Opinion
No. 1-17-0821WC
03-16-2018
CARL SCHMITZ, Appellee, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION, (Harrison's Poultry, Appellant).
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 Cook County. No. 16-L-50397 Honorable Ann Collins-Dole, Judge, Presiding. JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Harris, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: The Commission's decision that claimant was entitled to a percentage-of-the-person-as-a-whole award rather than a wage-differential benefit was not against the manifest weight of the evidence because the Commission properly found that claimant failed to establish an impairment of earnings. Accordingly, that portion of the circuit court judgment setting aside the Commission's percentage-of-the-person-of-the-whole award and substituting a wage-differential benefit in its stead would be reversed and the Commission's award would be reinstated. ¶ 2 Claimant, Carl Schmitz, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)) alleging that he sustained injuries to his right shoulder on February 4, 2009, while working for respondent, Harrison's Poultry. Following a hearing, the arbitrator concluded that claimant sustained an undisputed work accident and that claimant's current condition of ill-being was causally related to his employment. The arbitrator awarded claimant medical expenses and temporary total disability (TTD) benefits. The arbitrator also found that claimant failed to prove that he was entitled to a permanent partial disability (PPD) award in the form of a wage differential under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)) and instead awarded a PPD benefit equal to 50% of the person as a whole under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2008)). The Illinois Workers' Compensation Commission (Commission) unanimously affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Cook County set aside the percentage-of-the-person-as-a-whole award and substituted in its stead a wage-differential benefit, but otherwise confirmed the Commission's decision. Respondent's sole argument on appeal is that the circuit court erred in setting aside the Commission's percentage-of-the-person-as-a-whole award because the Commission's finding that claimant failed to prove that he was entitled to a wage-differential benefit was not against the manifest weight of the evidence. We agree. Accordingly, for the reasons set forth below, we affirm the judgment of the circuit court in part, reverse in part, and reinstate the Commission's percentage-of-the-person-as-a-whole award.
¶ 3 I. BACKGROUND
¶ 4 Claimant worked for respondent as a truck loader. On February 4, 2009, claimant slipped and fell on a patch of ice while at work. At the time of the accident, claimant was 50 years old. On June 23, 2009, claimant filed an application for adjustment of claim alleging that he sustained an injury to his right shoulder as a result of the February 4, 2009, accident. The claim proceeded to an arbitration hearing over a course of several dates between July 23, 2014, and October 27, 2014. Among the issues in dispute were the nature and extent of the injury and claimant's entitlement to a wage-differential benefit pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)). The following relevant evidence was presented at the arbitration hearing. ¶ 5 Claimant testified that at the time of the accident, he had been employed by respondent as a truck loader for 35 years. He stated that his job title in this position was "general manager." Claimant's duties involved loading and unloading trucks. This required lifting boxes of poultry and dairy products weighing between 10 and 100 pounds. Claimant loaded four trucks per day with each truckload consisting of between 50 and 100 boxes. The position required a great deal of overhead lifting, including stacking loads of poultry between seven and nine feet high. Claimant would also wash the cooler and the dock area, butcher poultry, stock grocery product, deliver product, and assist customers at respondent's retail store. Respondent paid claimant $1,300 per week for his work. ¶ 6 Following the accident, claimant drove to Glenbrook Hospital where he was diagnosed with a sprain and strain of the shoulder and upper arm. The following day, claimant saw Dr. Susan Piazza. Dr. Piazza ordered an MRI of the right shoulder and placed claimant on restricted duty with no use of his right arm. The MRI showed (1) a complex, full-thickness tear of nearly the entire supraspinatus tendon, which was severely degenerated; (2) moderate infraspinatus tendinopathy without a discrete tear; (3) a high grade, near complete partial tear of the subscapularis tendon insertion, with associated early bicep tendon subluxation; (4) associated joint effusion extending into the subcoracoid bursa and prominent fluid within the subacromial/subdeltoid bursa; and (5) mild to moderate acromioclavicular degenerative changes. Based on the reading of the MRI, claimant was referred to Dr. Jeffrey Visotsky for an orthopedic consultation. ¶ 7 Dr. Visotsky saw claimant on February 18, 2009. Dr. Visotsky reviewed claimant's employment history and the MRI. He diagnosed a supraspinatus tear, a subscapularis tear, and a biceps tear. Due to the fact that claimant had substantial weakness, and given the traumatic nature of the injury, Dr. Visotsky recommended surgical repair. On February 23, 2009, Dr. Visotsky performed a right shoulder arthroscopic subacromial decompression, an arthroscopic supraspinatus tendon repair, a right open capsular plication of the interval between the supraspinatus and subscapularis, and an open subscapularis repair. The post-operative diagnosis was right rotator cuff tear, right subscapularis tear, right shoulder ligamentous injury, and right shoulder anterior subluxation and dislocation. Following surgery, Dr. Visotsky authorized claimant off work and ordered physical therapy. ¶ 8 On June 17, 2009, Dr. Visotsky released claimant to work with a 20-pound lifting restriction, but noted that if no position was available within claimant's restrictions, he should remain off work. Claimant testified that he showed Dr. Visotsky's note to respondent but was not offered any position within his restrictions. On October 28, 2009, while having remained in physical therapy, claimant followed up with Dr. Visotsky. Although Dr. Visotsky found that claimant was making progress, his strength was only at 20 pounds and he had occasional pain. At that time, Dr. Visotsky prescribed a work-hardening program. On January 15, 2010, claimant was discharged from the work-hardening program, having maximized the work-hardening program load lifts. Claimant subsequently consulted Dr. Visotsky. Dr. Visotsky noted that although claimant had reached a medium level of work activities through work hardening, he felt a catching sensation and had plateaued in his strength. Dr. Visotsky ordered a CT arthrogram of claimant's right shoulder. ¶ 9 Meanwhile, on January 20, 2010, claimant was examined by orthopedic surgeon Dr. Lawrence Lieber, pursuant to section 12 of the Act (820 ILCS 