2020 IL App (1st) 191268WC-U
Workers’ Compensation Commission Division Order Filed: March 20, 2020
No. 1-19-1268WC
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
FIRST DISTRICT
AIR WISCONSIN AIRLINES, ) Appeal from the ) Circuit Court of Appellant, ) Cook County ) ) Nos. 2018 L 50342, v. ) consolidated with ) 2018 L 50343, ) 2018 L 50348, and ) 2018 L 50349 ) THE ILLINOIS WORKERS’ COMPENSATION ) COMMISSION et al., ) Honorable ) Michael F. Otto, (Thomas Costello, Appellee). ) Judge, Presiding. _____________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Holdridge and Justices Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
¶1 Held: We affirmed the circuit court’s judgment confirming the Workers’ Compensation’s decisions finding that the claimant sustained injuries to his left leg and right knee that arose out of and in the course of his employment and awarding the claimant benefits under the Illinois Workers’ Compensation Act (820 ILCS 305/1 et seq. No. 1-19-1268WC
(West 2012)), over the employers argument that the Commission’s decisions are against the manifest weight of the evidence.
¶2 Air Wisconsin Airlines (Air Wisconsin) appeals from an order of the circuit court of Cook
County that confirmed a decision of the Illinois Workers’ Compensation Commission
(Commission), which found that the claimant, Thomas Costello, sustained injuries to his left leg
and right knee that arose out of and in the course of her employment and awarded him benefits
pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)), including
temporary total disability (TTD) benefits and permanent partial disability (PPD) benefits, and
ordered it to pay certain specified medical expenses incurred by the claimant. For the reasons
which follow, we affirm.
¶3 The issues in this appeal involve the benefits awarded to the claimant for injuries to his left
leg and right knee. Consequently, the following recitation of facts taken from the evidence adduced
at the arbitration hearings held on June 19, 2017, and August 18, 2017, is limited to facts relevant
to the Commission’s award of benefits for the injuries suffered by the claimant to his left leg and
right knee.
¶4 At all times relevant, the claimant was employed by Air Wisconsin as a mechanic. The
parties stipulated that he sustained accidental injuries that arose out of and in the course of his
employment on March 10, 2007, when he fell approximately 8 feet to the ground from a ladder
while attempting to inspect the engines of an airplane. When he returned to the hanger on that
same day, the claimant slipped and fell on oil and water on the hanger floor. The claimant testified
that, as he fell, he twisted his left leg and landed on his tail bone. According to the claimant, he
experienced pain in his left leg and knee. He continued working. He stated that between March 10,
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2007, and April 28, 2007, he experienced popping and locking of his left knee, swollen hands, and
back pain.
¶5 The claimant first sought medical treatment on April 28, 2007, when he saw his personal
physician, Dr. John Oliveri. Following his examination of the claimant, Dr. Oliveri referred him
to Dr. Blair Rhode, an orthopedic surgeon. The claimant stated that, due to his work schedule, he
did not immediately make an appointment to see Dr. Rhode or return for a follow-up visit with Dr.
Oliveri.
¶6 The claimant testified that, on May 13, 2007, he slipped on fluid while working and fell to
the ground. He stated that he experienced pain in his left knee. Again, the parties stipulated that
the claimant sustained accidental injuries on that date that arose out of and in the course of his
employment with Air Wisconsin. According to the claimant, the left leg and knee symptoms that
he experienced following his March 10, 2007 fall worsened following his fall on May 13, 2007.
He stated that, following his May 13, 2007 fall, he noticed that his left leg was swollen.
¶7 On June 19, 2007, the claimant sought medical treatment at Work Net in Lester,
Pennsylvania. During that visit, the claimant complained of bilateral elbow pain and bilateral knee
pain. The initial assessment following his examination on that day was bilateral knees PFS, right
knee osteophyte or small joint body, left knee degenerative joint disease, and a possible lateral
meniscus tear. MRI scans of both of the claimant’s knees were ordered and physical therapy was
prescribed.
¶8 The claimant underwent MRI scans of both knees on June 26, 2007. The MRI of the
claimant’s left knee revealed the following: a truncated posterior horn and body of the medial
meniscus associated with medial compartment degenerative changes, most likely representing
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chronic degenerative tears; a small chondral cleft on the lateral facet of the patella associated with
surface irregularities; and moderate joint diffusion with a tiny popliteal cyst. The MRI of the
claimant’s right knee showed evidence of a small popliteal cyst.
¶9 The claimant returned to Work Net for follow-up treatment and physical therapy in July
and August of 2007. He was diagnosed with left knee degenerative joint disease and referred to
Dr. Armando Mendez at Premier Orthopedics in Ridley Park, Pennsylvania, for an orthopedic
consultation.
¶ 10 The claimant was seen by Dr. Mendez on August 20, 2007, complaining of pain in his left
knee. Following his examination of the claimant, Dr. Mendez diagnosed an acute left knee sprain
and a medial meniscal tear of the left knee and recommended surgery. The claimant was not
restricted from performing his regular work duties.
¶ 11 The claimant returned to Illinois and, on referral from Dr. Oliveri, was first seen by Dr.
Rhode on September 10, 2007. The claimant complained of worsening left knee pain, along with
popping and locking. He also reported weight gain, arthralgia and joint stiffness, and pain in his
upper and lower extremities, bilaterally. Following his examination of the claimant, Dr. Rhode
diagnosed a left meniscal internal derangement with left knee pain. He recommended that the
claimant have surgery. According to the claimant, Dr. Rhode took him off of work following that
visit. However, Dr. Rhodes records contain a notation of full duty work status.
¶ 12 On October 16, 2007, the claimant underwent the recommended surgery. Dr. Rhode
performed a left knee arthroscopic partial medial meniscectomy and video-assisted chondroplasty
to the medial femoral condyle. The claimant continued to treat with Dr. Rhode post-operatively.
Dr. Rhode testified that, following surgery, the claimant continued to complain of “moderate to
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significant” symptoms despite ongoing treatment and physical therapy.
