2015 IL App (1st) 131733WC
Workers' Compensation
Commission Division
Opinion Filed: February 27, 2015
No. 1-13-1733WC
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
DANIEL J. SHARWARKO, ) Appeal from the Circuit Court
) of Cook County.
)
Appellant, )
)
v. ) No. 12-L-51346
)
ILLINOIS WORKERS' COMPENSATION )
COMMISSION, et al., ) Honorable
) Robert Lopez Cepero,
(Village of Oak Lawn, Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart concurred in the
judgment and opinion.
OPINION
¶1 The claimant, Daniel J. Sharwarko, filed an application for adjustment of claim pursuant
to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006) seeking benefits
for injuries he received while working for The Village of Oak Lawn (Village). The claimant
now appeals from the circuit court judgment confirming the decision of the Illinois Workers'
Compensation Commission (Commission) which terminated his temporary total disability (TTD)
benefits on October 31, 2006; found that he failed to prove that he was permanently and totally
disabled; denied his request for an award of penalties and fees; and refused to answer the
2015 IL App (1st) 131733WC
questions he submitted pursuant to section 19(e) of the Act (820 ILCS 305/19(e) (West 2012)).
For the reasons that follow, we affirm the judgment of the circuit court.
¶2 The following factual recitation is taken from the evidence adduced at the arbitration
hearing. At all times relevant, the claimant was employed by the Village as a water and sewer
inspector. The claimant testified that, on April 6, 2006, his duties included replacing a water
meter on a parcel of property in the Village. According to the claimant, as he reached down to
replace the meter, the wrench he was using slipped, and he struck his right elbow against a
concrete wall. The claimant felt an immediate onset of pain and reported the incident to his
supervisor. The claimant was directed to seek treatment at Concentra Medical Center
(Concentra).
¶3 The claimant was seen at Concentra on April 7, 2006, complaining of pain in his right
elbow and numbness in the little finger of his right hand. An examination of the claimant
revealed tenderness over the medial epicondyle, and he was diagnosed with medial epicondylitis
and ulnar neuritis. The claimant's right elbow was placed in an air cast, and he was instructed to
take Aleve for his pain. He was released to full-duty work.
¶4 The claimant returned to Concentra for two follow-up visits. The record of his visit on
April 24, 2006, states that the claimant reported no pain or other symptoms, and his physical
examination was unremarkable. The examining physician released the claimant from care on
that date.
¶5 The claimant had also elected to seek treatment from his personal physician, Dr. John
Elser, who referred him to Dr. I. Harun Durudogan at the Southwest Center for Healthy Joints.
2
2015 IL App (1st) 131733WC
Dr. Durudogan diagnosed the claimant as suffering from right median and ulnar nerve
neuropraxia and prescribed physical therapy.
¶6 The claimant underwent physical therapy as prescribed. However, when the claimant
saw Dr. Durudogan on June 6, 2006, he reported worsening pain and symptoms of paresthesias
in the median and ulnar nerve distributions. On physical examination, Dr. Durudogan noted that
the Tinel test was markedly positive at the right wrist and elbow, and the Fallon test was
markedly positive at the wrist. Evidence of early ulnar atrophy was also noted. Dr. Durudogan
recommended that the claimant undergo an anterior ulnar nerve transposition and a revision right
carpal tunnel release. Dr. Durudogan restricted the claimant's work duties to no use of his right
hand.
¶7 The Village accommodated the work restrictions imposed by Dr. Durudogan, and the
claimant was assigned to routine maintenance and meter-reading duties.
¶8 At the request of the Village, the claimant was seen by Dr. David Tulipan on July 6,
2006. Following his examination, Dr. Tulipan opined that the claimant's elbow contusion was
the likely cause of his cubital tunnel syndrome, but not his carpal tunnel syndrome. Although he
was of the opinion that the claimant was capable of working, Dr. Tulipan believed that the
claimant would be a surgical candidate in the future. In his report, Dr. Tulipan noted that, if the
claimant had the recommended surgery, he would be able to do some light work within three to
four months thereafter. He recommended that the claimant have an EMG/NCS test.
¶9 An EMG/NCS performed on the claimant on July 28, 2006, showed evidence of: right
ulnar nerve neuropathy at the elbow; chronic right median nerve compression neuropathy at the
3
2015 IL App (1st) 131733WC
wrist; and abnormally slow nerve conduction in the forearm segments of the right median and
ulnar motor nerves.
¶ 10 When the claimant saw Dr. Durudogan on August 1, 2006, he continued to complain of
persistent pain and paresthesias in the median and ulnar nerve distributions. Dr. Durudogan
again recommended surgery.
¶ 11 On August 21, 2006, Dr. Durudogan operated on the claimant, performing an open right
carpal tunnel release and a right cubital tunnel release. Subsequent to his surgery, the claimant
was directed to remain off of work, and he began physical therapy. The claimant acknowledged
that, until he was taken off of work following his surgery, the Village had accommodated the
one-handed work restriction imposed by Dr. Durudogan.
