Opinion
No. 1-17-0812WC
02-23-2018
BRIAN SERZYNSKI, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Barge Terminal Trucking, Inc., Appellee).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 16 L 50461 Honorable Carl Anthony Walker, Judge, Presiding. JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hudson and Barberis concurred in the judgment. Justice Harris specially concurred.
ORDER
¶ 1 Held: The decision of the Illinois Workers' Compensation Commission denying the claimant benefits under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2008) by reason of the claimant's failure to prove that he suffered an accident which arose out of and in the course of his employment is not against the manifest weight of the evidence. The Commission did not abuse its discretion in failing to draw an unfavorable inference against the employer by reason of its failure to call its owners as witnesses. ¶ 2 The claimant, Brian Serzynski, appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission) denying him benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008) by reason of his failure to prove that he suffered an accident which arose out of and in the course of his employment with Barge Terminal Trucking, Inc. (Barge). For the reasons which follow, we affirm the judgment of the circuit court. ¶ 3 The following factual recitation is taken from the evidence adduced at the arbitration hearing held on July 21, 2015, and October 21, 2015. ¶ 4 At all relevant times, the claimant was employed as a truck driver for Barge, picking up and delivering building materials to construction sites. The claimant testified that, on December 27, 2007, he was unloading "eight stone" into a large bucket that was attached to a crane. The claimant stated that "everything was going fine" until the 14th or 15th bucket, when he slipped and fell to his knees while attempting to position the bucket under the "tail chute" of his truck. He saw "stars" and experienced "severe pain" in his low back and right leg. The claimant stated that he sat down for a few minutes, reported the incident to Barge's dispatcher, and continued working, completing "10 or 15" roundtrips of picking up and delivering loads of "eight stone" to the construction site. He testified, however, that he experienced problems while driving and had to use cruise control and a "J bar" because using his legs to accelerate and apply the brakes was too painful. After work, the claimant drove home but was unable to exit his vehicle without the help of his wife and daughter. The claimant stated that he slept on a couch on the first floor since he was not able to climb the stairs. Despite being in pain, the claimant returned to work the next day. ¶ 5 Eric Ahonen, the claimant's son-in-law, testified that he went to the claimant's house on December 29, 2007, and noticed that he "was in a bit of pain." Ahonen recalled seeing the claimant holding his low back, leaning over the counter, crawling up the stairs, and shifting between sitting and standing. Ahonen also stated that he visited the claimant every two or three days and observed the claimant's condition become "progressively worse." ¶ 6 The claimant testified that he returned to work on Wednesday, January 2, 2008, but asked Tommy and Bobby Edmier, the co-owners of Barge, if he could be assigned to a job that did not require physical labor. Although Tommy and Bobby granted the claimant's request, the claimant testified that he worked in "great pain" and had "great difficulty" getting into his truck. ¶ 7 On January 7, 2008, the claimant presented to the emergency department at Vista Medical Center with a chief complaint of right leg pain. The nurse practitioner noted that the claimant's right leg pain started "last Thursday," January 3, 2008, with "[n]o known injury." The emergency room physician similarly wrote in the history section of his notes that the claimant's symptoms began five days ago and "came on gradually and became progressively worse." The claimant "[d]enie[d] any history of recent trauma." The claimant was diagnosed with a myofascial strain and given a prescription for Vicodin, Naprosyn, and SOMA. He was discharged from the hospital with instructions to follow-up with his primary care physician. ¶ 8 On January 8, 2008, the claimant saw his primary care physician, Dr. Todd Paxton, at Zion Clinic. Dr. Paxton's notes of that visit state that the claimant had pain and numbness in his right leg, which started "last week" without "any specific injury or incident that precipitated the symptoms." The claimant also reported having experienced "some back pain" in the past but not leg pain. Physical examination was unremarkable. Dr. Paxton assessed the claimant as having "back pain/ache;" paresthesia in the right lower leg; and radicular pain in the right thigh. He ordered an MRI of the claimant's lumbar spine and instructed him to follow-up in one week if not improving. ¶ 9 The claimant underwent an MRI of his lumbar spine on January 12, 2008. The radiologist interpreted the MRI as revealing: (1) moderate central canal stenosis at L3-L4 due to a broad-based disc bulge and hypertrophy of the ligamentum flavum; (2) moderate left foraminal stenosis due to a disc bulge and hypertrophy of the facet joints; and (3) broad-based disc bulge at other levels without significant central canal stenosis or neuroforaminal