JUSTICE CALLUM delivered the opinion of the court: Claimant, Michael Johnson, filed an application for adjustment of claim under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)) for injuries to his shoulder and back. The arbitrator found that claimant had sustained accidental injuries arising out of and in the course ofhis employment by Mechanical Devices (employer). The arbitrator awarded claimant medical expensesand temporary total disability (TTD) benefits for 22 weeks. He denied prospective medical benefitsand penalties. The Industrial Commission (Commission) reversed the arbitrator in part and found thatclaimant was entitled to TTD benefits for a total of 52 1/7 weeks. The Commission deniedprospective medical benefits and penalties. The parties appealed, and the circuit court consolidatedthe appeals and confirmed the Commission's decision. Employer now appeals the Commission's TTDaward, and claimant appeals the Commission's denial of penalties and attorney fees. We affirm theTTD award, as modified, and we affirm the denial of penalties and fees.
BACKGROUND
On May 30, 1997, claimant began working for employer as a machinist. On February 2, 1999,claimant attempted to catch with his right arm a 150- to 180-pound part that slipped from a liftingdevice. Claimant jerked his right shoulder and back, and he twisted to the right. He experiencedimmediate pain in his right shoulder and was driven to Dr. Lawrence Nord, an orthopedic surgeon andemployer's doctor. Dr. Nord diagnosed right shoulder strain.
Claimant testified that he began to experience lower back pain the day after the accident. OnFebruary 9, 1999, Dr. Nord diagnosed claimant with right shoulder strain and lumbar strain andordered an MRI, which indicated a rotator cuff tear. On March 17, 1999, claimant underwentshoulder surgery and was later diagnosed with right shoulder impingement. Claimant began physicaltherapy in March 1999. On April 28, 1999, employer terminated claimant's employment becauseclaimant had exhausted his medical leave time.
At the time of his accident, claimant also worked at the YWCA as a shuttle bus driver. Hebegan working with the YWCA on October 11, 1998, and averaged between 20 and 25 hours perweek. Claimant stopped working at the YWCA after his accident.
In notes and letters dated March 18 and April 12, 1999, Dr. Nord noted that claimant's backproblems were related to his injury. However, in a letter dated May 17, 1999, Dr. Nord stated thatclaimant's injury to his back was minimal and that his injury was not substantially related to his backdiscomfort. Dr. Nord also wrote that claimant's injury may have temporarily aggravated a pre-existingcondition in claimant's spine. Dr. Nord testified that he revised his opinion between the earlier lettersand May 17 based on his review of claimant's myelogram and another physician's opinion.
On June 3, 1999, Dr. Nord released claimant to work with restrictions. These included:standing and sitting for limited periods; no climbing; occasional bending; and no lifting of objects over10 pounds. Employer, which had commenced paying claimant TTD benefits from the date of theaccident, stopped paying as of June 3, 1999.
Dr. Nord examined claimant for the last time on July 1, 1999. He testified that claimant wasnot at maximum medical improvement with respect to his right shoulder and was not able to work fullduty with his right shoulder. Dr. Nord stated that claimant's accident was the causative factor in hisimpingement syndrome and his need for shoulder surgery. However, Dr. Nord also testified that theimpingement syndrome was not caused by the accident; rather, it was present before the accident.
Dr. Nord further testified that claimant had congenital spinal stenosis. He stated that, on July1, 1999, claimant was not at maximum medical improvement regarding his low back and that claimant's disc bulge/herniation could possibly have been caused by the accident. Dr. Nord stated thatclaimant's work restrictions were 90% causally related to his congenital condition. He did notrecommend decompressive surgery for claimant's back problems. Instead, Dr. Nord recommendedweight loss, physical therapy, and anti-inflammatory medications to treat claimant's back, and herecommended exercise to treat claimant's shoulder condition.
On July 6, 1999, claimant returned to work at the YWCA. Claimant testified that the job waswithin his work restrictions. It included breaks of up to 2 hours; involved no kneeling, climbing, orlifting of over 10 pounds; and did not require him to provide passengers with special assistance. Hedrove a shuttle bus an average of 15 hours per week between July 1999 and January 2000, the dateof the arbitration hearing. The bus had automatic transmission and a power seat.
On July 26, 1999, claimant enrolled full-time in cosmetology school. He attended classes fourdays per week from 4 p.m. to 10 p.m. The training involved classroom instruction and hands-ontraining that included standing and sitting while cutting hair. Claimant testified that he did not haveto lift any objects that weighed over 10 pounds and that he did not have to stand for 5 or 6 hoursstraight or sit for 4 hours straight.