¶ 12 On August 28, 2006, Dr. Tulipan issued an addendum to the report of his examination of
the claimant. He found that the surgery performed by Dr. Durudogan was reasonable and that
the claimant's work-accident was probably the cause of his cubital tunnel syndrome. Dr. Tulipan
opined that the problems which the claimant was experiencing with his median nerve were
chronic in nature, dating back to his childhood.
¶ 13 The claimant continued under the care of Dr. Durudogan post-operatively. When he saw
the doctor on September 19, 2006, the claimant complained of significant persistent pain and
paresthesias in the median and ulnar nerve distributions and stated that the pain had become
worse after his surgery. Dr. Durudogan prescribed continued physical therapy and splint use,
and he released the claimant to work on September 20, 2006, with the one-hand restriction.
¶ 14 There is a note in the record written by Kathleen Fitzgerald, a nurse who was assigned as
a case manager to the claimant's case by the Village's insurance carrier, which states that she
4
2015 IL App (1st) 131733WC
called the Village on September 19, 2006, and spoke to Sue Lanham. The note goes on to state:
"Light duty cannot be accommodated at this time."
¶ 15 The Village offered certain of its employees an early retirement package which the
claimant accepted on October 3, 2006.
¶ 16 On October 20, 2006, the claimant was seen by Dr. Durudogan. The record contains a
copy of a note signed by the doctor stating that the claimant is unable to return to work until after
his next office visit which was scheduled for December 1, 2006. The record also contains a copy
of a letter from Dr. Durudogan to Dr. Elser, dated October 20, 2006, which states that Dr.
Durudogan's "recommendations are for no work with the right upper extremity."
¶ 17 The claimant's request to retire was granted on October 31, 2006, and he began receiving
a pension of $5,120.00 per month. There is no evidence in the record that, following the
claimant's surgery on August 21, 2006, until his retirement on October 31, 2006, the Village
offered him any work within his restrictions which he refused. However, Steven Barrett, the
Director of Public Works for the Village, testified that, if the claimant had not retired, the Village
would have accommodated his one-handed work restriction. According to Barrett, the Village
had accommodated other employees working under light-duty restrictions, including one whose
restrictions had been on-going for approximately eight years.
¶ 18 The Village paid TTD benefits to the claimant from the date of his surgery on August 21,
2006, until October 31, 2006, when it terminated those payments by reason of his voluntary
retirement.
¶ 19 Following retirement, the claimant continued to receive medical treatment for problems
with his right elbow, including ulnar nerve pain. His medical records reflect that he continued to
5
2015 IL App (1st) 131733WC
demonstrate persistent ulnar neuropraxia with muscle atrophy and paresthesias in the median and
ulnar nerve distributions. Dr. Durudogan continued to prescribe physical therapy. The record
contains a letter from Dr. Durudogan to Dr. Elser, dated December 12, 2006, in which Dr.
Durudogan described the claimant's medical condition on that date and goes on to state: "No
work with the right upper extremity until further notice."
¶ 20 Following an examination of the claimant on March 1, 2007, Dr. Durudogan noted that
the Tinel test was markedly positive at the right elbow. He recommended that the claimant
undergo revision ulnar release surgery and referred the claimant to Dr. Ramasamy Kalimuthu for
a second opinion. Additionally, Dr. Durudogan restricted the claimant from performing any
work with his right arm.
¶ 21 The claimant was seen by Dr. Kalimuthu on March 15, 2007. After examining the
claimant, Dr. Kalimuthu diagnosed severe ulnar neuropathy in the motor and sensory branch of
the ulnar nerve and muscle atrophy with sensory loss in the ulnar nerve distribution. Before
formulating a treatment plan, Dr. Kalimuthu ordered an updated EMG, which was performed on
March 26, 2007. The results of that test were consistent with severe right ulnar neuropathy and
severe right median sensorimotor neuropathy across the carpal tunnel, and demonstrated a
deterioration of ulnar nerve function when compared with the EMG/NCV of July 28, 2006.
¶ 22 After reviewing the results of the EMG, Drs. Durudogan and Kalimuthu both
recommended that the claimant undergo revision ulnar release surgery. Following the
recommendation, the Village requested that the claimant again be examined by Dr. Tulipan. On
April 11, 2007, Dr. Tulipan examined the claimant and also recommended surgical intervention.
6
2015 IL App (1st) 131733WC
¶ 23 On May 11, 2007, the claimant underwent a second right elbow surgery performed by Dr.
Tulipan. The surgery consisted of an exploration and compression of the ulnar nerve and a
neuroma excision with Neurogen tube placement. The neuroma encompassed approximately
70% of the ulnar nerve and the ischemic nerve was removed. Dr. Tulipan was of the opinion that
the claimant's prognosis was "poor" as the ulnar nerve was "badly damaged." It is clear that the
claimant continued to treat with Dr. Tulipan post-operatively. However, none of the doctor's
post-operative records were introduced in evidence.
