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31 July 2000

No. 3-99-0741WC

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

INDUSTRIAL COMMISSION DIVISION

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Ricky J. Gallianetti, appeals the decision of thecircuit court of Bureau County confirming the decision of theIndustrial Commission (Commission). On appeal, claimant arguesthat the Commission erred in awarding him permanent partialdisability (PPD) benefits under section 8(d)(2) of the Workers'Compensation Act (Act) (820 ILCS 305/8(d)(2) (West 1992)) in lieuof a wage-differential award under section 8(d)(1) of the Act (820ILCS 305/8(d)(1) (West 1992)). Alternatively, claimant contendsthat the Commission (1) erred in modifying the arbitrator's awardof temporary total disability (TTD) benefits and (2) improperlygranted respondent a credit against his PPD award. For the reasonsthat follow, we affirm in part, reverse in part, and remand withdirections.

I. FACTS

On July 11, 1994, claimant filed an application for adjustmentof claim. Claimant alleged that he sustained injuries to his leftelbow while working as a tree trimmer for respondent, Asplundh TreeExpert Company. According to the application, on July 3, 1992,claimant was hit in the left elbow with shotgun pellets whileworking for respondent in the Peoria area. An arbitration hearingon claimant's application was held on October 7, 1996. The recordfrom that hearing reveals the following relevant facts.

Claimant is a resident of Tiskilwa, Illinois. Tiskilwa islocated approximately 55 miles north of Peoria, 30 miles west ofLaSalle-Peru/Ottawa, and 7 miles south of Princeton. Although hequit high school before completing his sophomore year, claimanteventually completed an apprenticeship with the InternationalBrotherhood of Electrical Workers (IBEW), Local 51, in Springfield. While affiliated with Local 51, claimant held jobs as part of thespray crew and the tree trimming crew. At the time of his injury,claimant was 41 years old and working as a tree trimming crewforeman. Claimant's duties included climbing trees, cutting themwith a chainsaw, and running a chipper. Working as a tree trimmerinvolved lifting equipment in excess of 40 pounds.

The day after he sustained his injuries, claimant treated atthe emergency room at Perry Memorial Hospital (Perry) in Princeton. The following day claimant returned to Perry for X rays. The Xrays revealed two foreign bodies consistent with pellets. One ofthe pellets was lodged in soft tissue, while the other was intra-articular. Claimant was treated with intravenous antibiotics.

On July 7, 1992, claimant sought treatment with Dr. MartinFaber. Dr. Faber referred claimant to Dr. Mark Phillips, anorthopaedic specialist. On July 24, 1992, Dr. Phillips performedan arthroscopy of the left elbow with a partial synovectomy and adebridement of the elbow joint. Despite the surgery, claimant'scomplaints persisted, and Dr. Phillips referred claimant to Dr.Ronald Palmer.

On December 8, 1992, Dr. Palmer performed an arthrotomy of theleft elbow with pellet removal. To assist claimant's recovery, Dr.Palmer prescribed physical therapy. On July 6, 1993, Dr. Palmerreleased claimant to work without restrictions. Although claimantreturned to work, any vibration, lifting, or heavy pulling wouldaggravate his condition. He would also experience swelling andburning and needle-like sensations in his arm. Because of thesesymptoms, claimant was unable to climb trees or use a chainsaw. OnJuly 26, 1993, Dr. Palmer diagnosed claimant with cubital tunnelsyndrome and recommended surgery if his symptoms intensified. OnSeptember 1, 1993, Dr. Palmer authorized claimant off work andscheduled surgery. On December 28, 1993, claimant underwent ananterior transposition of the left ulnar nerve at the elbow. Afterthe operation, claimant was placed in a work-hardening program.