¶ 13 Dr. Rhode’s records reflect that he took the claimant off of work on October 24, 2007. His
records also reflect that the claimant was seen on November 7, 2007, complaining of medial-sided
right knee pain, following his use of crutches for weight bearing. On recommendation of Dr.
Rhode, the claimant began physical therapy on November 13, 2007.
¶ 14 On November 28, 2007, Dr. Rhode authorized the claimant to return to full duty work. The
claimant testified that he returned to work at Air Wisconsin as a lead mechanic.
¶ 15 Following his return to work, the claimant continued to treat with Dr. Rhode throughout
2008 and 2009. During that period, the claimant continued to complain of left knee pain, for which
Dr. Rhode prescribed pain medication and physical therapy.
¶ 16 When the claimant saw Dr. Rhode on March 8, 2009, he exhibited symptoms of cellulitis
in his left lower extremity. Dr. Rhode continued to prescribe pain medication and physical therapy.
¶ 17 On March 18, 2009, the claimant had an MRI scan of his left knee. The scan failed to reveal
any evidence of a recurrent meniscal tear.
¶ 18 Dr. Rhode’s records reflect that the cellulitis in the claimant’s left leg was stable by April
3, 2009.
¶ 19 The claimant testified that, on July 9, 2009, he again slipped and fell on oil and water while
working. He stated that the fall aggravated the condition of his left leg. When the claimant saw Dr.
Rhode on August 10, 2009, he reported that his left knee pain and swelling had worsened. Dr.
Rhode prescribed pain medication but discontinued physical therapy.
¶ 20 On February 11, 2010, the claimant was working as an inspector in the hanger area of the
Philadelphia airport. According to the claimant, he was told to move his car, which was parked 10
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or 15 feet in front of the main hanger door. As he was walking to the car, he slipped on ice and
grabbed the door of his car to prevent falling to the ground. The claimant testified that, as he
slipped, his right leg went out from under him and he felt pain in his right knee. The claimant’s
version of the event was unrebutted.
¶ 21 On February 19, 2010, the claimant sought treatment at Work Net. During that visit, the
claimant reported having severely twisted his right knee when he slipped on ice on February 11,
2010, and that his right leg began to swell. Following examination, the claimant was diagnosed
with a sprain and strain of his right knee. The claimant was given work restrictions and advised to
get an MRI scan of his right knee.
¶ 22 On February 22, 2010, the claimant sought treatment for his right knee from Dr. Rhode.
He complained of right knee pain. Dr. Rhode recorded a history of the claimant having sustained
a twisting axil load injury to his right knee while working. Following his examination of the
claimant, Dr. Rhode diagnosed a medial meniscus tear of the right knee and ordered an MRI scan
of the knee. Dr. Rhode placed the claimant on light duty status.
¶ 23 On March 10, 2010, the claimant had an MRI scan of his right knee, which revealed large
joint effusion. When the claimant was seen by Dr. Rhode on that same day, he was diagnosed as
suffering from a posterior horn meniscus tear. Dr. Rhode recommended surgery and took the
claimant off of work for his right knee condition.
¶ 24 When the claimant saw Dr. Rhode on July 5, 2010, he again complained of right knee pain.
Dr. Rhode’s notes of that visit state that he discussed various options for treatment with the
claimant and that the claimant voiced his wish to proceed with surgery. According to the notes,
Dr. Rhode continued to recommend that the claimant lose weight. Those notes state that the
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“[claimant] accrued his weight gain due to his sedentary activity due to his injury.”
¶ 25 Beginning August 2, 2010, Air Wisconsin’s workers’ compensation insurance carrier
placed the claimant under medical case management by Genex for the injuries to his right knee.
Nurse Mary Ann Drafke of Genex reported an injury date of February 11, 2010.
¶ 26 On September 16, 2010, Dr. Rhode operated on the claimant’s right knee, performing a
right partial medial meniscectomy. His post-operative diagnosis was a right knee medial meniscus
tear.
¶ 27 Following surgery, the claimant continued to treat with Dr. Rhode, complaining of right
knee pain. In his notes of the claimant’s December 10, 2010 visit, Dr. Rhode noted that the
claimant was status post partial medial meniscectomy with a medial chondral lesion. Dr. Rhode
prescribed pain medication and physical therapy.
¶ 28 On December 20, 2010, the claimant was examined by Dr. Brian Cole at the request of Air
Wisconsin. In his report of that examination, Dr. Cole stated that the claimant exhibited pain in his
right lower extremity, tenderness throughout his right knee, and a limited range of motion. He
noted, however, that the claimant’s symptoms were out of proportion to the very minimal objective
findings. As to the left knee, Dr. Cole wrote that the plaintiff was tender to palpation medially with
a range of motion from 0 to 95 degrees and was warm to the touch. Dr. Cole diagnosed right knee
medial varus DJD and left knee mild to moderate osteoarthritis. According to Dr. Cole, the
claimant’s left knee condition was not related to a work injury but, rather, to a pre-existing
osteoarthritic condition that did not require any further treatment. He recommended an updated
MRI of the right knee to rule out an adverse process. Dr. Cole opined that the claimant’s complaints
relating to his right knee were the result of slipping on ice. He was also of the opinion that the
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claimant was capable of sedentary work.
¶ 29 Also on December 20, 2010, the claimant had a follow-up examination by Dr. Rhode. Upon
examination of the claimant’s right knee, Dr. Rhode found the claimant to be status post medial
meniscectomy with a medial chondral lesion. According to Dr. Rhode, based upon the surgical
images, the claimant’s right knee condition is not degenerative in nature. He recommended that
the claimant have an updated MRI of the right knee to address the condylar lesion, and he kept the
claimant on off-work status.
¶ 30 On December 28, 2010, Nurse Drafke of Genex issued a closure report stating that it was
a future goal for the claimant to reach maximum medical improvement (MMI).
¶ 31 The claimant continued treatment with Dr. Rhode throughout 2011 for both his left leg and
right knee complaints. On January 17, 2011, the claimant saw Dr. Rhode, complaining of swelling
and pain in his right knee. Dr. Rhode found evidence of pitting edema, but a DVT exam was
negative. Dr. Rhodes testified that the claimant’s physical condition continued to deteriorate due
to swelling in his lower extremities. He opined that the claimant’s left leg condition worsened as
a result of his inability to rely upon his right knee following surgery.
