Euclid Beverage v. Illinois Workers' Compensation Comm'n , 2019 IL App (2d) 180090WC ( 2019 )

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Appellate Court Date: 2019.06.12
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Euclid Beverage v. Illinois Workers’ Compensation Comm’n,
2019 IL App (2d) 180090WCAppellate Court EUCLID BEVERAGE, Appellee, v. THE ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION et al. (John Bohentin, Appellant).
District & No. Second District, Workers’ Compensation Commission Division
Docket No. 2-18-0090WC
Rule 23 order filed November 27, 2018
Motion to
publish allowed February 25, 2019
Opinion filed February 25, 2019
Decision Under Appeal from the Circuit Court of Du Page County, No. 17-MR-1080;
Review the Hon. Paul Fullerton, Judge, presiding.
Judgment Affirmed.
Counsel on Robert W. Burnett, of Burnett & Carson, Ltd., of Naperville, for
Appeal appellant.
Robert L. Smith, of Gaido & Fintzen, of Chicago, for appellee.
Panel JUSTICE BARBERIS delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and
Cavanagh concurred in the judgment and opinion.
OPINION
¶1 The claimant, John Bohentin, appeals the circuit court’s order setting aside the Illinois
Workers’ Compensation Commission’s (Commission) decision to award maintenance
benefits, finding that the record did not demonstrate that the claimant participated in a
vocational rehabilitation program or self-directed job search between April 25, 2012, and June
8, 2015, and confirming the Commission’s decision to award permanent partial disability
benefits as a percentage of the person as a whole.
¶2 I. Background
¶3 At the arbitration hearing on September 28, 2015, the parties stipulated that the claimant
had sustained a workplace accident on May 24, 2011, arising out of and in the course of his
employment with Euclid Beverage (Euclid) and that he had provided timely notice. The issue
before the arbitrator was whether a causal relationship existed between the accident and the
claimant’s current condition of ill-being. The parties also disputed the claimant’s entitlement
to benefits.
¶4 As a condition of his employment with Euclid, the claimant testified that he underwent a
physical examination and functional screening test to demonstrate his ability to lift 50 pounds.
He was subsequently hired by Euclid in 1999 as a sales supervisor and held that position until
November 2011. In his capacity as sales supervisor, the claimant called various retailers, such
as Jewel-Osco, and took orders for beer sales on a handheld device, filled shelves, and built
displays to hold anywhere from 10 to 1000 cases of beer. The claimant testified that he
performed repetitive lifting of up to 50 pounds, as well as bending, twisting, and reaching
throughout the day.
¶5 The claimant next testified regarding his previous employment. Prior to Euclid, the
claimant worked for Courtesy Distributors for approximately 18 years, first as a delivery driver
and then as a delivery manager for four months. As delivery manager, he supervised multiple
delivery drivers and ensured proper display and rotation of merchandise. According to the
claimant, he was not required to operate a computer; manage inventory or sales; or hire,
evaluate, or terminate employees.
¶6 The claimant testified that on May 24, 2011, he experienced a sharp pain in his back that
radiated down his right leg and “knocked [him] down” while stocking a cooler at a Jewel-Osco
location. Following this incident, the claimant contacted Sonia Madalinski, Euclid’s human
resources director, before a coworker transported him to Tyler Medical Services (TMS).
¶7 Shortly thereafter, the claimant presented to TMS and was examined by Dr. George
Pappas. After Dr. Pappas documented the claimant’s symptoms as “pain radiating into the
right leg with tingling,” he diagnosed the claimant with a “lumbar sprain with spasms.” Dr.
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Pappas recommended chiropractic treatment and light-duty work restrictions, which included
bending, as tolerated, and lifting no more than 10 pounds.
¶8 The claimant testified that he received medical attention for a low back injury prior to the
May 24, 2011, accident, although it was asymptomatic prior to the 2011 accident. The
claimant’s June 2011 MRI of the lumbar region showed a degenerative change in the lumbar
spine with disc disease at L2-L3 to L5-S1 and associated lower lumbar ligamentum flavum and
facet hypertrophy, which further contributed to central canal and foramina narrowing at L4-L5
and L5-S1. The claimant was referred to a neurosurgeon, Dr. Matthew Ross.