Eventually, claimant returned to Dr. Faber, who referred himto Dr. Daniel Nagle. Claimant first treated with Dr. Nagle onFebruary 10, 1994, with complaints of pain in the elbowparticularly when extended. Dr. Nagle indicated the presence of aforeign object in claimant's left elbow. Dr. Nagle also notedpossible nerve compressions. Dr. Nagle eventually ordered amagnetic resonance imaging (MRI) and electrodiagnostic studies. These tests revealed a pinched ulnar nerve.

Claimant testified that in July 1994, respondent contacted himregarding a flagging job. According to claimant, although heexpressed interest in the position, respondent never followedthrough with an offer.

On August 16, 1994, Dr. Nagle prescribed steroid shots in theelbow and ordered a functional capacity evaluation. On September27, 1994, claimant underwent the functional capacity evaluation. On October 18, 1994, Dr. Nagle reviewed the results of theevaluation with claimant. The evaluation showed that claimantwould be unable to return to his normal job duties as a treetrimmer. The evaluation indicated a sedentary-type job which wouldnot place resistive demands on claimant's left upper extremity andwhich would require only light intermittent use as an assist to theright hand. Following claimant's October 1994 appointment, Dr.Nagle discharged claimant to return on an as-needed basis.

Claimant continued to experience pain and swelling in his arm. Although claimant attempted to contact Dr. Nagle by telephone inJanuary 1995, he never spoke with the doctor.

Claimant testified that he telephoned Local 51 approximatelyfour times between September 1994 and September 1995 in an attemptto find work. Claimant spoke with a Dominic Rivero. Around thesame time, claimant also contacted several employers in theTiskilwa and Princeton areas. All of these efforts were fruitless.

Around October 1995, claimant began experiencing pains in hisleft thumb, forearm, hand, neck, and shoulder. He also noted"popping" and locking in his left elbow. On October 17, 1995,claimant visited Dr. Nagle, who prescribed pain medication andvitamin B6 and ordered additional electrodiagnostic studies. Claimant last treated with Dr. Nagle on January 9, 1996. At thattime, Dr. Nagle advised claimant to continue taking his painmedication and authorized him to return on an as-needed basis.

As of the date of the arbitration hearing, claimant testifiedthat he is unable to lift anything weighing more than 4 or 5pounds. Claimant, who is right-hand dominant, also indicated thathe is unable to use his left arm for support or to climb or grip. Claimant further testified that respondent has not offered claimantvocational rehabilitation. Following his January 1996 visit withDr. Nagle, claimant conducted another job search. Specifically,claimant applied to several factories in the Princeton area. Claimant testified that the starting wage at the factories was$5.50 per hour. Claimant also regularly returned to the places heapplied to beginning in October 1994. Most of those employers paidminimum wage. Claimant admitted that although Dr. Nagle did notplace any restrictions on his driving, he limited his employmentsearch to the area near his home because he experiences discomfortin his arm when driving more than 10 or 15 miles.

Claimant also contacted employers identified in a labor marketsurvey prepared on respondent's behalf. The survey identified fourpossible types of employment for claimant: tree trimmingsupervisor, exterminator, storage rental clerk, and security guard. It also listed employer contacts and vocational requirements for 21jobs in the Peoria and Ottawa areas. Claimant stated that hecontacted 4 exterminators and at least two security firms from thelabor market survey. Claimant did not obtain a position with anyof the employers. Eventually, claimant obtained full-timeemployment at Steimle Garage, Inc., in Tiskilwa, earning $5.50 perhour. However, he testified that discomfort associated with hisinjury often prevents him from working the entire week.

Admitted into evidence was the deposition of Michael Holcomb,a business representative for IBEW, Local 51. According toHolcomb, the IBEW has about 30 classifications of employment inthree principal areas: (1) tree trimming, (2) electrical work, and(3) telephone work. Among Holcomb's duties is to assign unionmembers to contractors for job placement. Based on therestrictions listed in the functional capacity evaluation, Holcombopined that claimant would be unable to perform duties within anyof the job classifications for which he is qualified. According toHolcomb, although the union tries to place members withrestrictions into positions within their limitations, he never hadany direct contact with claimant regarding job placement.