¶ 32 Based upon Dr. Cole’s opinion that the claimant was capable of sedentary work, Air
Wisconsin offered the claimant a sedentary position on February 2, 2011. The claimant admitted
that he did not accept the position.
¶ 33 When the claimant was seen by Dr. Rhode on February 11, 2011, he complained of
significant leg swelling. On examination, Dr. Rhode noted that the claimant’s right and left knees
were tender on the medial joint lines. Dr. Rhode prescribed continued physical therapy, and he
referred the claimant both for evaluation of his pitting edema and to a cardiac specialist.
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¶ 34 On March 7, 2011, the claimant had an MRI scan of his lumbar spine, which was ordered
due to his complaints of low back pain. The scan revealed degenerative disc disease at L4-L5,
resulting in a moderate narrowing of the central spinal canal.
¶ 35 On March 10, 2011, Air Wisconsin terminated the claimant for failing to report for work.
¶ 36 The claimant saw Dr. Rhode on March 25, 2011, complaining of bilateral knee pain.
According to Dr. Rhode’s notes of that visit, the claimant developed left knee pain due to
compensation for the condition of his right knee post-operatively.
¶ 37 On May 16, 2011, Dr. Rhode noted that the claimant had entered a lymphedema clinic. In
his notes of that visit, Dr. Rhone wrote that the claimant was experiencing left knee pain due to
the post-operative condition of his right knee. He recommended continued physical therapy for
both of the claimant’s knees.
¶ 38 In his notes of the claimant’s May 16, 2011 visit, Dr. Rhode recorded the claimant’s
complaints of ongoing left knee pain. He also noted that the claimant was receiving treatment for
lymphedema. On June 11, 2011, Dr. Rhode again noted the claimant’s ongoing lymphedema
treatment and evidence of the claimant’s significant edema.
¶ 39 The claimant was seen by Dr. Rhode on July 11, 2011, for a follow-up visit, complaining
of bilateral knee pain. On examination of the claimant’s right knee, Dr. Rhode noted patella
femoral compression and medial and lateral joint line tenderness. On examination of the claimant’s
left knee, Dr. Rhode noted medial joint line tenderness and pitting edema.
¶ 40 On October 11, 2011, the claimant reported ongoing bilateral knee pain to Dr. Rhode. The
notes of that visit indicate that the claimant was using edema gloves for swelling. Dr. Rhodes kept
the claimant on off-work status.
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¶ 41 In his notes of the claimant’s November 7, 2011 visit, Dr. Rhode recorded that the claimant
was experiencing bilateral knee pain as a result of his work accidents and that he was walking with
a cane. Dr. Rhode prescribed medication and recommended that the claimant remain off of work.
¶ 42 The claimant continued to treat with Dr. Rhode throughout 2012 on a monthly basis,
receiving pain medication and off-work authorizations. On January 9, 2012, the claimant
complained of bilateral knee pain, and it was noted that he was using both a cane and a knee brace.
¶ 43 On February 13, 2012, Dr. Rhode’s physician’s assistant (PA), Mark Bordick, noted
moderate edema in the claimant’s right leg. PA Bordick noted the same observation on May 14,
2012.
¶ 44 On June 14, 2012, the claimant was examined by Dr. M. Bryan Neal at the request of Air
Wisconsin. When deposed, Dr. Neal testified to the medical records of the claimant that he
reviewed and the extent of his examination of the claimant. He stated that the claimant described
a “hundred percent, phenomenal” recovery from the surgery performed by Dr. Rhode. Dr. Neal
was of the opinion that, as of the date of his examination, the claimant had fully recovered from
the meniscal tear he suffered on February 11, 2011, and needed no further medical treatment for
that condition. According to Dr. Neal, the claimant had a pre-existing right knee arthritic condition
and that he would have suffered pain from the condition in any case. He stated that a meniscal tear
such as the one suffered by the claimant could have arisen as the result of that arthritic condition
without any specific injury. Dr. Neal also testified that the weight the claimant gained following
his right knee surgery was not the result of the meniscal tear or his work accident of February 11,
2011. Dr. Neal was of the opinion that, absent the claimant’s mental state, obesity, and
lymphedema, the injury to his right knee would not prevent him from returning to full-duty work.
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He admitted, however, that, based upon the totality of the claimant’s symptoms, he should not
return to work as an aircraft mechanic. Dr. Neal did not release the claimant to return to work. Dr.
Neal did not believe that the claimant’s lymphedema arose solely from his work injury and
subsequent surgery. He did admit that immobility can cause swelling. He also admitted that
surgery can exacerbate lymphedema. Dr. Neal opined, however, that the claimant’s obesity,
lymphedema, and arthritis in both knees pre-existed the events of February 11, 2011.
¶ 45 As of November 5, 2012, Dr. Rhode was still prescribing pain medication for the claimant
and recommending that he remain off of work.
¶ 46 Dr. Rhode’s treatment of the claimant in 2013 consisted of prescribing medication. On
February 19, 2013, PA Bordick noted the claimant’s complaints of bilateral knee pain and
significant edema. On March 25, 2013, PA Bordick noted the claimant’s pain complaints along
with evidence of pitting edema to both of the claimant’s lower extremities. On April 22, 2013, the
claimant was referred to a lymphedema specialist.
¶ 47 On November 11, 2013, PA Bordick noted that the claimant’s significant edema precluded
surgical intervention. He recommended that the claimant undergo aqua-therapy and remain off of
work.
¶ 48 Dr. Rhodes continued to treat the claimant monthly and prescribe medication throughout
2014. On December 8, 2014, PA Bordick noted that the claimant’s condition remained the same.
He was still experiencing bilateral knee pain and significant edema. Dr. Rhode continued to keep
the claimant off of work.
