Barnett v. Illinois Workers Compensation Comm'n
This text of 2019 IL App (4th) 180788WC (Barnett v. Illinois Workers Compensation Comm'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED November 13, 2019 Carla Bender 2019 IL App (4th) 180788WC-U 4th District Appellate No. 4-18-0788WC Court, IL Order filed November 13, 2019
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
FOURTH DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION ______________________________________________________________________________
ETHAN BARNETT, ) Appeal from the Circuit Court ) of McLean County Plaintiff-Appellant, ) ) v. ) No. 18-MR-312 ) THE ILLINOIS WORKERS’ ) COMPENSATION COMMISSION, ) ) Honorable (Diversatech Metal Fab, Inc., ) Paul Lawrence, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment.
ORDER
¶1 Held: (1) That portion of the circuit court order which confirmed the Commission’s award of permanent partial disability benefits to claimant under section 8(d)(2) of the Workers’ Compensation Act is reversed, but the circuit court order is affirmed in all other respects; (2) that portion of the Commission’s award of permanent partial disability benefits to claimant under section 8(d)(2) of the Workers’ Compensation Act is vacated; and (3) the matter is remanded to the Commission with directions to consider whether claimant proved he was permanently and totally disabled under an odd-lot theory by demonstrating because of his age, training, education, 2019 IL App (4th) 180788WC-U
experience, and condition, there are no available jobs for a person in his circumstance.
¶2 I. INTRODUCTION
¶3 Claimant, Ethan Barnett, filed an application for adjustment of claim seeking benefits
under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)) for injuries he
allegedly sustained to his back and neck on November 17, 2010, while working for respondent,
Diversatech Metal Fab, Inc. Following a hearing, the arbitrator determined that claimant’s
condition of ill-being was causally related to his work injury. The arbitrator found that the medical
and vocational evidence presented by claimant established that he was permanently and totally
disabled as a result of his work-related injuries. As such, the arbitrator awarded lifetime permanent
total disability (PTD) benefits of $431.91 per week commencing on February 24, 2016, pursuant
to section 8(f) of the Act (820 ILCS 305/8(f) (West 2010)). The arbitrator also awarded claimant
temporary total disability (TTD) benefits for 274-6/7 weeks from November 18, 2010, through
February 23, 2016, and reasonable and necessary medical expenses of $290,437.56.
¶4 Respondent appealed to the Illinois Workers’ Compensation Commission (Commission),
which affirmed and adopted the arbitrator’s findings with respect to causal connection, TTD
benefits, and medical expenses. However, the Commission vacated the arbitrator’s award of PTD
benefits, substituting in its stead a permanent partial disability (PPD) award of $259.15 per week
for a period of 250 weeks, representing the loss of use of 50% of the person as a whole pursuant
to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2010)). In reaching this conclusion, the
Commission found that there was insufficient medical evidence to establish that claimant was
permanently and totally disabled. The Commission further found that claimant did not qualify for
PTD benefits under the odd-lot category because he failed to show a diligent but unsuccessful job
-2- 2019 IL App (4th) 180788WC-U
search. Claimant thereafter sought judicial review of the Commission’s decision. The circuit court
of McLean County confirmed the decision of the Commission. 1 On appeal, claimant argues that
the Commission’s decision to vacate the arbitrator’s award of PTD benefits and substitute in its
stead a percentage-of-the-person-as-a-whole award was against the manifest weight of the
evidence. For the reasons set forth below, we reverse that portion of the judgment of the circuit
court which confirmed the Commission’s PPD award, but affirm the judgment of the circuit court
in all other respects. In addition, we vacate the Commission’s PPD award and remand the matter
to the Commission with directions to consider whether claimant demonstrated eligibility for PTD
benefits under the odd-lot category on the basis that there are no available jobs for a person in his
circumstance in light of his age, training, education, experience, and condition.
¶5 II. BACKGROUND
¶6 On November 30, 2010, claimant filed an application for adjustment of claim alleging that
he sustained injuries to his back and neck on November 17, 2010, while working for respondent.
The matter proceeded to an arbitration hearing before arbitrator Michael Nowak. The following
evidence is taken from the evidence presented at that hearing, which was held on April 5, 2016.
¶7 In November 2010, claimant was working for respondent as a sandblaster. In this position,
claimant’s duties consisted of transporting materials by hand or fork truck to and from
workstations to his sandblasting booth. Claimant would then sandblast the material and move it
to its next station. The parties stipulated that claimant sustained a work-related accident on
1 Claimant originally sought review in the circuit court of Rock Island County, but venue
was later transferred to McLean County.
-3- 2019 IL App (4th) 180788WC-U
November 17, 2010, while lifting items at work. Claimant was 21 years of age at the time of the
injury.
¶8 Following the accident, claimant sought treatment at an urgent-care facility. Claimant was
taken off work and referred for chiropractic treatment and physical therapy. In January 2011,
claimant was evaluated by Dr. George DePhillips, a neurosurgeon. At that time, claimant was
experiencing neck pain and lower back pain that radiated into the buttocks and posterolateral thighs
to the knees. Dr. DePhillips kept claimant off work, prescribed Flexeril and Norco, and ordered a
lumbar MRI. The lumbar MRI revealed (1) degenerative disc disease at the L4-L5 level, moderate
in severity, with disc space narrowing and collapse and (2) a right posterolateral annular tear. Dr.
DePhillips prescribed injections and continued physical therapy. Claimant reported that a series
of two lumbar epidural steroid injections and trigger point injections did not provide relief. Dr.
DePhillips ordered work conditioning, but claimant reported that it aggravated his back. A lumbar
discogram prescribed by Dr. DePhillips indicated concordant pain at L4-L5. A post discogram
CT scan revealed a grade 5 annular tear. Ultimately, Dr. DePhillips recommended a minimally
invasive transforaminal lumbar interbody fusion at the L4-L5 level.
¶9 Claimant was seen by Dr. Anthony Rinella, a board-certified orthopaedic spine surgeon
and respondent’s section 12 examiner (see 820 ILCS 305/12 (West 2010)), on January 28, 2011,
and June 3, 2011. Dr. Rinella diagnosed a lumbar strain and discogenic pain at L4-L5.
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FILED November 13, 2019 Carla Bender 2019 IL App (4th) 180788WC-U 4th District Appellate No. 4-18-0788WC Court, IL Order filed November 13, 2019
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
FOURTH DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION ______________________________________________________________________________
ETHAN BARNETT, ) Appeal from the Circuit Court ) of McLean County Plaintiff-Appellant, ) ) v. ) No. 18-MR-312 ) THE ILLINOIS WORKERS’ ) COMPENSATION COMMISSION, ) ) Honorable (Diversatech Metal Fab, Inc., ) Paul Lawrence, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment.