¶9 On September 14, 2011, Dr. Ross diagnosed the claimant with lumbar radiculopathy,
likely due to disc disease at L5-S1. Dr. Ross recommended nonsurgical treatment with lumbar
epidural and transforaminal cortisone injections. Dr. Ross also recommended the claimant
avoid lifting over 20 pounds and begin a gradual decrease in work activities.
¶ 10 On September 30, 2011, the claimant presented to Dr. Christopher J. Bergin, an orthopedic
surgeon, for a medical evaluation pursuant to section 12 of the Illinois Workers’ Compensation
Act (Act) (820 ILCS 305/12 (West 2010)) at Euclid’s request. Because the claimant’s earlier
low back injury had been asymptomatic prior to the May 24, 2011, accident, and the
mechanism of injury was consistent with aggravation of an underlying degenerative condition,
Dr. Bergin concluded that the claimant’s condition of ill-being was causally related to the May
24, 2011, accident. Dr. Bergin recommended physical therapy, lumbar epidural injections, and
light-duty work restrictions.
¶ 11 On November 22, 2011, Madalinski and Emmett McEnery, Euclid’s president, terminated
the claimant after informing him that his light-duty work restrictions would no longer be
accommodated. The claimant did not seek or gain employment following termination. As
such, from November 23, 2011, through April 24, 2012, the claimant received temporary total
disability (TTD) benefits. According to the claimant, although he requested, Euclid refused to
provide vocational rehabilitation services.
¶ 12 On February 6, 2012, Larry McGrail, Euclid’s vice president of operations, invited the
claimant to interview for a warehouse manager position. McGrail’s letter stated, in part:
“As you know, the position does not rely on physical ability but rather on the ability to
manage people and processes. This Warehouse Manager is responsible for the staff,
protecting the integrity of inventory, equipment and the facility and ensuring the trucks
get loaded.”
Although the claimant received McGrail’s letter, he did not interview because he did not feel
qualified for the position, given his highest level of education was a high school diploma.
Specifically, the claimant believed he lacked the appropriate training and education in
warehouse management, inventory control and management, employee scheduling, product
shipment, equipment and property management, as well as bills of lading. The claimant used a
computer for e-mail and Internet usage, although he described his keyboarding skills as
“hunting and pecking,” and he lacked training in database programs or Excel spreadsheets.
¶ 13 On February 7, 2012, the claimant presented to Dr. Bergin for a second section 12
evaluation. According to Dr. Bergin’s report, the claimant refused epidural injections and
declined a surgical procedure. Dr. Bergin diagnosed the claimant with degenerative disc
disease of the lumbar spine with a right synovial cyst at L4-L5 and right L5 radiculopathy. Dr.
Bergin opined that the claimant’s May 24, 2011, accident had aggravated a preexisting
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degenerative condition and that he was at maximum medical improvement (MMI) and should
undergo a functional capacity evaluation (FCE).
¶ 14 On April 12, 2012, the claimant presented to Dr. James Kelly. Dr. Kelly administered two
injections, which, according to the claimant, offered several years of pain relief. Dr. Kelly
noted that the claimant had a 50% to 60% improvement in pain but still experienced numbness
that was unaffected in his right leg. Specifically, the claimant’s pain had improved to a 3 on a
10 scale. Dr. Kelly recommended repeat lumbar epidural cortisone injections, pending
authorization, and to follow up with Dr. Ross to increase his work activities.
¶ 15 On April 24, 2012, Dr. Ross released the claimant to work with restrictions to “lift up to 15
lbs. Alternate sit/stand as needed.” Following his release to work, Euclid terminated the
claimant’s TTD benefits on April 24, 2012, after informing him that future employment was
unavailable with the above restrictions. The claimant testified that he did not look for work
after this date, but he received social security disability (SSD) benefits starting in May 2012.
¶ 16 On January 10, 2014, 20 months after his last medical visit, the claimant presented to Dr.
