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No. 5-03-0713WC

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH JUDICIAL DISTRICT

INDUSTRIAL COMMISSION DIVISION

Roper Contracting (Roper) appeals from a circuit court order confirming a decision of the IndustrialCommission (Commission), awarding permanent partial disability (PPD) benefits, temporary total disability(TTD) benefits, travel expenses and maintenance payments to the claimant, Larry Grabis, in connectionwith his application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1et seq. (West 2002)). For the reasons which follow, we affirm.

On July 31, 2000, the claimant filed an application for adjustment of claim alleging that he hadsuffered an accidental injury on January 17, 2000, while working for Roper. An arbitration hearing washeld on September 21, 2001, during which the following facts were established by the testimony andexhibits presented.

The claimant began working for Roper as a heavy equipment mechanic and super fueler in 1999. As part of the claimant's job, he was required to lift tools weighing 50 to 60 pounds over his head. He wasalso responsible for refueling Roper's fleet of heavy machinery each morning before the rest of the crewarrived. On January 17, 2000, shortly after the claimant began work and while he was climbing into afueling truck, the claimant slipped and began to fall from a fender on the truck. To prevent his fall, theclaimant extended his left arm and grabbed onto the door of the fueling truck. While the claimant managedto stop his fall, he immediately noticed pain and loss of motion in his left arm and shoulder.

Later that day, the claimant visited his family doctor, Dr. Tom Martin, who diagnosed the claimantwith a left rotator cuff tear. The claimant returned to work until March 9, 2000, when he once again visitedDr. Martin complaining of pain and loss of motion in his left shoulder. Dr. Martin referred the claimant toDr. Alan H. Johnston, an orthopedic surgeon, who ordered an arthrogram of the claimant's left shoulder. An arthrogram was performed on March 16, 2000, and showed a complete tear in the claimant's leftrotator cuff. On April 7, 2000, Dr. Johnston operated on the claimant's left shoulder in order to repair hisrotator cuff.

After several months of physical therapy with minimal improvement, Dr. Johnston performed a leftshoulder manipulation under anesthesia on August 8, 2000, in order to resolve the claimant's adhesivecapsulitis. Following the claimant's shoulder manipulation he continued a regimen of physical therapy at theHarrisburg Medical Center in Harrisburg, Illinois. In a letter dated December 22, 2000, the claimant wasinformed that his worker's compensation carrier had refused to pay for further physical therapy at theHarrisburg Medical Center, but that the carrier was willing to pay for the claimant's therapy and travelexpenses for treatment at the Work Place Center of Deconess Hospital in Evansville, Indiana. Thereafter,the claimant's physical therapy took place at the Work Place Center.

In a report from the Work Place Center dated March 2, 2001, the claimant was reported asindicating interest in exploring vocational rehabilitation to "possibly become an equipment operator." Asubsequent report from March 19, 2001, recommended that if the claimant was unable to resume workingat Roper he would benefit from a vocational rehabilitation program with retraining in an occupation whichrequired less overhead lifting.

At Roper's request, the claimant was examined by Dr. Frank Petkovich on October 16, 2000. In his report of that examination, Dr. Petkovich stated that he had reviewed the claimant's medical records,arthrogram and operative reports and had conducted his own independent medical examination. Thedoctor opined that although the claimant had made some progress since surgery he still had significantlimitation in his range of motion and strength in his left shoulder. Dr. Petkovich also stated that the claimantcould work at "lighter duty activities" with restrictions that the claimant not lift more than eight pounds orperform any overhead work with his left upper extremity.

On March 21, 2001, Dr. Johnston examined the claimant and found his range of motion andstrength "somewhat" limited in the upper left extremity. The doctor stated that the claimant could "abductthe left arm about 105, externally rotate 18, and abduct 3 with pain predominately at the limits of hismotion." Dr. Johnston placed the claimant at maximum medical improvement (MMI), and authorized hisreturn to work with restrictions of no overhead reaching of the left upper extremity and no lifting greaterthan 15 pounds on a repetitive basis of the left upper extremity.

On March 26, 2001, the claimant returned to Roper in order to discuss his return to work with hissupervisor, Jerry Kemp. After informing Kemp of his work restrictions, the claimant was told that therewas no work suitable for him and that he should sign up for unemployment. The claimant's temporary totaldisability payments were terminated on April 18, 2001.

On May 18, 2001, the claimant was once again examined, at Roper's request, by Dr. Petkovich. The doctor reviewed the claimant's extensive medical records, including a report from the claimant's priorindependent examination on October 16, 2000, and performed a thorough medical examination. Dr.Petkovich opined that the claimant had been treated appropriately and successfully and concluded that hewas at maximum medical improvement. The doctor further found the claimant able to return to work withpermanent restrictions that he may not lift more than 15 to 20 pounds or do repetitive overhead work withhis left upper extremity.

