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On September 11, 1998, the claimant filed an application for adjustment of claim alleging that he hadsuffered an accidental injury while working for Michel on June 15, 1998. An arbitration hearing was held onMay 8, 2001, during which the following facts were established by the testimony and exhibits presented.

The claimant testified that, prior to his injury, he had been employed by Michel as a laborer forapproximately five months. The claimant stated that, on June 15, 1998, he was carrying two bucketscontaining approximately 100 pounds of mortar down a flight a stairs when his right hip "gave way," causinghis back to rotate. He testified that he immediately notified the foreman about his injury, and that he went tothe emergency room at Palos Community Hospital (Palos) that same day. The records from Palos state thatthe claimant presented with complaints of a "low back injury," and that he underwent a CT scan which showedasymmetric bulging of his intervertebral disc at L5-S1, and bulging annulus with no focal herniation at L4-5and L3-4.

On June 19, 1998, the claimant visited Dr. Paul Atkenson, an orthopaedic surgeon. The claimanttestified that he treated with Dr. Atkenson for several weeks, and that the doctor referred him to the OrlandTherapy Specialists (Orland) for physical therapy. In a letter from Orland to Dr. Atkenson dated June 24,1998, a therapist stated that the claimant was suffering from low back pain and right leg pain following a workinjury on June 15, 1998. The therapist further noted that the claimant's right hip flexion strength measured fouron a scale of five.

The claimant testified that he was eventually referred by Michel's insurance carrier to Dr. MuhammadAlvi. Dr. Alvi's records, which were admitted into evidence over Michel's hearsay, foundation, and authenticityobjections, show that the claimant's first examination was on July 11, 1998. In a report addressing thatexamination, Dr. Alvi stated that the claimant was presenting with constant severe mid-line lower backsymptoms, and moderate to severe bilateral myospasms in his legs. Dr. Alvi diagnosed the claimant assuffering from lumbar nueritis/radicolitis with associated myospasms, and began a treatment program whichconsisted of manipulation, passive stretching, and the application of paravertebral nerve blocks.

The claimant stated that he was subsequently referred by Dr. Alvi to Dr. William A. Earman. In apost-examination report dated September 21, 1998, Dr. Earman opined that the claimant was suffering froma lumbar spine strain, and he recommended a course of physical therapy and lumbar support. In a letter toMichel's insurance carrier dated October 23, 1998, Dr. Earman reported that the claimant had completed hiscourse of physical therapy and that, in his opinion, the claimant was not in need of additional treatment. Accordingly, Dr. Earman released the claimant to return to full duty work and discharged him from his care. In a faxed response to an inquiry from Michel's insurance carrier dated October 28, 1998, Dr. Earman statedthat the claimant would reach maximum medical improvement (MMI) on October 30, 1998.

On October 26, 1998, Dr. Alvi similarly released the claimant to return to work with the onlyrestriction being that he wear a belt during "lifting operations." The claimant testified that he returned toMichel for two days before he stopped working again on October 27, 1998. Following an examination onDecember 14, 1998, Dr. Alvi found the claimant to be totally incapacitated, and took him off-work.

The claimant was also referred by Dr. Alvi to Dr. Mark A. Lorenz, whose records were admitted intoevidence at the arbitration hearing over Michel's hearsay and authentication objections. These records showthat the claimant first visited Dr. Lorenz on January 14, 1999, at which time he was diagnosed with diskogenicback pain without a true herniation, and prescribed a regimen of physical therapy with Dr. Bob L. Hung.

The claimant first visited Dr. Hung on January 14, 1999. In a report following that examination, Dr.Hung found the claimant to be suffering from myofascial pain, mechanical low back pain, and a "deconditionedback." Following an examination on February 18, 1999, Dr. Hung also found the claimant to be suffering fromright hip bursitis, and recommended that he undergo a functional capacity examination (FCE) following thecompletion of his physical therapy program.

The record shows that the claimant completed a FCE on March 31, 1999, the results of which indicatedthat he was incapable of performing the duties of a laborer. A report detailing the result of this FCE wascontained within the documents submitted by Dr. Alvi, and was also admitted into evidence as a separateexhibit from LaGrange Memorial Hospital Work Rehabilitation Center (LaGrange). Also contained in theLaGrange exhibit was a letter from Meg Wilton, a registered nurse hired by Michel's insurance carrier tomanage the claimant's case, which contained a description of the physical demands of the claimant's job. TheLaGrange exhibit was admitted into evidence over Michel's hearsay, foundation, and authenticity objections.

