2020 IL App (2d) 190720WC-U No. 2-19-0720WC Order Filed October 13, 2020
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). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
Workers’ Compensation Commission Division ______________________________________________________________________________
AC McCARTNEY FARM EQUIPMENT, ) Appeal from the Circuit Court ) Winnebago County, Appellant, ) ) v. ) No. 18-MR-823 ) THE ILLINOIS WORKERS’ ) COMPENSATION COMMISSION et al. ) Honorable ) Lisa Fabiano, (David Fink, Appellee). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Cavanagh concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court setting aside the decision of the Illinois Workers’ Compensation Commission and reinstating the decision of the arbitrator where the Commission’s finding that claimant failed to prove entitlement to an award of permanent total disability benefits under the odd-lot theory was against the manifest weight of the evidence.
¶2 Employer, AC McCartney Farm Equipment (AC), appeals from an order of the circuit court
of Winnebago County which (1) set aside the decision of the Commission awarding claimant,
David Fink, permanent partial disability (PPD) benefits under section 8(d)(2) of the Illinois
Workers Compensation Act (Act) (820 ILCS 305/8(d)(2) (West 2012)), and (2) reinstated the 2020 IL App (2d)190720WC-U
decision of the arbitrator awarding claimant permanent total disability (PTD) benefits under
section 8(f) of the Act (820 ILCS 305/8(f) (West 2012)). For the following reasons, we affirm the
judgment of the circuit court.
¶3 I. Background
¶4 On January 27, 2012, claimant filed an application for adjustment of claim pursuant to the
Act, seeking benefits for injuries he sustained to his right knee when he stepped down from a
forklift while working for AC on April 19, 2011. On that same day, he filed an amended application
for adjustment of claim (12-WC-03215), seeking benefits for injuries he sustained to both his right
and left knees when he stepped down from the forklift while working for AC on April 19, 2011.
Claimant later filed a second application for adjustment of claim (12-WC-11480), seeking benefits
for injuries he sustained to his back and shoulder while installing a combine transmission while
working for AC on August 3, 2010.
¶5 On March 1, 2017, a consolidated arbitration hearing was conducted on the applications
filed by claimant. The following factual recitation is taken from the evidence adduced at the
hearing. We recite only those facts necessary to our resolution of the issues on appeal.
¶6 A. Claimant’s Testimony
¶7 Claimant, who was 57 years old at the time of the arbitration hearing, began working after
he dropped out of high school during his freshman year. Claimant primarily worked as a mechanic
and farmhand at several agricultural businesses but also worked as a mechanic at several factories.
Claimant worked as a mechanic at the same agricultural business for approximately 10 years until
it was purchased by AC in July 2008. Following the purchase, claimant began working for AC as
a set-up mechanic. In addition to setting up and assembling agricultural equipment, he performed
mechanical repairs to combines and other farm machinery. His job duties required him to lift and
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carry machine parts, weighing 25 to 150 pounds, while he used a “fork truck” to move heavier
parts.
¶8 Claimant sustained two separate injuries while working for AC. He first injured his right
shoulder and lower back on August 3, 2010, while repairing a combine transmission. As a result,
claimant missed several days of work and received approximately 10 chiropractic treatments.
Claimant next injured his right knee on April 19, 2011, when he stepped two-and-a-half-feet down
from a forklift platform and landed wrong, possibly on a rock. He specifically recalled twisting his
right knee as his foot landed and feeling an immediate, sharp pain. He managed to walk back to
AC’s shop before seeking emergency treatment for his right knee at Memorial Hospital. After x-
rays of his right knee revealed no abnormalities, he was advised to see a specialist, given crutches
and prescribed pain pills. Claimant sought additional treatment for his right knee and did not return
to work for an extended period following the April 19, 2011, accident.
¶9 In the following weeks, claimant made an appointment with Dr. Matthew Bruns, a
practitioner at Quincy Medical Group. He was also seen by Dr. Kelly Rife, his family physician,
and Dr. Adam Derhake, an orthopedic surgeon. Dr. Derhake ordered magnetic resonance imaging
(MRI) of claimant’s right knee and restricted claimant from lifting over 15 pounds. Dr. Derhake
later reviewed the MRI and recommended that claimant undergo surgery on his right knee, which
was scheduled for July 2011.