ORDER
¶1 Held: (1) That portion of the circuit court order which confirmed the Commission’s award of permanent partial disability benefits to claimant under section 8(d)(2) of the Workers’ Compensation Act is reversed, but the circuit court order is affirmed in all other respects; (2) that portion of the Commission’s award of permanent partial disability benefits to claimant under section 8(d)(2) of the Workers’ Compensation Act is vacated; and (3) the matter is remanded to the Commission with directions to consider whether claimant proved he was permanently and totally disabled under an odd-lot theory by demonstrating because of his age, training, education, 2019 IL App (4th) 180788WC-U
experience, and condition, there are no available jobs for a person in his circumstance.
¶2 I. INTRODUCTION
¶3 Claimant, Ethan Barnett, filed an application for adjustment of claim seeking benefits
under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)) for injuries he
allegedly sustained to his back and neck on November 17, 2010, while working for respondent,
Diversatech Metal Fab, Inc. Following a hearing, the arbitrator determined that claimant’s
condition of ill-being was causally related to his work injury. The arbitrator found that the medical
and vocational evidence presented by claimant established that he was permanently and totally
disabled as a result of his work-related injuries. As such, the arbitrator awarded lifetime permanent
total disability (PTD) benefits of $431.91 per week commencing on February 24, 2016, pursuant
to section 8(f) of the Act (820 ILCS 305/8(f) (West 2010)). The arbitrator also awarded claimant
temporary total disability (TTD) benefits for 274-6/7 weeks from November 18, 2010, through
February 23, 2016, and reasonable and necessary medical expenses of $290,437.56.
¶4 Respondent appealed to the Illinois Workers’ Compensation Commission (Commission),
which affirmed and adopted the arbitrator’s findings with respect to causal connection, TTD
benefits, and medical expenses. However, the Commission vacated the arbitrator’s award of PTD
benefits, substituting in its stead a permanent partial disability (PPD) award of $259.15 per week
for a period of 250 weeks, representing the loss of use of 50% of the person as a whole pursuant
to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2010)). In reaching this conclusion, the
Commission found that there was insufficient medical evidence to establish that claimant was
permanently and totally disabled. The Commission further found that claimant did not qualify for
PTD benefits under the odd-lot category because he failed to show a diligent but unsuccessful job
-2- 2019 IL App (4th) 180788WC-U
search. Claimant thereafter sought judicial review of the Commission’s decision. The circuit court
of McLean County confirmed the decision of the Commission. 1 On appeal, claimant argues that
the Commission’s decision to vacate the arbitrator’s award of PTD benefits and substitute in its
stead a percentage-of-the-person-as-a-whole award was against the manifest weight of the
evidence. For the reasons set forth below, we reverse that portion of the judgment of the circuit
court which confirmed the Commission’s PPD award, but affirm the judgment of the circuit court
in all other respects. In addition, we vacate the Commission’s PPD award and remand the matter
to the Commission with directions to consider whether claimant demonstrated eligibility for PTD
benefits under the odd-lot category on the basis that there are no available jobs for a person in his
circumstance in light of his age, training, education, experience, and condition.
¶5 II. BACKGROUND
¶6 On November 30, 2010, claimant filed an application for adjustment of claim alleging that
he sustained injuries to his back and neck on November 17, 2010, while working for respondent.
The matter proceeded to an arbitration hearing before arbitrator Michael Nowak. The following
evidence is taken from the evidence presented at that hearing, which was held on April 5, 2016.
¶7 In November 2010, claimant was working for respondent as a sandblaster. In this position,
claimant’s duties consisted of transporting materials by hand or fork truck to and from
workstations to his sandblasting booth. Claimant would then sandblast the material and move it
to its next station. The parties stipulated that claimant sustained a work-related accident on
1 Claimant originally sought review in the circuit court of Rock Island County, but venue
was later transferred to McLean County.
-3- 2019 IL App (4th) 180788WC-U
November 17, 2010, while lifting items at work. Claimant was 21 years of age at the time of the
injury.
¶8 Following the accident, claimant sought treatment at an urgent-care facility. Claimant was
taken off work and referred for chiropractic treatment and physical therapy. In January 2011,
claimant was evaluated by Dr. George DePhillips, a neurosurgeon. At that time, claimant was
experiencing neck pain and lower back pain that radiated into the buttocks and posterolateral thighs
to the knees. Dr. DePhillips kept claimant off work, prescribed Flexeril and Norco, and ordered a
lumbar MRI. The lumbar MRI revealed (1) degenerative disc disease at the L4-L5 level, moderate
in severity, with disc space narrowing and collapse and (2) a right posterolateral annular tear. Dr.
DePhillips prescribed injections and continued physical therapy. Claimant reported that a series
of two lumbar epidural steroid injections and trigger point injections did not provide relief. Dr.
DePhillips ordered work conditioning, but claimant reported that it aggravated his back. A lumbar
discogram prescribed by Dr. DePhillips indicated concordant pain at L4-L5. A post discogram
CT scan revealed a grade 5 annular tear. Ultimately, Dr. DePhillips recommended a minimally
invasive transforaminal lumbar interbody fusion at the L4-L5 level.
¶9 Claimant was seen by Dr. Anthony Rinella, a board-certified orthopaedic spine surgeon
and respondent’s section 12 examiner (see 820 ILCS 305/12 (West 2010)), on January 28, 2011,
and June 3, 2011. Dr. Rinella diagnosed a lumbar strain and discogenic pain at L4-L5. Dr. Rinella
expressed concern that on physical examination, claimant’s pain is at the L5-S1 level, while the
discogram demonstrated concordant pain at only the L4-L5 level. Dr. Rinella also expressed
concern that at claimant’s young age an L4-L5 or L4-S1 transforaminal lumber interbody fusion
would predispose him to severe arthritis in the future. Given the lack of consistency between the
-4- 2019 IL App (4th) 180788WC-U
physical examination and the discogram, Dr. Rinella recommended a functional capacity
evaluation (FCE) with permanent restrictions based thereon.
¶ 10 On July 5, 2011, claimant saw Dr. Michael Malek for a second opinion regarding surgery.
Dr. Malek agreed with the recommendation for the L4-L5 lumbar fusion and indicated that
claimant’s condition of ill-being is related to the November 17, 2010, work injury.
