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ILLINOIS WORKERS' COMPENSATION
COMMISSION DIVISION
FILED: March 9, 2005

No. 1-04-1986WC

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
ILLINOIS WORKERS' COMPENSATION COMMISSION DIVISION

 JUSTICE HOFFMAN delivered the opinion of the court:

Boyd Electric appeals from an order of the circuit court confirming a decision of theIndustrial Commission (Commission),⁽¹⁾ awarding the claimant, William Dee, benefits under theWorkers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). For the reasons whichfollow, we affirm.

The following facts were established by the testimony and exhibits presented at thearbitration hearing. The claimant testified that he began working for Boyd Electric as ajourneyman electrician in July 2000. He was first assigned to work on a hotel constructionproject where his job entailed installing conduit pipe in the stairwell of a fifteen-story building. According to the claimant, he was required to carry 20-pound bundles of conduit, drill intoconcrete blocks on the stairwell, and install the conduit. The claimant stated that, near the end ofthe hotel project, he noticed that he was limping and felt as if he had "pulled a groin". He did not,however, seek any medical attention for his pain.

In February 2001, Boyd Electric assigned the claimant to work on a new CVS drugstorethat was under construction. His job required him to set up the electrical infrastructure in thestore, which included installing electrical outlets and overhead lights, cutting and bending conduitpipes, and using a drill to anchor parts needed for installation. The claimant stated that he climbedup and down ladders, sometimes "50 times a day," and also used a motorized power lift to installthe infrastructure in the store. According to the claimant, on March 26, 2001, he was on thepower lift when he encountered an 80 or 100 pound spool of wire in his path. He testified that, ashe was picking it up, he "felt like [his] left foot fell out" and noticed a sharp pain in his abdomen, afeeling he had "never felt before in [his] life". The claimant stated that, prior to this time, he hadnever had a problem with his left leg or hip. After reporting the incident to a foreman, theclaimant continued working that day.

The following day, the claimant went to see his family physician, Dr. Peter Jurek. Dr.Jurek's notes indicate that the claimant complained of left upper leg pain and weakness "x onemonth". He noted that the pain was worse at night and improved during the course of the day. Dr. Jurek indicated that the claimant's pain became worse after he lifted an 80-pound object atwork, and he was barely able to walk "the last few days". Dr. Jurek prescribed Celebrex andreleased the claimant to work as of March 30, 2001.

After returning to work, the claimant went back to see Dr. Jurek on April 9, 2001. Dr.Jurek's notes of that visit indicate that, since the claimant returned to work, the pain in his upperleft leg had become more severe, he complained of pain in his right calf, and he was unable towalk more than a short distance. Dr. Jurek referred the claimant to the Parkview OrthopedicGroup (Parkview). The claimant testified that he did not return to work after April 9, 2001.

On April 30, 2001, the claimant went to see Dr. Kevin Luke at Parkview. Dr. Luke'snotes of that visit indicate that the claimant felt a pull in his left groin while pulling a heavy coilwire on March 26, 2001. Dr. Luke diagnosed the claimant as having a left groin and adductorstrain. He prescribed Vioxx for the pain and recommended a course of physical therapy.

The claimant next saw Dr. Luke on May 30, 2001. Dr. Luke recommended that theclaimant continue with physical therapy. He also scheduled an MRI scan of the claimant's pelvicregion, which was done a week later.

On June 13, 2001, Dr. Luke reviewed the results of the MRI scan with the claimant. Hisnotes indicate that the scan showed evidence of edematous changes in the claimant's bilateralfemoral heads. Dr. Luke diagnosed the claimant as having a left groin adductor strain andavascular necrosis. With respect to causation, Dr. Luke stated in his notes: "I do believe that hisadductor strain is secondary to his work-related injury. Obviously, his avascular necrotic changesof his bilateral hips are probably not."

When Dr. Luke saw the claimant two weeks later, he noted that the claimant complainedof increased discomfort in his left hip and groin area. With respect to the claimant's avascularchanges, Dr. Luke opined as follows:

"I am not convinced, nor do I believe that his avascular changes are secondary to awork-related injury. This is prefaced by the fact that it is bilateral in nature. Ineither case, because of his increasing pain and disability, [the claimant] needs to getthis treated."