305/12 (West 2008)). Dr. Lieber noted claimant's job required him to both lift up to 80 pounds and perform overhead activity on a regular basis. Upon examination, Dr. Lieber noted a decreased range of motion of the shoulder to flexion, extension, internal rotation, external rotation, abduction, and adduction. Orthopedic impingement tests were all positive. Dr. Lieber's diagnosis was status post rotator cuff repair with surgical stabilization of the right shoulder. Dr. Lieber felt that claimant had reached maximum medical improvement as of the date of his examination and required no further treatment. Dr. Lieber released claimant to work with a restriction of no overhead work, but noted that claimant could lift from waist to chest level with no restrictions and that he could perform all activities with the right upper extremity to chest level. The same month, claimant was terminated from his employment after receiving a letter from Jim Zimmerman, respondent's owner. ¶ 10 On March 17, 2010, claimant underwent the CT scan ordered by Dr. Visotsky. On April 21, 2010, Dr. Visotsky reviewed the CT scan and noted some labral tearing, but an intact rotator cuff. On examination, there was some crepitation and pain. Dr. Visotsky diagnosed claimant with a partial thickness subscapularis tear and a superior labral tear. He recommended additional surgical intervention. Dr. Visotsky opined that the proposed surgery was necessary to cure claimant's condition of ill-being. On May 5, 2010, Dr. Lieber reported the March 2010 CT arthrogram did not show evidence of any rotator cuff tear. While the film did show the possibility of a superior labral tear, Dr. Lieber described this finding as "incidental." Based on his reading of the CT arthrogram, Dr. Lieber opined that the additional surgery recommended by Dr. Visotsky was not indicated in association with the work injury of February 4, 2009. Rather, any potential findings were degenerative in nature and neither caused by nor related to the work injury or aggravated by the work injury. ¶ 11 On May 13, 2010, Dr. Visotsky performed revision surgery consisting of arthroscopic subacromial decompression, arthroscopic biceps tenodesis, superior labrum anterior and posterior lesion repair, and arthroscopic rotator cuff repair of the supraspinatus. The post-operative diagnosis was right shoulder subacromial impingement, biceps degeneration, superior labrum anterior and posterior lesion with labral tearing, and partial healing of the anterior rotator cuff with internal fiber thinning and degeneration. Following claimant's revision surgery, Dr. Lieber reviewed the operative report and intraoperative photographs. He maintained his opinion that the need for labral surgery was neither caused by nor related to the work injury. Nevertheless, he acknowledged that the rotator cuff tear was related to the work injury. He found that in going in to evaluate the labral pathology, Dr. Visotsky felt that the rotator cuff repair had attenuated to some extent, so further stabilization of the rotator cuff was needed. As such, Dr. Lieber opined that the further stabilization of the rotator cuff, which was related to the work injury, was necessary. ¶ 12 On June 18, 2010, claimant began physical therapy at Illinois Bone and Joint Institute. Claimant attended 20 sessions of physical therapy until being discharged on August 11, 2010, having reached his 20-visit insurance maximum. On August 16, 2010, claimant resumed physical therapy at Sports Physical Therapy & Rehabilitation Specialists. Claimant followed up with Dr. Visotsky, who kept him off work. On December 14, 2010, claimant began another work hardening/conditioning program. ¶ 13 On April 6, 2011, Dr. Lieber re-examined claimant. Claimant still had decreased range of motion with stiffness and pain to the extremes as well as tenderness to palpation throughout the shoulder area. Impingement, O'Brien's test, reverse O'Brien's test, apprehension signs, and speed signs were also positive. Dr. Lieber opined that claimant did not need any further treatment for his shoulder injury. Dr. Lieber authorized claimant to return to full employment with no overhead activity using the right upper extremity. On May 17, 2011, claimant completed a functional capacity evaluation (FCE) at Dr. Visotsky's request. The FCE placed claimant at the medium physical-demand level, whereas claimant's position with respondent was classified at the heavy physical-demand level. The FCE demonstrated claimant could perform 67.5% of the physical demands of his previous job. Limitations in his material-handling abilities were as follows: bilateral lifting of 37.5 pounds, frequent bilateral lifting of 25 pounds, bilateral carrying of 35 pounds, bilateral shoulder lifting of 25 pounds, pushing of 55 pounds, and pulling of 60 pounds. On June 8, 2011, Dr. Visotsky released claimant to light-duty work within the restrictions set forth in the FCE and noted the restrictions were permanent. ¶ 14 Claimant testified that after his release to work by Dr. Visotsky, he was never offered any position by respondent. As a result, he began looking for alternative work. On July 18, 2011, claimant was hired as an "independent contractor" for Jetpower Aerospace, LLC (Jetpower). Claimant's salary at Jetpower was $12 per hour. Initially, claimant was hired to help with the relocation of a warehouse from Elk Grove Village to Gurnee, Illinois. Claimant testified that this involved supervising two individuals. Claimant did not do any lifting as part of the job. Once the relocation was complete, claimant was to be involved in inventory control for the company. Claimant testified, however, that he was unfamiliar with the inventory software required to do the job, which was specifically designed for the aerospace industry. Moreover, despite purchasing a product to learn the inventory program, he was unable to self-learn the inventory software required to do the job. Claimant noted that he is self-taught on a computer, has never taken any computer classes, and has limited knowledge of computers. Claimant testified that he was terminated from Jetpower on September 30, 2011, due to his lack of computer skills. Following his termination, claimant continued to search for alternative employment. ¶ 15 On October 24, 2011, claimant began working for a landscape company called 4 Everything Green. At the time of the arbitration hearing, claimant was still employed by 4 Everything Green. Claimant testified that 4 Everything Green is owned by Craig Caldwell, claimant's brother-in-law, and that he was hired at the request of his sister, who is married to Caldwell. Claimant initially testified that he did not submit an employment application for the position at 4 Everything Green, but later acknowledged that he did. ¶ 16 Claimant testified that he was hired by 4 Everything Green as a "laborer supervisor" and that the position does not require any heavy lifting or manual labor. Claimant explained that his job entails "[m]aking sure the crew was doing what was asked of them, pitch[ing] in where needed." Claimant also does some pruning "from [his] toes to