Dr. Nagle testified via evidence deposition that claimant isunable to return to work as a tree trimmer. Dr. Nagle also relatedthat based on his decision to release claimant from his care onOctober 18, 1994, it was his opinion that claimant had reachedmaximum medical improvement on that date. Dr. Nagle later statedthat claimant reached maximum medical improvement on the date thathe ordered the functional capacity evaluation. Dr. Nagle alsonoted that when claimant visited him in October 1995, his conditionas it related to the gunshot injury had remained essentiallyunchanged from October 1994.

Also admitted into evidence was a report authored by Dr.Gerald McDonald. Dr. McDonald examined claimant on February 3,1996, at the request of claimant's counsel. Dr. McDonald opinedthat claimant's symptoms are causally connected to his gunshotinjury. Dr. McDonald also opined that claimant is permanently andtotally disabled from performing his duties as a tree trimmer.

The arbitrator determined that claimant's condition of ill-being was causally connected to his injury. The arbitratorconcluded that claimant's condition had not reached a state ofpermanency until January 9, 1996, when he last treated with Dr.Nagle. In support of her decision, the arbitrator noted that in anAugust 16, 1994, report, Dr. Nagle estimated that claimant was notexpected to improve for a period of 12 months. The arbitrator alsonoted that the functional capacity evaluation limited claimant tosedentary-type positions. While the arbitrator admitted thatclaimant did not seek medical attention between October 1994 andOctober 1995, she noted that during this period, claimant wastaking non-prescription pain medication and employing a variety ofassistive devices in an effort to alleviate his pain. Further, thearbitrator noted that during that year, claimant demonstrated byhis efforts that he was unable to obtain employment within hisphysical restrictions, and that respondent failed to show thatclaimant was capable of performing some regular employment withinhis limitations.

Next, the arbitrator determined that claimant was entitled to$371.36 a week for 300 weeks because the injuries sustained causedclaimant to be incapacitated to the extent of 60% loss of use of aman as a whole. See 820 ILCS 305/8(d)(2) (West 1992). Finally,the arbitrator determined that respondent was responsible forclaimant's unpaid medical expenses, and that no credit was duerespondent for overpayment of TTD.

On appeal, the Commission modified the arbitrator's TTD award.The Commission concluded that claimant was entitled to TTD onlyuntil October 18, 1994. It was on that date that Dr. Nagle statedthat claimant had reached maximum medical improvement and hereleased claimant from his care. Therefore, the Commissioncredited respondent for overpayment of TTD. In all other respects,the Commission affirmed and adopted the arbitrator's decision. Onadministrative review, the circuit court of Bureau Countyconfirmed. This timely appeal followed.

II. ANALYSIS

Claimant argues that he was entitled to a wage-differentialaward. According to claimant, only where an individual has notsustained a loss of earning capacity is a percentage-of-the-person-as-a-whole award appropriate. Here, claimant maintains that hedemonstrated a loss of earning capacity. Therefore, claimant urgesus to grant him a wage-differential award.

Under the Act, once a claimant proves that he or she hassustained a disability, the question of compensation arises. TheAct provides for various types of compensation. Relevant to ourdiscussion is paragraph (d) of section 8, which pertains to PPD. 820 ILCS 305/8(d) (West 1992). Section 8(d) specifies two distincttypes of compensation. Subparagraph 1 of section 8(d) involves awage-differential award. 820 ILCS 305/8(d)(1) (West 1992). Subparagraph 2 of section 8(d) involves a percentage-of-the-person-as-a-whole award. 820 ILCS 305/8(d)(2) (West 1992). In GeneralElectric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 438 (1982), oursupreme court expressed a preference for wage-differential awardsover scheduled awards.