Dr. Luke placed the claimant on crutches and referred him to Dr. Aaron Rosenberg, anorthopedic surgeon specializing in adult lower extremity reconstruction.

The claimant first saw Dr. Rosenberg on July 12, 2001. His notes state that the claimanthad no significant hip problems prior to March 2001, but he subsequently "experienced arelatively sudden onset of left hip pain when he went to squat down and picked up a roll of wire." Dr. Rosenberg reviewed the claimant's medical records and history, and conducted a physicalexamination. Dr. Rosenberg diagnosed the claimant as having avascular necrosis of his right andleft hip and recommended a total hip arthroplasty on the left side and a core decompression on theright side. He scheduled the claimant for a total hip arthroplasty for August 20, 2001. On thatsame date, Dr. Rosenberg wrote a letter to Tarra Benson, a claims adjuster working for BoydElectric's insurance carrier, in which he expressed his opinion as to causation as follows:

"It is my impression, within a reasonable degree of medical certainty, the[claimant's] left hip complaints are consistent with this avascular necrosis whichwas most likely not caused by his work injury but certainly was exacerbated by theinjury he sustained on March 26, 2001.

Therefore, while his underlying osteonecrosis is not likely due to his injury,his condition was certainly exacerbated by the trauma he sustained while at workon March 26, 2001."

In a letter dated July 20, 2001, Benson requested that Dr. Rosenberg clarify his opinionsas to causation. To that end, Dr. Rosenberg noted in a letter dated July 26, 2001, that, withrespect to the claimant's avascular necrosis, he was asymptomatic prior to the March 26, 2001,incident. He concluded as follows:

"Therefore, it is my opinion, that based on his history, as well as the natural historyof avascular necrosis, this was a preexisting condition which was exacerbated bythe work injury. I certainly do not think the contralateral hip osteonecrosis was inany way caused or exacerbated by this injury. However, it should be known theincrease in symptoms which have followed this work injury have caused him tofavor the opposite leg which may contribute to progression of his symptoms on theother side."

Benson then inquired whether Dr. Rosenberg's opinion would change in light of Dr.Jurek's March 27, 2001, notes indicating that the claimant had a history of pain for one monthprior to the alleged incident. Dr. Rosenberg responded by letter dated August 15, 2001, statingthat it was his understanding that the claimant had minimal complaints of hip pain which did notinhibit his ability to work until the incident at work on March 26, 2001. He further explained thatit was after the work injury that the claimant's hip pain became exacerbated, thereby causing himpain while walking and limiting his ability to work.

Dr. Rosenberg's deposition testimony which was received into evidence at the arbitrationhearing is consistent with the matters contained in his medical notes and the letters to Benson. When asked if his opinion as to causation would have changed if the claimant was symptomaticprior to the date of the incident, he responded, "I guess it would depend on the degree to whichhe was symptomatic. *** If he had very little discomfort but some discomfort and then he had aninjury following which he had more discomfort, I would again say it was exacerbated."

On August 20, 2001, Dr. Rosenberg performed a total left hip replacement on the claimantat Rush-Presbyterian St. Luke's Medical Center. Post-operatively, Dr. Rosenberg instructed theclaimant to remain off work.

At the request of Boyd Electric's insurance carrier, Dr. William Dobozi, an orthopedicsurgeon, was asked to review the claimant's medical records. Dr. Dobozi disclosed his opinions ina letter dated February 8, 2002, directed to Boyd Electric's insurance carrier, and in asupplemental letter dated April 18, 2002, which he prepared after having examined the claimant. Dr. Dobozi stated that the claimant had reported injuring his left hip at work while lifting a heavyreel of wire on March 26, 2001. It was his opinion that, although the claimant suffered frombilateral avascular necrosis of the hips, the need for surgery on his left hip was not caused oraggravated by his alleged injury at work. In reaching his opinion, Dr. Dobozi relied on Dr. Luke'sMarch 27, 2001, notes in which he reported that the claimant was having pain and weakness in hisleg for a month prior to the incident at work. He also reviewed the claimant's MRI scan, andnoted that there was no evidence of the claimant's femoral head collapsing. He stated that, whena person has avascular necrosis of the hip and suffers an acute injury to that area, there is aflattening of that area. Dr. Dobozi concluded that the claimant "was on the road" to a total hipreplacement in the near future. Dr. Dobozi also disagreed with Dr. Rosenberg's assessment thatsurgery on the claimant's right hip was necessary. It was his opinion that the claimant's right hippain was the result of a natural progression of the disease in his hip, and not to any injury hesustained at work or due to an overuse of his right hip following the left hip surgery.