overhead," "nominal" lawn mowing, and snowplowing. In addition, claimant plants flowers and small bushes, makes sure the equipment is in proper repair, and gets fertilizer as needed. Claimant also does some office work. He described the office work as "fill[ing] out worksheets," but admitted that he does not file or "make payroll." Claimant testified that he was hired by 4 Everything Green at a salary of $8.25 per hour, which is minimum wage. At the time of the arbitration hearing claimant was still earning minimum wage, although he earns more for snowplowing. Claimant testified that he asked for a raise, but Caldwell declined the request. He also acknowledged that some of the employees whom he supervises earn more than him. ¶ 17 Caldwell testified that 4 Everything Green performs landscape maintenance for residential and commercial customers, but the company also does snowplowing and grave openings and closings for cemeteries. Caldwell has five or six full-time employees, including claimant. Caldwell verified that he hired claimant in 2011 after his wife (claimant's sister) asked him to hire claimant because claimant needed a job. Caldwell testified that claimant completed an employment application because "[i]t's standard procedure *** everybody fills them out." Caldwell acknowledged that he hired claimant even though claimant did not have any landscape experience. Caldwell testified that claimant's job was "to be determined," in that he was not hired for any particular position. Rather, Caldwell "[j]ust hired him and tried to figure out something that he could do." Caldwell testified that claimant earned minimum wage of $8.25 when he was hired. Caldwell explained that all of his employees begin at the minimum wage unless they have a skill that benefits the company such as being bilingual. Claimant still earns minimum wage. Caldwell testified that claimant has not asked for a raise and Caldwell has not given him one. Caldwell testified that claimant works 40 hours per week. Caldwell testified that not since 2011 or 2012 has claimant mentioned that he was looking for other employment. ¶ 18 Caldwell was aware that claimant had medical restrictions to his shoulder because of a prior work injury. Caldwell stated that he determines whether claimant is capable of performing a particular job by asking claimant. For instance, Caldwell asked claimant to mow a lawn using a push mower. According to Caldwell, claimant was "done" after 25 to 40 minutes of mowing because his arm was "killing" him. Caldwell described the type of duties claimant performed for 4 Everything Green as "step and fetch." Caldwell explained that claimant would fill-up gas cans, pick up fertilizer, pick up seed, run materials to workers at other jobs, clean mowers and air filters, sweep the floors, and do whatever it took to keep the production crews going. Claimant also runs a backhoe for grave digging and a snow plow. Caldwell testified that claimant attempted pruning, but it did not go particularly well. He also stated that claimant does office work only in a "very limited capacity." Caldwell testified that he would not ask claimant to load a truck full of gravel or sand or dig a ditch by hand because such work would be too laborious. Caldwell testified that he has some issues with claimant and has questioned whether to keep him as an employee. Specifically, Caldwell cited claimant's mismarking graves and his lack of skills dealing with other people. ¶ 19 On cross-examination by claimant's attorney, Caldwell reiterated that claimant never asked him for a raise. Caldwell responded "[n]o way" when asked what his answer would be if claimant had asked for a raise. Caldwell explained that giving claimant a raise would "send[] the wrong message." Caldwell stated that claimant cannot complete paperwork, he is argumentative and abusive to other employees, and it is difficult for him to talk comfortably with clients. Caldwell has observed claimant wince with overhead work. ¶ 20 Respondent retained a certified vocational rehabilitation counselor, Charlotte Bishop. Bishop prepared six hypothetical labor market surveys. Bishop explained that the labor market surveys are considered "hypothetical" because she never met with claimant. Instead, Bishop prepared the labor market surveys by obtaining basic medical information as to claimant's restrictions as far as being able to return to work and the fact that claimant could not return to his original job. In claimant's case, Bishop obtained information regarding claimant's job duties, educational background, and employment history from Jim Zimmerman, respondent's owner. Bishop understood claimant's job responsibilities to include unloading and loading of trucks, moving boxes around, cleaning, stocking, and interacting with customers. Bishop also obtains medical information, such as an FCE, physical reports, and IME reports. Based on Dr. Lieber's IME, Bishop noted claimant's restrictions were with overhead lifting of the right upper extremity. Thus, she could not look at any jobs in which claimant would have his right arm extended over his head for any length of time as well as jobs involving overhead lifting, pushing, pulling, or anything that would require use of claimant's right arm. ¶ 21 Bishop assessed claimant as having tangible skills that could be applied to a variety of occupations in the marketplace and the grocery store business. Claimant possessed customer-service and sales skills. In addition, he was a meat cutter, he stocked shelves, he handled money, and he was knowledgeable about inventory control. In conducting her job search, Bishop considered a geographical area within a radius of 25 to 50 miles from claimant's home. Bishop found positions including meat cutter, customer service specialist, non-armed security guard, warehouse associate, maintenance worker, personal banker, and food service worker within claimant's medical restrictions and vocational experience. With respect to Bishop's first labor market survey of February 18, 2010, Bishop identified 258 potentially medically appropriate jobs available during a one week period in February 2010 with an annual salary range between $25,000 and $67,000. Bishop's second labor market survey was prepared on September 3, 2010, and identified 30 potentially medically appropriate jobs available during a one week period in August 2010 with an annual salary range between $25,000 and $73,600. ¶ 22 Bishop's third hypothetical labor market survey was prepared on May 8, 2011. Bishop documented over 100 potentially medically appropriate jobs for claimant with an annual salary range of between $20,000 and $100,000. Bishop's fourth hypothetical labor market survey was prepared on December 5, 2011. At that time, Bishop documented over 17,000 potentially medically appropriate jobs in claimant's geographical area. The salary range for these positions was between $25,000 and $50,000 per year. ¶ 23 The fifth labor market survey was prepared on April 23, 2013. At that time, there were over 38,000 potentially medically appropriate jobs for claimant within the geographical radius of his home. Bishop