stenosis. Dr. Paxton reviewed the MRI scan and referred the claimant to Dr. Herbert H. Engelhard, a neurosurgeon at the University of Illinois at Chicago. ¶ 10 On January 24, 2008, the claimant presented to Dr. Engelhard with complaints of low back pain and pain and numbness in his right leg. The claimant reported a history of having had "occasional back problems until [December] 28, 2007," when he injured himself while moving "very heavy buckets" as part of a roofing job at work. The doctor reviewed the claimant's MRI and determined that the findings were "not severe." He diagnosed the claimant with lumbar radiculopathy, prescribed pain medication, and took him off of work. ¶ 11 On February 22, 2008, the claimant filed an application for adjustment of claim seeking benefits for injuries he sustained to his back and legs. On the application, the claimant identified the date of accident as December 28, 2007. ¶ 12 The record reveals that the claimant continued to seek medical treatment from Dr. Engelhard for his low back and right leg. According to Dr. Engelhard's treatment notes, the claimant underwent a course of conservative treatment consisting of physical therapy, epidural steroid injections, and prescription medication. The pain in the claimant's low back and right leg did not improve. Ultimately, Dr. Engelhard diagnosed the claimant with lumbar radiculopathy and lumbar disc herniation and, on October 2, 2008, he operated on the claimant, performing a right hemilaminectomy at L3, L4, and L5. ¶ 13 The claimant treated with Dr. Engelhard postoperatively and was subsequently discharged from his care. In a letter dated January 8, 2009, Dr. Engelhard advised the claimant's attorney that the claimant had made a good recovery following surgery and recently completed a functional capacity evaluation (FCE), which placed him within the medium physical demand level. Dr. Engelhard acknowledged that the claimant was "capable of some type of work" but opined that he was disabled from his former occupation as a truck driver. Dr. Engelhard concluded his letter by stating: "As you know, [the claimant] did originally sustain a work-related injury on 12/27/2007." ¶ 14 On April 7, 2009, the claimant saw Dr. Paxton and reported that his back pain and leg pain were tolerable. Dr. Paxton authorized the claimant to return to work with restrictions of driving only and no strenuous lifting or activities. Aside from one visit to Dr. Paxton in October 2009, the claimant testified that he did not seek medical treatment from April 7, 2009, through July 17, 2010. ¶ 15 On July 17, 2010, the claimant returned to Dr. Paxton complaining of back pain radiating down the leg. The doctor prescribed pain medication and noted that the claimant might need to return to a neurosurgeon. ¶ 16 On September 14, 2010, Dr. Gunnar Andersson performed an independent medical examination (IME) of the claimant at Barge's request. Dr. Andersson wrote in his report that the claimant injured his low back and right leg on December 28, 2007, while pushing and maneuvering buckets of stone that were being lowered from a crane. The claimant told Dr. Andersson that he was able to finish the job, but developed severe pain in his low back and right leg that evening. Dr. Andersson noted that the claimant "tried to work it out" but the pain in his back gradually worsened over the next 10 days, prompting him to seek emergency treatment on January 7, 2008. Dr. Andersson reviewed the claimant's MRI scan of January 12, 2008, and confirmed that it "shows degenerative disc changes at L2-L3, L3-L4, L4-L5, and L5-S1, with spinal stenosis at L3-L4 and L4-L5," and a congenitally narrow spinal canal. Dr. Andersson opined, however, that the claimant's low back and right leg condition were not related to the alleged workplace accident of December 28, 2007; rather, it was the result of the normal degenerative process. Dr. Andersson questioned whether the claimant sustained an accident at work, noting that he gave an inconsistent history of his injury and failed to seek immediate medical care. He also observed that the claimant's initial medical records of January 7 and 8, 2008, "indicate that he did not have a work-related accident" and that his "symptoms had come on gradually and progressively became worse." Dr. Andersson wrote in his report that the gradual development of symptoms is "consistent with the diagnosis of disc degeneration and spinal stenosis." Thus, he concluded that the claimant's complaints are not related to an accident of December 28, 2007. ¶ 17 In his deposition, Dr. Andersson testified consistently with the opinions expressed in his IME report. On cross-examination, he acknowledged that he did not know for certain if the claimant had in fact sustained a workplace accident. He stated, however, that he thought it was unusual for the claimant to report no accident or injury to his initial treatment providers, and then suddenly describe a workplace accident to his third treatment provider, Dr. Englehard, several weeks later on January 24, 2008. In further support of his opinion that the claimant did not sustain a workplace accident in December 2007, Dr. Andersson testified that there was no evidence of any traumatic changes to the claimant's spine on the initial MRI, taken January 12, 2008. ¶ 18 On December 10, 2008, the claimant underwent an FCE at Vista Health System. According