Ross. Dr. Ross noted that the injections administrated by Dr. Kelly provided the claimant with
a “lengthy duration of relief,” and that Dr. Kelly was in agreement with the claimant’s request
to complete a FCE. The claimant testified, however, that Euclid never authorized the
recommended cortisone injections and the FCE was never scheduled because the insurance
company refused to reimburse payment. The claimant testified that his last medical
appointment before the arbitration hearing was on January 10, 2014.
¶ 17 On April 27, 2015, the claimant presented to Lisa Helma, certified rehabilitation counselor
at Vocamotive Vocational Rehabilitation Services. In preparing an evaluation report, labor
market survey, and rehabilitation plan, Helma interviewed the claimant and reviewed his
medical and personnel records, McGrail’s invitation to interview for warehouse manager, and
the Dictionary of Occupational Titles. Helma noted that the warehouse manager position was
skilled at the sedentary level of physical demand and that the claimant “does not have previous
experience in this capacity. Based upon the results of the Labor Market Survey, [he] would not
be a qualified candidate.” Helma opined that, although the claimant lost access to his usual and
customary line of occupation, he was employable in prior-held positions with the potential to
earn $9 and $12 per hour. In forming her opinion, Helma was unaware that the claimant had
placed orders with a handheld device while employed with Euclid and that he had previously
worked for Courtesy Distributors as a delivery manager where he supervised multiple
employees.
¶ 18 McEnery testified to the following. Euclid hired the claimant, a good employee with
numerous positive performance appraisals, in 1999. The claimant was required to have a
thorough knowledge of essential trade practices because he was responsible for increasing beer
sales and distribution, thus, his compensation was tied to his performance. The software used
in the claimant’s handheld device did not require advanced training, but the claimant had
completed mandatory training prior to starting his position as a sales supervisor. According to
McEnery, the claimant was a good fit for the warehouse manager position because he had
acquired a variety of special skills over 30 years in the industry. In fact, although there were
over 150 capable employees, McEnery had recommended the claimant interview for the
position.
¶ 19 McGrail testified to the following. McGrail was very familiar with the claimant and his
skill set, which included use of Euclid’s software system. McGrail invited the claimant to
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interview because he believed the claimant was capable of managing and supervising
employees, McGrail acknowledged that the claimant did not have experience as an assistant
warehouse manager. McGrail also explained that Euclid had terminated the claimant due to his
permanent light-duty work restrictions and that he did not offer the claimant a permanent job
with work restrictions because the claimant did not interview.
¶ 20 The arbitrator’s decision, issued on April 6, 2016, determined that (1) there was a causal
connection between the May 24, 2011, work accident and the claimant’s current condition of
ill-being; (2) the claimant was entitled to TTD benefits of $713.91 per week for 22 weeks from
November 23, 2011, through April 24, 2012, with Euclid receiving a credit of $13,360.71 for
previously paid TTD benefits; (3) the claimant was entitled to maintenance benefits of $713.91
per week for 1626/7 weeks from April 25, 2012, through June 8, 2015; and (4) the claimant was
entitled to permanent partial disability (PPD) benefits, specifically wage differential benefits,
for $433.91 per week from June 9, 2015, through the duration of his disability, pursuant to
section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2010)), because his injuries caused an
impairment of earnings.
¶ 21 On April 20, 2016, Euclid filed a petition for review before the Commission. On June 27,
2017, the Commission adopted in part and modified in part the arbitrator’s decision. The
Commission affirmed the arbitrators’ award of maintenance and TTD benefits, however, it
modified the PPD award from wage differential to a percentage of the person as a whole award,
pursuant to section 8(d)(2) of the Act, for $642.52 per week for a period of 200 weeks for 40%
loss of man as a whole. The Commission determined that the claimant’s “election not to work
after being medically cleared to work again prevented him from establishing what he is
capable of earning.”
¶ 22 On August 7, 2017, Euclid filed for review in the circuit court of Du Page County. On
January 9, 2018, the circuit court, without hearing, confirmed in part and set aside in part the
Commission’s decision. The court confirmed the Commission’s decision to award PPD
benefits based on a percentage of the person as a whole under section 8(d)(2) of the Act but set
aside the Commission’s decision to award maintenance benefits, finding that the record did not
demonstrate that the claimant participated in a vocational rehabilitation program or
self-directed job search between April 25, 2012, and June 8, 2015. On January 31, 2018, the
claimant filed a timely notice of appeal.