¶ 11 Based upon the pretrial recommendation of the sitting arbitrator in 2012, claimant was
evaluated by Dr. Fred Geisler. Claimant first saw Dr. Geisler on March 19, 2012. At that time,
claimant reported extreme discomfort and tension in his lower back with pain radiating to his legs,
mainly to the right. The pain was described as severe and was aggravated by standing, walking,
sitting, sneezing, climbing stairs, riding in a car, straining at bowels, and general activity.
Symptoms were improved by lying down and medication. Claimant’s lumbar range of motion was
moderately decreased with extension and bilateral lateral bending. Dr. Geisler diagnosed an “L4-
5 disc dessication [sic] and discogram position at L4-L5.” He attributed the condition to claimant’s
work injury. On February 11, 2013, Dr. Geisler performed an L4-L5 and L5-S1 anterior
discectomy and fusion.
¶ 12 Following surgery, claimant continued to complain of low back pain with bilateral lower
extremity pain. Physical therapy, aquatic therapy, and pain medication were prescribed. Claimant
also participated in work conditioning from June 26, 2013, to August 2, 2013. During this time,
the therapist noted that claimant had multiple shortened sessions due to his reported inability to
continue because of intense pain. As of August 2, 2013, claimant’s documented capabilities were:
frequent repetitive kneeling, frequent sustained kneeling, 40 lb. squat lift, 40 lb. power lift, 40 lb.
bilateral carry, 80 lb. pushing, 80 lb. pulling, and frequent walking. On August 6, 2013, claimant
-5- 2019 IL App (4th) 180788WC-U
refused to continue or complete the assigned activities due to intense pain. As a result, he was
discharged from the work-conditioning program due to limited progress.
¶ 13 On August 14, 2013, claimant followed up with Dr. Geisler. His chief complaint was lower
back pain that was the same or worse compared to before surgery. Claimant indicated that the
pain was aggravated in physical therapy. Claimant also indicated that he can get an erection and
climax, but nothing comes out. Dr. Geisler found these symptoms compatible with retrograde
ejaculation. Upon examination, claimant had decreased lumbar range of motion with flexion,
extension, and bilateral lateral bending. Dr. Geisler diagnosed status post L4-L5 total disc
replacement and L5-S1 anterior lumbar interbody fusion, residual lower back pain aggravated in
physical therapy/work hardening, and residual/unresolved retrograde ejaculation. A repeat lumbar
MRI was ordered. It was also recommended that claimant restart physical therapy gently and work
up.
¶ 14 On September 5, 2013, Dr. Rinella again evaluated claimant. At that time, claimant
reported lumbosacral pain that he rated at a level 7 on a 10-point scale despite taking Norco
regularly. He reported that his leg symptoms improved to some extent after the surgery but that
his lumbar back pain was worse than before the surgery. Dr. Rinella recommended a CT scan of
the lumbar spine to confirm fusion at L5-S1.
¶ 15 Claimant again attended physical therapy from September 23, 2013, through October 10,
2013, at which point therapy was discontinued due to lack of progress. On October 11, 2013,
claimant followed up with Dr. Daniel Laich, who took over for Dr. Geisler upon his retirement.
Claimant reported that he was experiencing more pain with “new” exercises in physical therapy.
Dr. Laich noted that the lumbar MRI ordered by Dr. Geisler in August revealed a large amount of
-6- 2019 IL App (4th) 180788WC-U
artifact at L4-L5 and otherwise indicated mild multi-level degenerative disc disease and
degenerative arthropathy of the lumbar spine without evidence for acquired canal stenosis or nerve
impingement. Dr. Laich administered a disability index, asking claimant to rate his ability to
perform certain tasks. In response, claimant indicated that he is able to care for himself (wash,
dress, etc.), but it is very painful; he can lift only very light weight items; pain prevents him from
walking more than four blocks, sitting more than one hour, and standing more than thirty minutes;
and pain also limits him to less than six hours of sleep, severely interferes with sexual activity, and
interferes with his social life. Claimant also indicated that while he can tolerate travel for more
than two hours, the pain is bad. Dr. Laich’s assessments were lumbar degenerative disc disease
and lumbar stenosis without neurogenic claudication. He recommended a CT scan of the lumbar
spine and referred claimant to pain management for lumbar facet injections.
¶ 16 Claimant underwent the CT scan of the lumbar spine on February 4, 2014. The radiologist
indicated an apparent left paracentral and lateral protrusion versus soft tissue attenuation at L5-S1
without significant spinal canal stenosis or neuroforaminal narrowing. On February 19, 2014, Dr.
Laich again referred claimant to pain management for lumbar facet injections. Claimant testified
he was not able to undergo the injections because they were not authorized by respondent.
¶ 17 On July 24, 2014, Dr. Rinella reviewed the February 2014 CT scan of the lumbar spine.
Dr. Rinella interpreted the study as showing “a lucency within the cage at L5-S1.” Dr. Rinella
concluded that claimant had a pseudoarthrosis (non-union) at L5-S1 and that it was “unclear the
extent to which L4-5 is contributing to his pain.” Given that claimant remained “significantly
symptomatic” more than one year after his injury, Dr. Rinella recommended a posterior
instrumented fusion at L5-S1 with consideration of extending the fusion to L4-L5. Dr. Rinella
-7- 2019 IL App (4th) 180788WC-U
stated that if claimant elects not to undergo surgery, then he has reached maximum medical
improvement (MMI). In addition, Dr. Rinella continued to recommend an FCE to set long-term
restrictions. Claimant did not undergo the procedure recommended by Dr. Rinella.
¶ 18 On November 20, 2014, at the request of his attorney, claimant attended an evaluation with
Dr. Robert Eilers. At that time, claimant indicated difficulty with activities of daily living. For
instance, claimant reported that he had problems bending over to bathe and put on socks and shoes.
He needed to sit down to put on his pants. He had problems getting in and out of bed. He had
difficulty shopping, carrying, standing, cooking, lifting overhead, cleaning, doing laundry, and
doing yard work. Claimant stated that he can sit for about an hour, stand for 20 minutes, walk for
20 minutes, and drive for an hour. Claimant also reported a great deal of sleep disruption as his
pain awakens him at night. Dr. Eilers agreed that the February 4, 2014, CT scan demonstrated
pseudoarthrosis at L5-S1. Dr. Eiler’s diagnostic impressions were L4-L5 disc herniation, L5-S1
disc herniation, status post fusion at L5-S1 and prodisc dynamic stabilizer placement at L4-L5,
L5-S1 pseudoarthrosis accounting for his increased pain, impotence and retrograde ejaculation
secondary to surgery, myofascial pain, and chronic low back pain secondary to multi-level fusion
and pseudoarthrosis. Dr. Eilers opined that claimant’s care has been reasonable and appropriate.