In a post-examination report dated April 15, 1999, Dr. Hung stated that the claimant's lower back painhad resolved "quite nicely," but that his right hip pain had worsened to the point where he had difficultyambulating. Dr. Hung also stated that, despite his right hip pain, the claimant "did quite well" on the FCE. In a post-examination report dated May 25, 1999, Dr. Hung noted that the claimant stated he had beensuffering from right hip pain "ever since the accident itself." In a subsequent post-examination report, Dr.Hung stated that the claimant's right hip pain was the main limiting factor in terms of his return to work on afull duty basis and that, unless his hip pain lessened, he would most likely not be able to return to his previouswork level. The claimant completed a second FCE on August 25, 1999, the results of which showed that theclaimant's capabilities fell within the "medium-heavy" physical demand level, while his position as a laborerfell within the "heavy to very heavy" physical demand level. The report from the claimant's second FCE wascontained in the documents submitted by Dr. Lorenz.

The claimant testified that he was released to return to work on November 4, 1999, "within therestrictions imposed by the [FCE]." The claimant stated that, following his release, he contacted Michel inorder to inquire about a job, and that Michel did not offer him a position within his restrictions. The claimantthen initiated an independent job search and eventually accepted a position as an x-ray technician with NationalTesting Service (NTS) on December 25, 1999. The claimant stated that NTS paid him $10.75 an hour, andthat his job required him to travel extensively, climb in and out of ditches, and sit around "for hours uponhours." According to the claimant, he left his job at NTS because it was causing him back pain. Hesubsequently took a job with Inlander Brothers (Inlander) as a forklift driver where he earned $8 an hour. Theclaimant stated that his job at Inlander allowed him to walk around and stretch every 20 minutes, and that hewas not required to do any heavy lifting.

At Michel's request, the claimant was examined several times by Dr. Boone Brackett. Over Michel'shearsay, foundation, and authenticity objections, the claimant introduced a post-examination report from Dr.Brackett dated March 6, 2001. In this report, Dr. Brackett stated that the claimant returned to work inNovember 1999 with a "sixty-five pound weight restriction," and opined that the claimant was doing"reasonably well" working within this restriction.

Admitted into evidence were two exhibits containing certain information relating to the claimant'semployment. The first form contained detailed information from the claimant's employment at Michel. It listedthe number of hours and days the claimant worked during each of the 17 weekly pay periods he was employedby Michel prior to his injury. This exhibit showed that the claimant worked 420.5 hours and earned $9,451.18during that period. Although the claimant testified that his workweek consisted of five eight-hour days, theexhibit reflects that he only worked 59 days during the 17 weekly pay periods preceding his injury. The formlisted the claimant's hourly wage at $22.35 during the first 15 weekly pay periods, and as $23.35 per hourduring the final two weekly pay periods. A second form listed the same details for the claimant's employmentduring the period between December 25, 1999, and February 17, 2001. The claimant testified that, at the timeof the arbitration hearing, laborers earned $25.41 an hour. The arbitrator, however, rejected an exhibit entitled"new scale of wages for construction and general laborers effective 6-1-00 to 5-31-01" which supported theclaimant's testimony on this issue.

Following the hearing, the arbitrator found that the claimant sustained an accidental injury on June 15,1998, arising out of and in the course of his employment with Michel and that a causal relationship existsbetween the claimant's lower back condition and his work-related accident. However, the arbitrator found nocausal connection between the claimant's right hip bursitis and his work-related accident. The arbitrator alsofound that the claimant's average weekly wage was $899.04, and that Michel had paid $50,157.36 to theclaimant on account of his injury. The arbitrator awarded the claimant: temporary total disability (TTD)benefits for 65 3/7 weeks, representing the periods of June 16, 1998, through October 23, 1998, and December14, 1998, through November 4, 1999; maintenance benefits for 3 2/7 weeks, representing the period betweenNovember 5, 1999, and November 29, 1999; wage differential benefits in the amount of $312.69 per week,commencing on December 25, 1999, for the duration of his disability; $7,239.41 in penalties, as provided forin section 19(k) of the Act (820 ILCS 305/19(k) (West 2002)); $1,447.88 in attorneys' fees pursuant to section16 of the Act (820 ILCS 305/16 (West 2002)); and $163.61 for the claimant's necessary medical expenses.