¶ 10 On July 4, 2011, prior to having surgery, claimant’s right knee buckled, causing him to fall
down a flight of stairs at his home. As a result, he sustained additional injuries to his left knee and
right shoulder. While claimant had prior issues with his right shoulder as a result of the August 3,
2010, accident, he had no issues with his left knee before the July 4, 2011, fall. Claimant denied
having any prior injuries to his right knee before the April 19, 2011, accident, but he recalled that
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his right knee had buckled on several occasions while he was walking on flat surfaces after the
accident. On cross-examination, claimant acknowledged that he had previously received treatment
for his right knee, which included injections, from Dr. Jean Cross approximately three years before
the April 19, 2011, accident.
¶ 11 Claimant did not seek emergency medical care because he was advised that the additional
injuries resulting from the July 4, 2011, fall would not be covered under workers’ compensation.
However, he presented to both Drs. Rife and Derhake the following day to ensure that his
additional injuries would not impact his upcoming knee surgery. Several days later, Dr. Derhake
performed surgery on claimant’s right knee. Claimant attended several physical therapy sessions
after the surgery but later decided to change orthopedic surgeons due to ongoing issues with his
right knee.
¶ 12 On September 14, 2011, claimant presented to Dr. Curtis D. Burton, an orthopedic surgeon,
complaining of ongoing pain in his right knee following surgery. After reviewing claimant’s scans
and medical records, Dr. Burton conducted a physical examination and ultimately administered a
series of steroid injections to claimant’s right knee.
¶ 13 Claimant remained off work until January 2012. At that time, he began performing light-
duty work at AC, which included filing papers and driving a co-worker, who had recently lost his
license, to different locations to pick up machinery. After approximately three months, Mr.
McCartney, a manager and owner of AC, requested that claimant return to his previous position
as a full-time mechanic. Claimant was laid off after advising Mr. McCartney that he could not
return to his former position with his injuries and work restrictions, and he has received no
additional employment offers from AC.
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¶ 14 Claimant received temporary total disability (TTD) benefit payments from AC for
approximately one year after the April 19, 2011, injury. AC also paid claimant’s initial medical
bills, but the payments stopped after his knee surgery. According to claimant, AC stopped all
payments after he was examined by an “independent doctor” in St. Louis, Missouri. On cross-
examination, claimant admitted that he presented to Dr. Richard Lehman for an independent
medical evaluation (IME) on February 2, 2012, while he was performing light-duty work at AC.
Claimant also recalled that the IME took place shortly before his discussion with Mr. McCartney.
¶ 15 Claimant applied for, and later received, Social Security Disability and Medicare. He also
spoke on the phone with Lisa Helma, a vocational counselor with Vocamotive, about obtaining
employment that would accommodate his work restrictions of limited lifting and standing.
However, claimant has not secured additional employment since losing his job at AC. On cross-
examination, claimant explained that he had attempted to find another job and conducted two job
searches per week for 20 weeks. According to claimant, he found two possible employers “that
would probably have hired [him] if [he] didn’t have bad knees and would be able to walk,” but he
was not offered a job. Claimant also admitted that he has a valid commercial driver’s license
(CDL).
¶ 16 Claimant continues to experience pain, stiffness and popping in his right knee, as well as
pain, discomfort, stiffness and locking sensations in his left knee. Claimant also continues to
experience pain, stiffness, a limited range of motion and loss of strength in his right shoulder. Dr.
Burton recommended surgery on his left knee and right shoulder, but claimant never had the
recommended surgeries because he was advised that neither workers’ compensation nor his
insurance would cover the cost.
¶ 17 B. Medical Evidence
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¶ 18 The medical records from Memorial Hospital show that claimant presented to the
emergency room complaining of right knee pain on April 19, 2011. Claimant was prescribed pain
medication, given a knee immobilizer and instructed to follow up with an orthopedist. Claimant
underwent a right knee MRI on May 19, 2011, and the reviewing radiologist noted the following
impressions: a complex degenerative tear involving the entire lateral meniscus with both horizontal
and radial components with an associated anterior extrusion in the anterior horn of the lateral
meniscus; mild to moderate tricompartmental osteoarthritis; associated knee joint effusion and
intraarticular bodies; and intact cruciate and collateral ligaments.
¶ 19 Claimant presented for appointments with Dr. Derhake on May 31, 2011, and June 6, 2011.