attributed the increase in the number of positions to the improving economy. She acknowledged, however, that not all of the jobs would be appropriate for claimant "if you drill down into the specific job duties or their educational requirements." Bishop identified positions in meat cutting, grocery stores, maintenance, security, and warehouse. She found 11 available jobs in the meat cutting field. The April 23, 2013, labor market established a median salary range of $26,000 to $63,000 per year. Bishop prepared her last labor market survey on August 14, 2013. Bishop identified "thousands" of potentially medically appropriate jobs for claimant in the meat cutting field within the geographic radius of claimant's home. Although the salaries for these positions ranged between $20,000 and $100,000, Bishop opined that claimant could earn between $40,000 and $70,000 "depending on the job opportunity and depending on how he presents himself." Bishop added, "I know he could earn more than minimum wage." Bishop believed that the food industry was the field of work that offered claimant the greatest potential based upon his skills, knowledge, and work history. Within the food industry, Bishop identified positions as a meat cutter, meat server, or in the food-service environment. She also felt that claimant might be able to work in sales. Bishop noted that the positions identified for claimant in the labor market surveys were at the medium or lower level. ¶ 24 On cross-examination, Bishop testified that medical information is important in developing labor market surveys and the diagnosis would be an important factor. The labor market surveys were based on the diagnosis of "status post right arthroscopic subacromial decompression" on February 23, 2009. However, she could not recall if she was aware of the other procedures performed on February 23, 2009. Bishop was also unable to recall if claimant had undergone a second operation in May 2010. Bishop stated that her assignment was to work with what Dr. Lieber stated and his only restriction was no work above shoulder level. Bishop stated that an FCE is useful in determining potential medically appropriate jobs, but she was unaware that claimant underwent an FCE in May 2011. In addition, Bishop could not recall if she reviewed any of Dr. Visotsky's records and conceded that if she had reviewed Dr. Visotsky's records she would have noted his findings in her reports. ¶ 25 Claimant testified that he was provided with the hypothetical labor market surveys from Bishop and used them as leads for some jobs. Although claimant had two or three callbacks, he was never offered any positions with any potential employers identified in the labor market surveys. Claimant also testified that he looked for a minimum of 10 jobs per week but then changed his testimony to 5 per week after examining his job-search logs. Claimant admitted that out of 100 jobs, between 70 and 80 of them were for managerial- or supervisory-type jobs while only 3 or 4 were in the food-service industry. Claimant testified that he applied for supervisory positions because "[t]hat's what [he] did in [his] past employments." ¶ 26 Zimmerman testified that claimant described his duties "accurately." Zimmerman testified, however, that the main part of claimant's job was butchering poultry. Zimmerman estimated that cutting poultry constituted 80% of claimant's job. Zimmerman testified that respondent did not have a job title, and he denied that claimant was a "general manager." Zimmerman acknowledged that after claimant's injury, respondent did not take claimant back. Zimmerman explained that claimant's injury occurred around the time of the market crash. At that time, there was a downturn in the restaurant industry, which comprised 80% of respondent's business. Since respondent was running efficiently without claimant, respondent decided not to take claimant back. ¶ 27 Based on the foregoing evidence, the arbitrator found that claimant sustained an undisputed work accident which resulted in a severe injury to his right shoulder. Finding the testimony of Dr. Visotsky more credible than the testimony of Dr. Lieber, the arbitrator also determined that claimant established by a preponderance of the evidence that his current condition of ill-being is causally related to the work accident. The arbitrator awarded claimant medical expenses and temporary total disability expenses, but rejected claimant's request for a wage-differential benefit pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)). ¶ 28 The arbitrator cited three reasons why claimant was not entitled to a wage-differential benefit. First, the arbitrator determined that claimant failed to prove that he is only capable of earning minimum wage since, prior to obtaining employment at his brother-in-law's landscaping company, he had secured employment at Jetpower earning more. Second, the arbitrator found that claimant's testimony lacked credibility "regarding the claimed inability to find employment or limitations within his physical abilities." In this regard, the arbitrator noted that claimant has the skills and experience to perform work in the food industry, having done so for 35 years. Third, the arbitrator cited Bishop's testimony that claimant could earn an annual salary ranging between $40,000 and $70,000 based upon the job market and his skills and experience in the food industry. Yet, claimant chose to work at minimum wage for his brother-in-law's landscaping company. As such, he awarded claimant a PPD benefit of $664.72 per week for 250 weeks, representing 50% of the loss of the person as a whole. See 820 ILCS 305/8(d)(2) (West 2008). ¶ 29 Thereafter, claimant filed a petition for review of the arbitration decision. The Commission affirmed and adopted the decision of the arbitrator in its entirety. In an order dated February 27, 2017, the circuit court of Cook County set aside the Commission's percentage-of-the-person-as-a-whole award and substituted a wage-differential benefit in its stead. In support, the court stated there was ample evidence that claimant would not be able to return to his usual and customary position as a truck loader because of his permanent restrictions. The court also found that claimant's job search and his employment at his brother-in-law's landscaping company constituted sufficient evidence of impairment of earnings. The court otherwise confirmed the decision of the Commission. ¶ 30 Claimant then filed a motion for clarification of the circuit court's order. In his motion, claimant pointed out that the court's order did not remand the matter to the Commission for a calculation of a wage-differential benefit or with instructions to award a specific wage-differential amount. On March 21, 2017, the circuit court entered an order awarding claimant a wage-differential benefit of $545.59 week commencing on October 24, 2011, and continuing for the duration of claimant's disability. In the same order, the court remanded the matter to the Commission with instructions to enter the wage-differential award as calculated by the court. This appeal by respondent ensued.