Section 8(d)(1) provides:

"If after the accidental injury has been sustained,the employee as a result thereof becomes partiallyincapacitated from pursuing his usual and customary lineof employment, he shall, except in cases compensatedunder the schedule set forth in paragraph (e) of thisSection, receive compensation for the duration of hisdisability, subject to the limitations as to maximumamounts fixed in paragraph (b) of this Section, equal to66-2/3% of the difference between the average amountwhich he would be able to earn in the full performance ofhis duties in the occupation in which he was engaged atthe time of the accident and the average amount which heis earning or is able to earn in some suitable employmentor business after the accident." (Emphasis added.) 820ILCS 305/8(d)(1) (West 1992).

Section 8(d)(2) provides in pertinent part:

"If, as a result of the accident, the employeesustains serious and permanent injuries not covered byparagraphs (c) and (e) of this Section, or havingsustained injuries covered by the aforesaid paragraphs(c) and (e), he shall have sustained in addition theretoother injuries which injuries do not incapacitate himfrom pursuing the duties of his employment but whichwould disable him from pursuing other suitableoccupations, or which have otherwise resulted in physicalimpairment; or if such injuries partially incapacitatehim from pursuing the duties of his usual and customaryline of employment but do not result in an impairment ofearning capacity, or having resulted in an impairment ofearning capacity, the employee elects to waive his rightto recover under the foregoing subparagraph 1 ofparagraph (d) of this Section, then in any of theforegoing events, he shall receive in addition tocompensation for temporary total disability underparagraph (b) of this Section, compensation at the rateprovided in subparagraph (b) of this Section for thatpercentage of 500 weeks that the partial disabilityresulting from the injuries covered by this paragraphbears to total disability." 820 ILCS 305/8(d)(2) (West1992).

It is axiomatic that words used in a statute are to be giventheir plain and commonly understood meaning and where the languageof a statute is clear and unambiguous, the courts are obligated toenforce the law as enacted by the legislature. Forest CityErectors v. Industrial Comm'n, 264 Ill. App. 3d 436, 439 (1994). We conclude that the plain language of section 8(d) prohibits theCommission from awarding a percentage-of-the-person-as-a-wholeaward where the claimant has presented sufficient evidence to showa loss of earning capacity.

Under section 8(d)(2), in addition to TTD, a claimant receivescompensation for that percent of 500 weeks that his partialdisability bears to his total disability. 820 ILCS 305/8(d)(2)(West 1992). As a general matter, section 8(d)(2) applies to thosecases in which a claimant suffers injuries that partiallyincapacitate him from pursuing the usual and customary duties ofhis line of employment, but do not cause him to suffer animpairment of earning capacity. 820 ILCS 305/8(d)(2) (West 1992);see also, Smith v. Industrial Comm'n, 308 Ill. App. 3d 260, 265(1999). The only time that section 8(d)(2) will apply where aclaimant suffers an impairment of earning capacity is if theclaimant waives his right to recover under section 8(d)(1). 820ILCS 305/8(d)(2) (West 1992); Freeman United Coal Mining Co. v.Industrial Comm'n, 283 Ill. App. 3d 785, 790 (1996).

In addition, the word "shall" in section 8(d)(1) leads us toconclude that where a claimant proves that he is entitled to awage-differential award, the Commission is without discretion toaward a section 8(d)(2) award in its stead. As mentioned, the onlyexception to this rule is where the claimant waives his right torecover under section 8(d)(1). See 805 ILCS 305/8(d)(2) (West1992). See Freeman United, 283 Ill. App. 3d at 791 (explainingthat where the claimant could fit under either section 8(d)(1) or8(d)(2), employee receives a wage-differential award unless hewaives such right and opts for a percentage-of-the-person-as-a-whole award). Further supporting our interpretation is theinclusion of the waiver language in section 8(d)(2). This languagewould be rendered unnecessary if the legislature intended theCommission to have the sole discretion to elect a percentage-of-the-person-as-a-whole award even in those cases in which a claimanthas proven entitlement to a wage-differential award.