¶ 49 The claimant saw Dr. Rhode throughout 2015, receiving pain medication and off-work
authorizations. Dr. Rhode’s records of January 12, 2015, and February 9, 2015, state that the
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claimant had reached MMI. On May 8, 2015, PA Bordick noted that the claimant was suffering
from increased edema into the left shoulder. On June 11, 2015, and September 14, 2015, PA
Bordick noted that the claimant’s condition remained unchanged and that he was using a
wheelchair. On December 14, 2015, Dr. Rhode again ordered that the claimant remain off of work.
¶ 50 The claimant continued to treat with Dr. Rhode for right knee pain throughout 2016. On
September 26, 2016, PA Bordick noted that the claimant’s condition remained unchanged and that
he was still using a wheelchair. Dr. Rhode again ordered that the claimant remain off of work and
noted that his condition is permanent.
¶ 51 During his treatment with Dr. Rhode in 2017, the claimant’s condition remained
unchanged. He continued to experience bilateral knee pain, was still wheelchair bound, and
remained off of work on orders of Dr. Rhode. On June 5, 2017, Dr. Rhode recommended that the
claimant have low level laser treatments, and he prescribed Ultram.
¶ 52 Dr. Rhode was deposed and testified to the treatment he rendered to the claimant from 2007
through 2017. He testified that the claimant suffered a left knee meniscus tear with a chondral
lesion to the weight bearing portion of the medial femoral condyle and opined that the claimant’s
left knee condition was the result of his work accident. Dr. Rhode based that opinion on the
mechanism of injury described by the claimant as a twisting axial load, the claimant’s subjective
complaints, his clinical findings, the MRI scans of the left knee, and his intraoperative surgical
findings. He admitted that he released the claimant to return to full duty work on November 28,
2007. Dr. Rhode stated that, assuming the claimant tolerated full duty work, he would have placed
the claimant at MMI status around April 2008. He testified, however, that he continued to provide
ongoing treatment for the claimant’s left leg and continued to prescribe medication for the
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condition. According to Dr. Rhode, the medical treatment he rendered to the claimant for his left
knee condition was reasonable and necessary.
¶ 53 As to the claimant’s right knee, Dr. Rhode testified to his treatment. According to Dr.
Rhode, the claimant suffered a medial meniscus tear of the right knee as a result of his February
11, 2010 work accident. He testified that his opinion in that regard is based on the mechanism of
injury—a twisting axial load—described by the claimant. He admitted that the claimant had
subjective signs of right knee joint tenderness as early as November 7, 2007. He believed, however,
that the claimant’s 2007 right knee complaints were compensatory in nature and not the result of
any underlying meniscal tear. Dr. Rhode stated that, by March 25, 2011, the claimant was
experiencing bilateral knee pain that was worse on the left due to compensation for the condition
of his right knee. Dr. Rhode stated that the claimant’s prognosis is guarded as he is not a candidate
for a right knee replacement due to significant lymphedema. He opined that the claimant’s post-
traumatic degenerative changes had exacerbated his weight gain and lymphedema. According to
Dr. Rhode, the claimant had not reached MMI. He stated that the medical treatment he rendered
to the claimant for his right knee condition was both reasonable and necessary.
¶ 54 When he was deposed on September 25, 2015, Dr. Rhode diagnosed the claimant with
significant weight gain and lymphedema, which were aggravated by post-traumatic degenerative
changes. According to Dr. Rhode, there was “an aggravating component to the [claimant’s]
bilateral knee surgeries and his weight gain.” Regarding the edema present in the claimant’s lower
extremities, bilaterally, Dr. Rhode observed that he noticed a significant change, including open
sores, postoperatively. He was of the opinion that the claimant’s weight gain and lymphedema
were the reason for his inability to work.
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¶ 55 The claimant testified that, prior to his work accidents, he never received medical treatment
for either his left leg or right knee. At the time of the arbitration hearings, both of the claimant’s
lower extremities were swollen. He stated that he also experiences daily swelling in his hands and
left arm, along with fluid buildup in his stomach. According to the claimant, the swelling began
after his work accidents. He testified that his left leg was approximately three times the size of his
right leg; his left foot is a size 21, whereas his right foot is a size 14; and he has fluid on both the
inner and outer thighs of both legs and the bicep of his left arm. He also stated that his “left leg,
left foot and the left shin bone looks like a tumor down there from the lymphedema.” He testified
that he experiences constant pain in both legs and walks with two canes. The claimant’s weight
increased from 270 pounds to as high as 450 pounds. At the time of the arbitration hearing, the
claimant weighed 422 pounds, 150 pounds of which was fluid.
¶ 56 The six applications for adjustment of claim filed by the claimant pursuant to the Act
sought benefits for injuries to his head, left leg and right knee sustained while working for Air
Wisconsin. The injuries to the claimant’s head which were alleged to have been sustained on
September 15, 2006, and September 29, 2006, were assigned arbitration case numbers
07WC027877 and 07WC027876, respectively. The injuries to the claimant’s injuries left leg
alleged to have been sustained on March 10, 2007, and May 13, 2007, were assigned arbitration
case numbers 07WC024016 and 07WC027875, respectively. The injuries to his left leg alleged to
have been sustained on July 9, 2009, was assigned arbitration case number 12WC023181. The
injuries to the claimant’s right knee alleged to have been sustained on February 11, 2010, was
assigned arbitration case number 10WC009235. The six cases were consolidated for hearing
purposes.
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¶ 57 Following arbitration hearings held on June 19, 2017, and August 18, 2017, the arbitrator
rendered six decisions. In case number 07WC027876, the arbitrator found that the claimant
sustained injuries to his head that arose out of and in the course of his employment with Air
Wisconsin but suffered no lost time or permanent partial disability as a result of the accident. In
that case, the arbitrator awarded the claimant medical expenses for the services rendered by Dr.
John Oliveri. As to case number 07WC027877, the arbitrator found that the claimant suffered no
lost time or permanent partial disability and, as a consequence, awarded the claimant no benefits
under the Act. In case numbers 07WC024016, 07WC027875 and 12WC023181, the arbitrator
found that the claimant sustained injuries to his left leg that arose out of and in the course of his
employment with Air Wisconsin and that his condition of left leg ill-being is causally related to
his work accidents. As the result of the injuries suffered by the claimant to his left leg, the arbitrator
awarded all of the benefits due the claimant in the decision rendered in case 07WC027875. In that
decision, the arbitrator awarded the claimant: 11 2/7 weeks of TTD benefits for the period from
September 10, 2007, through November 28, 2007; medical expenses for services rendered by Dr.