Vocational rehabilitation was not offered to the claimant until approximately September 21, 2001. The claimant did, however, initiate an independent job search on April 10, 2001. During the course of hissearch, the claimant contacted 21 potential employers and received answers of "maybe[] and later on." The claimant, who was 51 years old at the time of his job search, had completed the 9^th grade and helda GED, and had spent his entire life employed as a mechanic. By the date of the hearing, the claimanttestified that he had the "prospect" of starting a job with the telephone company earning $280 a week. During the course of his testimony, "prospect" changed to "a hundred percent" and ended with the claimantstating that he would not secure the job only if, "I die or something." Despite the claimant's faith in hisforthcoming employment, he did not have a contract with the telephone company indicating an actual joboffer.

Following the hearing, an arbitrator found, inter alia, that the claimant sustained an accidental injuryon January 17, 2000, arising out of and in the course of his employment at Roper and that a causalrelationship exists between the claimant's condition of ill-being and his work-related accident. Thearbitrator awarded the claimant PPD benefits representing 50% loss of a man as a whole, and "temporarytotal disability/maintenance" benefits of $527.04 per week for 87 2/7 weeks, representing the period fromJanuary 18, 2000, through September 21, 2001. In addition, the arbitrator ordered Roper to reimbursethe claimant $996.28 for the travel expenses which Roper's worker's compensation carrier had agreed topay in the letter of December 22, 2000.

Roper sought review of the arbitrator's decision before the Commission. The Commission issueda decision, with one commissioner dissenting, in which it adopted the arbitrator's decisions regarding thePPD benefits and travel expenses, but modified the "temporary total disability/maintenance" benefits toprovide the claimant: TTD benefits for a period of 54 weeks, representing the period from March 8, 2000,through March 21, 2001; and maintenance for a period of 26 2/7 weeks, representing the period fromMarch 22, 2001, through September 21, 2001. In awarding the claimant maintenance, the Commissionfound that the claimant was entitled to a vocational rehabilitation program under section 8(a) of the Act(820 ILCS 305/8(a) (West 2002)) and that his self-created and directed job search took the place of aformal vocational rehabilitation program. The Commission also corrected the arbitrator's finding concerningthe claimant's average weekly wage to represent the parties' stipulated amount of $790.49.

The dissenting commissioner argued that maintenance benefits were unwarranted because the lawdid not place an affirmative burden upon Roper to offer vocational rehabilitation. The dissentingcommissioner reasoned that because the claimant failed to request vocational rehabilitation before initiatinghis self-created job search he was not entitled to any maintenance costs or expenses incidental to hissearch.

Roper sought judicial review of the Commission's decision in the circuit court of Gallatin County. The circuit court confirmed the Commission's decision, and Roper initiated the instant appeal.

Roper first contends that the claimant waived an award of maintenance by failing to advance a claimfor vocational rehabilitation at arbitration. However, the record shows that the claimant, in his request forhearing before the Commission, claimed that he was owed TTD and maintenance benefits for the periodbetween March 9, 2000, and the date of the hearing. We believe that under these circumstances the issueof maintenance cannot be said to be waived.

Roper next contends that the Commission erred, as a matter of law, in awarding the claimantmaintenance benefits under section 8(a) of the Act for the period between March 22, 2001, and September21, 2001. Roper argues that a formal request to an employer for vocational rehabilitation is required beforemaintenance may be awarded and that a self-created and directed job search does not suffice as a programof vocational rehabilitation.

Initially, we note that Roper has failed to cite any legal authority to support this contention incontravention of Supreme Court Rule 341(e)(7). 188 Ill. 2d R. 341(e)(7). Under Rule 341(e)(7), anyargument which is not supported by citation to legal authority is deemed waived. 188 Ill. 2d R. 341(e)(7);Eisenberg v. Industrial Comm'n, 337 Ill. App. 3d 373, 383 (2003). However, as the doctrine of waiveris a limitation upon the parties and not a restriction upon a reviewing court, we choose to address Roper'scontention. See Sinclair v. Berlin, 325 Ill. App. 3d 458, 468-69 (2001) (reaching merits of contentiondespite party's failure to comply with Rule 341(e)(7)).

Under section 8(a) of the Act, an employer "shall *** pay for treatment, instruction and trainingnecessary for the physical, mental and vocational rehabilitation of the employee, including all maintenancecosts and expenses incidental thereto." 820 ILCS 305/8(a) (West 2002). Industrial Commission Rule7110.10(a), entitled "Vocational Rehabilitation," further provides:

"The employer or his representative, in consultation with the injured employee and, ifrepresented, with his representative, shall prepare a written assessment of the course ofmedical care, and, if appropriate, rehabilitation required to return the injured worker toemployment when it can be reasonably determined that the injured worker will, as a resultof the injury, be unable to resume the regular duties in which he was engaged at the timeof the injury, or when the period of total incapacity for work exceeds 120 continuous days,whichever first occurs." 50 Ill. Admin. Code