¶ 23 II. Analysis
¶ 24 This appeal is limited to the propriety of the various types of compensation awarded. In
particular, the claimant contends that the Commission’s decision to award maintenance
benefits was not against the manifest weight of the evidence because Euclid denied the
claimant’s request for vocational rehabilitation services in violation of section 8(a) of the Act
and Illinois Commission Rule 7110.10(a) (50 Ill. Adm. Code 7110.10(a), amended at 30 Ill.
Reg. 11743 (eff. June 22, 2006))1 and he experienced a reduction in earning capacity after
Euclid terminated his employment. The claimant also argues that the Commission’s
percentage of the person as a whole PPD award was against the manifest weight of the
evidence.
1
This rule has since been recodified to Commission Rule 9110.10(a) (50 Ill. Adm. Code 9110.10(a)
(eff. Nov. 9, 2016)).
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¶ 25 In response, Euclid argues that the claimant was not entitled to maintenance benefits
because he was not enrolled in a vocational rehabilitation program or engaged in a
self-directed job search after April 24, 2012, and he failed to present credible evidence
demonstrating a reduction in earning capacity.
¶ 26 A. Maintenance Benefits
¶ 27 The claimant argues that Euclid violated section 8(a) of the Act and Commission Rule
7110.10 (50 Ill. Adm. Code 7110.10, amended at 30 Ill. Reg. 11743 (eff. June 22, 2006)) by
failing to provide him with vocational rehabilitation services.
¶ 28 “[T]he determination of whether a claimant is entitled to maintenance benefits is a question
to be decided by the Commission, and its finding will not be reversed unless it is against the
manifest weight of the evidence.” W.B. Olson, Inc. v. Illinois Workers’ Compensation
Comm’n, 2012 IL App (1st) 113129WC, ¶ 39. For a finding of fact to be against the manifest
weight of the evidence, an opposite conclusion must be clearly apparent from the record on
appeal. City of Springfield v. Illinois Workers’ Compensation Comm’n, 388 Ill. App. 3d 297,
315 (2009).
¶ 29 Under section 8(a) of the Act (820 ILCS 305/8(a) (West 2010)), an employer “shall ***
pay for treatment, instruction and training necessary for the physical, mental and vocational
rehabilitation of the employee, including all maintenance costs and expenses incidental
thereto.” Since maintenance is awarded incidental to vocational rehabilitation, an employer is
obligated to pay maintenance only “while a claimant is engaged in a prescribed
vocational-rehabilitation program.” W.B. Olson, Inc., 2012 IL App (1st) 113129WC, ¶ 39. “A
claimant is generally entitled to vocational rehabilitation when he sustains a work-related
injury which causes a reduction in his earning power and there is evidence that rehabilitation
will increase his earning capacity.” Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1019
(2005). Because the primary goal of rehabilitation is to return the injured employee to work
(Schoon v. Industrial Comm’n, 259 Ill. App. 3d 587, 594 (1994)), if the injured employee has
sufficient skills to obtain employment without further training or education, that factor weighs
against an award of vocational rehabilitation. National Tea Co. v. Industrial Comm’n, 97 Ill. 2d
424, 432 (1983). Moreover, an injured employee is generally not entitled to vocational
rehabilitation if the evidence shows that he does not intend to return to work, although able to
do so. Schoon, 259 Ill. App. 3d at 594.
¶ 30 Vocational rehabilitation may include, but is not limited to, counseling for job searches,
supervising job search programs, and vocational retraining, which includes education at an
accredited learning institution. See 820 ILCS 305/8(a) (West 2010). An employee’s
self-directed job search or vocational training may constitute a vocational-rehabilitative
program. Roper Contracting v. Industrial Comm’n, 349 Ill. App. 3d 500, 506 (2004).
Additionally, “rehabilitation efforts may be undertaken even though the extent of the
permanent disability cannot yet be determined.” Freeman United Coal Mining Co. v.