Accordingly, our inquiry now becomes whether claimantqualifies for a wage differential award. If claimant has requesteda wage-differential award and he proves that he qualifies for one,the plain language of section 8(d)(1) requires that he be awardeda wage-differential award. If, however, claimant has failed topresent any evidence regarding his entitlement to a wage-differential award, he will be deemed to have implicitly waived hisright to such award. See Freeman United, 283 Ill. App. 3d at 791.

At the outset, we note that the cover page of the arbitrator'sdecision indicates that there was a section 8(d)(1) matter indispute. Moreover, we have been unable to find any indication inthe record that claimant expressly waived his right to a wage-differential award. Nevertheless, neither the Commission nor thearbitrator explicitly discussed the propriety of a wage-differential award. Therefore, implicit in their decisions wasthat claimant had not proven that he was entitled to a wage-differential award.

We will not overturn the Commission's compensation awardunless it is against the manifest weight of the evidence. Smith,308 Ill. App. 3d at 267. For a decision to be against the manifestweight of the evidence, a review of the record must disclose thatthe conclusion opposite to that reached by the Commission wasclearly the proper result. Stapleton v. Industrial Comm'n, 282Ill. App. 3d 12, 16 (1996). In this case, we conclude that therecord discloses that a conclusion opposite to that reached by theCommission was clearly the proper result.

To qualify for a wage differential award under section8(d)(1), claimant must prove (1) partial incapacity which preventshim from pursuing his "usual and customary line of employment," and(2) an impairment of earnings. 820 ILCS 305/8(d)(1) (West 1992);Smith, 308 Ill. App. 3d at 265; Albrecht v. Industrial Comm'n, 271Ill. App. 3d 756, 759 (1995).

Claimant presented ample evidence that he is unable to returnto his "usual and customary line of employment" as a tree trimmer.Both Drs. Nagle and McDonald testified to this fact. Thefunctional capacity evaluation also indicates that claimant wouldbe unable to return to work as a tree trimmer, and the labor marketsurvey suggests the same. Further, a representative from Local 51(Holcomb) opined that claimant would be unable to perform dutieswithin any of the job classifications for which he is qualified. Therefore, we will focus on whether claimant demonstrated animpairment of earnings.

The object of section 8(d)(1) is to compensate an injuredclaimant for his reduced earnings capacity, and if an injury doesnot reduce his earning capacity, he is not entitled tocompensation. Smith, 308 Ill. App. 3d at 266. A claimant mustprove his actual earnings for a substantial period before hisaccident and after he returns to work, or in the event that he isunable to return to work, he must prove what he is able to earn insome suitable employment. Smith, 308 Ill. App. 3d at 266.

In this case, the parties agreed that in the year precedingthe accident, claimant earned $46,363.20, and his average weeklywage was $891.60.

Further, claimant presented ample testimony that his injuryreduced his earning capacity. In October 1994, claimant beganinquiring about employment within his restrictions in theTiskilwa/Princeton areas. He visited a mini-mart, a gas station,a bowling alley, automotive supply stores, a surgical supplycompany, and a garage. Claimant indicated that these jobs paidminimum wage. In 1996, claimant inquired about jobs at factoriesin the Princeton area. According to claimant the starting wages atthese factories was $5.50 per hour.