Blair Rhode of Orland Park Orthopedics, Dr. John Oliveri of Tinley Primary Care, Palos
Community Hospital, and Work Net Occupational Therapy; and permanent PPD benefits for 35%
loss of use of the left leg. In case number 10WC009235, the arbitrator found that the claimant
sustained injuries to his right knee on February 11, 2010, that arose out of and in the course of his
employment with Air Wisconsin and that his condition of right leg ill-being is causally related to
his work accident. As a consequence, the arbitrator awarded the claimant: 343 weeks of TTD
benefits for the period February 12, 2010, through September 16, 2016; medical expenses for
services rendered by Dr. Blair Rhode and Dr. John Oliveri; and PPD benefits for 35% loss of use
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of the person as a whole.
¶ 58 Both Air Wisconsin and the claimant filed petitions for review of the arbitrator’s decisions
before the Commission. The Commission consolidated the cases but assigned separate case
numbers to each claim and, on May 30, 2018, issued six separate decisions. Arbitration case
number 07WC027877 was docketed by the Commission as case number 18IWCC0331;
Arbitration case number 07WC027876 was docketed by the Commission as case number
18IWCC0332; Arbitration case number 07WC024016 was docketed by the Commission as case
number 18IWCC0335; Arbitration case number 07WC027875 was docketed by the Commission
as case number 18IWCC0333; Arbitration case number 12WC0273181 was docketed by the
Commission as case number 18IWCC0334; and Arbitration case number 10WC009235 was
docketed by the Commission as case number 18IWCC0330.
¶ 59 In case numbers 18IWCC0331, 18IWCC0332, 18IWCC0334 and 18IWCC0335, the
Commission affirmed and adopted the arbitrator’s decision. In case number 18IWCC0333, the
Commission modified the claimant’s TTD award to 6 2/7 weeks of benefits for the period from
October 16, 2007, through November 28, 2007, and affirmed and adopted the arbitrator’s decision
in all other respects. In case number 18IWCC0330, the Commission modified the claimant’s TTD
award to 343 1/7 weeks of benefits for the period from February 19, 2010, through September 16,
2016, and affirmed and adopted the arbitrator’s decision in all other respects.
¶ 60 Both Air Wisconsin and the claimant sought judicial review of the Commission’s decisions
in case numbers 18IWCC0330, 18IWCC033, 18IWCC0334, and 18IWCC0335. Neither party
sought judicial review of the Commission’s decisions in case numbers 18IWCC0331 or
18IWCC0332. The circuit court of Cook County consolidated the cases and issued a single
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decision on May 22, 2019, confirming the Commission’s decisions in all four cases under review.
Air Wisconsin filed the instant appeal.
¶ 61 Before addressing Air Wisconsin’s claims of error in this appeal, we find it necessary to
correct the circuit court’s misconception that the source of its power of review in this case is
derived from the Administrative Review Law (735 ILCS 5/ 3-101 et seq. (West 2018)). Section 3-
102 of the Administrative Review Law specifically provides that the statute only applies to
administrative decisions “where the Act creating or conferring power on the agency, by express
reference, adopts the provisions of the Administrative Review Law.” 735 ILCS 5/ 3-101 et seq.
((West 2018). The statute that created the Commission, the Illinois Workers’ Compensation Act,
does not adopt the Administrative Review Law. Consequently, the Administrative Review Law
does not control the review of Commission decisions, nor is it the source of the circuit court’s
power to review those decisions. Dobbs Tire & Auto v. Illinois Workers’ Compensation
Commission, 2018 IL App (5th) 160297WC, ¶ 17.
¶ 62 For its first assignment of error, Air Wisconsin argues that the Commission’s findings of a
causal connection between the claimant’s current condition of left leg ill-being and his
employment accidents are against the manifest weight of the evidence. Air Wisconsin notes that
the claimant was returned to full duty work on November 28, 2007, by Dr. Rhode, and he continued
to work in a full duty capacity until February 10, 2010, when he injured his right knee. According
to Air Wisconsin, Dr. Rhode did not treat the claimant for his left leg injuries from August 10,
2009, through February 22, 2010. It concludes that the injuries to the claimant’s left leg resulting
from his work accident had resolved by November 28, 2007, when he was returned to full duty
work or, at the latest, in April 2008, when Dr. Rhode testified that, assuming the claimant tolerated
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full duty work, he would have placed him at MMI.
¶ 63 Whether a causal relationship exists between a claimant’s employment and his injury is a
question of fact to be resolved by the Commission, and its resolution of the issue will not be
disturbed on review unless it is against the manifest weight of the evidence. Certi-Serve, Inc. v.
Industrial Comm’n, 101 Ill. 2d 236, 244 (1984). For the Commission’s resolution of a fact question
to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly
apparent. Tolbert v. Illinois Workers’ Compensation Comm’n, 2014 IL App (4th) 130523WC, ¶
39. 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 determination. Benson v. Industrial Comm’n, 91 Ill. 2d 445, 450 (1982).
¶ 64 The claimant testified that he experienced pain in his left leg and knee at the time of his
fall on March 10, 2007, and that his symptoms worsened following his fall on May 13, 2007. He
also testified that he noticed that his left leg began to swell following the May 13, 2007 fall. The
claimant’s June 26, 2007 MRI of his left knee revealed a tear of the medial meniscus. According
to the claimant, he never received medical treatment for his left leg prior to his work accidents. On
October 16, 2007, the claimant underwent left knee surgery and received medical treatment and
physical therapy for the knee postoperatively. The claimant’s medical records reflect that he
complained of continued pain in his left leg and was treated by Dr. Rhode during 2008. Contrary
to Air Wisconsin’s assertion, Dr. Rhode’s records establish that the claimant was treated by Dr.