On April 26, 2002, Dr. Rosenberg performed a right hip core decompression on theclaimant. Dr. Rosenberg's post-operative notes indicate that the claimant continued to complainof pain in his groin area.

As of the date of the arbitration hearing, the claimant stated that, pursuant to Dr.Rosenberg's recommendation, he was scheduled to undergo right hip replacement surgery onJanuary 13, 2003.

Following a hearing pursuant to section 19(b) of the Act (820 ILCS 305/19(b)) (West2000)), an arbitrator issued a decision wherein he found that the claimant had sustained accidentalinjuries arising out of and in the course of his employment with Boyd Electric and that hiscondition of ill-being is causally related thereto. In so finding, the arbitrator specifically creditedDr. Rosenberg's opinions as to causation and found Dr. Dobozi's opinions on this matter to be"unpersuasive." The arbitrator awarded the claimant temporary total disability (TTD) benefits inthe sum of $866.67 per week for a period of 85 3/7 weeks, and ordered Boyd Electric to pay$75,847.97 for necessary medical services rendered to the claimant.

Boyd Electric sought a review of the arbitrator's decision before the Commission. Withone commissioner dissenting, the Commission affirmed and adopted the arbitrator's decision andremanded the case to the arbitrator for further proceedings pursuant to Thomas v. IndustrialComm'n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980). The dissenting commissioner found that theonly alleged causation opinion was based on the claimant's subjective testimony that he wasasymptomatic before the alleged incident.

Boyd Electric filed a petition for judicial review of the Commission's decision in the circuitcourt of Cook County. In the caption to the petition, Boyd Electric properly named the IndustrialCommission as a party appellee. On June 10, 2004, the circuit court confirmed the Commission'sdecision.

On July 1, 2004, Boyd Electric filed its notice of appeal from the circuit court's decision. However, it failed to name the Commission as a party in the notice of appeal. On August 13,2004, Boyd Electric filed a motion to amend its notice of appeal to cure the omission. Thereafter,the claimant filed a response, objecting and requesting that the appeal be dismissed. On August30, 2004, Boyd Electric again filed a motion for leave to amend its notice of appeal. On August31, 2004, this Court entered an order: (1) denying as untimely Boyd Electric's motions to amendits notice of appeal; (2) taking with the case the claimant's request that this cause be dismissed forwant of jurisdiction; and (3) directing the parties to address, in their respective briefs, thejurisdictional implications of Boyd Electric's failure to name the Commission as a party in itsnotice of appeal.

Before addressing the issues raised by Boyd Electric, we will address the question of ourjurisdiction over the instant appeal. Boyd Electric asserts that, due to its inadvertence, theCommission's name was innocently omitted from the caption in its July 1, 2004, notice of appeal. Again, Boyd Electric asks this Court to grant leave to amend its notice of appeal to correct theomission. The claimant responds that Boyd Electric's request in this regard should be deniedbecause it failed to file its motion within the 30-day period allowed by Supreme Court Rule303(d) (155 Ill. 2d R. 303(d)). For the reasons which follow, we agree with the claimant on thispoint.

Ordinarily, a party wishing to appeal must file its notice of appeal within 30 days after theentry of a final judgment. 155 Ill. 2d R. 303(a)(1). Supreme Court Rule 303(b)(4) (155 Ill. 2d R.303(b)(4)) allows this court to grant a party's motion to amend its notice of appeal only if madewithin the time specified in Rule 304(d) (155 Ill. 2d R. 303(d)), which provides as follows:

"On motion supported by a showing of reasonable excuse for failure to file a noticeof appeal on time, accompanied by the proposed notice of appeal and the filing fee,filing in the reviewing court within 30 days after expiration of the time for filing anotice of appeal, the reviewing court may grant leave to appeal and order the clerkto transmit the notice of appeal to the trial court for filing."