Claimant also contacted employers identified in the labormarket survey prepared on respondent's behalf. The surveyidentified four possible types of employment for claimant: treetrimming supervisor, exterminator, storage rental clerk, andsecurity guard. It also listed employer contacts and vocationalrequirements for 21 jobs in the Peoria and Ottawa areas. Claimantwas medically unable to work as a tree trimming supervisor. Moreover, the labor market survey indicated that of the 21employers surveyed, only one firm, Borg Security Services, hadopenings within claimant's restrictions. Borg was paying between$4.50 and $6 per hour. Claimant eventually found a job at SteimleGarage, earning $5.50 per hour, or $220 per week. Based on thisevidence, it is evident that claimant's salary is commensurate withthe prevailing wage for an individual with his experience,education, and restrictions. Cf., Durfee v. Industrial Comm'n, 195Ill. App. 3d 886 (1990)(holding that the claimant, who was injuredwhile working for respondent as a repairman, was not entitled to asection 8(d)(1) award where the claimant's physician suggested thatthe claimant return to work on a trial basis but the claimantelected to work as a minister and there was no evidence that heattempted to obtain any other kind of employment). Therefore, wefind that the Commission's failure to award claimant a wagedifferential pursuant to section 8(d)(1) was against the manifestweight of the evidence.

Nevertheless, respondent argues that claimant is not entitledto a wage-differential award under section 8(d)(1). According torespondent, claimant has failed to establish his true earningcapacity because he did not secure suitable employment within hisrestrictions. In particular, respondent asserts that claimant'sjob search between October 1994 when Dr. Nagle stated he reachedmaximum medical improvement, and October 1995, was "minimal" inboth the number and geographical scope of employers contacted. Inaddition, respondent points out that claimant presented nodocumentation to support his claims that prospective employers didnot have available work within his restrictions.

We find respondent's argument unpersuasive. There is noaffirmative requirement under section 8(d)(1) that a claimant evenconduct a job search. Rather, as discussed above, a claimant needonly demonstrate an impairment of earnings. See Albrecht, 271 Ill.App. 3d at 759. Evidence of a job search is but one way to showimpairment of earnings. In any event, we note that the type of jobwhich claimant could perform was severely restricted. Nevertheless, claimant regularly inquired about positions withinhis restrictions at a mini-mart, a gas station, a bowling alley,auto parts stores, a surgical supply company, and a garage. Morever, in July 1994, respondent contacted claimant regarding ajob as a flagger. Although claimant expressed interest in theposition, respondent never followed through with an employmentoffer. In addition, claimant testified that between September 1994and September 1995, he contacted IBEW Local 51 on at least 4occasions in an attempt to find employment within his restrictions.

Admittedly, claimant limited his search to theTiskilwa/Princeton areas. However, as the labor market surveydemonstrated, given claimant's education, experience, andrestrictions, even a search of a larger geographical area wasunlikely to locate a position for claimant with a wagesubstantially greater than the wage paid at Steimle Garage. Weemphasize that while the labor market survey listed 21 employers infour types of positions, only one of the employers had openingswithin claimant's restrictions. We note that there were employerslisted on the labor market survey (notably the exterminatingcompanies), that paid more than the position that claimantultimately obtained. However, the survey indicated that noopenings were available in these positions. Moreover, claimanttestified that he contacted these companies and was not offeredemployment.

Finally, we reject respondent's contention that becauseclaimant did not provide any documentation regarding his jobsearch, we should deny a wage-differential award. While claimantdid not present any physical documentation regarding his jobsearch, he named all of the employers to which he applied. Morever, for a majority of the employers, claimant provided thename of the person with whom he spoke. Respondent did notchallenge any of this information. Thus, we find that claimantpresented sufficient evidence regarding the nature and extent ofhis job search.

Since we find that claimant has demonstrated his entitlementto a wage-differential award under section 8(d)(1), we remand thiscause to the Commission for a determination as to the amount of theaward as well as the effective date of such award.

B. TTD/Vocational Rehabilitation

Although claimant raises the issue of TTD as an alternativeargument, we address it here so that there is no confusionregarding this issue on remand to the Commission. Claimant arguesthat the Commission's decision to deny TTD for the period beginningOctober 18, 1994, and ending January 6, 1996, was against themanifest weight of the evidence. According to claimant, pursuantto section 8(b) of the Act (820 ILCS 305/8(b) (West 1992)), he wasentitled to TTD benefits until January 1996 because (1) he was onlycapable of performing sedentary work; (2) respondent refused tooffer claimant employment within his restrictions; and (3) hisefforts to find suitable employment within his restrictions werefruitless.