After reviewing the MRI of claimant’s right knee, Dr. Derhake diagnosed claimant with a complex
lateral meniscal tear with a possible tear in his medial meniscus. Dr. Derhake recommended that
claimant undergo a right knee arthroscopy with possible meniscectomy and a possible
chondroplasty for definitive management of the condition. Dr. Derhake released claimant to work
with restrictions while he awaited authorization for surgery.
¶ 20 Dr. Derhake performed the recommended surgery on July 7, 2011, and he directed claimant
to remain off work. At a follow-up appointment on July 21, 2011, Dr. Derhake released claimant
to work under the following restrictions: no climbing stairs or ladders, no repetitive bending of his
right knee and no kneeling or squatting. Dr. Derhake also recommended that claimant remain
seated 75% of the time. However, at claimant’s next follow-up visit on August 12, 2011, Dr.
Derhake recommended that claimant remain off work.
¶ 21 Claimant first presented to Dr. Burton at Midwest Orthopedic Specialists on September 14,
2011. Dr. Burton noted that “[i]t would be somewhat tough for [claimant] to return to work because
of the kneeling and the sensitivity he has on the front of his knee, but I think this could be
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accomplished as he appears now.” Dr. Burton also noted that he would seek authorization for
Supartz shots. Dr. Burton reported that claimant was unable to return to work in October 2011.
¶ 22 In November 2011, Dr. Burton administered a series of injections in claimant’s right knee
and reported that claimant was unable to return to work. In addition, claimant underwent a left
knee MRI at Memorial Hospital. The reviewing radiologist noted the following impressions: knee
effusion with a Baker cyst; presumed reactive type synovitis and particulate debris; moderate
osteoarthritis; complex lateral meniscal tears; and focal deformity of increased T2 signal distal
popliteal tendon, which likely represented an old post-traumatic change. After reviewing the MRI,
Dr. Burton agreed with the noted impressions and recommended that claimant undergo a lavage
arthroscopy on his left knee. Dr. Burton also noted that claimant was complaining of pain in his
right shoulder.
¶ 23 Claimant presented to Dr. Burton for a follow-up appointment on December 21, 2011. Dr.
Burton noted that claimant “is pessimistic that he is going to be able to return to his previous level
of activity and previous job, and I am as well, given the fact that he has extensive degenerative
change in the knee.” Dr. Burton opined that claimant’s knee condition was “in fact worsened by
his arthroscopy and only marginally improved with injections.” Dr. Burton reported that claimant
could work light-duty with a lift limit of 10 pounds, as well as a standing limit of one continuous
hour and no more than three hours per day.
¶ 24 Dr. Burton prepared a report to AC regarding claimant’s medical conditions on January 23,
2012. Dr. Burton noted that claimant had been scheduled for an IME and again reported that
claimant could perform light-duty work with the previously recommended lifting and standing
restrictions.
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¶ 25 Dr. Lehman examined claimant at AC’s request on February 2, 2012, and prepared a report
setting forth his findings and opinions with regard to claimant’s condition. Dr. Lehman opined that
claimant had a moderate disability due to the following conditions: pre-existing arthritis; patella
alta and degenerative arthritis in the lateral aspect of both knees; and impingement syndrome with
a possible rotator cuff pathology in his right shoulder. While Dr. Lehman agreed that claimant
needed treatment for these conditions, he opined that claimant was capable of returning to work
without restrictions and that claimant’s conditions were unrelated to his work injury.
¶ 26 On April 13, 2012, claimant underwent a right shoulder MRI. The reviewing radiologist
noted the following impressions: osteoarthritis of the right shoulder; partial thickness tears
involving the rotator cuff tendon with a focal full thickness tear; partial tear with tendinopathy
involving the long head of the tendon in the bicep. Several days later, claimant was seen by Dr.
Burton, who recommended that claimant undergo an arthroscopy of his right shoulder, fixation of
the tendon in his bicep, possible repair of his rotator cuff and an evaluation of the articular surfaces.
¶ 27 On June 1, 2012, Dr. Burton prepared a letter setting forth his findings and opinions
regarding claimant’s condition. Dr. Burton opined that claimant had permanent restrictions of
limited standing, kneeling and flexibility in both knees. Dr. Burton further opined that claimant
could return to work if his limitations could be accommodated but noted that claimant would
ultimately require bilateral knee arthroplasties. Dr. Burton also noted that claimant had some
limitations in the function of his shoulder and recommended an additional evaluation for his
shoulder in the form of arthroscopy.