In Heller Financial Inc. v. Johns-Byrne Company, 264 Ill. App. 3d 681, 688, 637 N.E.2d1085 (1994), the court stated that, after the expiration of the initial 30-day period for filing anotice of appeal and the additional 30 days allowed for an amendment, a reviewing court iswithout jurisdiction to permit further amendments of the notice of appeal. Here, Boyd Electricfiled its motion to amend its notice of appeal on August 13, 2004, four days after the expiration ofthe extension of time to amend its notice of appeal. Because we lacked jurisdiction to allow BoydElectric to amend its notice of appeal to include the Commission as a party appellee, we denied itsmotion as untimely.

The question now becomes whether Boyd Electric's failure to name the Commission as aparty appellee in its notice of appeal is a defect which requires us to dismiss this cause for lack ofjurisdiction. The Act is silent on the question of whether the Commission is required to be namedin a notice of appeal before this court. The only case cited by Boyd Electric which specificallyaddresses the issue of failing to name a party in the caption to a notice of appeal is Moenning v.Commonwealth Edison, 134 Ill. App. 3d 468, 481 N.E.2d 36 (1985).

In Moenning, the appellant sought to appeal a decision of the Illinois CommerceCommission (ICC) to the circuit court. The appellant, however, failed to name the ICC as a partyin its notice of appeal. The circuit court found that it lacked jurisdiction to entertain the appeal. On appeal, the Moenning court was asked to consider whether the failure to name the ICC in thecaption of the notice of appeal was a jurisdictional defect. The court noted that the relevantstatute, section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 72), set forththe requirements to perfect an appeal to the circuit court; it did not, however, address the specificissue of what parties were required to be named in the caption. The Moenning court found that"in the absence of any specific directive in section 68, the appellant could reasonably infer that theICC did not need to be named in the caption because decisions on orders by the ICC do not comeunder the Administrative Review Act." Moenning, 134 Ill. App. 3d at 470-71. In vacating thecircuit court's dismissal order, the court further stated as follows:

"There is no reason, and no support in rule, statute, or caselaw, why we shouldread a jurisdictional requirement like captioning into the statute. To do so wouldpromote form over substance and defeat an otherwise valid notice of appeal. Infact, to read such a requirement into the statue would be contrary to the explicitlanguage of section 68, which confers jurisdiction on the circuit court providedthat certain steps are taken, which they were in this case. The purpose of section68 is to insure that the parties receive timely notice; this was done here, and thereis no showing that the ICC was prejudiced in any way." Moenning, 134 Ill. App.3d at 471-72.

The court also considered the ICC's argument that it was a necessary party to the action. It statedthat, even assuming arguendo that the ICC was a necessary party, the trial court erred indismissing the appeal because the failure to join an indispensable party does not deprive a court ofits jurisdiction over parties that are properly before it. Moenning, 134 Ill. App. 3d at 472.

Although, at first glance, the Moenning decision appears to be dispositive of thejurisdictional issue before us, the procedural posture of that case is somewhat distinguishable fromthe case at hand. First, in this case, unlike in Moenning, Boyd Electric properly included theCommission as a party in its petition for review to the circuit court. The issue in this case iswhether Boyd Electric was required to name the Commission in its notice of appeal before thiscourt, not the circuit court. Second, section 68 of the Public Utilities Act set forth the specificrequirements to perfect an appeal, even though it was silent on the issue of what parties must beincluded in the caption. Notwithstanding, Boyd Electric maintains that, as in Moenning, weshould likewise reject a jurisdictional requirement that promotes form over substance. BoydElectric asserts that the Commission cannot demonstrate that it was prejudiced by the failure to benamed in the caption, as it was served with proper and timely notice of the appeal and it has nointerest in the outcome of the appeal. Having found no case which addresses the specific issue athand, we believe that resolution of this question depends on whether the Commission isconsidered a necessary or nominal party to the action.