He opined that claimant is permanently and totally disabled from employment with or without
further surgery. Moreover, Dr. Eilers did not believe that claimant was even capable of sedentary
work since he cannot sit or stand for prolonged periods of time and has few, if any, transferable
skills.
¶ 19 In a report dated August 13, 2015, Dr. Rinella recommended permanent restrictions due to
claimant declining to undergo an FCE. Dr. Rinella opined that claimant “is clearly not disabled.”
-8- 2019 IL App (4th) 180788WC-U
Dr. Rinella noted that claimant’s daily work-conditioning reports from July and August 2013
indicated that claimant was able to consistently squat lift 40 pounds, power lift 40 pounds, two-
hand carry 40 pounds, push 80 pounds, and pull 80 pounds. Based upon these work-conditioning
reports, Dr. Rinella recommended permanent restrictions of lifting no more than 40 pounds on an
occasional basis (less than 33% of his workday) and pushing and pulling 80 pounds. Dr. Rinella
would impose no restrictions with regard to standing and sitting.
¶ 20 Based upon the permanent restrictions recommended by Dr. Rinella, respondent retained
vocational consultant Bob Hammond. On September 22, 2015, Hammond prepared a labor market
review for medically appropriate positions. Although Hammond did not meet with claimant, he
reviewed Dr. Eilers’s November 2014 notes, Dr. Rinella’s August 2015 report, claimant’s August
2013 work-discharge summary, some of claimant’s physical-therapy records, claimant’s
educational history, and claimant’s work history. Based upon Dr. Rinella’s restrictions, Hammond
opined that claimant had limitations at the medium level and identified 20 “open and available”
positions within claimant’s residual functional capacity. As such, Hammond opined that there is
a reasonable stable labor market in which claimant could find work.
¶ 21 On September 28, 2015, claimant saw Dr. Gawtham Gutta for pain management. Dr. Gutta
assessed claimant with lumbago, lumbar radiculopathy, and neuropathy. He prescribed Hysingla
ER. Claimant followed up with Dr. Gutta on December 3, 2015, at which time he prescribed
morphine sulfate. Claimant saw Dr. Udit Patel for pain management on January 11, 2016. Dr.
Patel indicated claimant is stable on the medications prescribed by Dr. Gutta. He ordered an FCE.
¶ 22 On January 21, 2016, claimant underwent the FCE. The FCE report states that claimant
was onsite for four hours on one day. Although claimant failed 6 of 14 performance criteria, the
-9- 2019 IL App (4th) 180788WC-U
evaluator concluded that the “preponderance of the evidence indicate[d] [claimant] participated
fully in testing” and exhibited “an acceptable effort *** likely represent[ing] his true status.”
Claimant demonstrated abilities in the sedentary, light, medium, and heavy levels, depending on
the activity and was classified in the medium work-demand level for activity and at the sedentary
work-demand level for endurance. The main limiting factors for return-to-work success were
identified as: (1) subjective complaints of pain in the lower back; (2) symptoms in the lower
extremities bilaterally; (3) decreased range of motion in the trunk and hips; (4) decreased isolation
strength in the legs; (5) an inability to perform activity in ranges below the waist; (6) an inability
to perform longer duration, higher frequency, and higher intensity activity without increasing the
pain; and (7) a decreased ability to perform activity in the necessary time frame for a full-duty
employee. The results of the FCE indicated claimant could function as follows:
“1. Material Handling: Occasional: floor to waist 43#, waist to shoulder 28#,
overhead 18#, 2 hand carrying 28#, push force 88#, pull force 79#. Frequent: waist high
23#, shoulder high 23#, 2 hand carrying 14#.
2. Non-Material Handling: Occasional: sitting, standing, walking, and waist-high
reaching. Frequent: grip and fine motor. Constant: nothing. Avoid: bending, squatting,
climbing, kneeling, crawling, all constant activity performance, overhead, increased
repetition, longer duration, and higher intensity activity.”
It was further noted that claimant was only able to tolerate activity for four hours and that he
needed to change positions and take frequent breaks. It was opined that he would not be able to
return to work given his condition and his inability to tolerate longer bouts of activity without
- 10 - 2019 IL App (4th) 180788WC-U
breaks or changing positions. The evaluator spoke to claimant the following day and reported that
he had increased pain in the low back and had been taking his medication and lying down.
¶ 23 Claimant followed up with Dr. Patel to review the FCE results. Dr. Patel indicated claimant
was at MMI and put him on permanent restrictions per the FCE and limited to a four-hour workday.
¶ 24 At the request of his attorney, claimant met with vocational consultant Dennis Gustafson
on February 17, 2016, for a vocational assessment. In conjunction with that meeting, Gustafson
reviewed the FCE, Hammond’s report, claimant’s operative report, the report of Dr. Eilers, and
some imaging reports. Gustafson testified by deposition regarding his findings. Claimant told
Gustafson that a friend drove him to the appointment and the driver had to stop three times so
claimant could get out of the car and walk around.
¶ 25 Gustafson noted that claimant attended high school in Arkansas for two years before
dropping out. He completed a GED, but has no additional education or formal job training. After
leaving high school, claimant had short-term jobs mowing grass, installing commercial flooring,
and assisting a roofer. In March 2008, claimant moved from Arkansas to Streator, Illinois. He
began working for respondent in January 2009 as a “paint helper” and a “sandblaster.” Gustafson
noted that sandblasting is considered an unskilled position with physical demand usually falling at
the medium level. However, the specific job performed by claimant was heavy in terms of physical
demand due to the material-handling requirements. Gustafson concluded that claimant had not
gained any skills as a result of the jobs performed by him during his brief work history. As a result,
claimant faces the job market as an entry-level worker subject to the physical limitations as set
forth in the FCE.
