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NO. 4-03-0087WC

PRESIDING JUSTICE McCULLOUGH delivered the opinion ofthe court:

On May 10, 2002, claimant filed an action in the circuitcourt of Sangamon County, seeking administrative review of theCommission's decision. On January 9, 2003, the circuit courtconfirmed the Commission's decision. On appeal, claimant arguesthat the Commission improperly reduced his award of TTD benefitsfrom 112 weeks to 29 6/7 weeks. We affirm the trial court'sjudgment as modified by an award of 84 weeks' TTD benefits.

On March 30, 1998, claimant was employed by employer asan electrical utility foreman. On that date, he ruptured a disc inhis back when lifting a reel of wire. Claimant underwent alaminectomy and performed rehabilitation. He returned to work forabout two months.

On February 23, 1999, claimant ruptured a disc in hisback when he slipped on a sheet of ice while exiting his truck. Claimant underwent a second laminectomy. Claimant did not returnto work after February 23, 1999. Employer paid claimant TTDbenefits through October 13, 2000.

Dr. Sheehan, who performed the two laminectomies,informed claimant about his physical condition following the secondprocedure, stating that "he couldn't do anything about it, it's notyour problem." Claimant sought a second opinion from Dr. DavidRobson.

Dr. Robson examined claimant on September 15, 1999. Onthat date, Robson indicated claimant had two options, "eitheraccept his condition with permanent light duty work restrictions"or undergo surgery. Even with successful surgery, claimant "wouldstill be left with light to moderate restrictions." Robsondirected claimant "to think his options over and let me know." Ifclaimant elected against surgery, Robson concluded that claimantwould then have "reached the point of maximum medical improvement." At the April 19, 2001, hearing, the only matter beforethe arbitrator was the extent of TTD benefits under section 19(b)of the Act (820 ILCS 305/19(b) (West 1998)). Claimant testified hecurrently had back pain, pain down both legs, and numbness in hisleft foot. He wanted the surgery because he believed it would helpwith the back and leg pain, although it "wouldn't help a whole lot"with the numbness. He stated he was unable to work or perform theduties of electrical utility foreman. This statement was supportedby the report of Dr. Anne-Marie Nicolazzi, which indicated claimantwas unable to pursue the essential functions of the electricalutility foreman position.

However, claimant acknowledged Dr. Robson had opined tohim that he "had reached the point of maximum medical improvement." He further acknowledged that at the October 4, 2000, follow-upvisit Robson found no significant change in his medical conditionsince September 15, 1999.

The arbitrator stated that in light of the fact employerhad paid TTD benefits to claimant through October 13, 2000, theonly issue to be decided at hearing was whether claimant wasentitled to continuing TTD benefits. She found that continuing TTDbenefits was warranted where claimant could not return to hisduties as electrical utility foreman. She further found claimanthad not reached maximum medical improvement because he hadcontinued pain and he had not indicated against any surgery. Because claimant indicated a desire for surgery at hearing, thearbitrator concluded that "an inference exists that he has notreached MMI." She found that continuing TTD payments was requiredin this case where no change had occurred since October 13, 2000. She awarded TTD benefits from the date of the second injury,February 23, 1999, "to and including the date of this hearing April19, 2001, and each and every week thereafter at the rate of $702.40per week until further order of this Arbitrator."

The Commission modified the arbitrator's decision byreducing the amount of TTD benefits from 112 to 29 6/7 weeks tocover the period between the February 23, 1999, injury and theSeptember 15, 1999, office visit, and vacating the arbitrator'saward of TTD benefits for "each and every week thereafter." TheCommission otherwise affirmed the decision. It remanded the caseto the arbitrator, pending any appeal, to determine any furtheramount of TTD benefits and compensation for any permanent disability. Claimant filed an action for administrative review in thecircuit court of Sangamon County, and the circuit court confirmedthe Commission's decision. This appeal followed.

Claimant contests the Commission's decision to reduce TTDbenefits from 112 weeks to 29 6/7 weeks. He argues that becauseemployer stated on the request for hearing claimant had suffered 84weeks of temporary total disability, the Commission was without thepower to reduce his TTD benefits below that level. Claimantsuggests that where "a party stipulates to a fact, that partycannot later claim that the fact is incorrect."

The disputed language is contained in the "IndustrialCommission Request for Hearing" form. Claimant argued he wastemporarily totally disabled from February 23, 1999, up through thedate of the hearing, amounting to 111 weeks of TTD (the time periodthrough the time of hearing was actually 112 3/7 weeks), and statedthat his condition was continuing in nature. Employer indicated onthe form that it disputed the issue of duration and countered thatclaimant was temporarily totally disabled for 84 weeks, fromFebruary 23, 1999, through October 13, 2000.

Claimant contends the Commission did not have the powerto modify TTD benefits to a period any less than 84 weeks becausethe statement on the request for hearing was in effect a stipulation by employer. We agree.

The applicable administrative regulation regardingrequests for hearing is contained in section 7303.40 of Title 50 ofthe Illinois Administrative Code. 50 Ill. Adm. Code