A necessary party is defined as "one who has a legal or beneficial interest in the subjectmatter of the litigation and will be affected by the action of the court." Holzer v. MotorolaLighting, Inc., 295 Ill. App. 3d 963, 970, 693 N.E.2d 446 (1998). A party is considerednecessary when its presence in a lawsuit is required for any of the following reasons: (1) toprotect an interest which the absentee party has in the subject matter of the controversy whichwould be materially affected by a judgment entered in its absence; (2) to protect the interests ofthose who are before the court; or (3) to enable the court to make a complete determination ofthe controversy. Holzer, 295 Ill. App. 3d at 970.

We believe that, in this case, the Commission is not a necessary party for any of the threereasons stated above. First, the Commission has no rights or interests in the subject matter of theappeal which could be materially affected. Next, no rules are implicated on appeal which theCommission would need to defend. The only issue on appeal concerns the award of benefits tothe claimant. As such, the only parties affected by the outcome are the claimant and BoydElectric. The Commission will not be prejudiced in any way if it is not named as a party, nor willthe claimant be prejudiced by the Commission's absence on appeal. Finally, the Commission'spresence is certainly not required for this court to make a complete determination of thecontroversy. See generally Holzer, 295 Ill. App. 3d at 970-75. For the reasons stated herein, wehold that the Commission is not a necessary party to this appeal. See Environmental ProtectionAgency v. Pollution Control Board, 69 Ill. 2d 394, 398, 372 N.E.2d 50 (1977) (the supreme courtnoting in passing that the Illinois Pollution Control Board is a tribunal "not unlike the IndustrialCommission, which is only a nominal party on appeal in workmen's compensation cases"). As aconsequence, we find that Boyd Electric's failure to name the Commission in the caption to itsnotice of appeal is not a defect that requires us to dismiss the appeal for lack of jurisdiction.

We now turn to the substantive issues raised on appeal. Relying on the fact that theclaimant reported feeling pain a month prior to the alleged incident on March 26, 2001, and themedical opinions as to causation, Boyd Electric contends that the Commission's findings of anaccidental injury arising out of and in the course of the claimant's employment and a causalconnection between that event and the claimant's condition of ill-being are both against themanifest weight of the evidence. We disagree.

In a workers' compensation case, a claimant has the burden of proving, by apreponderance of the evidence, all of the elements of his claim. O'Dette v. Industrial Comm'n, 79Ill. 2d 249, 253, 403 N.E.2d 221 (1980). In particular, a claimant must establish that he wasinjured in an accident which arose out of and in the course of his employment (Stapleton v.Industrial Comm'n, 282 Ill. App. 3d 12, 15, 668 N.E.2d 15 (1996)), and that a causal relationshipexists between his employment and his injury (Caterpillar Tractor Co. v. Industrial Comm'n, 129Ill. 2d 52, 63, 541 N.E.2d 665 (1989)).

With respect to preexisting condition cases, our supreme court in Sisbro, Inc. v. IndustrialComm'n, 207 Ill. 2d 193, 204-205, 797 N.E.2d 665 (2003), held that:

"*** [R]ecovery will depend on the [claimant's] ability to show that a work-relatedaccidental injury aggravated or accelerated the preexisting disease such that theemployee's current condition of ill-being can be said to have been causally-connected to the work-related injury and not simply the result of a normaldegenerative process of the preexisting condition. *** [E]ven though a [claimant]has a preexisting condition which may make him more vulnerable to injury,recovery for an accidental injury will not be denied as long as it can be shown thatthe employment was also a causative factor."

The question of whether a claimant's disability is attributable solely to a degenerativeprocess of a preexisting condition or to an aggravation or acceleration thereof as a result of anaccident is a factual determination to be decided by the Commission. Sisbro, Inc., 207 Ill. 2d at205. In deciding issues of fact, it is the function of the Commission to determine the weight to begiven to the evidence, judge the credibility of the witnesses, and resolve conflicting medicalevidence. O'Dette, 79 Ill. 2d at 253. The Commission's determination on a question of fact willnot be disturbed on review unless it is against the manifest weight of the evidence. Orsini v.Industrial Comm'n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005 (1987). For a finding of fact to becontrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992).