At about this time, claimant turned down a job at Federal Express. He testified that he hadapplied for the job before his injuries and turned it down because it was not within his workrestrictions, as it involved lifting packages and unloading a truck. Claimant also turned down a jobfrom Hertz because it involved moving cars, whereas he had applied for a customer service job.
Dr. Robert Martin, claimant's independent medical examiner, reviewed claimant's medicalrecords and examined claimant on June 10, 1999. He diagnosed impingement syndrome caused bya rotator cuff tear regarding claimant's right shoulder. Dr. Martin testified that claimant's tendon tear,impingement syndrome, and disc herniation were causally related to his accident. Dr. Martin alsotestified that claimant's shoulder required physical therapy and that claimant will have permanentimpairment as a result of the injury. As of June 10, 1999, Dr. Martin stated that claimant could haveworked with restrictions.
Dr. Alexander Ghanayem, an orthopedic surgeon, examined claimant on August 27, 1999. Hestated that claimant had a developmentally narrow spinal cord and stenosis secondary to discprotrusion at the L5-S1 level. Dr. Ghanayem diagnosed claimant with symptomatic disc herniationand symptomatic spinal stenosis. He testified that the accident may have rendered claimant'sasymptomatic disc herniation symptomatic. Dr. Ghanayem stated that claimant's disc herniation,tendon tear, and impingement syndrome were caused or aggravated by the accident. Claimant couldlikely drive a shuttle bus if he could stand and stretch occasionally and move around.
Dr. Philip George, employer's independent medical examiner, stated in a report dated January10, 2000, that there was a causal relationship between claimant's accident and his right shoulder andlow back problems. Claimant could work with restrictions. Dr. George did not consider claimant acandidate for spinal surgery; instead, he recommended weight loss, exercise, and anti-inflammatorymedication.
The arbitrator rendered his decision on June 30, 2000. He found that as a result of the accidentclaimant was temporarily and totally disabled from February 3, 1999 through July 6, 1999, and heawarded claimant TTD benefits for that period, a total of 22 weeks. The arbitrator also awardedcompensation accrued from February 2, 1999 through February 3, 2000, the date of the arbitrationhearing, plus medical costs. The arbitrator found that there was insufficient evidence to award ororder future back surgery and thus denied claimant's prospective medical claims. The arbitrator alsodenied penalties, finding that there existed substantial disputes in the case.
Claimant appealed. The Commission found that claimant had not reached maximum medicalimprovement and was thus entitled to TTD benefits through February 2, 2000, a total of 52 1/7 weeks. The Commission found that claimant presented credible medical evidence to support a relationshipbetween his shoulder condition and the accident. Thus, it concluded that the injuries were causallyrelated to claimant's employment. The Commission also found that Drs. George, Ghanayem, andMartin's opinions more persuasive than Dr. Nord's and concluded that claimant presented credibleevidence regarding his low back pain condition and the injury.
The Commission further found that claimant's YWCA job was within his work restrictions. It awarded employer a credit for wages claimant earned at the YWCA after his return to work therein July 1999. The Commission noted that claimant turned down jobs at Federal Express and Hertz,but stated that employer never obtained a vocational assessment of claimant to show what types ofjobs might be suitable for him. It concluded that the fact that claimant could have looked for workwas not dispositive on the issue of entitlement to TTD benefits. The Commission further commentedthat claimant's enrollment in cosmetology school did not in and of itself disqualify claimant from TTDbenefits.
The Commission denied penalties and attorney fees, finding that a reasonable dispute existedregarding claimant's entitlement to TTD benefits after June 2, 1999. It further found that employer'sactions were not unreasonable or vexatious. The Commission remanded the case to the arbitrator fora hearing on all other issues pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 332-35 (1980).
One Commissioner dissented from the decision, arguing that claimant was not entitled tobenefits for a congenital condition. The dissent contended that claimant had recovered and took issuewith the majority's grant of a credit for YWCA wages, arguing that the majority failed to specify thewage amount. The dissent further challenged the majority's finding that claimant was totally disabledand pointed to his work driving a bus. Finally, the dissent criticized the majority for legislating a"temporary partial" benefit into the Act.
The parties appealed, and the circuit court consolidated the appeals and confirmed theCommission's decision. The parties appeal again. Employer argues that the Commission erred ingranting TTD benefits for the period after claimant was released to return to work with restrictions. Claimant appeals the Commission's denial of penalties and attorney fees.
ANALYSIS
I. TEMPORARY TOTAL DISABILITY
Employer argues that the Commission erred in awarding claimant TTD benefits through thedate of the arbitration hearing. It contends that the benefits should have terminated on June 3, 1999,when claimant was released to work with restrictions. Employer further argues that claimant's workfor the YWCA, his attendance at cosmetology school, and his rejection of several job offers are allfactors that should have foreclosed the extension of TTD benefits past claimant's release-to-work date. Finally, it maintains that the TTD award was improper because the Commission effectively legislateda partial temporary wage differential award when it granted employer an offset for claimant's YWCAwages.