- 11 - 2019 IL App (4th) 180788WC-U
¶ 26 Gustafson further noted that claimant underwent low-back surgery as a result of the injury
he sustained at work in November 2010 and that claimant takes both morphine sulfate and a time
release version of morphine on a daily basis. Claimant reported that his girlfriend visits him on a
daily basis and provides him assistance with cooking, laundry, and washing the dishes. Claimant
spends most of the day sitting or lying on his couch either watching TV or using a computer that
is connected to the television. Claimant sleeps on the couch at night since he is able to contort his
body to a more comfortable position. He reports getting approximately four hours of sleep per
night. For activity, claimant walks his dog about a half mile and engages in some upper extremity
exercises. Claimant normally restricts his driving to short distances around town, generally
traveling further for medical appointments. Gustafson remarked that claimant was “very talkative”
and is the “type that just wants to dominate a conversation, perhaps wants to manipulate others in
that regard, so forth. He’s not the kind that is likely to be able to communicate effectively with
people because he’s going to not have that intent probably to listen. He’s not a good listener.”
¶ 27 Based upon his observed need to take frequent rest breaks as set forth in the FCE over a
less than four-hour period, Gustafson opined that claimant would be unable to sustain work activity
at an acceptable performance level to maintain employment. Gustafson stated that the ability to
regularly change body position without losing significant levels of productivity is normally found
in jobs most often classified as sedentary and performed in an office-type environment. Given
claimant’s lack of education or any experience suggesting competence in clerical-related tasks, it
would be unlikely for him to be considered for entry-level employment of this kind. Moreover,
Gustafson felt that it would be unlikely that claimant would be able to physically tolerate regularly
scheduled employment and meet the productivity requirements for such jobs on a sustained basis.
- 12 - 2019 IL App (4th) 180788WC-U
Additionally, Gustafson testified that employers would not hire an individual who they knew was
taking narcotic medication, such as morphine. Therefore, based upon the totality of vocationally-
relevant information, Gustafson opined that claimant is not capable of securing or sustaining
competitive employment. Gustafson opined that if claimant is to realistically re-enter the job
market, “it appears mandatory that he seek further education or training for skilled employment
potentially consistent with physical limitations.” As such, Gustafson advised claimant to seek
assistance from the vocational guidance department at the local community college.
¶ 28 On cross-examination, Gustafson agreed that according to Dr. Rinella, claimant could work
all jobs that would fall into the light physical-demand level and the majority of the jobs that would
fall into the medium physical-demand level. However, Gustafson opined that the limitations
recommended by Dr. Rinella were “not even close” to the restrictions set forth in the FCE.
Gustafson noted that the FCE indicated that while claimant could function mostly in the medium
physical-demand level for activity, he only had the endurance to work at a sedentary physical-
demand level. Gustafson opined the FCE restrictions were more consistent with a light level of
function whereas the restrictions imposed by Dr. Rinella were more consistent with a medium
level of function.
¶ 29 Gustafson acknowledged that claimant uses a keyboard for his home computer. Gustafson
stated that a data entry clerk would probably have to type 80 words per minute. Although
Gustafson did not test claimant’s typing skills, he did not believe that claimant would meet the
requirements for a job such as data entry which requires a lot of keyboarding. Gustafson also
testified that although claimant spends a lot of time on the couch, he reported doing so “lying or
- 13 - 2019 IL App (4th) 180788WC-U
in a contorted-type position,” as opposed to a position like sitting in a chair, and he changes
positions.
¶ 30 Gustafson testified that he normally recommends a part-time position for an individual who
cannot work full time to build confidence. Gustafson opined, however, that claimant is “an
individual that’s not likely to ever be given a chance to do that because of his background and—
and that he’s not really a people person from what I could tell, he’s not—he’s an irritating guy, to
be honest.” Gustafson added that he “was getting some negative vibes” from claimant and that he
“didn’t see him as being personable in the sense you’re going to put him into a people job or into
an environment where he has to relate to people quite a bit in terms of communication.” Gustafson
acknowledged that while not all jobs require someone “to be a people person or to relate to people,”
an employee has to engage in communication with others in an office setting. Gustafson
acknowledged that from the standpoint of physical capability to perform and endurance, claimant
would be “much more apt” to be able to perform a part-time position than full time. However,
Gustafson questioned claimant’s “hireability,” given his physical limitations in regard to sitting,
standing, and moving around. Gustafson felt that claimant’s employability was not realistic absent
claimant obtaining some type of skill development for a job that meets his physical requirements.
¶ 31 Dr. Rinella testified by deposition twice, once on January 18, 2012, and once on February
17, 2016. Relevant here, Dr. Rinella noted that pursuant to his report of August 13, 2015, he
established restrictions for claimant based on his daily work-conditioning reports from July and
August 2013, because claimant had yet to undergo an FCE. Notably, claimant was able to lift
from a squatted position 40 pounds and power lift 40 pounds. Further, claimant could two-hand
carry 40 pounds and push and pull a slab weighing 80 pounds. Therefore, Dr. Rinella set
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claimant’s restrictions to lift no more than 40 pounds on an occasional basis, i.e., 33 percent or
less of his workday. Dr. Rinella also limited claimant to pushing and pulling 80 pounds maximum.
Dr. Rinella imposed no limitations with respect to sitting and standing. Dr. Rinella did not believe
that claimant was disabled and opined that many lines of employment fit within the restrictions he
imposed.
¶ 32 Dr. Rinella noted that after he authored his final report on August 13, 2015, claimant
underwent an FCE. Dr. Rinella reviewed the FCE. Dr. Rinella allowed that the restrictions set
forth in the FCE were “more thorough” than those he imposed, but opined that his assessment was
“probably within five pounds, if that” and the FCE results did not change his opinion. Dr. Rinella
testified that he did not “go into overhead activities and things of that nature” because he did not
have a basis to provide that, but opined that these numbers “would all fall within the same
framework.” With respect to the FCE’s finding that claimant terminated the evaluation after four
hours, Dr. Rinella noted that the half day of the FCE was longer than the 33% of the workday he
specified in his restrictions. Dr. Rinella felt that claimant could work a full day within the
restrictions identified in the FCE. While Dr. Rinella opined that while claimant is not permanently
disabled as demonstrated on the FCE, he “would encourage [claimant] not to use his back for a
living.” Dr. Rinella testified that claimant should consider the surgery he recommended because
if he has pseudoarthrosis, he has a treatable pain generator. Dr. Rinella explained that
pseudoarthrosis means “false joint” and, in claimant’s situation, signifies a lack of fusion across a
joint or a failed fusion. Dr. Rinella testified that a pseudoarthrosis is “less stable in theory than a
fused spine, but it’s much more stable than a normal spine.” He stated that claimant’s spine was
“extremely stable” despite the pseudoarthrosis and caused no instability in claimant’s case. Dr.