to the FCE report, the claimant demonstrated abilities in the medium physical demand level with an infrequent lift of 50 pounds to waist height and 30 pounds to shelf height. He was able to carry 60 pounds at waist level, could reach, climb stairs and ladders, and get in and out of a truck without difficulty. It was recommended that the claimant "return to work within current abilities" or alternatively, undergo a work conditioning program. ¶ 19 On September 8, 2011, the claimant sought treatment from Dr. Mark A. Lorenz at Hinsdale Orthopaedics. The claimant reported a history of having low back pain following a work accident in December 2007 in which he slipped and fell after pushing a large bucket that was being lowered by a crane. Dr. Lorenz reviewed the claimant's medical records, performed a physical examination, and took x-rays of the claimant's low back, which revealed narrowed disc space at L3-L4, L4-L5, and L5-S1. He diagnosed the claimant with post-laminectomy syndrome with back pain, recurrent leg pain, and noted that the claimant's current symptoms are the result of possible complications following the laminectomy. Dr. Lorenz recommended that the claimant undergo an MRI with gadolinium. The MRI, taken September 13, 2011, disclosed (1) postsurgical changes at L3, L4, and L5; (2) mild scoliotic curvature of the lumbar spine; and (3) a congenitally slender spinal canal. ¶ 20 On October 26, 2011, the claimant followed up with Dr. Lorenz. The doctor's notes of that visit state that he reviewed the results of the MRI with the claimant and ordered an EMG and nerve conduction study. The EMG of the claimant's right lower extremity, which was conducted on November 8, 2011, was suspicious for ongoing denervation in the right L4-L5 myotomes and revealed chronic L4 to S1 polyradiculopathy, status post previous surgery. ¶ 21 On November 15, 2011, the claimant returned to Dr. Andersson for a second IME. Dr. Andersson reviewed Dr. Lorenz's medical records, the x-rays taken September 8, 2011, as well as the MRI of September 13, 2011. Dr. Andersson again opined that the claimant's initial treatment records did not "support the occurrence of an accident but instead indicated that the symptoms had developed gradually and progressively became worse." He stated that the claimant's "symptoms were related to disc degeneration and spinal stenosis which were not caused by work related accidents ***." Dr. Andersson concluded that the opinions expressed in his IME report of September 14, 2010, remained unchanged. ¶ 22 The claimant submitted Dr. Lorenz's deposition, taken March 7, 2012, into evidence. Dr. Lorenz testified that the claimant's workplace accident could have caused his low back and right leg condition of ill-being. He explained that the mechanism of injury—moving a heavy object and slipping, or being in an awkward position with sudden weight transfer—is consistent with a disc herniation. He testified on cross-examination that his opinions could change if the history given to him by the claimant was a "lie." Dr. Lorenz stated that he relied upon the history given to him by the claimant and that "a physician always assumes that the patient will tell you the truth in regard to his symptoms and the origin of the symptoms and the activities that brought them on and his current state." Dr. Lorenz acknowledged that he did not review the claimant's past medical records because he was only interested in the operative report for "technical reasons." Dr. Lorenz testified that the claimant had a recurrent herniation and foraminal stenosis with compression of the nerve, but he did not know when the foraminal stenosis began. He explained that the significant narrowing and advanced endplate degenerative changes at L3-L4 and L4-L5 could have been caused by wear and tear, cumulative injuries, surgical procedures, "singular trauma," or "all kinds of things." ¶ 23 On March 19, 2012, the claimant followed-up with Dr. Lorenz. The doctor reviewed the MRI scan of September 13, 2011, and the EMG/NCV study of November 8, 2011, with the claimant and recommended a repeat decompression surgery at L4-L5. ¶ 24 More than a year later, on April 26, 2013, Dr. Lorenz operated on the claimant, performing a revision laminectomy at L3-L4 and L4-L5 with decompression and fusion. The claimant treated with Dr. Lorenz post-operatively and underwent a course of physical therapy. ¶ 25 The claimant underwent another FCE at Accelerated Rehabilitation Center on November 19, 2013. The FCE report states that the claimant "put forth full and consistent effort" and demonstrated the ability to perform within the light physical demand level. His "material handling abilities" were identified as: 22 pounds of bilateral lifting, 12 pounds of bilateral carrying, 15 pounds of bilateral shoulder lifting, and pushing and pulling 20 pounds. The FCE report concluded that the claimant "is functionally employable at the light physical demand level." ¶ 26 On October 28, 2014, the claimant returned to Dr. Andersson for a third IME. Dr. Andersson examined the claimant, reviewed Dr. Lorenz's medical records, and opined that none of the medical treatments that the claimant received were related to the alleged work accident of 2007. He wrote in his report that "it remains unclear whether or not there actually ever was an accident." Dr. Andersson diagnosed the claimant with "degenerative disc disease, spinal stenosis, and also now a possible failed fusion" and opined that the claimant's complaints of low back pain, numbness, and tingling of the right leg are not causally related to the alleged work accident. ¶ 27 At arbitration, Barge offered into evidence surveillance tapes showing the claimant engaging in outdoor activities on October 28, 2014, April 18, 2015, and April 19, 2015. The October 28, 2014, recording, which contained approximately nine minutes of footage, showed the claimant exiting his house, walking normally without the aid of any assistive device, and driving to his IME appointment with Dr. Andersson. After the claimant parked his vehicle, the video shows him walking to his appointment in a very slow manner with the assistance of a cane. The surveillance video taken April 18, 2015, contains approximately 52 minutes of footage, and depicts the claimant going in and out of his vehicle, walking normally without the use of an assistive device, and standing and bending at the waist while inspecting a truck. He is also seen grocery shopping at Dollar General, pulling two loaded shopping carts, and placing the purchased items in his vehicle. Finally, the surveillance footage taken April 19, 2015, shows the claimant performing a variety of household functions and chores and taking care of his grandchild. In particular, he is seen sweeping his porch, driving to a private residence, carrying his grandchild in one arm and a large box in the other, strapping his grandchild in the car, and lifting his grandchild out of his car. Again, the claimant performed these activities fluidly and without the use of an assistive device. ¶ 28 Barge also submitted a labor market survey, dated March 19, 2015, and prepared by Samantha Allen, a vocational rehabilitation counselor. In the report, Allen stated that she reviewed the FCE reports of December 10, 2008, and November 19, 2013, a vocational assessment that had been prepared by a different company, and the claimant's employment and educational history. Allen noted that the claimant has a high school diploma, a welder's certificate, and a CDL-A driver's license. She also noted that the claimant has experience working as a delivery driver, working as a "department head" at a grocery store, and driving a forklift. Allen identified various "vocational goals" or jobs that were appropriate for the claimant. In her report, Allen stated that, based upon the claimant's background, "he would qualify for numerous occupations which will utilize his skills ***." She opined that the claimant has "transferable skills from past employment and should be able to obtain a new position within his restrictions." Allen identified 12 employment opportunities within the claimant's "labor market" which ranged in pay from $10 to $15 per hour. Allen concluded her report by stating that the claimant "has the potential to work in various positions which fall within his restrictions" and that "[i]t is highly recommended that he participate in beginner computer courses in order to increase his skills and marketability." ¶ 29 The claimant testified at arbitration that he never had prior injuries or accidents, and never sought medical treatment for his back or right leg prior to December 27, 2007. He also disputed several statements contained in Vista Medical Center's records and Dr. Paxton's records. More specifically, he stated that the following statements were either "wrong" or "false": (1) that his chief complaint was leg pain with no known injury; (2) that his symptoms "came on gradually" and "became progressively worse;" (3) that he "denied any history of recent trauma;" and (4) that he had back pain in the past. The claimant also explained that he listed an accident date of December 28, 2007, on his application for adjustment of claim because that was the date given to him by Barge's dispatcher and by Tommy and Bobby Edmier, Barge's co-owners. The claimant testified that he is currently under the care of a pain management doctor, Dr. Diaconescu, whom he sees every month and a half, and Dr. Lorenz, whom he sees every eight months. Otherwise, he is not currently working and continues to experience severe pain in his low back. ¶ 30 As to the surveillance video, the claimant acknowledged that the video depicted him grocery shopping but he stated that the heaviest item in the shopping cart was detergent, which weighed nine pounds. He also clarified that he removed the items one at a time and used both hands to place them in his van. The claimant also explained that he was carrying his 7-month-old grandson who weighed 14 or 15 pounds and the boxes he was carrying contained baby clothes and weighed 4 1/2 pounds. He testified that he has a 31-pound weight restriction for lifting and a carrying restriction of no more than 25 pounds. The claimant further stated that he was wearing a back brace during the videos and that he used a cane to attend his IME because the back brace was hurting his ribs. He testified that he uses the cane about 30 percent of the time and uses it when he goes to unfamiliar places and is not sure how far he has to walk. The claimant also denied performing any landscaping work around his house. ¶ 31 Following the hearing, the arbitrator issued a decision in the matter, finding that the claimant failed to prove that he sustained an accident arising out