Section 8(b), which governs TTD awards, provides that weeklycompensation shall be paid "as long as the total temporaryincapacity lasts." 820 ILCS 305/8(b) (West 1992). Thus, as wehave previously stated, an employee is temporarily totallyincapacitated from the time an injury incapacitates him for workuntil such time as he is as far recovered or restored as thepermanent character of the injury will permit. See, e.g., Beuse v.Industrial Comm'n, 299 Ill. App. 3d 180, 182 (1998); Manis v.Industrial Comm'n, 230 Ill. App. 3d 657, 660 (1992). Accordingly,once an injured employee's condition stabilizes, he is no longereligible for TTD benefits. Hayden v. Industrial Comm'n, 214 Ill.App. 3d 749, 754 (1991). Moreover, once an injured employee'scondition has stabilized, he is no longer eligible for TTDbenefits, although he may be entitled to PPD benefits. Manis, 230Ill. App. 3d at 660, quoting Archer Daniels Midland Co. v.Industrial Comm'n, 138 Ill. 2d 107, 118 (1990). The period duringwhich an employee is temporarily totally disabled is a factualdetermination. Beuse, 299 Ill. App. 3d at 182. As such, theCommission's decision will not be disturbed unless it is againstthe manifest weight of the evidence. Beuse, 299 Ill. App. 3d at183.

The only evidence presented regarding the date of maximummedical improvement was Dr. Nagle's deposition testimony and hismedical records and reports. In his deposition, Dr. Nagle firststated that claimant reached maximum medical improvement on October18, 1994. He later suggested that claimant reached maximum medicalimprovement on the day he ordered claimant's functional capacityevaluation (August 16, 1994). Dr. Nagle also testified thatclaimant's condition remained virtually unchanged between hisOctober 1994 and October 1995 visits. Based on this evidence, theCommission could find that claimant's condition had stabilized asof October 18, 1994. It was on that date that Dr. Nagle reviewedthe results of the functional capacity evaluation with claimant. The arbitrator's decision was based on a statement in an August 16,1994, report prepared by Dr. Nagle which indicated that claimant'srecovery "may require twelve months or longer[.]" (Emphasis added.)However, as is evident from this statement, Dr. Nagle's estimatewas just that, an estimate. The doctor was free to later updatehis opinion regarding the date of maximum medical improvement. Based on this evidence, we cannot say that the Commission'sdetermination that claimant reached maximum medical improvement onOctober 18, 1994, is against the manifest weight of the evidence.

Claimant also argues that he is entitled to maintenancepursuant to section 8(a) of the Act (820 ILCS 305/8(a) (West1992)), because Dr. Nagle testified that claimant was a candidatefor vocational rehabilitation, and respondent denied his demand forretraining. A review of the record reveals that at the arbitrationhearing, claimant introduced, inter alia, a document requestingvocational rehabilitation from respondent and testimony that he didnot receive vocational rehabilitation. However, there is noindication that claimant argued this issue before the arbitrator orthat he placed this issue in dispute. Moreover, we have conducteda thorough review of the record, and note that this issue was notraised before the Commission or the circuit court. Accordingly,claimant has waived this issue for purposes of review. See Manis,230 Ill. App. 3d at 661-62.

C. Credit for Overpayment of TTD

Finally, claimant argues that the Commission committed legalerror when it awarded respondent a credit of $42,000 in TTDoverpayment against claimant's 60% person-as-a-whole award undersection 8(d)(2). 820 ILCS 305/8(d)(2) (West 1992). Although wehave determined in this case that claimant is entitled to a wage-differential award under section 8(d)(1) (820 ILCS 305/8(d)(1)(West 1992)), we have also concluded that the Commission properlydetermined that claimant reached maximum medical improvement onOctober 18, 1994, and that his TTD should have ended on that date. Therefore, the question of TTD overpayment remains, and this issueis ripe for consideration.