¶ 24 On January 17, 2008, the claimant was seen by Dr. Demaceo Howard at the Advanced
Pain Management Institute on referral from Dr. Tulipan. The claimant complained of pain and
numbness in his right arm and the fourth and fifth fingers of his right hand. Dr. Howard
provided pain management treatment. When the claimant presented for follow-up visits with Dr.
Howard on February 15, 2008, and June 16, 2008, he continued complaining of pain and
numbness and reported little or no improvement with medication. Dr. Howard recommended the
use of a spinal cord simulator on a trial basis.
¶ 25 At the request of the Village, the claimant was examined by Dr. Peter Hoepfner, a hand
surgeon, on September 18, 2008. Following his examination of the claimant, Dr. Hoepfner
diagnosed persistent right upper extremity neuropathy and found the claimant's prognosis
guarded. Dr. Hoepfner opined that the claimant suffered an ulnar nerve contusion as a result of
his accident on April 6, 2006, which caused ulnar neuritis, muscular atrophy of the intrinsic
musculature of the right arm, and sensory dysfunction. He also opined that the condition of the
claimant's median nerve was chronic and unrelated to his work injury. According to Dr.
Hoepfner, the claimant was capable of performing "light, sedentary work with his right upper
7
2015 IL App (1st) 131733WC
extremity **** [and] capable of using his right hand as a light assist to his dominant left hand."
He concluded that the claimant "will likely never be capable of full, unrestricted activity with his
right upper extremity."
¶ 26 On the recommendation of Dr. Hoepfner, the claimant received pain management
treatments from Dr. Maria Pilar-Estilo, consisting of a right ulnar nerve block on December 4,
2008, and stellate ganglion blocks on January 15, 22 and 29, 2009.
¶ 27 The claimant was examined by Dr. Howard Konowitz, a pain specialist, on April 23,
2009. He complained of right arm dysesthesias in the ulnar nerve distribution along with the loss
of muscle function and wrist pain. Following his examination, Dr. Konowitz concluded that the
claimant had dense ulnar sensory motor neuropathy, which was the primary cause of his pain,
and scarring of the median nerve, which also contributed to his pain. Dr. Konowitz
recommended that the claimant undergo a diagnostic ultrasound and an EMG and prescribed
medication.
¶ 28 The claimant had both of the recommended tests. The diagnostic ultrasound showed a
"[v]ery significant recurrent post-operative ulnar nerve neuroma." Dr. Konowitz noted in his
record of the claimant's visit of June 3, 2009, that his recent EMG showed complete ulnar
neuropraxia, secondary to chronic severe ulnar neuropathy. He recommended that the claimant
receive neurolytic block therapy and prescribed pain medication.
¶ 29 On June 24, 2009, Dr. Konowitz administered the prescribed ulnar neurolytic block to the
claimant. When the claimant returned to see Dr. Konowitz on July 15, 2009, he reported
improvement in his symptoms, although the sensitivity along the ulnar surface of his hand was
8
2015 IL App (1st) 131733WC
still present and he continued to experience numbness and tingling in the fourth finger of his
right hand. Dr. Konowitz recommended another ultrasound and neurolytic block.
¶ 30 When the claimant saw Dr. Konowitz on October 8, 2009, he still reported sensitivity in
the interior aspect of his right upper arm and numbness. On examination, Dr. Konowitz noted
limited motion of the fourth and fifth fingers on the claimant's right hand and interosseous
musculature. He also noted marked improvement following the ulnar nerve phenol injection.
The doctor ordered an ultrasound and prescribed medication for the claimant.
¶ 31 The ultrasound, which was performed on October 21, 2009, revealed "significant ulnar
nerve and median nerve entrapment."
¶ 32 When the claimant saw Dr. Konowitz for a follow-up appointment on November 19,
2009, he reported on-going pain in his right arm, but improvement in his elbow and fingers.
Following his examination of the claimant, Dr. Konowitz noted marked improvement in the
functionality of the claimant's right arm and the ulnar nerve distribution. He concluded that
further ulnar neurolytic blocks were not warranted, but he recommended a median nerve
injection and continued to prescribe pain medication for the claimant.
¶ 33 The claimant had a median nerve injection on December 16, 2009, and returned to see
Dr. Konowitz on January 13, 2010. During that visit, the claimant continued complaining of
pain and numbness over his right medial elbow. On examination, the doctor noted dysesthesias
over the ulnar nerve at the elbow, decreased sensation on the ulnar nerve side of the claimant's
right hand, and clawing in the fourth and fifth fingers of his right hand. Dr. Konowitz ordered a
repeat ulnar neurolytic block and prescribed medication.
9
2015 IL App (1st) 131733WC
¶ 34 Following the repeat ulnar neurolytic block, the claimant returned to see Dr. Konowitz on
February 17, 2010, reporting pain relief in the region of his right upper bicep, but no relief of the
pain in his elbow. He also reported numbness in the first and third fingers of his right hand. On
examination, Dr. Konowitz noted that the claimant's right arm was stiff and that he was unable to
fully extend the fourth and fifth fingers of his right hand. Dr. Konowitz continued to prescribe
medication.