of and in the course of his employment. In reaching this decision, the arbitrator reasoned that the claimant "failed to provide a consistent or credible history of when or how his alleged injury occurred." The arbitrator noted that, when the claimant sought emergency treatment at Vista Medical Center on January 7, 2008, he reported "no known injury" and did not complain of any back pain. Similarly, Dr. Paxton's medical records of January 8, 2007, state that the claimant "did not have any specific injury or incident that precipitated his symptoms," which started "last week." The arbitrator observed that it was not until January 24, 2008, when the claimant saw Dr. Engelhard, that he reported a workplace accident and, even then, the "alleged accident date is inconsistent throughout [the claimant's] medical treatment." Additionally, the arbitrator found the testimony of Ahonen, the claimant's son-in-law, to be "troubling" because he "never testified that [the claimant] told him how he had come to be in this condition" and that it was "difficult to believe" that Ahonen did not ask the claimant what happened to him after observing him in pain and "crawling up the stairs." Although the claimant "testified that his medical records were falsified *** [and] otherwise testified in detail regarding the alleged accident," the arbitrator found the claimant's testimony "insufficient" to sustain his burden of proof since "contemporaneous medical records are more reliable than later testimony." As a consequence, the arbitrator denied the claimant benefits under the Act. ¶ 32 The claimant sought review of the arbitrator's decision before the Commission. On June 17, 2016, the Commission issued a unanimous decision affirming and adopting the arbitrator's decision. ¶ 33 The claimant filed a petition for judicial review of the Commission's decision in the circuit court of Cook County. On March 15, 2017, the circuit court entered an order confirming the Commission's decision. This appeal followed. ¶ 34 We first address the claimant's contention that the Commission's determination that he failed to prove that he sustained a work-related accident on December 27, 2007, is against the manifest weight of the evidence. ¶ 35 To obtain compensation under the Act, a claimant bears the burden of proving, by a preponderance of the evidence, that he suffered an accident arising out of and in the course of his employment. Bagett v. Industrial Comm'n, 201 Ill. 2d 187, 194 (2002). Whether a work-related accident occurred is a question fact, and the Commission's resolution of the issue will not be disturbed on review unless it is against the manifest weight of the evidence. Pryor v. Industrial Comm'n, 201 Ill. App. 3d 1, 5 (1990). 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. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291 (1992). Whether a reviewing court might reach the same conclusion is not the test of whether the Commission's determination of a question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission's decision. Benson v. Industrial Comm'n, 91 Ill. 2d 445, 450 (1982). ¶ 36 Applying these standards, we cannot conclude that the Commission's finding that the claimant failed to prove that he sustained a work-related accident on December 27, 2007, is against the manifest weight of the evidence. The Commission, adopting the decision of the arbitrator, specifically found that the claimant's testimony that he injured his low back and right leg while maneuvering a crane bucket at work to be not credible. In assessing the claimant's credibility, it noted that the claimant failed to provide a consistent history of when or how his low back and right leg injury occurred. For example, the claimant's initial treatment records from Vista Medical Center, dated January 7, 2008, state that the claimant reported "no known injury" and that the pain in his right leg started "last Thursday," which would have been January 3, 2008. Likewise, the medical records of Dr. Paxton, dated January 8, 2008, similarly state that the claimant reported no "specific injury or incident that precipitated his symptoms," which started "last week." Although the claimant testified that the medical records of Vista Medical Center and Dr. Paxton were "wrong" or "false," the Commission found the contemporaneous medical records to be "more reliable" than the claimant's "later testimony because 'it is presumed that a person will not falsify such statements to a physician from whom he expects and hopes to receive medical aid.' " (Quoting Shell Oil Co. v. Industrial Comm'n, 2 Ill. 2d 590, 602 (1954)). Indeed, it was not until January 24, 2008, when the claimant saw Dr. Engelhard, that he first reported injuring his low back and right leg while at work on December 28, 2007, and, even then, he later claimed that the accident occurred on December 27, 2007. On this record, the Commission could reasonably find that the claimant's inconsistent history of injury belied the veracity of his testimony. ¶ 37 The Commission also supported its decision by relying upon the medical opinion of Dr. Andersson who opined that the claimant's low back and right leg condition was not attributable to the alleged workplace accident of December 27, 2007. Dr. Andersson explained that the claimant's initial treatment records indicated that he did not have a work-related accident but that his