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Rinella testified that even in the absence of surgery, claimant would not be “disabled on any level
as the functional capacity evaluation demonstrates.”
¶ 33 On cross-examination, Dr. Rinella testified that the restrictions he recommended were
based in part on his last examination of claimant in September 2013, but mostly on the daily work-
conditioning reports in July and August 2013. Dr. Rinella acknowledged that he did not see
claimant or have any of his records beyond September 5, 2013. He stated, however, that if
claimant’s symptoms remained unchanged, his recommendations would be accurate. Even if
claimant had increased leg symptoms after September 5, 2013, it would not change his opinion
because having leg pain does not necessarily lower one’s function or ability to lift.
¶ 34 Dr. Rinella described an FCE as “a one-day visit pushing the maximum limits.” He
testified that the FCE did not have any basis for justifying claimant’s ability to sit, stand, or stoop
because those functions were not measured. Dr. Rinella further acknowledged that on July 19,
2012, he encouraged claimant to avoid manual labor in the future and reiterated that he continues
to recommend that he avoid manual labor. He testified that he considers working on an assembly
line, working as a picker/packer, and working as a janitor to be manual labor. He admitted that he
never documented any symptom magnification and that he believed claimant’s pain complaints
were legitimate and genuine. He also agreed that pseudoarthrosis can cause increased levels of
pain. Dr. Rinella indicated that it was not unusual for a patient to indicate he was “laid up” after
an FCE because the purpose of such an evaluation is to push the patient “beyond the final
restrictions.”
¶ 35 Hammond also testified by deposition. Hammond evaluated the vocational abilities of
claimant by conducting a file review because his request to conduct an in-person interview of
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claimant was refused. Hammond prepared two reports relative to his evaluation. The first report,
dated September 22, 2015, consisted of a file review and a labor market survey. In relation to the
first report, Hammond utilized standardized vocational research materials and reviewed physical
therapy records and records from Dr. Eilers and Dr. Rinella. Hammond also prepared an
addendum dated March 12, 2016, in response to some new medical information, including the
FCE, a physician’s update from Dr. Rinella, and Gustafson’s vocational report.
¶ 36 Hammond testified that he evaluated the labor market based on claimant’s medical
restrictions and abilities. Hammond examined mostly lower medium level categories, light
categories, and sedentary categories. Hammond attempted to identify positions that fit within Dr.
Rinella’s restrictions, which were based on the restrictions and limitations in the work-
conditioning report. Hammond testified that he used the limitations identified by Dr. Rinella
because Dr. Rinella was the only one who identified specific limitations.
¶ 37 Hammond identified several positions falling within claimant’s restrictions, including
switchboard jobs, assembly-line positions, telephone jobs, janitorial jobs, manual forklift
positions, sterile processor, and spray painting. Hammond testified that the physical-demand
capacity of these positions ranged from sedentary to the low-medium level. Hammond testified
that the wages for the positions ranged between $8 and $13 an hour, with an average hourly wage
of $11. Hammond testified that although his labor market survey involved only full-time positions,
there are usually part-time positions available through temporary employment agencies.
Hammond concluded that there are positions “readily available” that fit within claimant’s profile
of which claimant can avail himself. Hammond testified that there is a reasonably stable labor
market for somebody with claimant’s “profile.”
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¶ 38 Hammond noted that claimant presented for an FCE on January 21, 2016. Hammond
testified that the most significant finding from the FCE is that claimant was classified at the
medium work-demand level, although he also demonstrated abilities at the sedentary, light, and
heavy levels depending on the activity. Hammond noted that claimant stopped the evaluation after
four hours. Hammond classified the stop as a “subjective stop,” meaning that he did not see
anything in the evaluation indicating that the evaluator wanted him to stop because of
physiological responses on the evaluation.
¶ 39 Hammond disagreed with Gustafson’s opinion that claimant cannot work. He explained
that the FCE indicates that claimant could work minimally at the light level and at a sedentary
level with no problems. Hammond also questioned Gustafson’s recommendation that claimant go
back to school if, as Gustafson found, claimant cannot work. Hammond felt that if claimant can
attend school full time, he can work full time. Hammond testified that claimant’s background in
manual labor does not preclude him from obtaining a clerical position, noting that there are entry-
level clerical jobs.
¶ 40 On cross-examination, Hammond testified that he was not aware of Dr. Rinella’s opinion
that claimant should avoid manual labor. Hammond testified that this opinion was not relevant to
his opinion. He added, however, that he would have to ascertain Dr. Rinella’s definition of manual
labor. He further noted that claimant’s FCE indicated that claimant could work at the medium
level which would include some manual labor. He conceded that his opinions were based upon
claimant being capable of working a 40-hour work week. He admitted that he never met claimant
and does not have a feel for his communication skills or personality. He testified that he agreed
with Gustafson that claimant did not have transferrable skills. Hammond conceded that he did not
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have the record from Dr. Patel dated February 24, 2016, within which Dr. Patel set forth restrictions
based upon the FCE of January 21, 2016.
¶ 41 Dr. Robert Eilers also testified by evidence deposition. Dr. Eilers is board certified in
physical medicine and rehabilitation. On November 20, 2014, Dr. Eilers examined claimant at the
request of claimant’s law firm and generated a report of his findings. Claimant told Dr. Eilers that
on November 17, 2010, he was working as a laborer for respondent, when he injured his back and
neck. Eventually, claimant underwent an L4-L5 transforaminal fusion by Dr. Geisler on February
11, 2013. Claimant continued to complain of pain and numbness following surgery.
¶ 42 Claimant reported that he can walk only short distances without discomfort. Claimant also
reported problems with coordination, balance, sleeping, bathing, getting dressed, shopping,
standing, carrying, lifting overhead, cleaning, doing laundry, and doing yard work. Claimant can
do these things, but he cannot do them continuously. Claimant’s biggest problem is bending over.
Following a physical examination, Dr. Eilers diagnosed an L4-L5 disc herniation. Dr. Eilers noted
that claimant had a fusion done at L5-S1 and also a newly diagnosed L5-S1 pseudoarthrosis
(nonunion). Dr. Eilers opined that the diagnostic impressions were causally related to the work
accident of November 17, 2010. Dr. Eilers did not envision claimant being “competitively
employed” and noted that he certainly cannot return to heavy work. At the very best, claimant
may be able to “intermittently do sedentary type tasks” on a part-time basis. Dr. Eilers did not
believe that claimant could work eight hours a day because he always has to change positions. Dr.
Eilers opined that if claimant were to work, he would need to be on narcotic analgesics. Dr. Eilers
opined that claimant’s deficits are permanent.