Although the trial court set the wage-differential award, it could have simply remanded the matter to the Commission to calculate the wage differential. --------
¶ 31 II. ANALYSIS
¶ 32 On appeal, respondent argues that the Commission's decision that claimant failed to prove he was entitled to a wage-differential benefit under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)) was not against the manifest weight of the evidence. Accordingly, respondent asserts that the circuit court erred in substituting a wage-differential benefit under section 8(d)(1) of the Act for the Commission's percentage-of-the-person-as-a-whole award under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2008)). Respondent requests reinstatement of the Commission's section 8(d)(2) award. ¶ 33 As a preliminary matter, we address whether we have jurisdiction to consider this appeal. Although the parties have not raised the issue of jurisdiction, this court has an independent duty to address the matter. Williams v. Industrial Comm'n, 336 Ill. App. 3d 513, 515 (2003); Kendall County Public Defender's Office v. Industrial Comm'n, 304 Ill. App. 3d 271, 273 (1999). Absent a statutory or supreme court rule exception, the jurisdiction of a reviewing court is limited to deciding appeals from final judgments. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994) ("Every final judgment of a circuit court in a civil case is appealable as of right." (Emphasis added.)); Trunek v. Industrial Comm'n, 345 Ill. App. 3d 126, 127 (2003). "A judgment is final for appeal purposes if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment." In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). Hence, in the context of a workers' compensation claim, when the circuit court sets aside a decision of the Commission and remands the matter for further proceedings involving disputed questions of law or fact, the circuit court order is not final for purposes of appeal. Stockton v. Industrial Comm'n, 69 Ill. 2d 120, 124-25 (1977); St. Elizabeth's Hospital v. Illinois Workers' Compensation Comm'n, 371 Ill. App. 3d 882, 883-84 (2007); Roadway Express, Inc. v. Industrial Comm'n, 347 Ill. App. 3d 1015, 1020-21 (2004); Williams, 336 Ill. App. 3d at 516; Kendall County Public Defender's Office, 304 Ill. App. 3d at 273. On the other hand, if the trial court's instructions on remand require only that the Commission "act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters or * * * make a mathematical calculation," then the court's order is final for purposes of appeal. Williams, 336 Ill. App. 3d at 516 (citing A.O. Smith Corp. v. Industrial Comm'n, 109 Ill. 2d 52, 54-55 (1985), and Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 249-50 (1983)); see also St. Elizabeth's Hospital, 371 Ill. App. 3d at 884; Roadway Express, 347 Ill. App. 3d at 1020. Where a party attempts to appeal an interlocutory or nonfinal order to this court, we are without jurisdiction to consider the appeal. Kendall County Public Defender's Office, 304 Ill. App. 3d at 273. ¶ 34 In this case, the circuit court set aside the Commission's percentage-of-the-person-as-a-whole award under section 8(d)(2) of the Act and substituted in its stead a wage-differential benefit under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)). The court then calculated the wage-differential benefit and remanded the matter to the Commission with instructions to enter an award in accordance with its findings. Under these circumstances, we find that the circuit court's instructions on remand require only that the Commission "act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters." Williams, 336 Ill. App. 3d at 516; see also St. Elizabeth's Hospital, 371 Ill. App. 3d at 884; Roadway Express, 347 Ill. App. 3d at 1020. As such, we find that the circuit court's order was final for purposes of appeal and that we have jurisdiction. ¶ 35 Turning to the merits, we note that section 8(d) of the Act provides for two distinct types of PPD awards. Gallianetti v. Industrial Comm'n, 315 Ill. App. 3d 721, 727 (2000). Section 8(d)(1) provides for a wage-differential benefit (820 ILCS 305/8(d)(1) (West 2008)), while section 8(d)(2) provides for a percentage-of-the-person-as-a-whole award (820 ILCS 305/8(d)(2) (West 2008)). To qualify for a wage-differential benefit under section 8(d)(1), a claimant must establish (1) a partial incapacity that prevents him from pursuing his usual and customary line of employment and (2) an impairment of earnings. 820 ILCS 305/8(d)(1) (West 2008); Cassens Transport Co. v. Industrial Comm'n, 218 Ill. 2d 519, 531 (2006). The amount of a wage-differential benefit is "equal to 66-2/3% of the difference between the average amount which [the claimant] would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident." 820 ILCS 305/8(d)(1) (West 2008). ¶ 36 Conversely, section 8(d)(2) of the Act provides for a PPD award based on a percentage-of-the-person-as-a-whole. 820 ILCS 305/8(d)(2) (West 2008); Jackson Park Hospital v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 142431WC, ¶ 41. A percentage-of-the-person-as-a-whole award is appropriate in three circumstances: (1) when a claimant's injuries do not prevent him from pursuing the duties of his employment but he is disabled from pursuing other occupations or is otherwise physically impaired; (2) when a claimant's injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity; or (3) when a claimant, having suffered an impairment of earning capacity, elects to waive his right to recover under section 8(d)(1). 820 ILCS 305/8(d)(2) (West 2008); Jackson Park Hospital, 2016 IL App (1st) 142431WC, ¶¶ 41-42. ¶ 37 Our supreme court has expressed a preference for a wage-differential benefit over a scheduled award, noting that, "the basis of the workers' compensation system should be earnings loss." General Electric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 438 (1982). Thus, where a claimant proves he is entitled to a wage-differential benefit, the Commission is without discretion to impose a section 8(d)(2) award except where a claimant waives his right to recover under section 8(d)(1). Gallianetti, 315 Ill. App. 3d at 729. ¶ 38 A claimant has the burden of proving by a preponderance of the evidence all of the elements of his claim. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980). Whether a claimant has introduced sufficient evidence to establish entitlement to a wage-differential benefit is a factual inquiry. First Assist, Inc. v. Industrial Comm'n, 371 Ill. App. 3d 488, 494 (2007). In resolving factual matters, it is the function of the Commission to assess the credibility of the witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences therefrom. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill. App. 3d 665, 674 (2009). A reviewing court may not substitute its judgment for that of the Commission on factual matters merely because other inferences from the evidence may be reasonably drawn. Berry v. Industrial Comm'n, 99 Ill. 2d 401, 407 (1984). We review the Commission's factual determinations under the manifest-weight-of-the-evidence standard. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Freeman United Coal Mining Co. v. Illinois Workers' Compensation Comm'n, 2013 IL App (5th) 120564WC, ¶ 21. With these principles in mind, we turn to respondent's arguments. ¶ 39 Respondent first asserts that claimant failed to prove that he was partially incapacitated from pursuing his usual and customary line of employment. In support of this claim, respondent argues that the Commission did not find credible claimant's testimony concerning "the limitations within his physical abilities." Respondent maintains that there is ample evidence to support the Commission's finding, and, therefore, the trial court improperly substituted its judgment for that of the trier of fact. Claimant responds that no rational trier of fact would agree with the Commission's finding that he is not partially incapacitated from pursuing his usual and customary line of employment. According to claimant, the trial court's determination that he established a partial incapacity preventing him from pursuing his usual and customary line of employment is supported by the medical testimony and the FCE. ¶ 40 At the outset, we note that the basis for the Commission's finding that claimant failed to establish the first prong of a wage-differential award, that is a partial incapacity that prevented him from pursuing his usual and customary line of employment, is not entirely clear. In affirming and adopting the decision of the arbitrator, the Commission made three findings as to why claimant was not entitled to a wage-differential benefit. First, the Commission determined that claimant failed to prove that he is only capable of earning minimum wage since, prior to obtaining employment at his brother-in-law's landscaping company, he had secured employment at Jetpower earning more. Second, the Commission found that claimant's testimony lacked credibility "regarding the claimed inability to find employment or limitations within his physical abilities." Third, the Commission cited Bishop's testimony that claimant could earn an annual salary ranging between $40,000 and $70,000 based upon the job market and his skills and experience in the food industry. The Commission's first and third findings are clearly not germane to whether claimant established a partial inability to pursue his usual and customary line of employment. Rather, they are more relevant to whether claimant established an impairment of earnings. ¶ 41 With respect to the second finding, it is conceivable for the Commission to have premised its determination that claimant failed to establish a partial incapacity preventing him from pursuing his usual and customary line of employment on claimant's lack of credibility with respect to the "limitations within his physical abilities." Nevertheless, we note that the Commission's analysis does not reference any other evidence of claimant's physical abilities, such as the medical evidence or the FCE. In this regard, the record showed that claimant was employed by respondent as a truck loader. Claimant's position was classified within the heavy physical-demand level. Claimant testified that his duties involved loading and unloading trucks. This required claimant to lift boxes of poultry and dairy products weighing between 10 and 100 pounds. Claimant stated that his position required a great deal of overhead lifting, including stacking loads of poultry between seven and nine feet high. Claimant had various other duties, including butchering poultry, delivering product, stocking, and assisting customers at respondent's retail store. Zimmerman, respondent's owner, agreed that claimant described his duties "accurately." ¶ 42 When Dr. Visotsky released claimant to return to work, he did so with permanent restrictions as outlined in the FCE. The FCE demonstrated claimant could perform only 67.5% of the physical demands of his previous job. The FCE noted the following limitations in claimant's material-handling abilities: bilateral lifting of 37.5 pounds, frequent bilateral lifting of 25 pounds, bilateral carrying of 35 pounds, bilateral shoulder lifting of 25 pounds, pushing of 55 pounds, and pulling of 60 pounds. The FCE placed claimant at the medium physical-demand level, which was below the heavy physical-demand level required of claimant's job for respondent. Although the Commission did not find claimant's testimony credible regarding "limitations within his physical abilities," the FCE report provides that during objective functional testing claimant demonstrated a consistency of effort of 96.2%, which suggested that he put forth full and consistent effort during the evaluation. Dr. Visotsky also found that there was no evidence of sub-maximal performance on the FCE. Additionally, Dr. Lieber agreed that upon claimant's return to work, he should be restricted from any overhead activity with the right upper extremity. ¶ 43 Despite the Commission's finding regarding claimant's lack of credibility with respect to his physical limitations, the medical evidence and the FCE clearly and unequivocally demonstrate that claimant was unable to return to his usual and customary line of employment as a truck loader. The Commission does not appear to have considered this evidence in assessing the first prong of the wage-differential analysis. In light of this deficiency in the Commission's analysis, and given the evidence presented above, we are compelled to conclude that the Commission's finding that claimant failed to establish a partial incapacity that prevents him from pursuing his usual and customary line of employment was against the manifest weight of the evidence. Of course, this finding does not end our inquiry. As noted above, to qualify for a wage-differential benefit under section 8(d)(1), claimant was also required to establish an impairment of earnings. 820 ILCS 305/8(d)(1) (West 2008); Cassens Transport Co., 218 Ill. 2d at 531. We turn to that issue now. ¶ 44 Respondent argues that the evidence presented at the arbitration hearing demonstrates that claimant can be employed at an income level commensurate with his previous income for respondent. Nevertheless, claimant opted to seek employment with his brother-in-law's landscaping company where he earns minimum wage so as to maximize a potential wage-differential benefit. As such, respondent argues that the Commission properly concluded that claimant failed to prove that he suffered an impairment of earnings. Claimant responds that given that he worked for respondent for 35 years, he has limited skills, and he conducted an extensive job search, he amply established an impairment of earnings. ¶ 45 The impairment-of-earnings prong of the inquiry focuses on earning capacity. Cassens Transport Co., 218 Ill. 2d at 531. Hence, if the injury does not reduce a claimant's earning capacity, he is not entitled to a wage-differential benefit. Albrecht v. Industrial Comm'n, 271 Ill. App. 3d 756, 759 (1995). Evidence of a job search is one way to show impairment of earnings. Gallianetti, 315 Ill. App. 3d at 731. Wages are also indicative of earning capacity, although they are not