¶ 28 C. Social Security Administration Disability Award
¶ 29 On May 2, 2012, claimant filed an initial claim for disability. Claimant later received a
letter, dated September 18, 2012, from the Social Security Administration (SSA) advising that he
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was entitled to monthly disability benefits beginning October 2011. Claimant also received a
document titled “Disability Determination Explanation,” which provided the following details
regarding his disability claim. The document was signed by Hemantha Surath, a medical doctor,
and Tiffany Miller, a disability adjudicator employed by the SSA. Claimant, who was
approximately 53 years old at the time, was found to be closely approaching advanced age. Based
on a review of claimant’s medical records, Dr. Surath determined that claimant suffered from
severe osteoarthrosis and allied disorders. Dr. Surath accorded no weight to Dr. Lehman’s medical
opinions because they were inconsistent with his objective medical findings. With regard to
claimant’s residual functional capacity, Dr. Surath noted that claimant could occasionally lift 20
pounds, frequently lift 10 pounds, stand or walk for a total of four hours, sit with normal breaks
for a total of six hours and occasionally climb, stoop, kneel, crouch and crawl.
¶ 30 Miller performed an assessment of vocational factors and listed claimant’s work history
for the past 15 years. Miller noted claimant’s employment as a set-up mechanic, which was
classified as a skilled-level position, dated back to 1997. Miller concluded that claimant’s past
work history exceeds his current functional levels and that claimant could only perform sedentary
work due to his physical limitations. Miller also noted that a vocational assessment of claimant
was conducted by Robin Power, who concluded that claimant was unable to return to his past work
and that his acquired skills would not transfer to sedentary occupations, especially given his age.
¶ 31 D. Helma’s Report
¶ 32 On September 16, 2014, Helma, a certified rehabilitation counselor, prepared an evaluation
report after conducting a telephonic interview with claimant on August 25, 2014, and reviewing
claimant’s medical records. Helma’s report demonstrates that claimant, who was then 55 years
old, provided a consistent history of the injuries he sustained on August 3, 2010, April 19, 2011,
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and July 4, 2011. Claimant indicated that his knee condition made it difficult for him to get in and
out of his car or drive for more than one hour, but he admitted that his knees did not bother him
when he was inactive. He also indicated that he could lift no more than 10 pounds, he had to change
positions after sitting for 15 to 30 minutes and he was unable to bend, kneel or crawl. Claimant’s
doctor had advised claimant that he would require a bilateral knee replacement in the future but
instructed him to wait until he was 59 years old.
¶ 33 Helma considered the opinions of Drs. Burton and Lehman in her report. Specifically, Dr.
Burton’s opinion that claimant’s work-related injury exacerbated his preexisting arthritis in his
knee and that he has permanent restrictions of limited standing and flexibility in both knees. Helma
also noted Dr. Burton’s opinion that claimant could return to work if he could obtain employment
that would accommodate his restrictions, along with Dr. Burton’s opinion that claimant would
ultimately require bilateral knee arthroplasties. Helma also considered Dr. Lehman’s contrary
opinion that claimant was capable of returning to work without restrictions, despite having a
moderate disability relating to his knee and shoulder conditions. Helma noted that Dr. Lehman
also opined that claimant needed treatment for his conditions and agreed with Dr. Burton that
claimant may eventually need a total right knee replacement.
¶ 34 With regard to claimant’s educational history and skills, Helma noted that claimant
dropped out of high school during his freshman year and never obtained a GED. Claimant reported
that he possessed mechanical skills and had occasionally participated in a mechanic class through
work. He was able to use his home computer to send emails without attachments and to check the
weather, but he denied having any keyboarding or software skills. Claimant also reported that he
had a valid Class B driver’s license that allowed him to operate a two-ton truck, which was “right
below a semi license.”