¶ 35 When the claimant returned to see Dr. Konowitz, on March 31, 2010, he continued to
report radiating pain in his right hand with numbness over the fifth digit. Following his
examination of the claimant, Dr. Konowitz noted that the claimant's upper arm had improved,
but found no improvement in the claimant's elbow and hand. Dr. Konowitz concluded that the
claimant had reached maximum medical improvement (MMI) with respect to his ulnar
neuropathy. Nevertheless, Dr. Konowitz continued to prescribe pain medication which he
believed would be necessary to wean the claimant from the multiple medications he was taking.
¶ 36 The claimant continued under the care of Dr. Konowitz in the following months. When
he saw the doctor in May and August of 2010, the claimant complained of pain over the ulnar
nerve at the right elbow, along with pain and numbness in the fourth and fifth fingers of his right
hand. Dr. Konowitz continued prescribing medication for the claimant and recommended home
exercises.
¶ 37 On November 16, 2010, the claimant was examined at his attorney's request by Dr.
Jeffrey Coe, a specialist in occupational medicine. On examination, Dr. Coe observed that the
claimant had clawing in the fourth and fifth fingers of his right hand and difficulty gripping with
the hand. Dr. Coe noted marked hypersensitivity over the scar along the medial border of the
10
2015 IL App (1st) 131733WC
claimant's right forearm; muscle atrophy at his right elbow, forearm and hand; and a clawing
deformity of the fourth and fifth fingers of the right hand, with burning dysesthesias radiating to
the fingers upon movement, stiffness and reduced range-of-motion. Dr. Coe opined that the
claimant's condition was permanent and causally related to his work injury of April 6, 2006. He
concluded that the claimant's injuries would have prohibited him from obtaining gainful
employment from the time of his retirement on October 31, 2006, through the date of his
examination. He also opined that the claimant is unable to carry out gainful employment
because he cannot use his right arm. However, on cross-examination, Dr. Coe conceded that the
claimant might be able to perform left-handed work as long as he did not need to travel much
and his pain medication did not preclude his return to gainful employment.
¶ 38 The claimant was seen by Dr. Konowitz on March 2, 2011. At that time, the claimant
reported significant improvement in his ulnar nerve symptoms and in his overall functioning.
Dr. Konowitz noted that the claimant's right arm and hand functions were limited by both the
underlying pathology and pain. Dr. Konowitz testified that he intended to continue weaning the
claimant off of his pain medication, but anticipated that he would need some residual pain
medication.
¶ 39 At the request of the claimant's attorney, Edward Pagella, a vocational rehabilitation
expert, conducted a vocational assessment of the claimant on May 13, 2011. In his written report
dated June 20, 2011, Pagella noted that the claimant stated that he had not looked for work since
retiring from the Village. After interviewing the claimant, reviewing his medical records and the
depositions of Drs. Coe and Konowitz, and considering the claimant's age, education, skills and
11
2015 IL App (1st) 131733WC
work history, Pagella opined that there is no stable labor market for him. From the evidence of
record, it is clear that Pagella did not perform a job search.
¶ 40 On August 1, 2011, the claimant was examined by Dr. Michael Vender, a hand surgeon,
at the request of the Village. In his report of that examination, Dr. Vender, noted that the
claimant stated that he had experienced significant improvement in the pain and dysesthesia in
the ulnar aspect of his right hand, but complained of continuing abnormal sensation in the ulnar
nerve distribution and the volar aspect of his right wrist. On examination, Dr. Vender found the
range-of-motion in the claimant's right elbow and wrist to be good, but with some pain at
extremes. Dr. Vender noted that his findings on examination of the claimant were consistent
with his complaints and the diagnosis of injury to his ulnar nerve. He concluded that the
claimant was at MMI and that he has "residuals in the way of ulnar nerve abnormality and
dysfunction." Dr. Vender opined that the claimant's work activity with his right arm would be
"limited," but that he has function in the arm.
¶ 41 At arbitration, the claimant testified that he still experiences pain, tingling and numbness
in his right arm and hand and that he has lost grip strength and fine motor skills. According to
the claimant, he can lift only one-half pound with his right hand and his symptoms are
aggravated when he attempts to use his right hand to perform household chores. The claimant
testified that, since his accident, he has never been released to two-handed work. He admitted
that he has not looked for work since retiring from the Village.
¶ 42 Following a hearing, the arbitrator found that the claimant suffered a work-related
accident while in the employ of the Village on April 6, 2006. The arbitrator found that, as a
result of the accident, the claimant suffered an injury to his right elbow and ulnar nerve, but not
12
2015 IL App (1st) 131733WC
to the median nerve. The arbitrator awarded the claimant 188 3/7 weeks of TTD benefits, ending
on March 31, 2010, and 202.4 weeks of permanent partial disability (PPD) benefits for an 80%
permanent loss of use of his right arm. Additionally, the arbitrator denied the claimant's petition
for an award of penalties pursuant to sections 19(k) and 19(l) of the Act (820 ILCS 305/19(k),(l)
(West 2010)), and attorney fees pursuant to section 16 of the Act (820 ILCS 305/16 (West
2010)).