necessarily dispositive. Cassens Transport Co., 218 Ill. 2d at 531. As this court recently stated, " '[p]ost-injury earnings and earning capacity are not synonymous' because other evidence can show that 'the actual earnings do not fairly reflect claimant's capacity.' " Jackson Park Hospital, 2016 IL App (1st) 142431WC, ¶ 44 (quoting A. Larson & L. Larson, Larson's Workers' Compensation Law § 81.03[1] (2005)). Thus, our analysis requires consideration of other factors, such as the nature of post-injury employment in comparison to wages the claimant can earn in a competitive job market. Jackson Park Hospital, 2016 IL App (1st) 142431WC, ¶ 45. ¶ 46 In this case, the Commission could reasonably conclude that claimant's post-injury earnings do not fairly reflect his earning capacity. In this regard, the Commission was presented with conflicting evidence regarding claimant's earning capacity. Claimant relied upon his earnings from his employment with his brother-in-law's landscaping company. Claimant also relied upon his own testimony regarding his inability to find work within his restrictions. Respondent relied upon the testimony of Bishop. In resolving this conflict in the evidence, the Commission, as was its province to do, assessed the credibility of the witnesses, assigned weight to be accorded the evidence, and drew reasonable inferences therefrom. Hosteny, 397 Ill. App. 3d at 674. Ultimately, the Commission determined that claimant failed to establish an impairment of earnings. As noted previously, the Commission cited three reasons why claimant was not entitled to a wage-differential benefit. First, the Commission determined that claimant failed to prove that he is only capable of earning minimum wage since, prior to obtaining employment at his brother-in-law's landscaping company, he had secured employment at Jetpower earning more. Second, the Commission found that claimant's testimony lacked credibility "regarding the claimed inability to find employment or limitations within his physical abilities." Third, the Commission cited Bishop's testimony that claimant could earn an annual salary ranging between $40,000 and $70,000 based upon the job market and his skills and experience in the food industry. As there is ample evidence in the record to support the Commission's determination, we cannot conclude its findings are against the manifest weight of the evidence. ¶ 47 Initially, we address the Commission's finding that claimant was capable of earning an annual salary between $40,000 and $70,000. At the time of the injury, claimant was earning $1,300 per week from respondent, which equates to a yearly salary of $67,600 ($1,300 per week x 52 weeks). Bishop was the only vocational expert to testify regarding claimant's employability. Bishop prepared six hypothetical labor market surveys based on claimant's job duties, educational background, employment history, medical history, and physical limitations. She considered positions within a geographical radius up to 50 miles from claimant's home. Bishop determined that claimant possessed tangible skills that could be applied to a variety of occupations, including meat cutter, customer-service representative, non-armed security guard, warehouse associate, maintenance worker, personal banker, and food-service worker. In her labor market surveys, Bishop identified thousands of potentially medically appropriate jobs for claimant with annual salaries ranging between $20,000 and $100,000. Bishop opined, however, that claimant was capable of obtaining a position earning between $40,000 and $70,000. Bishop emphasized that the food industry was the field of work that offered claimant the greatest potential based upon his skills, knowledge, and work history. Within the food industry, Bishop identified positions as a meat cutter, meat server, a food-service worker, and possibly sales. Bishop also stressed that claimant was capable of earning more than minimum wage. Given Bishop's extensive research and findings, it was reasonable for the Commission to conclude that her testimony was more reflective of claimant's earning capacity than claimant's evidence of his current earnings at his brother-in-law's landscaping company. ¶ 48 Nevertheless, claimant insists that his current earning capacity at his brother-in-law's landscaping company falls within the salary ranges identified in Bishop's labor market surveys. In this regard, claimant asserts that he earns "$8.25 per hour generally and $22.50 per hour for snowplowing" and he averages "slightly more than 40 hours of work per week." Claimant further asserts that his gross earnings for 119 weeks from October 23, 2011, through May 4, 2014, were $57,316.68, thereby establishing an average weekly wage at his brother-in-law's landscaping company of $481.65. This equates to $12.04 per hour for a 40 hour work week and an annual wage of $25,045.80 ($481.65 per week x 52 weeks). Claimant notes that this is within the salary ranges of Bishop's labor market surveys, which identified positions with salaries as low as $20,000 per year. Claimant, however, ignores important aspects of Bishop's testimony. Significantly, although Bishop's labor market surveys identified positions with salaries as low as $20,000, Bishop testified that, in her view, claimant was capable of obtaining a position earning between $40,000 and $70,000 given his skills, knowledge, and work history. Claimant ignores this testimony. ¶ 49 Claimant also complains that the only medical restriction considered by Bishop was no overhead work. Claimant suggests that because Bishop never factored in the material-handling restrictions set forth in the FCE, her testimony should be rejected. We disagree. The Commission was keenly aware that Bishop did not review claimant's FCE as she testified to this fact. We note, however, that Bishop also testified that the positions she identified in her labor market surveys were at the medium or lower physical-demand level. This was the same physical-demand level identified in the FCE. Given that the positions identified by Bishop in her labor market surveys were within the physical-demand level identified in the FCE, Bishop's knowledge that claimant could not perform overhead work, and the Commission's awareness that Bishop did not review the FCE, we cannot say that Bishop's failure to factor in the material-handling restrictions required the Commission to reject her analysis. ¶ 50 In addition, we cannot say that the Commission's finding that claimant lacked credibility regarding his claimed inability to find employment was against the manifest weight of the evidence. As noted above, issues of credibility fall uniquely within the province of the Commission. Hosteny, 397 Ill. App. 3d at 674. In this case, the Commission could reasonably conclude that claimant's testimony regarding his job-search efforts was not credible. Claimant testified regarding his job-search efforts. He admitted that he was provided with Bishop's labor market surveys and used them as leads for some jobs. He stated that he was never offered any positions with any potential employers identified in the labor