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¶ 35 Helma’s report also includes a thorough review of claimant’s past work history, as
described by claimant. He reported that he first worked at a lumber yard where he loaded and
delivered lumber, filled racks with lumber and assisted carpenters in building houses. Claimant
then worked on farms with livestock and crops for 10 years. Next, he worked for four or five years
as an apprentice machine operator at a factory that made liners for landfills. In this position, he
loaded and started machines that made rolls of plastic. He then worked for four or five years as a
set-up mechanic and night shift supervisor at a company where he set up machines, operated
machines and loaded dyes or wires into machines. He next worked for four years at a farm supply
company where he assembled livestock equipment, loaded feed, worked on the farm, fixed power
washers, delivered equipment, along with other miscellaneous tasks. He then worked for 10 years
as a set-up mechanic at a company where he assembled farm machinery, performed mechanical
work on tractors and combines, drove a truck to deliver farm equipment, operated a forklift,
installed parts on combines, loaded trucks and performed some welding. Most recently, he worked
for five years as a set-up mechanic at AC where he earned $13 per hour and performed similar
work to his previous job as a set-up mechanic but with less driving. Claimant also reported that he
had returned to light-duty work at AC, which included filing papers and driving a truck, following
his knee surgery.
¶ 36 Before rendering her opinion on claimant’s employability, Helma noted that she did not
have an opportunity to meet claimant in person and, thus, was unable to evaluate his personal
presentation. Helma, instead, formulated her opinion based on her consideration of claimant’s age,
education, work experience, physical capabilities, transferable skills and elements of acquired
disability. In considering these factors, Helma opined that claimant’s limited education and
advanced age would negatively affect his ability to adjust to other work. In reviewing claimant’s
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work experience, Helma noted that claimant’s past jobs most closely resembled the following
positions: farm equipment mechanic, which was classified as a skilled position at the medium level
of physical demand; light truck driver, which was classified as a semi-skilled position at the
medium level of physical demand; industrial truck operator, which was classified as a semi-skilled
position at the medium level of physical demand; general farmworker, which was classified as an
unskilled position at the heavy level of physical demand; machine operator, which was classified
as a semi-skilled position at the medium level of physical demand; and a construction worker,
which was classified as a semi-skilled position at the heavy level of physical demand.
¶ 37 In evaluating claimant’s physical capabilities, Helma relied on Dr. Burton’s opinions and
recommended restrictions, which included limited standing, kneeling and flexion in both knees.
Helma opined that claimant’s permanent physical restrictions, as recommended by Dr. Burton,
“would most closely correlate with [s]edentary types of occupations.” However, Helma opined
that claimant lacked any transferrable skills for sedentary types of employment, due to his
education level, lack of computer skills, history of physically demanding jobs and current physical
limitations. Helma, relying on statistical data prepared by the United States Department of Labor,
noted that sedentary occupations “comprise of approximately 11% of the United States labor
market, with the vast majority of these occupations being classified at the skilled to highly skilled
level.” Helma also noted that sedentary unskilled occupations “comprise of approximately 1% of
the United States labor market.” Helma further noted that claimant lives in a rural area with limited
employment options. Based on her consideration of Dr. Burton’s medical opinions, as well as
claimant’s age, education, work experience, physical capabilities, transferable skills and elements
of acquired disability, Helma opined that claimant had lost access to his previous work as a set-up
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mechanic and that he had lost access to any stable labor market. Thus, Helma concluded that
claimant’s “disability is total.”
¶ 38 E. Arbitrator’s Decision
¶ 39 Following the hearing, the arbitrator issued a decision finding that claimant had sustained
accidental injuries arising out of and in the course of his employment with AC on April 19, 2011,
and that his current conditions of ill-being were causally connected to the work accident.
Accordingly, the arbitrator awarded claimant reasonable and necessary medical expenses in the
amount of $2,200.50 pursuant to section 8(a) and 8.2 of the Act (820 ILCS 305/8(a) (West 2012);
820 ILCS 305/8.2 (West 2012)), but ordered that AC receive a credit in the amount of $25,961.03
for all previously paid medical benefits pursuant to section 8(j) of the Act. 820 ILCS 305/8(j)
(West 2012). The arbitrator also awarded claimant TTD benefits for the period of April 19, 2011,
through January 3, 2012, and the period of March 30, 2012, through August 1, 2012, but ordered
that AC receive a credit in the amount of $13,777.23 for previously paid TTD benefits. Lastly, the
arbitrator awarded claimant PTD benefits in the amount of $466.13 per week for life, commencing
on August 2, 2012. In support of the PTD award, the arbitrator found that (1) claimant proved
entitlement to PTD benefits under an “odd-lot” category by introducing Helma’s opinions, along
with evidence of his receipt of Social Security disability benefits, which showed that there were
no available jobs for him, given his age, training, education, experience and condition, and (2) AC
failed to meet its burden of showing that suitable, regular and continuous work is available to
claimant by either providing claimant with light-duty work or introducing the opinions of a
vocational expert. AC sought review of the arbitrator’s decision before the Commission.
