Pietrzak v. Industrial Comm'n

Case Date: 04/18/2002
Court: Industrial Commission
Docket No: 1-01-2006WC Rel

                         NOTICE
Decision filed 04/18/02.  The text of this decision may be changed or corrected prior to the filing of a Peti-
tition for Rehearing or the disposition



NO. 1-01-2006WC


IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Industrial Commission Division


GERALD J. PIETRZAK, 
                      Plaintiff-Appellant, 
                      v.
INDUSTRIAL COMMISSION OF ILLINOIS
and LANDAIR TRANSPORT, INC., 
                      Defendants-Appellees.


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Appeal from
Circuit Court of
cook County
No. 99L50593


Honorable
Alexander P. White,
Judge Presiding.

 

PRESIDING JUSTICE McCULLOUGH, delivered the opinion ofthe court:

Claimant, Gerald J. Pietrzak, appeals from an order ofthe circuit court of Cook County confirming a "corrected" decisionof the Illinois Industrial Commission (Commission) following anearlier remand by the circuit court. The respondent employer isLandair Transport, Inc.

The issues on appeal are whether (1) the Commissionimproperly considered the reports of Drs. Joel Grossman and JeffreyCoe; (2) the Commission's reduction of TTD benefits by 1 6/7 weeksby excluding the period from November 2, 1994, through November 14,1994, was against the manifest weight of the evidence; (3) theCommission's award of PPD under section 8(d)(1) of the Act insteadof section 8(d)(2) of the Act was against the manifest weight ofthe evidence or contrary to law; and (4) the denial of additionalcompensation and attorney fees was against the manifest weight ofthe evidence or contrary to law. We affirm.

The arbitrator awarded claimant $722.24 for 60 5/7 weeksfor temporary total disability (TTD); a wage differential for the"duration of disability"; and $18,579.36 for medical expenses. 820ILCS 305/8(b), (d)(1), (a) (West 1994). The arbitrator deniedclaimant's request for additional compensation and attorney fees. 820 ILCS 305/19(l), (k), 16 (West 1994). On October 27, 1997, theCommission issued a decision modifying the arbitrator's award asfollows: (1) awarded $666.67 per week for 58 6/7 weeks for TTD; and(2) vacated the permanency award made pursuant to section 8(d)(1)of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West1994)), and (3) found claimant permanently partially disabled tothe extent of 20% loss of the man as a whole pursuant to section8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 1994)) in the amountof $396.89 per week for 100 weeks. In all other respects, theCommission affirmed and adopted the arbitrator's decision.

On judicial review, the circuit court entered an order onSeptember 24, 1998, setting aside the Commission decision andremanding it with instructions that the Commission make findingsand give reasons, including inferences drawn from the evidence, tosupport its decision as to four issues specified in the circuitcourt's order. On remand, the Commission issued a "corrected"decision affirming and adopting its earlier decision as modified. After readjusting claimant's average weekly wage, the Commissionawarded claimant $722.24 per week for 58 6/7 weeks TTD, $396.89 perweek for 100 weeks for permanent partial disability (PPD) pursuantto section 8(d)(2) of the Act, reaffirmed its earlier award ofmedical expenses, and continued to deny claimant additionalcompensation and attorney fees.

We initially consider whether the Commission improperlyconsidered the reports of Drs. Joel Grossman and Jeffrey Coe. TheCommission's findings with regard to the facts objected to byclaimant were as follows:

"10. Petitioner was also examined by Respondent [sic] independent medical examiner Dr.Coe on April 14, 1995. He also noted Petitioner's condition to be consistent with L5-S1radiculopathy, but opined that the conditionhad plateaued. He was found capable of lightduty with an appropriate restriction of nolifting over 35 lb. on an occasionally [sic]basis with ability to change positions duringthe day. Light duty would include supervisoryand management duties. Upon further examination of the medical records, he opined thatthe various histories Petitioner gave regarding his back injury suggested an interveningaccident. He found Petitioner to be at maximum medical improvement as of December 16,1994, the date he was released from physicaltherapy (RX9). Dr. Grossman, who also reviewed Petitioner's medical records in July1995, opined that the three different versionsgiven by Petitioner as to how his injuryoccurred raised significant doubt as to theissue of causal connection (RX16)."