Rhode for left leg pain and swelling in July and August of 2009. During those visits, the claimant
complained of left leg and knee pain, which had worsened following his fall at work on July 9,
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2009. He also complained of left leg swelling during that period. The claimant testified that his
fall while working on July 9, 2009, aggravated his left leg condition, causing increased pain and
swelling. There is no question that the claimant was returned to full duty employment on
November 28, 2007, by Dr. Rhode, and he continued to work in a full duty capacity until February
11, 2010. However, it is also clear that Dr. Rhode continued to treat the claimant’s left leg
condition in July and August of 2009, notwithstanding his testimony that, assuming the claimant
tolerated full duty work, he would have placed him at MMI in April 2008. When deposed in
September of 2015, Dr. Rhode testified that he continued to provide ongoing treatment for the
claimant’s left leg condition.
¶ 65 Dr. Rhode opined that the claimant’s left knee condition is the result of his work accidents.
In contrast, Dr. Cole opined that the claimant’s left knee condition was the result of a pre-existing
osteoarthritic condition and not a work injury. Whether a claimant’s disability is solely attributable
to a pre-existing condition is a question of fact to be resolved by the Commission. Sisbro v.
Industrial Comm’n, 207 Ill. 2d 193, 205-06 (2003). It was the Commission’s function to resolve
the conflicts in the medical opinions of Dr. Rhode and Dr. Cole, assess their credibility, and assign
weight to their testimony. ABBF Freight System v. Illinois Workers’ Compensation Comm’n, 2015
IL App (1st) 141306WC, ¶ 19. The arbitrator specifically adopted Dr. Rhode’s causation opinions,
and the Commission affirmed and adopted the arbitrator’s decision on that issue. Based upon the
record before us, we are unable to find that an opposite conclusion is clearly apparent. For this
reason, we reject Air Wisconsin’s argument that the Commission’s finding of a causal connection
between the claimant’s current condition of left leg ill-being and his employment accidents is
against the manifest weight of the evidence.
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¶ 66 Next, Air Wisconsin argues that the Commission’s award 6 2/7 weeks of TTD benefits for
the period from October 16, 2007, through November 28, 2007, for the injury to the claimant’s left
leg is against the manifest weight of the evidence. It claims that the appropriate period of TTD is
from October 24, 2007, through November 28, 2007, because it was not until October 24, 2007,
that Dr. Rhode placed the claimant on off-work status. We find no merit in the argument.
¶ 67 Air Wisconsin objects only to the TTD benefits awarded to the claimant for the period from
October 16, 2007, through October 23, 2007. However, as Air Wisconsin acknowledges in its
brief, the claimant underwent left knee surgery on October 16, 2007. That surgery consisted of a
left knee arthroscopic partial medial meniscectomy and video-assisted chondroplasty to the medial
femoral condyle. One need not be a physician to conclude that the claimant was unable to work on
the date of his surgery, and the Commission could reasonably infer that he was unable to work
during the 7 days thereafter. The duration of TTD is a factual question to be resolved by the
Commission, and its resolution of the issue will not be disturbed on review unless it is against the
manifest weight of the evidence. Archer Daniels Midland Co. v. Industrial Comm’n, 138 Ill. 2d
107, 118 (1990). Based on the record before us, we conclude that the Commission’s award of TTD
benefits for the period of October 16, 2007, through November 28, 2007, for the injury to the
claimant’s left leg is not against the manifest weight of the evidence.
¶ 68 Next, Air Wisconsin argues that that the Commission’s award of medical expenses for
treatment of the claimant’s left knee after August 2008 is against the manifest weight of the
evidence. Its argument in this regard is based upon the assertion that Dr. Rhode testified that the
claimant’s left leg condition stabilized as of April 28, 2008. According to Air Wisconsin, the
claimant’s medical records do not show a change or improvement in his left knee that would
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support the ongoing payment of medical bills. We disagree.
¶ 69 The claimant underwent left knee surgery on October 16, 2007, for a condition which Dr.
Rhode opined is causally related to his work accidents. Although Dr. Rhode testified that,
assuming the claimant tolerated full duty work, he would have placed him at MMI in April 2008
and the claimant worked full duty until February 11, 2010, the fact remains that the claimant
complained of ongoing left knee pain and was treated for the condition by Dr. Rhode subsequent
to April 2008. As noted earlier, Dr. Rhode testified that that the medical services that he rendered
were both reasonable and necessary and that he continued to provide ongoing treatment for the
claimant’s left leg condition as late as September 2015 when he was deposed.
¶ 70 Questions as to the reasonableness of medical expenses and their causal relationship to a
work-related injury are questions of fact to be resolved by the Commission, and its resolution of
such matters will not be disturbed on review unless against the manifest weight of the evidence.
Max Shepard, Inc. v. Industrial Comm’n, 348 Ill. App. 3d 893, 903 (2004). Based upon the
claimant’s medical records and Dr. Rhode’s testimony, we conclude that the Commission’s award
of medical expenses for treatment of the claimant’s left leg condition after April 2008 is not against
the manifest weight of the evidence.
¶ 71 Air Wisconsin next argues that the Commission’s finding of a causal connection between
the claimant’s current condition of right knee ill-being and his work accident of February 11, 2010,
is against the manifest weight of the evidence. Relying on the opinions of Dr. Neal, Air Wisconsin
contends that the Commission’s finding of a causal connection between the claimant’s work
accident and his condition of right knee ill-being after December 2010, “is not supported by any
credible evidence.” Specifically, Air Wisconsin relies on Dr. Neal’s opinions that: the claimant
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had a pre-existing right knee arthritic condition and that he would have suffered pain from the
condition in any case; the claimant suffered from bilateral lymphedema before his work accident
and as early as 2007; and the claimant’s ongoing swelling, weight gain, and lymphedema are not
causally related to his right knee injury.
¶ 72 The claimant argues that the evidence of record supports the Commission’s finding of a
causal relationship between his condition of right knee ill-being and his work accident of February
11, 2010. We agree with the claimant.