¶ 43 Both the claimant and the Village filed for a review of the arbitrator's decision before the
Commission. In a unanimous decision, the Commission modified the arbitrator's decision by
reducing the claimant's TTD award to 10 2/7 weeks of benefits, ending on October 31, 2006, the
date upon which the claimant voluntarily retired. After concluding that the claimant failed to
meet his burden of proving that he was permanently and totally disabled, the Commission
affirmed the arbitrator's award of 202.4 weeks of PPD benefits for the claimant’s 80% permanent
loss of use of his right arm. The Commission also affirmed and adopted the arbitrator's denial of
penalties and attorney fees, finding that the Village's termination of TTD benefits upon the
claimant's retirement was neither unreasonable nor vexatious. Finally, the Commission declined
to answer the five questions posed to it by the claimant pursuant to section 19(e) of the Act (820
ILCS 305/19(e) (West 2012)), finding that they were not timely filed.
¶ 44 The claimant sought a judicial review of the Commission's decision in the Circuit Court
of Cook County. The circuit court confirmed the Commission's decision, and this appeal
followed.
¶ 45 For his first assignment of error, the claimant argues that the Commission's decision to
terminate his TTD benefits on October 31, 2006, the day he retired, is against the manifest
13
2015 IL App (1st) 131733WC
weight of the evidence. He asserts that he is entitled to TTD benefits from August 21, 2006, the
date of his first surgery, through March 31, 2010, the date upon which Dr. Konowitz found that
he had reached MMI.
¶ 46 The Village argues, as the Commission found, that, by voluntarily retiring and not
looking for work thereafter, the claimant indicated that he had no intention of returning to the
workforce in any capacity, at any time. The Commission concluded that the claimant's voluntary
retirement was the equivalent of refusing the accommodated duty which the Village had
provided before the claimant's surgery, and as a consequence he was not entitled to TTD benefits
after October 31, 2006. We agree.
¶ 47 An employee is temporarily and totally disabled from the time that an injury incapacitates
him from working until such time as he is as far recovered or restored as the permanent character
of his injury will permit. Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 118
(1990). According to our supreme court, the dispositive inquiry is whether the claimant has
reached MMI. Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm’n, 236 Ill.
2d 132, 142 (2010). There are, however, three recognized exceptions. TTD benefits may be
suspended or terminated before an employee reaches MMI if he: (1) refuses to submit to
medical, surgical, or hospital treatment essential to his recovery; (2) refuses to cooperate in good
faith with rehabilitation efforts; or (3) refuses work falling within the physical restrictions
prescribed by his doctor. Interstate Scaffolding, Inc., 236 Ill. 2d at 146-47.
¶ 48 In this case, Dr. Durudogan imposed the one-handed work restriction following the
claimant's first surgery, and there is no evidence that the claimant was taken off of work prior to
his second surgery on May 11, 2007. Barrett testified that, if the claimant had not retired and
14
2015 IL App (1st) 131733WC
continued working, the Village would have accommodated his one-handed work restriction.
Further, contrary to Dr. Coe’s opinion, Drs. Hoepfner, Vedner and Konowitz opined that the
claimant was able to do light, sedentary work with his right arm. Whether the claimant was
capable of working within the restrictions imposed by Dr. Durudogan was a question of fact to
be resolved by the Commission. See Ester v. Industrial Comm'n, 48 Ill. 2d 121, 125 (1971);
Whitney Productions, Inc. v. Industrial Comm'n, 274 Ill. App.3d 28, 30 (1995)). While Dr. Coe
offered a conflicting opinion from those of Drs. Hoepfner, Vedner and Konowitz on the question
of the claimant's ability to work, it was the Commission's function to resolve the conflicting
medical opinions. O’Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980). The Commission
obviously relied upon the opinions of Drs. Hoepfner, Vedner and Konowitz in concluding that
the claimant "did not prove that he could not work." And based upon the opinions of Drs.
Hoepfner, Vedner and Konowitz, we cannot say that the Commission's determination of this
issue is against the manifest weight of the evidence as a contrary conclusion is not clearly
apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291 (1992).
¶ 49 The purpose of the Act is to compensate an employee for lost earnings resulting from
work-related injuries. Freeman United Coal Mining Co. v. Industrial Comm'n, 99 Ill. 2d 487,
496 (1984). When, as in this case, work within an injured employee's medical restrictions is
available and the employee does not avail himself of the opportunity by voluntarily retiring,
continued payment of TTD benefits does not further that purpose. In such a case, the
employees's lost earnings are the result of his volitional act of removing himself from the work
force, not his work-related injuries. As we have held before, to establish entitlement to TTD
benefits, an injured employee must prove not only that he did not work, but also that he was
15
2015 IL App (1st) 131733WC
unable to work. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 832 (2002). We believe, as
did the Commission, that when work for an injured employee falling within his medical
restrictions is available, the employee's voluntary retirement is the equivalent to a refusal to work
within those restrictions, authorizing the termination of TTD benefits before the employee has
reached MMI. See City of Granite City v. Industrial Comm'n, 279 Ill. App. 3d 1087, 1090.