Respondent's exhibit 16 was a report authored by Drs.Kenneth Fischer and Joel Grossman, who reviewed medical records atthe request of respondent. The report did include a response bythose doctors to a question from respondent about the relationshipof the treatment to the alleged injury of October 1994. Before thearbitrator, claimant's attorney objected to respondent's exhibit16. The arbitrator admitted these exhibits into evidence.

On appeal, in a one paragraph argument without citationto legal authority, claimant argues that the Commission should nothave considered Grossman's opinion as he did not examine claimantand the report was only relevant to the reasonableness of medicalbills. As shown in its findings, paragraph 10, the Commissionmerely observed the fact that the report was made. In none of itsconcluding paragraphs did the Commission refer to this report as abasis for its decision.

In the circuit court, Judge White concluded that, whilerespondent's exhibit 15 was offered with respect to the reasonableness and necessity of the medical treatments and bills, there wasno such limited offer with regard to Grossman's report. There wasno ruling by the arbitrator to the effect that respondent's exhibit16 (the Fischer/Grossman report) was limited to the reasonablenessof the treatment and medical expenses. Judge White correctlystated that the admissibility of the reports of Grossman and Coewas not raised or argued by claimant before the Commission in thereview proceeding. Moreover, the issue was not raised by claimantin the initial judicial review proceeding. As a result, thecircuit court found both of the arguments waived. We agree. SeeService Adhesive Co. v. Industrial Comm'n, 226 Ill. App. 3d 356,370, 589 N.E.2d 766, 774 (1992) (failure to raise an issue beforethe Commission waives the issue).

Moreover, Service Adhesive provides additional basis forfinding waiver of the issue in this case, the failure to cite legalauthority in support of the argument. Service Adhesive, 226 Ill.App. 3d at 365, 589 N.E.2d at 771. The one-sentence statement inclaimant's brief, "Similarly, Dr. Coe's reports were objected to onhearsay and those should not have been admitted" will not be deemedargument that complies with Supreme Court Rule 341(e)(7) (188 Ill.2d R. 341(e)(7)).

Although respondent apparently offered the Grossmanreport as relevant to the question of the reasonableness of thecharges and treatment, it was not admitted for that limited purposeby the arbitrator and, although claimant objected to the exhibit,claimant did not ask that the consideration of the exhibit belimited to the reasonableness of the medical treatment. TheCommission simply referred to the existence of the report fromGrossman and did not rely on it as the basis for its decision. There was no error by the Commission in its consideration ofGrossman and Coe reports.

We next consider whether the Commission's reduction ofTTD benefits by 1 6/7 weeks by excluding the period from November2, 1994, through November 14, 1994, was against the manifest weightof the evidence. The Commission found that the first day claimantwas not able to work was November 15, 1994, as established by aletter from Dr. Alan Hirsch, a neurologist. Claimant argues thathis entitlement to TTD should be calculated beginning November 2,1994. Claimant concedes that Hirsch authored a letter keepingclaimant off work from November 15, 1994, to September 29, 1995. Claimant argues he is entitled to the additional 1 6/7 weeks TTDfrom November 2 through November 14, 1994.

To establish entitlement to TTD benefits, claimant mustprove not only that he did not work, but that he was unable to workand the duration of that inability to work. Cropmate Co. v.Industrial Comm'n, 313 Ill. App. 3d 290, 296, 728 N.E.2d 841, 845(2000). The Commission's determination of whether claimant wasunable to work and the duration of the temporary total disabilitywill not be set aside on review unless contrary to the manifestweight of the evidence. Cropmate Co., 313 Ill. App. 3d at 296, 728N.E.2d at 845-46.

The Commission accepted Hirsch's determination ofNovember 15, 1994, as the beginning of the time when claimant wasunable to work even though claimant testified that he did not workfrom and after November 2, 1994. In light of the fact that Dr.Beverly Henderson's testimony and records indicated that claimanthad those symptoms for some time prior to November 2, 1994, andHenderson did not take claimant off work on that date, theCommission could reasonably find that claimant was not temporarilytotally disabled on November 2, 1994, as claimant contends. Thatfinding was not against the manifest weight of the evidence.