¶ 40 F. Commission’s Decision
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¶ 41 On review, the Commission issued a decision which modified the arbitrator’s decision by
vacating the arbitrator’s award of PTD benefits and, instead, awarding claimant PPD benefits for
50% loss of use of his person as a whole in the amount of $312.00 per week for a period of 250
weeks. In support, the Commission found that claimant did not prove his entitlement to PTD
benefits because there was no medical evidence to support a claim of total disability and he failed
to establish that he fell into the odd-lot category. The Commission, unlike the arbitrator, found
Helma’s opinion unpersuasive because she never personally met claimant and did not have an
opportunity to evaluate his personal presentation. The Commission also found Helma’s opinion
confusing because she stated that claimant “has no transferable skills, and that sedentary, unskilled
occupations comprise 1% of the labor market” but also noted his “extensive history of skilled
work, not all of which encompass heavy duty work.” After considering claimant’s experience,
skills and “the fact that he earned $13.00 per hour with [AC],” the Commission could not say that
claimant was unable to secure permanent employment.
¶ 42 The Commission next found that claimant “implicitly waived” his right to a wage
differential award by failing to present evidence to demonstrate entitlement to such an award. The
Commission specifically noted that the evidence was insufficient “to determine whether suitable
employment, in which [claimant] is both able and qualified to perform, is available,” or whether
the employment, if available, would result in an impairment of earnings. The Commission, instead,
found the evidence supported an award of 50% loss of use of the person as a whole. In support,
the Commission noted that claimant suffered complex lateral meniscal tears to both knees as a
result of the April 19, 2011, accident, and that he also suffered tears in his rotator cuff and tendon
in his bicep. The Commission also noted that Dr. Burton and Helma both opined that claimant
could not return to his previous activity level or his previous job with AC due to his knee and
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shoulder conditions. Thus, the Commission vacated the award of PTD benefits and, instead,
awarded claimant 50% loss of use of the person as a whole. The Commission affirmed and adopted
the arbitrator’s decision in all other respects. Claimant sought judicial review of the Commission’s
decision in the circuit court of Winnebago County.
¶ 43 G. Circuit Court’s Decision
¶ 44 Following a hearing, the circuit court determined that the Commission’s finding that
claimant failed to establish entitlement to PTD benefits by showing he fell within the odd-lot
category was against the manifest weight of the evidence. Thus, the court set aside the
Commission’s decision and reinstated the arbitrator’s decision. AC now appeals.
¶ 45 II. Analysis
¶ 46 On appeal, AC argues that the circuit court erred in finding that the Commission’s decision
to award claimant 50% loss of use of the person as a whole was against the manifest weight of the
evidence. In contrast, claimant argues that the Commission’s decision to vacate the arbitrator’s
award of PTD benefits for life under the odd-lot theory was both contrary to the law and against
the manifest weight of the evidence.
¶ 47 A. Scope and Standard of Review
¶ 48 While the parties’ arguments reference the decisions of both the arbitrator and circuit court,
we are mindful that the Commission is the “ultimate decisionmaker” in workers’ compensation
proceedings. Interstate Scaffolding, Inc. v. Illinois Workers’ Comp. Comm’n, 236 Ill. 2d 132, 145
(2010). “[W]hen an appeal is taken to the appellate court following entry of judgment by the circuit
court on review from a decision of the Commission, we review the ruling of the Commission, not
the judgment of the circuit court.” Dodaro v. Illinois Workers’ Comp. Comm’n, 403 Ill. App. 3d
538, 543 (2010). Accordingly, although the circuit court reinstated the arbitrator’s award of PTD
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benefits, we review the Commission’s decision to vacate the award of PTD benefits under the odd-
lot theory and, instead, award claimant 50% loss of use of the person as a whole.
¶ 49 “The standard of review we apply—which determines the level of deference afforded the
Commission's decision—depends on whether the issue presented on appeal is one of fact, one of
law, or a mixed question of fact and law.” Dodaro, 403 Ill. App. 3d at 544. Here, the parties’
dispute centers on the Commission’s determination that claimant failed to prove his entitlement to
PTD benefits under the odd-lot theory. Claimant initially asserts that de novo review is appropriate
because the Commission misapplied the law in making this determination. AC asserts that the
Commission’s determination on this issue presents a question of fact subject to the manifest-
weight-of-the-evidence standard. We agree with AC.