The duration of TTD benefits is a question of fact. Archer Daniels Midland Co. v. IndustrialComm'n, 138 Ill. 2d 107, 118-19 (1990). The Commission's determination of the duration of TTDbenefits will not be set aside on review unless it is contrary to the manifest weight of the evidence. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 832-33 (2002). The test for determining whethera factual finding of the Commission is against the manifest weight of the evidence "is not whether thisor any other tribunal might reach the opposite conclusion, but whether there was sufficient factualevidence in the record to support the Commission's determination." Beattie v. Industrial Comm'n, 276Ill. App. 3d 446, 450 (1995).
To establish entitlement to TTD benefits, a claimant must demonstrate not only that he or shedid not work, but also that the claimant was unable to work. City of Granite v. Industrial Comm'n,279 Ill. App. 3d 1087, 1090 (1996). It is irrelevant whether the claimant could have looked for work. Freeman United Coal v. Industrial Comm'n, 318 Ill. App. 3d 170, 177 (2000). The dispositive test iswhether the claimant's condition has stabilized, that is, whether the claimant has reached maximummedical improvement. Freeman, 318 Ill. App. 3d at 175-76. Once an injured employee's physicalcondition has stabilized, the employee is no longer eligible for TTD benefits because the disablingcondition has become permanent. Manis v. Industrial Comm'n, 230 Ill. App. 3d 657, 660 (1992).
Temporary total disability benefits are awarded for the period from when an employee isinjured until he or she has recovered as much as the character of the injury will permit. See Pressonv. Industrial Comm'n, 200 Ill. App. 3d 876, 880 (1990); see also Kuhl v. Industrial Comm'n, 126 Ill.App. 3d 946, 949 (1984) (TTD is awarded between the date of injury and the date when theemployee's condition has stabilized).
The factors to be considered in determining whether a claimant has reached maximum medicalimprovement include: (1) a release to return to work; (2) the medical testimony concerning theclaimant's injury; (3) the extent of the injury; and (4) "most importantly," whether the injury hasstabilized. Beuse v. Industrial Comm'n, 299 Ill. App. 3d 180, 183 (1998); see also Freeman, 318 Ill.App. 3d at 178-79 (in addition, compliance with a prescribed rehabilitation program may be evidenceof whether a claimant has reached maximum medical improvement).
We address first employer's arguments relating to the first factor. Employer argues that theCommission erroneously focused on one of the factors--stabilization--in determining whether claimanthad reached maximum medical improvement and ignored the fact that claimant had been released toreturn to work. Employer suggests that claimant's work at the YWCA indicates his ability to work ina stable job market and in an unlimited capacity.
A claimant's earning of occasional wages does not necessarily preclude a finding of temporarytotal disability. See E.R. Moore Co. v. Industrial Comm'n, 71 Ill. 2d 353, 361 (1978). In J.M. JonesCo. v. Industrial Comm'n, 71 Ill. 2d 368, 372-73 (1978), the supreme court held that driving a bus forabout three hours per day for seven months following the claimant's injury did not require reversal ofthe Commission's TTD finding. In Zenith Co. v. Industrial Comm'n, 91 Ill. 2d 278, 282, 286 (1982),the supreme court held that the claimant's operation of a hot dog vending truck for one and one-halfhours per day for about six months did not preclude the award of TTD benefits.
Employer suggests that Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117 (1996), is instructive. In Dolce, the claimant, in addition to working his full-time job, sold real estate on a part-time basis. The claimant testified that he sold property on weekends and in the evenings and that he did not haveto work a set number of hours. Before the claimant's injury at his full-time job, the claimant hadcompleted as many as 26 property sales per year. Following his injury, the claimant chose not toreturn to work to his full-time job and became a sales associate for a real estate agency. The courtrejected the claimant's argument that his income was simply occasional income, where the claimantworked consistently in a stable, competitive labor market selling approximately one property permonth for a three-year period. Accordingly, it affirmed the Commission's decision that the claimant'sincome was regular and continuous.
Here, we conclude that claimant's work pattern is closer to that of the claimants in Zenith andJ.M. Jones than it is to the claimant in Dolce. When claimant returned to the YWCA job in July, heaveraged 10 to 15 hours of work per week, which averages to 3 hours per day and is similar to theJ.M. Jones claimant's work hours. Claimant testified that the job was within his work restrictions, inthat it did not require claimant to offer any special assistance to passengers, to do any lifting orclimbing, or to do any bending.
We reject employer's focus on the period from July 6, 1999, to September 30, 1999, duringwhich claimant worked between 24