(1996).
¶ 50 Just as the Commission, we are not unmindful that the claimant would have been off of
work for some period of time following his second surgery for purely medical reasons.
However, by failing to introduce any of Dr. Tulipan's post-operative records in evidence, or any
other medical records authorizing the claimant to remain off of work following his second
surgery, the claimant failed to meet his burden to prove the period of time following his second
surgery when he could not work even within his restrictions.
¶ 51 Based upon the foregoing analysis, we find that the Commission's decision to deny the
claimant TTD benefits following his retirement on October 31, 2006, is not against the manifest
weight of the evidence. See Lukasik v. Industrial Comm'n, 124 Ill. App. 3d 609, 614-16 (1984).
¶ 52 Next, the claimant argues that the Commission's finding that he failed to meet his burden
of proving entitlement to permanent total disability (PTD) benefits on an "odd lot" theory is
against the manifest weight of the evidence. His argument in this regard rests upon the opinions
of Dr. Coe and his vocational rehabilitation expert, Pagella. Dr. Coe opined that, from a medical
perspective, the claimant would be unable to carry out gainful employment. Pagella opined that
there is no stable labor market for an individual with the claimant's vocational profile and
physical limitations.
16
2015 IL App (1st) 131733WC
¶ 53 An employee is totally and permanently disabled when he is unable to make some
contribution to industry sufficient to justify the payment of wages. A.M.T.C. of Illinois v.
Industrial Comm'n, 77 Ill. 2d 482, 487 (1979). If, as in this case, a claimant's disability is of
such a nature that he is not obviously unemployable, or there is no medical evidence to support a
claim of total disability, the burden is upon the claimant to prove by a preponderance of the
evidence that he fits into an "odd lot" category; that being an individual who, although not
altogether incapacitated, is so handicapped that he is not regularly employable in any well-
known branch of the labor market. Valley Mold & Iron Co. v. Industrial Comm'n., 84 Ill. 2d
538, 546-47 (1981). A claimant ordinarily satisfies his burden in one of two ways: (1) by
showing diligent but unsuccessful attempts to find work, or (2) by showing that, because of his
age, skills, training, and work history, he will not be regularly employed in a well-known branch
of the labor market. Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 544 (2007). Once
a claimant establishes that he falls within an "odd lot" category, the burden shifts to the employer
to prove that the claimant is employable in a stable labor market and that such a market exists.
Id. Whether a claimant falls within the "odd lot" category is a question of fact to be resolved by
the Commission, and its determination will not be disturbed on review unless it is against the
manifest weight of the evidence. Id.
¶ 54 Dr. Coe is the only physician to opine that the claimant is incapable of gainful
employment from a medical perspective. However, his opinion was not based upon any
conclusion that one-handed work would be harmful to the claimant's medical condition. Rather,
Dr. Coe opined that the claimant was incapable of gainful employment because "he really can't
use his right arm for anything." Nevertheless, Dr. Coe conceded in his deposition that the
17
2015 IL App (1st) 131733WC
claimant might be able to perform left-handed work. In contrast, Drs. Hoepfner and Vedner
were of the opinion that the claimant is able to perform light, sedentary work with his right arm.
Although the Commission made its own factual findings as to the nature and extent of the
claimant's injuries, it also affirmed and adopted the arbitrator's conclusions in that regard. The
arbitrator specifically credited the medical opinions of Drs. Hoepfner and Vedner for the finding
that the claimant was able to work.
¶ 55 The claimant's vocational rehabilitation expert, Pagella, opined that there is no stable
labor market for an individual of the claimant's vocational profile, including his physical
limitations; and, as the claimant notes, the Village did not present conflicting evidence from a
vocational rehabilitation expert. However, the Village accommodated the claimant's one-handed
work restriction prior to his retirement, and Barrett testified that, had the claimant not retired, the
Village would have continued to accommodate his restrictions as it had done for other
employees. Further, it is undisputed that neither the claimant nor Pagella conducted a job search,
and the claimant admitted that, since retiring, he has not looked for work.
¶ 56 It was the function of the Commission to judge the credibility of the witnesses, determine
the weight to be given their testimony, and resolve the conflicting medical evidence. O'dette, 79
Ill. 2d at 253. Where conflicting inferences might be drawn from other evidence in the record,
the Commission was not compelled to accept Pagella's opinion testimony simply because it was
not rebutted by a vocational rehabilitation expert called on behalf of the Village. See McRae v.
Industrial Comm'n, 285 Ill. App. 3d 448, 452 (1996).