¶ 73 The claimant testified to having slipped on ice as he walked to his car on February 11,
2010, injuring his right knee. The claimant’s version of the event was unrebutted. He stated that
prior to the accident he had not sought medical treatment for his right knee. Eight days after the
accident, the claimant sought medical care at Work Net, complaining of right knee pain and
swelling. An MRI of the claimant’s right knee ordered by Dr. Rhode revealed a torn meniscus. On
September 16, 2010, the claimant underwent a right partial medial meniscectomy performed by
Dr. Rhode. Dr. Rhode testified that the torn meniscus that the claimant suffered was the result of
his February 11, 2010 work accident. Although the claimant complained of right knee pain when
he saw Dr. Rhode on November 7, 2007, Dr. Rhode stated that the symptoms were compensatory
in nature as a result of the claimant’s left knee surgery. The claimant continued to treat with Dr.
Rhode following his right knee surgery. Dr. Rhode’s records reflect that the claimant continued to
complain of right knee pain and swelling throughout 2010, 2011, 2012, 2013, 2014, and 2015, and
he was prescribed pain medication and physical therapy during that period. When deposed in
September 2015, Dr. Rhode testified that there was a causal connection between the claimant’s
condition of right knee ill-being and his work accident of February 11, 2010. According to Dr.
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Rhode, the claimant’s post-traumatic degenerative changes had exacerbated his weight gain and
lymphedema.
¶ 74 As stated earlier, it was the Commission’s function to resolve the conflict between Dr.
Rhode’s causation opinion and Dr. Neal’s contrary opinion. The arbitrator adopted Dr. Rhode’s
causation opinion, and the Commission affirmed and adopted the arbitrator’s decision on that
issue. We believe that the claimant’s testimony and medical records, coupled with Dr. Rhode’s
opinions, are sufficient to support the Commission’s causation finding such that an opposite
conclusion is not clearly apparent. We conclude, therefore, that the Commission’s finding of a
causal connection between the claimant’s current condition of right knee ill-being and his
employment accident of February 11, 2010, is not against the manifest weight of the evidence.
¶ 75 Air Wisconsin argues that the Commission’s award of 343 1/7 weeks of TTD benefits for
the period from February 19, 2010, through September 16, 2016, is against the manifest weight of
the evidence. It contends that, as a result of his right knee injury, the claimant was only entitled to
46 weeks of TTD benefits for the periods from March 10, 2010, through August 24, 2010, and
from September 8, 2010, through February 10, 2011. Its argument in this regard rests, in part, upon
its argument that the claimant’s current condition of right knee ill-being is not causally related to
his work accident of February 11, 2010—an argument that we have already rejected. Air
Wisconsin also bases it argument that the Commission’s TTD award is against the manifest weight
of the evidence on the following: (1) Dr. Cole’s opinion that the claimant was capable of sedentary
work as of December 20, 2010, and the claimant’s rejection of its February 2, 2011 offer of a
sedentary position; (2) Dr. Neal’s opinion that the claimant had reached MMI for his right knee
meniscal tear as of June 14, 2012; and (3) Dr. Rhode’s opinion that the claimant’s inability to work
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is due to his weight gain and lymphedema and Neal’s opinion that the claimant’s weight gain and
lymphedema are not causally related to the right knee injury that the claimant sustained while
working. We address each argument in turn.
¶ 76 The claimant injured his right knee on February 11, 2010. On February 19, 2010, the
claimant was placed on work restrictions following his examination at Work Net. On February 22,
2010, Dr. Rhode placed the claimant on light duty status; and on March 10, 2010, he took the
claimant off of work due to his right leg condition. Dr. Cole opined that the claimant was capable
of sedentary work as of December 20, 2010. However, on that same day, Dr. Rhode continued the
claimant on off-work status, and he continued the claimant’s off-work status through the date of
the arbitration hearing. On September 26, 2016, Dr. Rhode found the claimant’s condition to be
permanent.
¶ 77 An employee is temporarily totally disabled from the time that an injury incapacitates him
from work until such time as he is as far recovered or restored as the permanent character of his
injury will permit. Archer Daniels Midland Co., 138 Ill. 2d at 118. However, TTD benefits may
be suspended or terminated if the injured employee refuses work falling within his physical
restrictions. Sharwarko v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st)
131733WC, ¶ 47.
¶ 78 Relying upon Dr. Cole’s December 20, 2010 opinion as to the claimant’s work capability,
Air Wisconsin argues that the claimant is not entitled to TTD benefits after his refusal of its
February 2, 2011 offer of sedentary employment. However, Dr. Rhode, the claimant’s treating
physician, maintained him on an off-work status from December 20, 2010, through the date of the
arbitration hearing. Whether the claimant was capable of sedentary employment was the subject
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of conflicting medical opinions. By awarding the claimant TTD benefits subsequent to his refusal
of Air Wisconsin’s sedentary employment offer, the Commission obviously found Dr. Rhode’s
opinion as to the claimant’s ability to work persuasive and rejected Dr. Cole’s opinion that he was
capable of sedentary work. Whether a claimant has refused employment within his work
restrictions is a question of fact to be resolved by the Commission, and its determination will not
be disturbed on review unless it is against the manifest weight of the evidence. Otto Baum
Company, Inc. v. Illinois Worker’s Compensation Comm’n, 2011 IL App (4th) 100959WC, ¶ 13.
Clearly, the Commission determined that the claimant had not refused employment within his
work restrictions; and we are unable to conclude, based upon the record before us, that an opposite
conclusion is clearly apparent.
¶ 79 Once an injured employee has reached MMI, he is no longer eligible for temporary total
disability benefits. Archer Daniels Midland Co., 138 Ill. 2d at 118. Based upon Dr. Neal’s opinion
that the claimant had reached MMI for his right knee meniscal tear as of June 14, 2012, Air
Wisconsin argues that the Commission’s award of TTD benefits subsequent to that date is against
the manifest weight of the evidence. However, when deposed on September 25, 2015, Dr. Rhode
testified that the claimant had not reached MMI as to his right knee injury. In addition, the
claimant’s medical records reflect that Dr. Rhode continued to treat the claimant for his right knee
symptoms throughout 2012 and on an ongoing basis until the arbitration hearing. Whether a
claimant has reached MMI is a question of fact for the Commission to resolve, and its decision
will not be disturbed unless it is against the manifest weight of the evidence. Walker v. Industrial
Comm’n, 345 Ill. App. 3d 1084, 1088-89 (2004). By awarding the claimant TTD benefits for the
period subsequent to June 14, 2012, the Commission obviously found Dr. Rhode’s MMI opinion
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more persuasive than Dr. Neal’s opinion; and we are unable to conclude, based upon the record
before us, that an opposite conclusion is clearly apparent.