symptoms came on gradually and progressively became worse. He opined that the gradual development of symptoms was consistent with the claimant's degenerative disc disease and spinal stenosis. ¶ 38 Nonetheless, the claimant argues that an opposite conclusion is clearly apparent. He argues that the Commission, which adopted the decision of the arbitrator, improperly discredited Ahonen's testimony based upon his failure to testify about how the claimant came to be injured. According to the claimant, Ahonen was barred from testifying about the accident because it constituted inadmissible hearsay and, thus, his testimony should not have been discredited. ¶ 39 Initially, we note that the parties, by agreement, introduced a transcript of Ahonen's trial testimony from a related case involving the claimant's injuries sustained on December 27, 2007 (Serzynski v. Waukegan Roofing Company, Lake County Case No. 12 L 125 (2015)). During his testimony, Ahonen recalled going to the claimant's house on December 29, 2012, and seeing him in pain. Ahonen was then asked whether the claimant told him "anything about what occurred" and the following colloquy transpired between the court and the attorneys:
"MS. DONALDSON: Objection, Your Honor, calls for hearsay.¶ 40 The claimant does not challenge the circuit court's evidentiary ruling, which barred Ahonen from testifying about out-of-court statements the claimant made to him regarding whether a workplace accident occurred. Rather, he challenges the Commission's decision to discredit Ahonen's testimony based solely upon his failure to testify about how the claimant came to be injured. In his decision, the arbitrator stated as follows:
* * *
THE COURT: What response, Mr. Cohn?
MR. COHN: I'm trying to figure out why that would be hearsay.
THE COURT: It's clearly hearsay. ***.
* * *
It's an out-of-court statement made to prove that there was in fact an incident, so it's clearly hearsay. I'm asking if there is some exception that you're claiming takes it out of the hearsay rule?
* * *
MR. COHN: I'll withdraw the question then."
"Mr. Ahonen is a certified industrial rehabilitation therapist, and described clearly and lucidly and in great detail the condition he found [the claimant] in when he arrived at his house on January 7, 2008. However, Mr. Ahonen never testified that [the claimant] told him how he had come to be in this condition, and the Arbitrator finds this omission troubling, especially because of the professional qualifications of Mr. Ahonen."¶ 41 We agree with the claimant's assertion that the Commission improperly discredited Ahonen's testimony based upon his failure to explain how the claimant came to be injured. Nevertheless, we conclude that any error was harmless. In Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1013 (2005), we pointed out that when an examination of the record as a whole demonstrates that the "evidence is cumulative and does not otherwise prejudice the objecting party, error in its admission is harmless." Having reviewed Ahonen's testimony and having examined the record as a whole, the Commission's decision to reject Ahonen's testimony as not credible did not prejudice the claimant. As discussed more thoroughly above, the Commission's finding that the claimant failed to prove that he sustained a workplace accident was supported by competent evidence, including the claimant's initial treatment records and the opinion of Dr. Andersson. Ahonen was not a witness to the claimant's alleged workplace accident and his testimony, even if accepted as true, did not rebut the evidence establishing that no accident occurred. ¶ 42 In further support of his argument that the Commission's finding as to accident is against the manifest weight of the evidence, the claimant asserts that its reliance upon a "few medical records" is "unfair and inaccurate." He claims that the medical records of Vista Medical Center and Drs. Paxton are "minimal" and "cursory" and should not be given any weight. He also challenges the Commission's reliance upon the opinion of Dr. Andersson, which he maintains is "demonstrably invalid" and "should not have been accepted." The claimant's arguments, however, amount to nothing more than an invitation for this court to re-weigh the evidence. As noted above, it was for the Commission to decide questions of fact, judge the credibility of witnesses, weigh the evidence, and resolve conflicting evidence. O'Dette, 79 Ill. 2d at 253. Thus, it was the Commission's prerogative to weigh the evidence and resolve conflicts therein, and we will not disturb its decision on that matter. ¶ 43 We also reject the claimant's assertion that an opposite conclusion is clearly apparent based upon his "unrebutted" testimony that an accident occurred. It is well established that the Commission, as the trier of fact, is not bound to accept even unrebutted testimony, so long as it has a sound reason for doing so. Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373, 384 (1996); see also Franciscan Communities, Inc. v. Hamer, 2012 IL App (2d) 110431, ¶ 47. In this case, the Commission acknowledged that the claimant testified "in detail" regarding the alleged accident, but it articulated several reasons for doubting the veracity of his testimony. Notably, the Commission observed that the claimant failed to provide a consistent history of when or how his injury occurred and he reported "no known injury" to his initial treatment providers. It also noted that surveillance video showed the claimant walking normally without the use of a cane, and then depicted him later that afternoon using a cane and "walking in very slow manner" to his IME appointment. It also found his testimony that he did not perform landscaping around his house to be rebutted by the surveillance video, which showed him sweeping "tree debris" and performing a variety of outdoor activities. In sum, the Commission, after considering the conflicting evidence, determined that the claimant failed to prove that he sustained an accident that arose out of and in the course of his employment. ¶ 44 In a related argument, the claimant maintains that a "presumption" should be drawn in his favor that an "event" occurred because Barge failed to produce Tommy and Bobby Edmier, the co-owners of Barge, as witnesses. ¶ 45 At the outset, we note that the claimant's brief on appeal fails to cite any authority in support of his claim. Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) provides that an appellant's opening brief must contain the contentions and reasons therefor, with citation to the authorities upon which the appellant relies. As a reviewing court, we are entitled to have the issues clearly defined, pertinent authority cited, and a cohesive legal argument presented. Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶ 5. The appellate court is not a depository in which the appellant may foist the burden of argument and research. Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303, ¶ 5. Arguments that are not supported with citations to authority fail to meet the requirements of Rule 341(h)(7) and are forfeited. ¶ 46 In this case, the claimant has failed to provide a cohesive legal argument or a reasoned basis for his contention that the Commission erred in refusing to draw a "presumption" in his favor that an "event" occurred. He also fails to identify the foundational requirements that must be met before an adverse inference may be drawn and cites to no case law. Accordingly, his argument on this issue is forfeited. Forfeiture aside, and to the extent that the claimant has made a legal argument, his contention of error fails on the merits. ¶ 47 Generally, an adverse inference may be drawn from a party's failure to call a witness where the following foundational requirements have been met:
"(1) the missing witness was under the control of the party against whom the inference is drawn, (2) the witness could have been produced in the exercise of reasonable diligence, (3) the witness was not equally available to the party in whose favor the inference is drawn, (4) a reasonably prudent person would have produced the witness if the party believed the testimony would be favorable, and (5) no reasonable excuse for the failure to produce the witness is shown." Board of Education, City of Peoria School District No. 150 v. Illinois Educational Labor
Relations Board, 318 Ill. App. 3d 144, 148 (2000); see also Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 22 (1989).The decision of whether an adverse inference should be drawn from a party's failure to call a witness is a matter within the sound discretion of the Commission. Szkoda v. Illinois Human Rights Comm'n, 302 Ill. App. 3d 532, 544 (1998). As such, we will reverse only if no reasonable person could agree with the Commission. See Edwards v. Addison Fire Protection District Firefighters' Pension Fund, 2013 IL App (2d) 121262, ¶ 41. ¶ 48 Here, the claimant has not met the foundational requirements that would allow the missing-witness inference to be drawn. While Bobby and Tommy Edmier were under Barge's control to the extent they were co-owners of the company, the claimant, with reasonable diligence, could have obtained their appearance by subpoena pursuant to title 50, section 7030.50 of the Illinois Administrative Code. 50 Ill. Admin. Code § 7030.50 (eff. Dec. 4, 2012); see also 50 Ill. Admin. Code § 7030.60 (eff. Dec. 4, 2012) ("Evidence depositions of any witness may be taken, before [a] hearing ***." (Emphasis added.)). Thus, section 7030.50 could have been used by the claimant to compel the attendance of Bobby and Tommy Edmier as witnesses at the hearing even if they had been within the Barge's control. Our review of the record shows that the claimant failed to mount any effort to subpoena Tommy and Bobby Edmier in the seven years between the filing of his application for adjustment of claim and the arbitration hearing. Having failed to exercise reasonable diligence, the claimant has not demonstrated that the adverse inference he seeks is appropriate in this case. We conclude, therefore, that the Commission did not abuse its discretion in refusing to draw an adverse inference. ¶ 49 Having found that the Commission's finding that the claimant failed to prove that he sustained a workplace accident on December 27, 2007, was not against the manifest weight of the evidence, we need not address the claimant's arguments regarding causation and whether he is entitled to temporary total disability benefits. ¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court which confirmed the Commission's decision. ¶ 51 Affirmed. ¶ 52 JUSTICE HARRIS, specially concurring: ¶ 53 I agree with the majority's decision to affirm, but I write separately to note my disagreement with one aspect of its analysis relating to the missing-witness inference. The majority notes the necessary foundational requirements for purposes of drawing an adverse inference in the event a party fails to present a witness within its power to produce. Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 22, 541 N.E.2d 643, 651 (1989); See generally Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 2011) (hereinafter IPI Civil 3d). IPI Civil 3d No. 5.01 provides, in part, that the fact finder may draw an adverse inference against a party for its failure to present a witness within its power to produce, under the following circumstances: (1) The witness was under the control of the party and could have been produced by the exercise of reasonable diligence, (2) The witness was not equally available to an adverse party, (3) A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him, and (4) No reasonable excuse for the failure has been shown. ¶ 54 The majority correctly notes that co-owners Bobby and Tommy Edmier were under Barge's control. However, the majority then finds that because claimant could have obtained the Edmiers' appearance at the hearing through a subpoena, he was not entitled to the missing-witness inference. Apparently, the majority concludes the claimant has not established the Edmiers were not "equally available," to him, the second element of IPI Civil 3d No. 5.01. In my view, this is an incorrect conclusion. The Committee Comments to IPI Civil 3d No. 5.01state "[a] witness is not 'equally available' to a party if there is a likelihood that the witness would be biased against him, as for example a relative or an employee of the other party." Certainly, under that definition, the Edmiers, as co-owners of Barge, were not "equally available" to claimant, notwithstanding his ability to subpoena their testimony. ¶ 55 The ability or inability to compel a witness's attendance at trial is not determinative of whether the witness is "equally available" to the adverse party. The supreme court in Schaffner cited approvingly to the First District's decision in Ciborowski v. Philip Dressler & Associates, 110 Ill. App. 3d 981, 443 N.E.2d 618 (1982), in addressing the missing-witness inference. Schaffner, 129 Ill. 2d at 23, 541 N.E.2d at 652. In Ciborowski, 110 Ill. App. 3d at 986, 443 N.E.2d at 622, the court quoted McCormick, Evidence § 249, at 533-34 (1954), as follows:
"It is often said that if the witness is equally accessible to both parties, no inference springs from the failure of either to call him. This can hardly be accurate, as the inference is frequently allowed when the witness could easily be called or subpoenaed by either party. What is probably meant is that when so far as appears, the witness would be as likely to be favorable to one party as the other, there will be no inference." (Emphasis added.) (Internal quotations omitted.)The court in Ciborowski proceeded to find that an expert witness, hired by one of the defendants with the intention of having him testify, was under that party's control despite the fact that he could have been subpoenaed by the plaintiff, and thus the plaintiff's attorney's comment on the defendant's failure to call the expert as a witness was not error. Ciborowski, 110 Ill. App. 3d at 986, 443 N.E.2d at 622. ¶ 56 In this case, the evidence clearly established that the Edmiers were under Barge's control. In my view, given their obvious bias in favor of Barge, the Edmiers were not equally available to claimant. See Hollenbaek v. Dominick's Finer Foods, Inc., 137 Ill. App. 3d 773, 776-77, 484 N.E.2d 1237, 1240 (1985) ("We find no merit in defendant's argument that [an examining doctor] was equally available to both parties. The cases are clear that a doctor hired by a defendant to examine plaintiff is under defendant's control for the purpose of testifying, and thus unavailable to plaintiff as a witness."); Kersey v. Rush Trucking, Inc., 344 Ill. App. 3d 690, 697, 800 N.E.2d 847, 853 (2003) ("[E]xpert witness hired by defendants[ ] was under defendants' control for purposes of testifying, and thus was unavailable to plaintiff as a witness."); Kerns v. Lenox Machine Co., Inc., 74 Ill. App. 3d 194, 198-99, 392 N.E. 2d 688, 691-92 (1979) (Missing-witness instruction should have been given where the witness, "as a defendant employee, was under the control of the defendant as its employee and was not therefore equally available to the plaintiff"). ¶ 57 Here, although the Edmiers were not equally available to claimant, he was not entitled to the missing-witness inference. As Barge notes in its brief, claimant did not testify that he reported a work injury to the Edmiers on December 27, 2007. In addition, the medical evidence established that he did not begin complaining of pain until January 3, 2008, and he denied sustaining any "specific injury" or "recent trauma." Essentially, there was nothing for the Edmiers to rebut. Thus claimant failed to satisfy the third element of IPI Civil 3d No. 5.01, that "[a] reasonably prudent person under the same or similar circumstances would have produced the witness." For this reason, claimant was not entitled to the missing-witness inference.
At the arbitration hearing, the arbitrator granted the claimant's oral motion to amend the application for adjustment of claim to reflect an accident date of December 27, 2007. --------