¶ 57 For the Commission's finding, that the claimant failed to prove his entitlement to PTD
benefits under the "odd-lot" theory, to be against the manifest weight of the evidence, an
18
2015 IL App (1st) 131733WC
opposite conclusion must be clearly apparent. Alano v. Industrial Comm'n, 282 Ill. App. 3d 531,
536 (1996). The appropriate test is whether there is sufficient evidence in the record to support
the Commission's decision. Benson v. Industrial Comm'n, 91 Ill. 2d 445, 450 (1982). Based on
the record before us, we believe that sufficient evidence exists.
¶ 58 From the time of his retirement until the arbitration hearing, the claimant made no
attempt to find work and Pagella did not perform any job search. Consequently, in order to
establish his entitlement to PTD benefits on an "odd lot" theory, the claimant was required to
show that, because of his age, skills, training, and work history, he will not be regularly
employed in a well-known branch of the labor market. Dr. Coe and Pagella both opined that the
claimant is incapable of gainful employment. However, we believe that the record contains
sufficient evidence calling into question their opinions in this regard. The claimant was capable
of working within his medical restrictions prior to his first surgery. Dr. Durudogan imposed the
same one-handed work restriction following the claimant's first surgery, and Barrett testified
that, had the claimant not retired, the Village would have continued to accommodate that
restriction. Further, and contrary to Dr. Coe's opinion, Drs. Hoepfner and Vedner opined that the
claimant is able to perform light, sedentary work with his right arm. We conclude, therefore, that
there is sufficient evidence in the record to support the Commission's determination that the
claimant failed to meet his burden of proving his entitlement to PTD benefits based on an "odd
lot" theory. Stated otherwise, the Commission's resolution of the issue is not against the manifest
weight of the evidence.
¶ 59 Next, the claimant argues that the Commission's decision to deny his request for an award
of penalties pursuant to sections 19(k) and 19(l) of the Act and an award of attorney fees
19
2015 IL App (1st) 131733WC
pursuant to section 16 of the Act is against the manifest weight of the evidence. His argument in
this regard is based solely upon the Village's termination of TTD benefits on October 31, 2006,
the day he retired. The arbitrator denied the claimant's request for an award of penalties and
attorney fees, reasoning that the Village's termination of TTD benefits on the day of his
voluntary retirement was not unreasonable. The arbitrator noted that the termination of the
claimant's TTD benefits on the day of his retirement came before the supreme court's decision in
Interstate Scaffolding and was based upon a reasonable interpretation of the law existing at that
time. For its part, the Commission denied the claimant's request for an award of penalties and
attorney fees because it determined that the claimant's entitlement to TTD benefits ended when
he voluntarily retired on October 31, 2006.
¶ 60 Based upon our earlier holding that the Commission did not err in its decision to
terminate the claimant's TTD benefits on October 31, 2006, the date of his voluntary retirement;
it follows that we reject the claimant's argument that the Commission erred in denying his
request for an award of penalties and attorney fees.
¶ 61 Finally, the claimant argues that the Commission erred as a matter of law in failing to
answer the five questions which he submitted pursuant to section 19(e) of the Act (820 ILCS
305/19(e) (West 2012)). Noting that the Commission's stated reason for refusing to answer the
questions posed was that they were filed late, depriving the Village of an opportunity to respond,
the claimant asserts that section 19(e) contains no time limit for submitting questions and makes
no provision for a response by the opposing party.
¶ 62 Section 19(e) of the Act provides, in relevant part, as follows:
20
2015 IL App (1st) 131733WC
"In any case the Commission in its discretion may find specially upon any
question or questions of law or fact which shall be submitted in writing by either party whether
ultimate or otherwise; provided that on issues other than nature and extent of the disability, if
any, the Commission in its decision shall find specially upon any question or questions of law or
fact, whether ultimate or otherwise, which are submitted in writing by either party; provided
further that not more than 5 such questions may be submitted by either party." 820 ILCS
305/19(e) (West 2012).
¶ 63 It is true, as the claimant argues, section 19(e) places no time limit on the submission of
questions to the Commission. Nevertheless, we believe it is unreasonable to interpret the statute
as limiting the Commission's ability to impose some reasonable time limit. The Commission is
vested with the power to enact procedural rules governing practice before it. 820 ILCS 305/16
(West 2012). However, it has yet to promulgate a rule setting the time frame within which
questions posed pursuant to section 19(e) must be submitted.
¶ 64 In this case, the Commission held that questions submitted three days before oral
argument were untimely, because the Village was deprived of any reasonable ability to object.
However, the Village states in its brief that it did object when the matter came for hearing before
the Commission.
¶ 65 The record further reflects that the oral argument before the Commission in this case took
place on August 2, 2012, and its written decision was not filed until October 1, 2012. We are at
a loss to understand why questions posed to the Commission before oral argument would be
found untimely. Nevertheless, we find whatever error that the Commission committed by failing
to answer the five questions posed by the claimant does not require reversal as the claimant has
21
2015 IL App (1st) 131733WC
made no showing that he was prejudiced by the Commission's failure to answer the questions
posed.