Industrial Comm’n, 318 Ill. App. 3d 170, 180 (2000).
¶ 31 Commission Rule 7110.10(a) provided as follows:
“The employer or his representative, in consultation with the injured employee and,
if represented, with his or her representative, shall prepare a written assessment of the
course of medical care, and, if appropriate, rehabilitation required to return the injured
worker to employment when it can be reasonably determined that the injured worker
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will, as a result of the injury, be unable to resume the regular duties in which engaged at
the time of injury, or when the period of total incapacity for work exceeds 120
continuous days, whichever first occurs.” (Emphasis added.) 50 Ill. Adm. Code
7110.10(a), amended at 30 Ill. Reg. 11743 (eff. June 22, 2006).
Thus, the rule required the employer to provide rehabilitation only if “appropriate.” (50 Ill.
Adm. Code 7110.10(a), amended at 30 Ill. Reg. 11743 (eff. June 22, 2006)). As noted above,
rehabilitation is neither mandatory for the employer nor appropriate if an injured employee
does not intend, although capable, to return to work. Schoon, 259 Ill. App. 3d at 594.
¶ 32 We are unpersuaded by the claimant’s arguments. First, the claimant never sought or
gained employment following termination from Euclid on November 22, 2011. As such,
rehabilitation would be neither mandatory nor appropriate because the claimant did not show
an intention to return to work, although he was capable, as evidenced by Dr. Ross’s notes
releasing the claimant to work with work restrictions on April 24, 2012, to “lift up to 15 lbs.
Alternate sit/stand as needed.” Moreover, it is undisputed that the claimant did not enroll in a
vocational rehabilitation program or engage in a self-directed job search after Euclid
terminated his TTD benefits on April 24, 2012. In fact, the Commission concluded that the
claimant abandoned the job market on that date. On that basis, contrary to the Commission’s
decision, Euclid’s obligation to provide maintenance was never triggered, and the claimant
failed to cite authority to support that notion.
¶ 33 Even assuming the claimant was entitled to rehabilitative services, he could have requested
an expedited hearing under section 19(b) of the Act (820 ILCS 305/19(b) (West 2010) (“the
employee may at any time petition for an expedited hearing by an Arbitrator on the issue of
whether or not he or she is entitled to receive payment of the services or compensation”)). The
claimant failed to request such a hearing.
¶ 34 Furthermore, we cannot find that the claimant proved a reduction in his earning capacity
after he was terminated from Euclid. First, the Commission found that he had failed to prove
his earning capacity because his reliance on Helma’s labor survey was “unacceptable
speculation.” In rejecting Helma’s opinions, the Commission concluded that Helma’s report
was completed in anticipation of litigation, just four months prior to the arbitration hearing,
and that Helma lacked knowledge regarding the claimant’s previous employment managing
employees as a delivery manager, which would have likely broadened the scope of possible
employment opportunities. Thus, the Commission concluded that the claimant was prevented
from establishing “what he is capable of earning.” In light of the foregoing, we find that the
Commission’s decision, awarding the claimant maintenance benefits from April 25, 2012, to
September 28, 2015, was against the manifest weight of the evidence. Accordingly, the circuit
court’s decision setting aside the Commission decision to award maintenance benefits is
affirmed.
¶ 35 B. PPD Award
¶ 36 There are two distinct types of PPD awards under section 8(d) of the Act. Gallianetti v.
Industrial Comm’n, 315 Ill. App. 3d 721, 727 (2000). Section 8(d)(1) of the Act provides for a
wage differential benefit (820 ILCS 305/8(d)(1) (West 2010)), and section 8(d)(2) of the Act
provides for a percentage of the person as a whole award (820 ILCS 305/8(d)(2) (West 2010)).