We next address the permanency award. The Commissiondetermined that claimant failed to prove entitlement to a wagedifferential under section 8(d)(1) of the Act because he did notconduct a sufficient job search and accepted a position at a salarylower than was offered him in 1995 and lower than he would haveexpected to command in light of his experience in the transportation industry. Instead, the Commission awarded claimant PPD on thebasis of loss of 20% of the man as a whole under section 8(d)(2) ofthe Act. The corrected decision on remand also affirmed andadopted the earlier Commission decision as to permanency. In itsoriginal decision, the Commission found that claimant had failed toprove that he was partially incapacitated from pursuing his usualand customary line of employment.

The extent or permanency of disability is a question offact for the Commission. E.R. Moore Co. v. Industrial Comm'n, 71Ill. 2d 353, 361, 379 N.E.2d 206, 209 (1978); Steve Foley Cadillac/Hanley Dawson v. Industrial Comm'n, 283 Ill. App. 3d 607, 611-12, 670 N.E.2d 885, 888 (1996). The Commission's finding as tocompensation will be reversed only if it is against the manifestweight of the evidence. Durfee v. Industrial Comm'n, 195 Ill. App.3d 886, 890, 553 N.E.2d 8, 10 (1990). The test is whether there issufficient factual evidence in the record to support the Commission's determination, not whether this court, or any othertribunal, might reach an opposite conclusion. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450, 657 N.E.2d 1196, 1199(1995). The determination of witness credibility and the weight tobe accorded the evidence are matters within the province of theCommission. Dillon v. Industrial Comm'n, 195 Ill. App. 3d 599,607, 552 N.E.2d 1082, 1087 (1990).

In Durfee, the employee's treating physician placed norestrictions on the employee and recommended that he attempt atrial return to work. Instead, the employee elected to remain ina job he enjoyed and that coincided with his interests. There wasno evidence that he attempted to obtain any other form of employment. Durfee, 195 Ill. App. 3d at 890, 553 N.E.2d at 10-1.

Here, the Commission found that claimant's average weeklywage with respondent was $1,144.23 ($59,500 per year). He was paid$1,000 per week and had the use of a company car valued at $7,500. Claimant's duties were to travel to different locations forrespondent to get new facilities running and to straighten outterminal problems. Claimant testified that there was some manuallabor involved in the performance of his duties.

Hirsch released claimant to return to work on September29, 1995. Between July or August 1995 and January 1996, claimantdid not complete any job applications. Claimant secured employmenton January 2, 1996, as a terminal manager with a salary of $650 perweek ($33,800 per year) and no company car. In his new position,he was required to have an automobile and had to purchase one. This was the second company he had contacted, and he accepted theposition on the same day that he completed the application. Theposition included duties such as marketing, sales calling,assisting dispatchers, driver liaison, training and management. His new position required no driving or heavy lifting.

Claimant testified that, in January 1995, he spoke withMr. Bruce Campbell, respondent's executive vice president, abouttrying to secure a position within respondent's successor company.He also had several discussions with Harold Antonson, president ofLRS Transportation, respondent's successor, between January and Mayof 1995 in which several possible positions were discussed. At onepoint, Antonson mentioned a position as terminal manager, butclaimant stated he was not interested. That position wouldnormally pay a salary of $52,000 per year in Chicago. At no timeduring these discussions were there any job offers. In May of1995, claimant was contacted by two trucking companies, Big Red andDean Foods, who inquired about his status. According to claimant,the position would have been in the $50,000 per year range. However, claimant advised the company that he had not yet beenreleased to return to work. Claimant also testified that he lookedin the paper under the transportation section, but could not findanything, as jobs at his level basically came through word ofmouth. Prior to his work release, he also went to six employersclose to his home, leaving applications.

Claimant testified that he had previous experience in allareas of the transportation business, including dock supervision,dispatching and sales. A labor market survey prepared by vocational rehabilitation counselor Michelle Running on May 10, 1995,noted that claimant had 25-30 years of experience in the transportation industry in various capacities such as driving, sales,business owner, and terminal manager. Running noted that only asmall percentage of employers actually advertise a job opening, butinstead hire people through informal methods such as networking. She stated that, since claimant had been in the transportationindustry for many years, he had likely developed a network of jobcontacts that would greatly increase the likelihood of his findingemployment. In her opinion, claimant was employable and couldobtain a sedentary-light level position within the industry with asalary ranging from $35,000 to $50,000 per year.