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¶ 43 On cross-examination, Dr. Eilers acknowledged that claimant’s work-conditioning records
indicated that claimant was able to perform “a number of activities.” Dr. Eilers explained that
while claimant can “do things,” his spine is “unstable” and he is profoundly limited in what he can
do competitively eight hours a day, forty hours a week. Moreover, even if claimant were able to
perform desk work standing or sitting, he is without experience in that type of field.
¶ 44 Claimant testified that following the FCE, he was laid up for two or three days because of
the pain. He testified that at the time of the hearing he was experiencing pain at a level seven or
eight. He has constant low back pain that radiates to the legs. The constant back and leg pain that
he feels is increased with physical activity, movement, and sitting in the same position for a period
of time. He can generally sit for 5 to 20 minutes, but can sit longer “if [the] situation calls for it.”
He can be on his feet 10-20 minutes and then will experience increased pain. He testified that he
weighed 180 pounds at the time of the November 2010 work accident and now weighs
approximately 220 pounds. He takes a hot bath with Epsom salt every day for up to an hour, which
seems to reduce some of the pain. He sleeps three to five hours in a typical night. He testified that
he is always exhausted. He is able to dress himself. He performs household chores like the laundry
and doing dishes by taking breaks about every five minutes. He walks his dog twice a day for
anywhere from 5 to 15 minutes. He is able to exercise and hike. He sometimes sits on the couch,
watching television or using a computer. Claimant knows how to type and uses the computer to
play games, check his email, or look at Facebook. He stated that he has to take breaks while using
the computer or doing chores. Claimant continues to experience retrograde ejaculation. This has
made his sex drive almost non-existent and made him depressed. He has not attempted to find
work within the restrictions placed upon him by Dr. Patel because he has such a hard time just
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doing normal activity around the house and it is a struggle even driving in a car as he needs to take
a break every 20 minutes. He has not sought further education for the same reasons. Claimant
acknowledged that since his accident in November 2010, he has not attempted to look for a job,
done a job search, or completed a job application. Claimant testified that he never considered
going into service type work because he lacks people skills, has no patience, and gets aggravated
easily.
¶ 45 Claimant acknowledged that he stopped the FCE in January 2016 after four hours based on
his complaints of pain. Claimant testified that he wanted to stop earlier, but the evaluator
encouraged him to “get a full four hours in.” Claimant testified that he has considered undergoing
additional surgery, but does not wish to do it because of the problems he had after the first surgery.
He believes that the surgery made everything worse and that he does not trust another surgery.
¶ 46 Based on the foregoing evidence, the arbitrator determined that claimant’s condition of ill-
being was causally related to his work injury. The arbitrator found that the medical and vocational
evidence presented by claimant established that he was permanently and totally disabled as a result
of his work-related injuries. As such, the arbitrator awarded lifetime PTD benefits of $431.91 per
week commencing on February 24, 2016 (the date that Dr. Patel found claimant to be at MMI),
pursuant to section 8(f) of the Act (820 ILCS 305/8(f) (West 2010)). The arbitrator also awarded
claimant TTD benefits from November 18, 2010, through February 23, 2016, a period of 274-6/7
weeks pursuant to section 8(b) of the Act (820 ILCS 305/8(a) (West 2010)) and reasonable and
necessary medical expenses of $290,437.56 pursuant to section 8(a) and 8.2 of the Act (820 ILCS
305/8(a), 8.2 (West 2010)).
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¶ 47 Respondent appealed to the Commission, which affirmed and adopted the arbitrator’s
findings with respect to causal connection, TTD benefits, and medical expenses. However, the
Commission vacated the arbitrator’s award of PTD benefits for life pursuant to section 8(f) of the
Act (820 ILCS 305/8(f) (West 2010)), substituting in its stead a PPD award of $259.15 per week
for a period of 250 weeks, representing the loss of use of 50% of the person as a whole pursuant
to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2010)). In reaching this conclusion, the
Commission found that there was insufficient medical evidence to establish that claimant was
permanently and totally disabled. The Commission further found that claimant did not qualify for
PTD benefits under the odd-lot category because he failed to show a diligent but unsuccessful job
search. Claimant thereafter sought judicial review of the Commission’s decision. The circuit court
of McLean County confirmed the decision of the Commission. This appeal by claimant ensued.
¶ 48 III. ANALYSIS
¶ 49 On appeal, claimant argues that the Commission’s decision to vacate the arbitrator’s award
of permanent and total disability benefits for life and substitute in its stead a percentage-of-the-
person-as-a-whole award was against the manifest weight of the evidence.
¶ 50 An employee is permanently and totally disabled if he or she is obviously unemployable,
i.e., unable to make some contribution to industry sufficient to justify the payment of wages or
there is medical evidence to establish a claim of PTD. Sharwarko v. Illinois Workers’
Compensation Comm’n, 2015 IL App (1st) 131733WC, ¶ 53. However, an employee need not be
reduced to complete physical incapacity to be entitled to PTD benefits. Ceco Corp. v. Industrial
Comm’n, 95 Ill. 2d 278, 286-87 (1983). If an employee’s disability is limited and it is not obvious
that the employee is unemployable, the employee may nevertheless demonstrate an entitlement to
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PTD by proving he or she fits within the “odd lot” category. Westin Hotel v. Industrial Comm’n,
372 Ill. App. 3d 527, 544 (2007). The odd-lot category consists of employees who, “though not
altogether incapacitated for work, [are] so handicapped that [they] will not be employed regularly
in any well-known branch of the labor market.” Valley Mould & Iron Co. v. Industrial Comm’n,
84 Ill. 2d 538, 547 (1981) (citing 2 Arthur Larson et al., Workmen's Compensation § 57.51, at 10-
164.24 (1980)). An employee generally fulfills the burden of establishing that he or she falls into
the odd-lot category in one of two ways: (1) by showing a diligent but unsuccessful search for
employment or (2) by demonstrating that because of age, training, education, experience, and
condition, there are no available jobs for a person in his or her circumstance. Professional
Transportation, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 100783WC, ¶
34; Alano v. Industrial Comm’n, 282 Ill. App. 3d 531, 534-35 (1996). If an employee makes this
showing, the burden shifts to the employer to show that some kind of suitable work is available to
the employee. Westin Hotel, 372 Ill. App. 3d at 544. This issue presents a question of fact.