¶ 37 To qualify for wage differential benefits, a claimant must prove (1) a partial incapacity that
prevents claimant from pursuing his usual and customary line of employment and (2) an
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impairment of earnings. 820 ILCS 305/8(d)(1) (West 2010). The purpose of a wage differential
award is to compensate an injured claimant for his reduced earning capacity. Jackson Park
Hospital v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 142431WC, ¶ 39. The
amount of a wage differential benefit is
“equal to 662/3% of the difference between the average amount which [the claimant]
would be able to earn in the full performance of his duties in the occupation in which he
was engaged at the time of the accident and the average amount which he is earning or
is able to earn in some suitable employment or business after the accident.” 820 ILCS
305/8(d)(1) (West 2010).
¶ 38 Conversely, section 8(d)(2) of the Act provides for a PPD award based on a percentage of
the person as a whole. 820 ILCS 305/8(d)(2) (West 2010). A percentage of the person as a
whole award is appropriate in three circumstances: (1) when a claimant’s injuries do not
prevent him from pursuing the duties of his employment but he is disabled from pursuing other
occupations or is otherwise physically impaired, (2) when a claimant’s injuries partially
incapacitate him from pursuing the duties of his usual and customary line of employment but
do not result in an impairment of earning capacity, or (3) when a claimant, having suffered an
impairment of earning capacity, elects to waive his right to recover. 820 ILCS 305/8(d)(2)
(West 2010).
¶ 39 Our supreme court has expressed a preference for wage differential benefits over a
scheduled award, noting “the basis of the workers’ compensation system should be earnings
loss.” General Electric Co. v. Industrial Comm’n, 89 Ill. 2d 432, 438 (1982). Thus, where a
claimant proves he is entitled to wage differential benefits, the Commission is without
discretion to impose a section 8(d)(2) award except where a claimant waives his right to
recover under section 8(d)(1). See Gallianetti, 315 Ill. App. 3d at 729. The issue of whether a
claimant is entitled to a wage differential award is generally a question of fact for the
Commission to determine. Dawson v. Illinois Workers’ Compensation Comm’n, 382 Ill. App.
3d 581, 586 (2008). We review the Commission’s factual findings under the manifest-weight-
of-the-evidence standard. Tower Automotive v. Illinois Workers’ Compensation Comm’n, 407
Ill. App. 3d 427, 434 (2011).
¶ 40 In reversing the arbitrator’s wage differential award, the Commission determined that a
percentage of the person as a whole award was more appropriate because the claimant had
failed to establish entitlement to a wage differential award. In particular, the Commission
determined that, although the claimant was unable to return to Euclid as a sales supervisor, a
finding uncontested on appeal, the claimant did not establish an impairment of earnings.
Therefore, the crucial issue in determining whether the claimant was entitled to a wage
differential award is whether he proved that he suffered impairment in his “earning capacity.”
Jackson Park Hospital, 2016 IL App (1st) 142431WC, ¶ 42. If the claimant proved a loss in his
earning capacity, then the Commission’s PPD award, based on a percentage of the person as a
whole, was against the manifest weight of the evidence. Gallianetti, 315 Ill. App. 3d at 728
(“the plain language of section 8(d) prohibits the Commission from awarding a percentage-of-
the-person-as-a-whole award where the claimant has presented sufficient evidence to show a
loss of earning capacity”).
¶ 41 The Commission found that the claimant had abandoned the job market on April 24, 2012,
and failed to prove his earnings capability. Specifically, the Commission stated that the
claimant’s reliance on Helma’s labor survey to establish his earnings potential was
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“unacceptable speculation.” In particular, the Commission noted that Helma’s reports were
completed in anticipation of litigation, just four months prior the arbitration hearing, and she
lacked an understanding regarding the claimant’s previous work managing multiple
employees, which could have broadened the scope of possible employment opportunities.
Thus, the Commission concluded that the claimant was prevented from establishing “what he
is capable of earning.”
¶ 42 Based on the foregoing, we cannot say that the opposite conclusion is clearly apparent
regarding the Commission’s determination to award a percentage of the person as a whole
benefits rather than wage differential benefits. Accordingly, the decision of the circuit court,
confirming the Commission’s decision to award PPD benefits based on a percentage of the
person as a whole, is affirmed.
¶ 43 III. Conclusion
¶ 44 We affirm the circuit court’s order setting aside in part and confirming in part the
Commission’s decision.
¶ 45 Affirmed.
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