market surveys. Claimant also submitted a job-search log at the arbitration hearing. According to claimant, the job-search log shows that he completed 208 applications for employment and sent 151 resumes to prospective employers. Claimant recounted that only 2 or 3 prospective employers contacted him for an interview and he was never offered a position with any potential employers. However, claimant's testimony regarding his job-search efforts was inconsistent. For instance, claimant initially testified that he looked for a minimum of 10 jobs per week, but later changed his testimony to 5 jobs per week after examining his job-search logs. In addition, claimant testified that he did not submit an application for his employment with his brother-in-law's landscaping company. However, Caldwell, claimant's brother-in-law, testified to the contrary. Claimant also testified that he asked Caldwell for a raise, but Caldwell denied this. ¶ 51 In addition, the evidence suggests that the scope of claimant's job search was misdirected. As noted above, Bishop testified that the food industry was the field of work that offered claimant the greatest potential based upon his skills, knowledge, and work history. Within the food industry, Bishop identified positions as a meat cutter, meat server, a food-service worker, and possibly sales. However, claimant admitted at the arbitration hearing that, out of 100 jobs, between 70 and 80 were for managerial- or supervisory-type positions. When asked why he applied for supervisory positions, claimant responded "that's what [he] did in [his] past employments." Indeed, claimant testified that his job title for respondent was "general manager," that he supervised two individuals at Jetpower, and that he worked for his brother-in-law as a "laborer supervisor." However, Zimmerman (respondent's owner) denied that claimant was a "general manager," testifying that claimant had no job title. Similarly, Caldwell, claimant's brother-in-law testified that claimant's job was "to be determined," in that he was not hired for any particular position. Caldwell later described claimant's duties as "step and fetch" in that claimant would do whatever it took to keep the production crews going. In fact, there were several other employees allegedly under claimant's supervision at the landscaping company who were earning more than claimant. Moreover, despite over 35 years with respondent in the food-service industry, claimant's testimony at trial reflected that out of 100 jobs applied for, only 3 or 4 were in the food-service industry. In short, the evidence suggests that claimant did not seek out jobs within his qualifications that would have returned him to his previous level of earnings. ¶ 52 Claimant contends that the Commission did not consider evidence of his job search in determining that his attempts to return to work in the food industry were not credible. In particular, claimant cites his job-search log, which, he asserts, shows that he completed 208 applications for employment and sent 151 resumes to prospective employers. However, the Commission expressly references claimant's job-search activities and job-search logs in its decision. The Commission was not bound to accept claimant's job-search log, especially given its finding that claimant was not credible. ¶ 53 Finally, the Commission could reasonably conclude that claimant's claimed inability to find work paying more than minimum wage was called into question by his earlier job search. Significantly, a little more than one month after being released by Dr. Visotsky, claimant obtained a position with Jetpower earning $12 per hour. This is over $3 per hour more than his "general wage" with his brother-in-law's landscaping company. Claimant suggests that the Commission should not have relied upon evidence of his employment with Jetpower because he was only an independent contractor and that he worked a short period of time. However, claimant does not cite any case law or authority to indicate that the Commission was restricted from considering this evidence due to these factors. ¶ 54 Moreover, it is clear that the Commission did not find claimant's position with his brother-in-law's landscaping company to constitute "suitable employment" under the wage-differential provision of the Act (820 ILCS 305/8(d)(1) (West 2008)). Indeed, the evidence suggests that claimant was only given employment at his brother-in-law's landscaping company at the request of claimant's sister. Caldwell testified that he only hired claimant after his wife (claimant's sister) asked him to do so. Caldwell acknowledged that claimant had no experience in the landscaping field. Further, Caldwell stated that claimant's job was "to be determined," in that he was not hired for any particular reason. Caldwell also testified that claimant cannot complete paperwork, is argumentative and abusive to other employees, and it is difficult for him to talk comfortably with clients. ¶ 55 In short, the Commission's finding that claimant failed to establish an impairment of earnings was a reasonable conclusion based on the evidence presented at the arbitration hearing. Significantly, the evidence showed that despite evidence that claimant was capable of obtaining post-injury employment for more than minimum wage, he opted to work a minimum-wage job at a landscaping company in a position that he was not qualified to hold and did not constitute suitable employment for the purpose of establishing an impairment of earnings. Additionally, the Commission rightly questioned claimant's credibility given inconsistencies in his testimony and his misdirected job search which was not tailored to claimant's employment history, knowledge, or skills. Finally, the Commission's finding that claimant was capable of finding employment within his work restrictions earning between $40,000 and $70,000 based on his skills and experience in the food industry was supported by Bishop's testimony. Taken together, this evidence supports the Commission's finding that claimant failed to establish an impairment of earnings. Because the Commission's finding that claimant failed to establish an impairment of earnings was not against the manifest weight of the evidence, claimant was not entitled to a wage-differential benefit. As such, the trial court erred in setting aside the Commission's percentage-of-the-person-as-a-whole award and substituting a wage-differential benefit in its stead. Consequently, we reverse the trial court's imposition of a wage-differential benefit and reinstate the Commission's award of PPD benefits to the extent of 50% of the person as a whole.
¶ 56 III. CONCLUSION
¶ 57 For the reasons set forth above, we reverse that portion of the judgment of the circuit court of Cook County substituting the Commission's PPD benefit under section 8(d)(2) of the Act for a wage-differential benefit under section 8(d)(1) of the Act, we reinstate the Commission's PPD award of 50% loss of the person as a whole, and we affirm the remainder of the circuit court's judgment. ¶ 58 Affirmed in part and reversed in part; Commission's award reinstated.