May 23, 2012. This assertion was effectively a stipulation by KCFP that TTD benefits ended on May 23, 2012. In holding that no stipulation existed, the Commission incorrectly suspended the claimant's TTD benefits on December 10, 2009.
¶ 62 Second, and most importantly, the claimant asserts that the Commission misconstrued Dr. Brayton's employability assessment letter on December 10, 2009. Specifically, the claimant contends that Dr. Brayton did not release him to light duty work because of his dependency on narcotics. Based on Dr. Brayton's December 10, 2009, letter, the Commission determined that TTD benefits ended that day. We disagree.
¶ 63 A review of Dr. Brayton's December 10, 2009, letter states as follows: "[The claimant] has met criteria for light duty release at work, but this cannot be allowed until he is independent of the Norco." Thus, we conclude that the Commission's finding was against the manifest weight of the evidence where it determined that the claimant had been released to work on December 10, 2009, and that TTD benefits ended that date.
¶ 64 D. PPD v. PTD
¶ 65 The claimant contends that the Commission's finding was against the manifest weight of the evidence in determining that he was PPD, not PTD, to the extent of 40% loss of a person as a whole. To support his contention, the claimant relies on the strength of Dr. Brayton's reports, his long treatment history, and the claimant's own testimony explaining the debilitating effects of his August 23, 2008, work injury.
¶ 66 Our supreme court has held that "an employee is totally and permanently disabled when he is 'unable to make some contribution to the work force sufficient to justify the payment of wages.' " Ceco Corp. v. Industrial Comm'n, 95 Ill. 2d 278, 286 (1983). The claimant need not, however, be reduced to total physical incapacity before a PTD award may be granted. Ceco Corp., 95 Ill. 2d at 286. Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable market. Id. at 286-87. Conversely, an employee is not entitled to total and permanent disability compensation if he is qualified for and capable of obtaining gainful employment without serious risk to his health or life. Id. at 287. In determining a claimant's employment potential, his age, training, education, and experiences should be taken into account. Id.
¶ 67 PPD benefits are awarded when a work-related injury prevents a claimant from pursuing their usual and customary employment. Guest Coal Co. v. Industrial Comm'n, 324 Ill. 268, 275 (1927). Under the Act, when a claimant sustains a work-related permanent disability, they are entitled to receive PPD benefits based on either a wage differential (820 ILCS 305/8(d)(1) (West 2010)), or a percentage loss of the use of a body part or the body as a whole (820 ILCS 305/8(e) (West 2010)). For purposes of calculating PPD benefits "[t]he claimant has the burden of proving by a preponderance of the evidence the extent and permanency of his injury." Esposito v. Industrial Comm'n, 186 Ill. App. 3d 728, 737 (1989). "[B]ecause of the Commission's expertise in the area of worker's [sic] compensation, its findings on the question of the nature and extent of permanent disability should be given substantial deference" and "will not be set aside on
review unless it is contrary to the manifest weight of the evidence." Mobil Oil Corp. v. Industrial Comm'n, 309 Ill. App. 3d 616, 624 (1999).
¶ 68 In considering the propriety of a PTD award, a court will determine if the claimant's disability is limited in nature so that he or she is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. A.M.T.C. of Illinois, Inc. v. Industrial Comm'n, 77 Ill. 2d 482, 489 (1979). However, once the employee has initially established that he falls in what has been termed the "odd-lot" category—one who, though not altogether incapacitated, is so handicapped that he will not be employed regularly in any well-known branch of the labor market—the burden shifts to the employer to show that suitable work is regularly and continuously available to claimant. Ceco Corp., 95 Ill. 2d at 287.
¶ 69 In awarding the claimant PPD benefits, the Commission found that the claimant was neither medical permanent total nor odd-lot permanent total as a result of the August 23, 2008, work accident. In making this determination, the Commission noted that the claimant (1) had been working an accommodated job at KCFP when he walked off the job on on April 7, 2009; (2) failed to look for work after December 10, 2009; and (3) had testified that he had driven a vehicle for 90 minutes, cut grass on a riding lawn mower, pulled weeds, and used a hedge trimmer. Additionally, the Commission relied on (1) Dr. Brayton's testimony that he had released the claimant to sedentary work outside of law enforcement on March 11, 2010; (2) Dr. Zelby's testimony that the claimant was able to work light to medium work on or after March 12, 2012; and (3) Rascati's opinion, which
the Commission found more persuasive than Belmonte's opinion, that the claimant could perform sedentary work and that there was a stable job market for such work. For these reasons, we cannot say that an opposite conclusion than that reached by the Commission is clearly apparent.
¶ 70 E. Penalties
¶ 71 Lastly, the claimant contends that the Commission's finding was against the manifest weight of the evidence where it denied the imposition of penalties under section 19(l) of the Act. In particular, the claimant argues that he was entitled to a written explanation on the basis for the termination of benefits on May 23, 2012.
¶ 72 Section 19(l) provides for penalties in the event either the employer or its insurer "without good and just cause fail, neglect, refuse, or unreasonably delay the payment of benefits." 820 ILCS 305/19(l). Further, it states that a "delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay." Id. Penalties, however, under section 19(l) are in the nature of a late fee. McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 515 (1998). The assessment of a penalty under section 19(l) is mandatory if a payment is late and the employer or its insurer cannot show an adequate justification for the delay. Mechanical Devices, 344 Ill. App. 3d at 763.
¶ 73 The standard for determining whether an employer has "good and just cause" for a delay in payment is defined in terms of reasonableness. Id. at 763. "The employer has the burden of justifying the delay, and the employer's justification for the delay is sufficient only if a reasonable person in the employer's position would have believed that the delay was justified." Jacobo v. Illinois Workers' Compensation Comm'n, 2011 IL App (3d)
100807WC, ¶ 20. Thus, where the employer relies upon a "responsible medical opinion or when there are conflicting medical opinions," penalties under section 19(l) are not ordinarily imposed. Avon Products, Inc. v. Industrial Comm'n, 82 Ill. 2d 297, 302 (1980); see also Mechanical Devices, 344 Ill. App. 3d at 763. The Commission's evaluation of the reasonableness of the employer's delay is a question of fact that will not be disturbed unless it is contrary to the manifest weight of the evidence. Crockett v. Industrial Comm'n, 218 Ill. App. 3d 116, 121-22 (1991).
¶ 74 Here, the record supports the Commission's denial of penalties under section 19(l) of the Act. The Commission's reliance on Dr. Zelby's March 12, 2012, opinion was supported by the record where Dr. Zelby determined that the claimant had reached MMI and was capable of light to medium work with restrictions. The Commission relied on Dr. Zelby's opinions and recommendations, finding them more credible than Dr. Brayton's, and we cannot say this determination was unreasonable. Thus, KCFP had good cause to terminate claimant's TTD benefits on May 23, 2012. Accordingly, the Commission's denial of section 19(l) penalties was not against the manifest weight of the evidence where the claimant was not entitled to additional benefit payments after May 23, 2012.
¶ 75 CONCLUSION
¶ 76 For the foregoing reasons, we reverse in part and remand the matter back to the Commission with directions to enter a TTD award consistent with this decision. We otherwise affirm the circuit court of Kane County, which confirmed the decision of the Commission.
¶ 77 The circuit court of Kane County is hereby affirmed in part, reversed in part, and cause remanded with directions.