This court considered wage differential awards inGallianetti v. Industrial Comm'n, 315 Ill. App. 3d 721, 734 N.E.2d482 (2000). In Gallianetti, this court concluded that section 8(d)precluded an award based on percentage of the person as a whole"where the claimant has presented sufficient evidence to show aloss of earning capacity." Gallianetti, 315 Ill. App. 3d at 728, 734 N.E.2d at 488. To qualify for a section 8(d)(1) wage differential award, claimant must prove (1) partial incapacity thatprevents him from pursuing his usual and customary line ofemployment and (2) impairment of earnings. Gallianetti, 315 Ill.App. 3d at 730, 734 N.E.2d at 489. Here, although claimanttestified to the symptoms he still had, there was no evidence that,even with his restrictions, he was incapable of performingmanagement duties with a transportation company.

In addition, the Commission found that claimant did notprove an impairment of earnings. Although there is no affirmativeduty that claimant conduct a job search, that is one way ofdemonstrating impairment of earnings. Gallianetti, 315 Ill. App.3d at 731, 734 N.E.2d at 490. In Gallianetti, this court notedthat the claimant was severely restricted in the type of job hecould perform; claimant regularly inquired about positions withinhis restrictions at a number of local employers; claimant unsuccessfully attempted to find employment within his restrictionsthrough the union on four occasions; there was no evidence that ajob search covering a wider geographical area would have achievedgreater success; and a job survey indicated that no openings wereavailable in the four types of positions within claimant'srestrictions that paid more than the job he obtained. Gallianetti,315 Ill. App. 3d at 731-32, 734 N.E.2d at 490.

In the case at bar, the Commission relied on the jobsurvey performed by Running. She found 43 available positionswithin a two-week period. In her opinion, claimant could obtain asedentary light-level position within the transportation industryat a salary ranging from $35,000 to $50,000 per year. TheCommission could reasonably rely on that evidence to find thatclaimant did not prove his earnings were impaired as a result ofhis disability. This finding is not against the manifest weight ofthe evidence.

The final issue is whether the denial of additionalcompensation and attorney fees was against the manifest weight ofthe evidence or contrary to law. Claimant alleged a work-relatedinjury on October 4, 1994. However, claimant did not notifyrespondent that the injury was work-related until January 19, 1995,after respondent was purchased by LRS Transportation and claimantwas informed on January 11, 1995, that he would not be retained andreceived his final paycheck. In October 1994, claimant paid formedical treatment from Drs. Joseph Bishop and Chester Wilk and didnot submit the bills to respondent. He initially had Hendersonsubmit her bills to his group insurance carrier. The groupinsurance carrier was advised that claimant's injury was not work-related. Claimant's group carrier was billed until February 1995,and no steps were taken to advise that company that the treatmentwas work-related. In addition, some of claimant's medical billswere forwarded to his wife's group carrier. The Commissionobserved that, in addition to giving a history to medical providersof injuring his back in a bathtub incident and while carryingluggage, he informed Wilk when he saw him on October 31, 1994, thathe aggravated the back pain while getting out of a car.

The Commission rejected claimant's argument that he wasentitled to additional compensation under sections 19(k) and 19(l)of the Act and attorney fees under section 16 of the Act because ofrespondent's failure to pay TTD benefits. The Commission concludedthat, there were inconsistencies in the medical histories andversions relating to the onset and exacerbation of claimant's backinjury as well as delayed identification by claimant that theinjury was work-related. The Commission found that the respondent's decision to dispute the claim was not unreasonable orvexatious.

Whether the employer's conduct justifies the impositionof additional compensation is considered in terms of reasonablenessand it is a factual question for the Commission; the Commission'sdecision will not be overturned unless it is against the manifestweight of the evidence. McKay Plating Co. v. Industrial Comm'n, 91Ill. 2d 198, 209, 437 N.E.2d 617, 623 (1982).

The Commission's determination that claimant was notentitled to additional compensation and attorney fees under thefacts of this case does is not against the manifest weight of theevidence.

The order of the circuit court of Cook County confirmingthe Commission's corrected decision following remand is affirmed.

Affirmed.

HOFFMAN, O'MALLEY, HOLDRIDGE, and RARICK, JJ., concur.