Both parties sought a review of the arbitrator's decision before the Commission. On April 9, 2002,the Commission, in a decision written by Commissioner Robert Madigan, with two Commissioners concurringin part and dissenting in part, modified the arbitrator's decision to find that a causal connection exists betweenthe claimant's right hip bursitis and his work-related accident, and affirmed and adopted the remainder of thearbitrator's decision. Commissioner Richard Gilgis dissented in part on the basis that the arbitrator incorrectlyawarded the claimant maintenance benefits for the period from November 5, 1999, the date on which hereached MMI, through November 29, 1999. Commissioner Jacqueline A. Kinnaman dissented in part on thebasis that the arbitrator improperly calculated the claimant's wage differential award. The Commission alsofound that Michel waived any argument concerning the award of section 19(k) penalties and section16 attorneyfees, and that both parties waived consideration of the arbitrator's award of medical expenses by failing to raisethose issues in both of their respective Petitions for Review and Statements of Exception.

Thereafter, the parties sought judicial review of the Commission's decision in the circuit court of CookCounty. On November 20, 2002, the circuit court confirmed the Commission's decision with respect to causalconnection and the claimant's entitlement to: TTD benefits from June 16, 1998, through October 23, 1998,and from December 14, 1998, through November 4, 1999; wage differential benefits; section 19(k) penalties; section 16 attorneys' fees; and medical expenses. The court, however, reversed the Commission's calculationsof the claimant's average weekly wage and wage differential benefits. The court also found that the claimantwas entitled to permanent partial disability (PPD) benefits, not TTD or maintenance benefits, from November4, 1999, until November 29, 1999, and that the Commission erred in failing to award the claimant section 19(l)penalties (820 ILCS 305/19(l) (West 2002)). Accordingly, the circuit court remanded the matter to theCommission with instructions that it enter an award of $2,500 in penalties pursuant to section 19(l) of the Act,recalculate the claimant's average weekly wage in accordance with Sylvester v. Industrial Comm'n, 197 Ill. 2d225, 230, 756 N.E.2d 822 (2001) and, based thereon, recalculate the amount of TTD benefit payments, wagedifferential payments, section 19(k) penalties, and section 16 attorneys' fees. The claimant filed a motion toreconsider which the circuit court denied on March 21, 2003. He also filed a motion for clarification of thecourt's orders of November 20, 2002, and March 21, 2003. The court subsequently issued a clarificationorder, stating, inter alia, that the matter was being remanded to the Commission with instructions that itconsider whether the claimant was entitled to wage differential benefits for the period from "November 5, 1999,through December 24, 1999, or any portion thereof."

Michel appealed to this court and, on June 10, 2003, we entered an order dismissing the appeal for lackof jurisdiction because the matter had been remanded to the Commission, rendering the circuit court's orderinterlocutory in nature. See A.O. Smith v. Industrial Comm'n, 109 Ill. 2d 52, 54, 485 N.E.2d 335 (1985). Onremand from the circuit court, the Commission entered a decision on December 8, 2003, which fixed theclaimant's average weekly wage at $570.70. Based on this calculation, the Commission then awarded theclaimant: TTD benefits for 65 3/7 weeks, representing the periods of June 16, 1998, through October 23, 1998,and December 14, 1998, through November 4, 1999; wage differential benefits in the amount of $167.13 perweek, commencing on November 5, 1999, for the duration of his disability; $2,500 in section 19(l) penalties;and no section 19(k) penalties or section 16 attorney fees due to Michel's overpayment of benefits. The circuitcourt confirmed the Commission's December 8, 2003, decision. Thereafter, the claimant filed a timely noticeof appeal, and Michel filed its cross-appeal.

Michel first contends that the Commission erred in allowing into evidence and considering the recordsand reports of Drs. Brackett, Alvi, and Lorenz, and the documents contained in the LaGrange exhibit. Weagree.

The rules of evidence apply to all proceedings before the Commission or an arbitrator, except to theextent they conflict with the Act. 50 Ill. Admin. Code