¶ 50 Whether a claimant is permanently and totally disabled is a question of fact to be resolved
by the Commission, and its resolution of the issue will not be disturbed by a reviewing court unless
it is against the manifest weight of the evidence. Ameritech Services, Inc. v. Illinois Workers’
Comp. Comm’n, 389 Ill. App. 3d 191, 203 (2009) (citing Ceco Corp. v. Industrial Comm’n, 95 Ill.
2d 278, 288-89 (1983)). Although odd-lot cases involve a burden-shifting analysis, “[w]hether the
parties satisfy their respective burdens are questions of fact.” City of Chicago v. Illinois Workers’
Comp. Comm’n, 373 Ill. App. 3d 1080, 1093 (2007). Thus, “[w]hether a claimant falls into the
odd-lot category is a factual determination to be made by the Commission, and that determination
will not be set aside unless it is against the manifest weight of the evidence.” Westin Hotel v.
Industrial Comm’n, 372 Ill. App. 3d 527, 544 (2007). 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
against the manifest weight of the evidence, a conclusion opposite to the one reached by the
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Commission must be clearly apparent.” Adcock v. Illinois Workers’ Comp. Comm’n, 2015 IL App
(2d) 130884WC, ¶ 29. With these principles in mind, we consider whether the Commission’s
determination that claimant failed to prove his entitlement to PTD benefits under the odd-lot theory
was against the manifest weight of the evidence.
¶ 51 B. PTD Benefits
¶ 52 Where, as here, a claimant’s disability is limited in nature so that he is not obviously
unemployable and there is no medical evidence supporting a claim of total disability, the claimant
may prove entitlement to PTD benefits if he establishes by a preponderance of the evidence that
he falls within the “odd-lot” category. Westin Hotel, 372 Ill. App. 3d at 544. A claimant may fall
into the odd-lot category if he “is unable to perform services except those that are so limited in
quantity, dependability, or quality that there is no reasonably stable market for them.” Id. at 544.
(citing Alano v. Industrial Comm’n, 282 Ill. App. 3d 531, 534 (1996)). A claimant generally
satisfies the burden of establishing that he falls into the odd-lot category in one of the following
ways: (1) by showing a diligent but unsuccessful job search, or (2) by demonstrating that he will
not be regularly employed in a well-known branch of the labor market due to his age, skills,
training, and work history. Westin Hotel, 372 Ill. App. 3d at 544 (citing Alano, 282 Ill. App. 3d at
534-35). If the claimant establishes that he falls into the odd-lot category, “the burden shifts to the
employer to prove that the claimant is employable in a stable labor market and that such a market
exists.” Westin Hotel, 372 Ill. App. 3d at 544 (citing Waldorf Corp. v. Industrial Comm’n, 303 Ill.
App. 3d 477, 484 (1999)).
¶ 53 Here, the Commission first found that claimant failed to prove he fell into the odd-lot
category by showing he conducted a diligent but unsuccessful job search. Claimant does not
dispute, and the evidence of record supports, the Commission’s finding in this regard. Claimant,
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instead, disputes the Commission’s finding that he failed to prove he fell into the odd-lot category
by demonstrating there were no available jobs for a person of his age, training, education and work
history. Specifically, he argues that Helma’s opinions, as set forth in her unrebutted report, were
sufficient to establish there were no available jobs for a person in his circumstance. We agree.
¶ 54 In finding that claimant failed to prove he fell into the second odd-lot category, the
Commission, unlike the arbitrator and circuit court, rejected Helma’s opinions, finding her report
“unpersuasive” and “confusing.” Although the Commission was not required to accept Helma’s
opinions simply because AC did not offer opinions of a vocational rehabilitation expert, we note
that the Commission may not arbitrarily reject uncontradicted testimony or evidence. Sorenson v.
Industrial Comm’n, 281 Ill. App. 3d 373, 384 (1996). Where, as here, the Commission provides
reasons for rejecting the arbitrator’s credibility determination, a reviewing court considers whether
those findings are against the manifest weight of the evidence. R & D Thiel v. Illinois Workers’
Comp. Comm’n, 398 Ill. App. 3d 858, 866 (2010). Based on our review of the record, we conclude
that the Commission arbitrarily rejected Helma’s opinions and made findings that were against the
manifest weight of the evidence.
