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08/19/87 Howlett's Tree Service, v. the Industrial Commission

August 19, 1987

HOWLETT'S TREE SERVICE, APPELLANT AND CROSS-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (KEVIN J. ENGELS, APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

513 N.E.2d 82, 160 Ill. App. 3d 190, 111 Ill. Dec. 836 1987.IL.1203

Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. BARRY, P.J., and McCULLOUGH, McNAMARA, and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Claimant, Kevin J. Engels, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) as a result of a knee injury sustained in the course of his employment with respondent, Howlett's Tree Service. The arbitrator awarded claimant temporary total disability benefits and vocational rehabilitation expenses for a one-year course in the agricultural/business track of a local junior college for a position in co-op management, seed fertilizer sales, or as an elevator operator. The Industrial Commission affirmed the arbitrator's award, added additional temporary total disability benefits, and awarded interest, penalties, and attorney fees to claimant. The circuit court set aside the award of penalties and attorney fees but confirmed the Commission in all other respects. On appeal, respondent asserts that the award of temporary total disability benefits and vocational rehabilitation expenses was against the manifest weight of the evidence. In his cross-appeal, claimant contends that the circuit court erred by setting aside the award of penalties and attorney fees under the Act.

Claimant worked as a tree trimmer for respondent; on January 2, 1980, claimant suffered an injury to his left knee when he fell getting out of a truck. It is undisputed that as a result of his injury, claimant was unable to continue working for respondent and was restricted to work of a sedentary nature.

Respondent paid claimant the total of $27,996.18 in temporary total disability benefits between January 1980 and May 1983 and between January 1984 and May 1984. Respondent sent claimant to a vocational consultant named Alfred Walker, who suggested that if plaintiff wished to take courses in a vocational rehabilitation program, he should first enroll in high school G.E.D. preparation classes. Claimant enrolled in such classes, which respondent paid for, and received a G.E.D.

Walker recommended a one-year training program in co-op management, seed fertilizer sales, or elevator operation at Black Hawk College-East, a junior college located in Kewanee, as the most appropriate vocational rehabilitation program for claimant. Respondent, however, refused to pay for any junior college courses after it paid for an orientation program that claimant enrolled in at Black Hawk. Claimant had wished to take some additional general courses at Black Hawk in order to prepare for the air traffic controller's exam.

Respondent subsequently sent claimant to a vocational rehabilitative service called E.P.S. Claimant testified that he followed up on two job leads provided by an E.P.S. counselor, but no employment was available at these places. In January 1984, claimant sent E.P.S. a list of 10 jobs he had unsuccessfully applied for in fall 1983. Claimant testified that he sent a second list to E.P.S. listing other jobs he had applied for, but E.P.S. informed him that it never received this list. Claimant further testified that he applied for approximately five other jobs that were not mentioned on either list. Claimant advised respondent early in 1984 that he wished to attend a school in Houston, Texas, which trained underwater welders and construction workers. Although claimant sent respondent materials regarding this school, he received no response to this request.

On appeal, respondent contends that the awards of temporary total disability and vocational rehabilitation expenses were an abuse of discretion because claimant has sufficient skills to gain employment within his physical restrictions, that claimant's failure to find suitable employment resulted from general economic conditions or claimant's failure to make a good-faith effort to find a job, that claimant failed to show that a position would be available for him if he completed the training program ordered by the arbitrator, and that there was insufficient evidence to support the type of vocational rehabilitation ordered by the arbitrator. In his cross-appeal, claimant asserts that the awards of penalties and attorney fees by the Commission were not against the manifest weight of the evidence and were improperly set aside by the circuit court. In evaluating the assertions raised by both parties on appeal, we note that findings of the Industrial Commission will not be reversed upon review unless they are against the manifest weight of the evidence. C.D. Turner & Sons, Inc. v. Industrial Com. (1983), 96 Ill. 2d 231, 237; Caterpillar Tractor Co. v. Industrial Com. (1980), 81 Ill. 2d 416, 421.

We first address the issue of the vocational rehabilitation expenses award to petitioner. Under section 8(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)), only necessary vocational rehabilitation expenses are to be awarded. A claimant is generally entitled to rehabilitation expenses if he sustained an injury which caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity. (National Tea Co. v. Industrial Com. (1983), 97 Ill. 2d 424, 432.) The Illinois Supreme Court has alluded on occasion to the absence of statutory procedures to govern proposed rehabilitation programs. (97 Ill. 2d 424; Zenith Co. v. Industrial Com. (1982), 91 Ill. 2d 278; Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489.) With no legislative guidance, the court has looked to other jurisdictions for factors to consider in determining the reasonableness of a rehabilitation award. (National Tea Co. v. Industrial Com. (1983), 97 Ill. 2d 424.) In National Tea, the court stated:

"Generally, a claimant has been deemed entitled to rehabilitation where he sustained an injury which caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity. [Citation.] Related factors concern a claimant's potential loss of job security due to a compensable injury [citation], and the likelihood that he will be able to obtain employment upon completion of his training. [Citation.] In contrast, rehabilitation awards have been deemed inappropriate where the claimant unsuccessfully underwent similar treatment in the past [citation]; where he received training under a prior rehabilitation program which would enable him to resume employment [citation]; where he is not 'trainable' due to age, education, training and occupation [citation]; and where claimant has sufficient skills to obtain employment without further training or education [citation]." 97 Ill. 2d 424, 432-33.

Further factors noted by the Illinois Supreme Court are the costs and benefits to be derived from the rehabilitation program, the employee's work-life expectancy, his capacity and motivation to undertake the program, and his prospects for recovering work capacity through medical rehabilitation or other means. 97 ...


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