Professional Transportation, Inc., 2012 IL App (3d) 100783WC, ¶ 33. In resolving questions of
fact, it is within the province of the Commission to assess the credibility of witnesses, resolve
conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable
inferences from the evidence. Hosteny v. Illinois Workers’ Compensation Comm’n, 397 Ill. App.
3d 665, 674 (2009). We will not overturn the decision of the Commission regarding the nature
and extent of an injury unless it is against the manifest weight of the evidence. Professional
Transportation, Inc., 2012 IL App (3d) 100783WC, ¶ 33. A decision is against the manifest weight
of the evidence only if an opposite conclusion is clearly apparent. Professional Transportation,
Inc., 2012 IL App (3d) 100783WC, ¶ 33. Thus, where the Commission’s inferences are
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reasonable, such inferences cannot be disregarded because other inferences might have been drawn
from the same facts. Berry v. Industrial Comm’n, 99 Ill. 2d 401, 406-07 (1984).
¶ 51 In this case, claimant argues that he established permanent and total disability by a
preponderance of the medical evidence. However, the Commission found that there was no
definitive medical opinion that claimant was permanently and totally disabled from working. The
evidence of record supports this finding. While the notes from Dr. Eilers’s November 2014
evaluation indicate that claimant was permanently and totally disabled from competitive
employment, Dr. Eilers admitted in his deposition testimony that claimant may be able to
“intermittently do sedentary type tasks” on a part-time basis. See Hallenbeck v. Industrial
Comm’n, 232 Ill. App. 3d 562, 569 (1992) (noting that the ability to perform sedentary work
militates against a finding of permanent and total disability). Dr. Rinella was more definitive,
opining in his report of August 13, 2015 (before claimant underwent an FCE), that claimant “is
clearly not disabled” and that he could return to work in accordance with the permanent restrictions
set forth in the daily work-conditioning reports of July and August 2013. Dr. Rinella further
testified at his second deposition (after claimant underwent the FCE) that claimant could work a
full day within the restrictions set forth in the FCE. The FCE classified claimant at the medium
work-demand level for activity and at the sedentary work-demand level for endurance. Dr. Patel
also determined that claimant was capable of returning to work within the permanent restrictions
set forth in the February 2016 FCE, albeit limited to a four-hour workday. And while claimant
asserts that “a 4-hour workday in and of itself restricts [him] to work that is not full-time, regular
and continuous,” he cites no authority that the availability of only part-time work entitles him to
PTD benefits. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring the appellant’s brief to
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include “[a]rgument, which shall contain the contentions of the appellant and the reasons therefor,
with citation of the authorities.”) More importantly, however, Dr. Rinella imposed no such
restriction and, as noted above, expressly testified at his deposition that claimant could work a full
day within the restrictions identified in the FCE. At best, then, the medical evidence is conflicting
with respect to whether claimant established a claim of permanent and total disability by way of
the medical evidence. As noted above, it is within the province of the Commission to resolve
conflicts in the evidence. Hosteny, 397 Ill. App. 3d at 674. Here, the Commission resolved this
conflict against claimant, finding that the testimony of respondent’s medical witnesses was more
persuasive than the testimony of claimant’s medical witnesses. Given the evidence of record, we
cannot say that a finding opposite that of the Commission is clearly apparent. As such, we cannot
conclude that the Commission’s finding that the medical evidence did not establish that claimant
is permanently and totally disabled is against the manifest weight of the evidence.
¶ 52 Since claimant did not establish that he is permanently and totally disabled by a
preponderance of the medical evidence and because claimant does not otherwise assert that he is
obviously unemployable, claimant was required to demonstrate entitlement to permanent and total
disability benefits by proving he fits within the odd-lot category. Westin Hotel, 372 Ill. App. 3d
at 544. As noted above, an employee generally fulfills the burden of establishing that he or she
falls into the odd-lot category by showing a diligent but unsuccessful search for employment or by
demonstrating that because of age, training, education, experience, and condition, there are no
available jobs for a person in his or her circumstance. Professional Transportation, Inc., 2012 IL
App (3d) 100783WC, ¶ 34; Alano, 282 Ill. App. 3d at 534-35. Here, the Commission concluded
that claimant failed to establish that he conducted a diligent but unsuccessful job search. Claimant
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does not dispute the Commission’s finding on this point. Indeed, the record undeniably supports
the Commission’s finding. In this regard, claimant admitted at the arbitration hearing that he never
attempted to find work within the restrictions imposed by Dr. Patel, he has not enrolled in school,
and he has not participated in any vocational training. Hence, claimant had to demonstrate that
because of his age, training, education, experience, and condition, there are no available jobs for a
person in his circumstance.
¶ 53 Claimant argues that he met this burden through Gustafson, his vocational expert, and his
own testimony. However, the Commission never addressed whether claimant established that he
fell into the odd-lot category by demonstrating that because of his age, training, education,
experience, and condition, there are no available jobs for a person in his circumstance. This is so
despite the fact that respondent sought reversal of the arbitrator’s decision before the Commission
on the basis that claimant failed to satisfy his burden under either prong of the odd-lot analysis.
Instead, after finding that claimant failed to show a diligent, but unsuccessful job search, the
Commission terminated its analysis and concluded that claimant “does not qualify to be declared
permanently and totally disabled from gainful employment under an odd-lot theory.” This was
error as the Commission failed to consider the second method of establishing odd lot. Accordingly,
we reverse that portion of the circuit court order which confirmed the Commission’s award of PPD
benefits to claimant under section 8(d)(2) of the Act, but affirm the circuit court in all other
respects. Furthermore, we vacate that portion of the Commission’s award of PPD benefits to
claimant under section 8(d)(2) of the Act and we remand the matter to the Commission for further
proceedings consistent with this order. Upon remand, the Commission shall make appropriate
findings of fact and conclusions of law necessary to determine whether the claimant proved he was
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permanently and totally disabled under an odd-lot theory by demonstrating that because of his age,
training, education, experience, and condition, there are no available jobs for a person in his
circumstance. If the Commission concludes that claimant did sustain his burden in this regard, the
burden shifted to respondent and the Commission shall consider whether respondent showed that
some kind of suitable work is available to claimant. We voice no opinion on the ultimate outcome
of these issues.
¶ 54 IV. CONCLUSION
¶ 55 For the reasons set forth above, the judgment of the circuit court of McLean County is
affirmed in part and reversed in part, the decision of the Commission is vacated in part, and the
matter is remanded to the Commission for further action consistent with this order.
¶ 56 Circuit court affirmed in part and reversed in part; Commission decision vacated in part
and remanded with directions.
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