¶ 55 The Commission first found Helma’s opinions unpersuasive because her report was based
on a single telephone interview with no evaluation of claimant’s personal presentation. While
Helma acknowledged in her report that she did not personally evaluate claimant, her report clearly
demonstrates that her opinions were based on a thorough review of claimant’s medical records,
the opinions of Dr. Burton, along with information claimant provided during the telephone
interview. We find it significant that the Commission did not find that Helma’s opinions were
based on incorrect information or that claimant lacked credibility. In fact, the Commission relied
on the opinions of Dr. Burton and Helma in awarding claimant PPD benefits. Moreover, AC did
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not introduce the report or testimony of a vocational rehabilitation expert to rebut Helma’s
opinions or to otherwise show that Helma was unable to formulate her opinions without evaluating
claimant’s personal presentation.
¶ 56 The Commission also found Helma’s opinions confusing because her report indicated that
claimant had “no transferable skills, and that sedentary, unskilled occupations comprise of 1% of
the labor market” but also noted claimant’s “extensive history of skilled work, not all of which
encompass heavy duty work.” After carefully reviewing Helma’s report in the context of the entire
record, as discussed below, we cannot say that her opinions are confusing.
¶ 57 We begin by noting that the Commission, in relying on the opinions of Dr. Burton and
Helma in support of its PPD award, apparently agreed that, due to his current condition, claimant
was unable to return “to his previous level of activity and previous job” at AC, which Helma
classified at the medium level of physical demand. In her report, Helma concluded that claimant’s
current physical limitations and recommended work restrictions most closely correlated with
sedentary types of employment, which comprised approximately 11% of the labor market. Helma
explained, however, that the majority of sedentary types of employment were classified at the
skilled to highly skilled level, while unskilled sedentary types of employment comprised
approximately 1% of the labor market.
¶ 58 Helma noted that claimant’s advanced age, limited education and lack of experience with
computers would negatively impact his ability to transition into sedentary employment. In
considering claimant’s work history and transferrable skills, Helma observed that claimant’s
previous job duties resembled those of a truck driver, industrial truck operator, machine operator,
general farmworker and construction worker. Helma indicated that those positions were classified
as either semi-skilled or unskilled with either a medium or heavy level of physical demand.
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Although claimant’s most recent job as a set-up mechanic was classified as a skilled position, the
skill set claimant developed in that position similarly involved a medium level of physical demand.
As such, Helma reasonably concluded that the skills claimant had acquired from his past work
experience would likely not transfer to the sedentary types of employment classified at the skilled
to highly skilled level, leaving claimant with the unskilled sedentary types of employment that
comprised only 1% of the labor market. Helma reasoned that claimant would have added difficulty
obtaining unskilled sedentary employment because he lives in a rural area with limited
employment options. After thoroughly considering these factors, Helma opined that claimant had
lost access to a stable job market.
¶ 59 Based on our review of Helma’s report, we conclude that the Commission erred by
rejecting Helma’s opinions as “unpersuasive” and “confusing.” We find her opinions persuasive,
easily discernable and consistent with additional evidence presented at the hearing, including
claimant’s testimony, medical records, SSA documentation, as well as the medical opinions of Dr.
Burton. As noted, AC did not attempt to rebut Helma’s opinions by introducing the testimony or
report of its own vocational rehabilitation expert. We, therefore, conclude that the Commission
arbitrarily rejected Helma’s unrebutted opinions in finding claimant failed to prove entitlement to
PTD benefits under the odd-lot theory. See Adcock, 2015 IL App (2d) 130884WC, ¶ 29.
(“Although we are reluctant to disturb a factual determination made by the Commission, we will
not hesitate to do so when the clearly evident, plain, and undisputable weight of the evidence
compels an opposite conclusion.”).
¶ 60 After considering Helma’s opinions, we find that claimant presented sufficient evidence to
meet his burden of establishing that he fell into the second odd-lot category. Because AC failed to
present evidence showing that suitable work is regularly available to claimant, we hold that the
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Commission’s determination that claimant failed to prove his entitlement to PTD benefits was
against the manifest weight of the evidence.
¶ 61 III. Conclusion
¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago
County which set aside the Commission’s decision and reinstated the arbitrator’s decision.
¶ 63 Affirmed.
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