Boyd Electric argues that the record is devoid of any evidence showing that the claimantsuffered an unforeseen injury or unexpected traumatic event. It maintains that the claimant"unfortunately suffers from normal sequalae of a personal systemic condition in both hips that isunrelated to trauma or anything occurring at work." In support of its argument in this regard,Boyd Electric points out that: the claimant testified that he sustained pain in his leg and beganlimping two months prior to the incident; and Dr. Jurek's notes indicate that the claimant couldbarely walk for the "last few days" and that his pain improved during the course of the day andworsened at night. Relying on these facts and our prior decision in Twice Over Clean, Inc. v.Industrial Comm'n, 348 Ill. App. 3d 638, 809 N.E.2d 778 (2004), appeal allowed, No. 98748,Boyd Electric asserts that the claimant was in the final stages of his disease and, therefore, was an"accident waiting to happen".

We find our decision in Twice Over Clean, Inc., to be wholly distinguishable because, inthat case, the relevant medical testimony was undisputed, whereas, in this case, we have disputedmedical opinions as to causation. Dr. Rosenberg opined that the claimant's avascular necrosis wasexacerbated by the work injury he sustained on March 26, 2001. He noted that the claimant hadno significant hip problems prior to March 2001, but that he subsequently experienced a suddenonset of left hip pain when he went to pick up a roll of wire at work. When asked by BoydElectric's insurance carrier whether his opinion would change in light of Dr. Jurek's notesindicating that the claimant had a history of pain for one month predating the incident, Dr.Rosenberg stated that it was his understanding that the claimant had minimal complaints of hippain which did not inhibit his ability to work until the incident at issue. He further explained thatit was after the work injury that the claimant's condition was exacerbated; namely, he experiencedpain while walking and his ability to work was limited.

Without question, Drs. Luke and Dobozi had conflicting medical opinions on the issue ofcausation. The arbitrator, however, in a decision adopted by the Commission, specificallycredited Dr. Rosenberg's opinions and found Dr. Dobozi's opinions to be unpersuasive. Althoughnot specifically stated in his decision, the arbitrator also implicitly rejected Dr. Luke's opinions asto causation. In addition, any inconsistencies in the claimant's account of his onset of pain ascompared to the history of injury contained in the medical records, to the extent they exist at all,were known to the arbitrator. As it is the function of the Commission to judge the credibility ofwitnesses and resolve conflicting evidence (O'Dette, 79 Ill. 2d at 253), we are unable to concludethat either the Commission's finding of an accident arising out of and in the course of theclaimant's employment or a causal relationship between that event and the claimant's condition ofill-being are against the manifest weight of the evidence. See Sisbro, Inc., 207 Ill. 2d at 215.

Boyd Electric next argues that the Commission's award of benefits "outside the parametersof the Illinois Workers' Compensation Act is a violation of the due process and equal protectionrights of this employer as protected by Title I of the Illinois Constitution and the First andFourteenth Amendments to the United States Constitution." With respect to this argument, BoydElectric maintains that the Commission's decision, in effect, required it to provide TTD andmedical benefits without requiring the claimant to demonstrate that he suffered a "non-fatalaccidental injury". It further asserts that the Commission's decision, if enforced, would representa "taking of property" in contravention of the Constitution. This is the extent of Boyd Electric'sconstitutional arguments. Having already concluded that the claimant sufficiently demonstratedthat he suffered a compensable accidental injury, we further reject Boyd Electric's constitutionalarguments.

For the foregoing reasons, we affirm the judgment of the circuit court which confirmed theCommission's decision, and remand the cause back to the Commission for further proceedings.

Affirmed and remanded to the Industrial Commission.

McCULLOUGH, P.J., CALLUM, HOLDRIDGE, and GOLDENHERSH, JJ., concur.

1. Effective January 1, 2005, the name of the Industrial Commission was changed to the"Illinois Workers' Compensation Commission." However, because the Industrial Commission wasnamed as such when the instant cause was originally filed, we will use this name for purposes ofconsistency.