¶ 66 The first question posed by the claimant was: "Does the record contain evidence that any
doctor, whether treating or otherwise, released Petitioner to return to full duty, unrestricted
work?" In its decision, the Commission twice acknowledged that the claimant testified that he
had not been released to full unrestricted work, and there is no reference to any contrary
evidence in the decision. Further, it is undisputed that the claimant suffered a severe and
permanent injury, resulting in very limited use of his right arm, as the Commission so found. In
light of these findings contained within the Commission's decision, the claimant can show no
prejudice by the Commission's failure to answer the first question.
¶ 67 The second question posed to the Commission was: "Did the Respondent comply with
Section 7110.10 of the Illinois Administrative Code by providing for vocational rehabilitation of
Petitioner when the period of total incapacity for work exceeded 120 continuous days?" The
claimant can show no prejudice in the Commission's failure to answer this question as his
entitlement to vocational rehabilitation services was not raised in his Statement of Exceptions
before the Commission, nor was it raised as an issue in his opening brief with this court. By
failing to raise the question of his entitlement to vocational rehabilitation services before the
Commission and in his opening brief before this court, the claimant has forfeited the issue. See
Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 336 (1980) (failure to raise an issue before the
Commission); Archer Daniels Midland Co. v. City of Chicago, 294 Ill. App 3d 186, 190 (1987)
(failure to raise an issue in appellant's opening brief). Consequently, any answer that the
22
2015 IL App (1st) 131733WC
Commission may have made to the question would be totally irrelevant to the issues raised in
this appeal.
¶ 68 For his third question posed to the Commission, the claimant asked: "How does the
Commission rule regarding the Respondent’s Ghere objection to Dr. Konowitz's testimony
regarding Petitioner's ability to work?" The record discloses that, when deposed, Dr. Konowitz
was asked: "[S]ince you first saw him [the claimant] on April 23rd, 2009, is there any type of
gainful employment that you believe that Mr. Sharwarko could have been engaged in?" The
Village's attorney interposed an objection based, inter alia, upon the holding in Ghere v.
Industrial Comm’n, 278 Ill. App. 3d 840 (1996). See also 820 ILCS 305/12 (West 2010).
Answering over the objection, Dr. Konowitz stated: "Beyond a sedentary type position, those are
probably reasonable. Beyond that, from a use of the hand in his past employment type of
function, I don't see that as ever occurring." The arbitrator sustained the Village's Ghere
objection, and the claimant raised the propriety of the ruling in his Statement of Exceptions filed
with the Commission on review. The Commission never specifically ruled upon the objection in
its decision. However, a close reading of the Commission's decision reflects that the
Commission did in fact rely upon the very testimony of Dr. Konowitz that was the subject of the
Village's Ghere objection. On page 8 of its decision, the Commission wrote: "Dr. Konowitz
testified that he did not see Petitioner [the claimant] employed beyond a sedentary type of
position and from his employment history, he did not see that as a possibility. *** He opined that
Petitioner would not be able to go back to work as a maintenance man." From this passage in the
Commission's decision, it is clear that, by implication, the Commission overruled the Village's
Ghere objection and considered Dr. Konowitz's testimony regarding the claimant's ability to
23
2015 IL App (1st) 131733WC
work. We fail to see, therefore, how the claimant was prejudiced by the Commission's failure to
answer the third question which he posed.
¶ 69 The claimant's fourth question was: "Did the respondent present any evidence to
contradict the vocational assessment report of Edward Pagella (Pet. Ex. No. 11) dated June 20,
2011?" Although the Commission declined to answer the question, the first one-half of page 10
of the Commission's decision is a recitation of the evidence which it relied upon in rejecting
Pagella’s vocational assessment that the claimant is unemployable. We find, therefore, that the
claimant suffered no prejudice by the Commission's refusal to answer this question.
¶ 70 The fifth and final question posed to the Commission was: "Does the Commission find
the Respondent's refusal to pay TTD benefits after October 31, 2006[,] to be unreasonable and
vexatious entitling Petitioner to penalties and attorney fees?" In point of fact, the Commission
did answer this question on page 10 of its decision when it held: "The evidence and testimony
finds Respondent's termination of benefits not to be unreasonable or vexatious under the
circumstances presented here."
¶ 71 Finding that the claimant can establish no prejudice in the Commission's failure to answer
the first four questions he submitted pursuant to section 19(e) and that the Commission did in
fact answer the fifth question, we conclude that no basis exists to disturb the Commission's
decision for any violation of section 19(e) of the Act.
¶ 72 For the foregoing reasons, we affirm the judgment of the circuit court which confirmed
the Commission's decision.
¶ 73 Affirmed.
24
Sharwarko v. Illinois Workers Compensation Commisssion
Court: Appellate Court of Illinois
Date filed: 2015-02-27
Citations: 2015 IL App (1st) 131733WC
Copy CitationsCombined Opinion