¶ 80 According to Air Wisconsin, Dr. Rhode’s opinion that the claimant’s inability to work is
due to his weight gain and lymphedema, coupled with Dr. Neal’s opinion that the claimant’s
weight gain and lymphedema are not causally related to the right knee injury that the claimant
sustained while working, establish that the Commission’s TTD award for the injury to the
claimant’s right knee is against the manifest weight of the evidence. Again, we disagree.
¶ 81 Whether a claimant’s weight gain and lymphedema are solely attributable to a pre-existing
condition was a question of fact to be resolved by the Commission. See Sisbro, 207 Ill. 2d at 205-
06. The claimant testified that he sought no medical treatment for his right knee condition prior to
his work-related accident. Assuming, as Air Wisconsin asserts, that the record reveals that the
claimant suffered from lymphedema as early as 2007 and was treating for that condition prior to
February 11, 2010, those facts do not necessarily establish that his current condition of right knee
ill-being is solely attributable to the pre-existing condition.
¶ 82 An employment accident need not be the sole or principal causative factor of a claimant’s
condition of ill-being. As long as the employment accident was a causative factor, recovery is
available under the Act. Sisbro, 207 Ill. 2d at 205. The claimant need only show that some act or
phase of the employment was a causative factor in the resulting injury. O’Fallon School District
No. 90 v. Industrial Comm’n, 313 Ill. App. 3d 413, 417 (2000). The claimant testified that the
swelling in his legs began following his work accidents. Dr. Rhode testified that the claimant’s
consistent complaints of bilateral knee pain were evidence of post-traumatic degenerative changes
that exacerbated his weight gain and lymphedema. Dr. Rhode’s records of the claimant’s July 5,
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2010 visit state that the claimant was gaining weight due to “his sedentary activity due to his
injury.” Dr. Rhode’s opinions, if believed by the Commission, are sufficient to support its finding
that the claimant’s current condition of right knee ill-being is causally related to his employment
accident of February 11, 2010, and its resulting award of TTD benefits.
¶ 83 The period of time during which a claimant is temporarily and totally disabled is a question
of fact to be determined by the Commission, and its resolution of the issue will not be disturbed
on appeal unless it is against the manifest weight of the evidence. Archer Daniels Midland, 138
Ill. 2d at 119-20. For the reasons stated, we conclude that the Commission’s award of 343 1/7
weeks of TTD benefits to the claimant for the period from February 19, 2010, through September
16, 2016, the date upon which Dr. Rhode found the claimant’s condition of right knee ill-being to
be permanent, is not against the manifest weight of the evidence.
¶ 84 Next, Air Wisconsin argues that the Commission’s award of medical expenses related to
the claimant’s treatment after February 10, 2011, is against the manifest weight of the evidence.
Its argument in this regard rests upon its contention that after February 10, 2011, the claimant’s
condition of right knee ill-being is not causally related to his work accident of February 11, 2010.
In the alternative, it argues that, at minimum, medical expenses should not have been awarded for
treatment after June 14, 2012, the date the claimant was found by Dr. Neal to be at MMI for his
right knee injury and in need of no further medical treatment. Having rejected both arguments
when addressed to the Commission’s award of TTD benefits, we reject the arguments as addressed
to its award of medical expenses.
¶ 85 Finally, Air Wisconsin argues that the Commission’s award of PPD benefits to the claimant
for a 35% loss of use of a person as a whole as a result of his right knee injury is against the
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manifest weight of the evidence. According to Air Wisconsin, the two meniscal tears suffered by
the claimant did not partially incapacitate him from pursuing his usual and customary line of
employment as would be required to support a PPD award under section 8(d)(2) of the Act (820
ILCS 305/8(d)(2) (West 2016)). Air Wisconsin’s argument in this regard is a restatement of its
arguments addressed to the Commission’s finding of a causal connection between the claimant’s
work accident of February 11, 2010, and his current condition of right knee ill-being—arguments
we have rejected in our earlier analysis. For the same reasons, we reject those argument addressed
to the Commission’s PPD award.
¶ 86 The nature and extent of an injured employee’s disability is a question of fact to be resolved
by the Commission, as is the issue of whether the employee is incapacitated from pursuing his
usual and customary employment as the result of an employment related injury. Sysco Food
Services of Chicago v. Illinois Workers’ Compensation Commission, 2017 IL App (1st)
170435WC, ¶ 50. Because of the Commission’s expertise, its findings as to the nature and extent
of disability should be given substantial deference. Continental Tire of America, LLC v. Illinois
Workers’ Compensation Commission, 2015 IL App (5th) 140445WC, ¶ 20.
¶ 87 Dr. Rhode found the claimant’s condition of right leg ill-being to be permanent. Dr. Neal,
Air Wisconsin’s medical examiner, testified that the claimant could not return to his previous
employment as an aircraft mechanic. Consequently, we find that the Commission’s determination
that the claimant is partially incapacitated from pursuing his usual and customary line of
employment as an aircraft mechanic is supported by the evidence of record. Further, there is
nothing in the record that would allow this court to disturb the Commission’s determination that
the injury to the claimant’s right knee caused a 35% permanent and partial loss of the person as a
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whole. Based upon the record in this case, we conclude that the Commission’s award of PPD
benefits to the claimant for a 35% loss of use of a person as a whole as a result of his right knee
injury is not against the manifest weight of the evidence.
¶ 88 For the reasons stated, we affirm the judgment of the circuit court which confirmed the
Commission’s decisions.
¶ 89 Affirmed.
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