Claimant asserts that respondent is not entitled to a creditfor TTD overpayments against a PPD award. Relying on Bettis v.Oscar Mayer Foods Corp., 242 Ill. App. 3d 689 (1993), claimantargues that the statutory basis for the credit, section 8(j) of theAct (820 ILCS 305/8(j) (West 1992)), only allows a credit or setoffagainst TTD, and not PPD.

Initially, we note that the Bettis case was not decided bythis court. Moreover, in Messamore v. Industrial Comm'n, 302 Ill.App. 3d 351 (1999), we addressed the precise issue raised byclaimant here. In that case, the arbitrator awarded the claimant50 4/7 weeks in TTD benefits and 38 weeks in PPD benefits. The TTDaward was improperly inflated due to a clerical error. Realizingthis, the Commission reduced the award of TTD benefits to only 246/7 weeks. The Commission further found that the respondent "shallhave credit for all amounts paid to or on account of" her injury. The circuit court confirmed the Commission's decision and held thatany overpayment of TTD benefits could be credited against theclaimant's PPD award. The claimant then appealed to this court.

We agreed with the circuit court that overpayment of TTDbenefits could be credited against the claimant's PPD award. Messamore, 302 Ill. App. 3d at 359. We expressly distinguishedBettis, noting that the Bettis court was interpreting section8(j)(1) of the Act (820 ILCS 305/8(j)(1) (West 1996)), whichdisallows credit against PPD awards where a claimant participatesin a group plan. Messamore, 302 Ill. App. 3d at 357-58. InMessamore, there was no evidence that the a group plan was atissue. Accordingly, section 8(j)(1) was inapplicable.

We then turned our attention to section 8(j)(2) of the Act(820 ILCS 305/8(j)(2) (West 1996)), which provides in pertinentpart:

"Nothing contained in this Act shall be construed togive the employer or the insurance carrier the right tocredit for any benefits or payments received by theemployee other than compensation payments provided bythis Act, and where the employee receives payments otherthan compensation payments, * * * the employer orinsurance carrier shall receive credit for each paymentonly to the extent of the compensation that would havebeen payable during the period covered by such payment." (Emphasis added.) 820 ILCS 305/8(j)(2) (West 1996).

Relying on section 8(j)(2), which we noted was not limited tobenefits under group plans, we held that the respondent wasentitled to a credit against the PPD award for TTD overpayments. Messamore, 302 Ill. App. 3d at 359.

Our holding in Messamore was also premised on public policy. In particular, we noted that the employee should not receive awindfall at the employer's expense due to an accidental overpaymentof TTD benefits. Messamore, 302 Ill. App. 3d at 359. We furtherexplained that one of the goals of the Act, i.e., to encourageemployers to make prompt payments before the amount of liability iscertain, would be frustrated if we were to deny credits. Messamore, 302 Ill. App. 3d at 359. We also concluded thatdisallowing credits would encourage administrative delays asemployers attempt to resolve every ambiguity before payingbenefits. Messamore, 302 Ill. App. 3d at 359.

Messamore is directly on point here. Like the claimant inMessamore, there is no evidence that claimant in this caseparticipated in a group plan. As a result, section 8(j)(1) andBettis are inapplicable. We reiterate the policy reasons behindMessamore, and hold that respondent is entitled to a credit againstthe PPD award for overpayment of TTD.

III. CONCLUSION

For the aforementioned reasons, the decision of the circuitcourt of Bureau County, which confirmed the judgment of theCommission, is affirmed in part and reversed in part. We remandthis cause to the Commission so that it may enter an award pursuantto section 8(d)(1) of the Act consistent with the evidence herein.

Affirmed in part and reversed in part; cause remanded withdirections.

McCULLOUGH, P.J., and HOLDRIDGE, RARICK, and ZWICK, JJ., concur.