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06/20/96 LANTER COURIER v. INDUSTRIAL COMMISSION

June 20, 1996

LANTER COURIER, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL. (KAY WHITIS, APPELLEE).



Appeal from the Circuit Court of Madison County. No. 94-MR-473. Hon. David R. Herndon, Judge, presiding.

Presiding Justice McCULLOUGH delivered the opinion of the court: Rakowski, Colwell, and Holdridge, JJ., concur. Justice Rarick, concurring in part and dissenting in part:

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent employer Lanter Courier appeals from an order of the circuit court of Madison County reversing in part and confirming in part the decision of the Illinois Industrial Commission (Commission). The Commission awarded claimant Kay Whitis $115.04 per week for 257.5 weeks for temporary total disability (TTD), $4,576.33 for reasonable and necessary medical expenses, and $103.53 per week for 225 weeks for permanent partial disability (PPD) to the extent of 45% of the person as a whole. See 820 ILCS 305/8(a), (b), (d)(2) (West 1994). The arbitrator had awarded claimant TTD at the rate of $118.86 for 257.5 weeks, $45,493.54 for medical expenses, and $207.85 per week for life for permanent total disability (PTD) (820 ILCS 305/8(f) (West 1994)). According to the circuit court, (1) the Commission's finding that claimant was not permanently totally disabled was against the manifest weight of the evidence and (2) the Commission's determination that claimant exceeded her choice of physicians under section 8(a) of the Workers' Compensation Act (Act) (820 ILCS 305/8(a) (West 1994)) was contrary to law and against the manifest weight of the evidence. The circuit court modified the Commission's award to require respondent to pay $45,505.33 in medical expenses.

On appeal, the issues are whether (1) the Commission's finding that claimant was entitled to PPD benefits and not PTD benefits was against the manifest weight of the evidence and (2) the Commission's finding that claimant had exceeded her choices of medical providers was incorrect as a matter of law or was against the manifest weight of the evidence. We reverse the circuit court to the extent it found that the Commission award of PPD was against the manifest weight of the evidence and affirm in all other respects. Only those facts necessary to an understanding of this disposition will be discussed.

Claimant, a then 41-year-old courier with a ninth-grade education, was injured on January 19, 1988, while carrying suitcases up stairs. Claimant's family physician, Dr. Muhammad Jamil, initially diagnosed an acute strain of the lower back with no neurological abnormalities. Claimant began treatment with Dr. R. Anthony Marrese, an orthopedic surgeon, on November 2, 1989. Marrese diagnosed a disk herniation at L4-L5. He performed a percutaneous lumbar nucleoectomy on November 16, 1989, and a bilateral partial laminectomy, with excision of the persistent disc herniation and interbody fusion, on November 14, 1991. Marrese testified on May 1, 1992, that (1) he expected claimant would continue to be temporarily totally disabled for 10 weeks, (2) she had some permanent impairment, and (3) he estimated lifting restrictions of carrying over 40 pounds and restrictions as to reaching, pulling, and climbing. In a February 5, 1993, report, he stated claimant would have permanent impairment. Her restrictions precluded repeated lifting, bending, stooping, and squatting, and she had a 20-pound weight restriction. He noted that her range of motion in the lumbar spine was reduced, and she would have to take nonsteroid anti-inflammatory medication on a permanent basis. On March 2, 1993, Marrese indicated claimant was not physically capable of performing her prior occupational duties.

At the request of respondent, claimant was examined by orthopedic surgeons Dr. Sherwyn Wayne on April 29, 1988, March 9, 1990, February 18, 1991, and July 24, 1991, and Dr. Bernard C. Randolph on September 30, 1993. Wayne testified that claimant showed no indication for work restrictions and was capable of working. Randolph was of the opinion that claimant was capable of performing work of a sedentary or light-duty nature. He stated claimant should avoid lifting more than 20 pounds and repetitive flexion, extension, and twisting of the lumbar spine. According to Randolph, her ideal job would allow intervals of sitting and standing during the day. He felt she could probably work as a cashier, assembler of small products, ticket seller, or clerk. Wayne and Randolph both indicated claimant had reached her maximum medical improvement.

Claimant testified she was released for light-duty work by Marrese on March 2, 1993, and that she could perform light-duty work. She stated that in May 1989, she had attempted to return to part-time work with respondent, but her pain increased. From June 1989 to August 1989, she received job counseling and placement services from respondent. She applied for jobs as a cashier, for cleaning jobs, and in clothing stores but received no job offers. She stopped looking for work in August 1989 after she was robbed in St. Louis while on a job interview. She stated that the reasons she had not looked for work since that time was because she could not handle going out and her husband was sick. She received treatment for a nervous breakdown following the robbery. She had not searched for work since August 11, 1989. Her prior employment experience included being a cashier, a waitress, and a truck dispatcher.

Jack L. Strader, a certified rehabilitation counselor and a vocational consultant, evaluated claimant's potential for rehabilitation and for returning to work, at the request of her attorney. Although he did not conduct any labor market survey with regard to claimant, based on his familiarity with the labor market, it was his opinion that claimant was not employable in any occupation. This was based on his indication of what she could tolerate. He did not see her as a viable candidate for vocational placement, and she was a poor candidate for retraining because of the pain and because she indicated she could not sit for more than one hour at a time. Strader admitted that claimant's description of her pain was subjective. He did not review a copy of the records of Comprehensive Rehabilitation Associates, Inc. (CRA), the rehabilitation service to which respondent referred claimant. Strader conceded that a work capacity evaluation would make the assessment of claimant's capabilities a little more accurate.

At the request of respondent, claimant was reevaluated by CRA in 1993, after persons from that organization had worked with her in 1989 and 1990. In an August 19, 1993, report, rehabilitation specialist Alanna Goestenkors identified 16 job descriptions that would fit claimant in light of her physical restrictions, skills, aptitude, interests, temperament, general education development, and work experience. In her October 25, 1993, report, Goestenkors indicated a plan to seek authorization to complete a labor market survey with regard to the availability of employment options for claimant. At the time of the arbitration hearing, this apparently had not been done.

Claimant has the burden of proving all the essential elements of her claim by a preponderance of the evidence. Corn Products Refining Co. v. Industrial Comm'n, 6 Ill. 2d 439, 442-43, 128 N.E.2d 919, 921-22 (1955). In Ceco Corp. v. Industrial Comm'n, 95 Ill. 2d 278, 286-87, 447 N.E.2d 842, 845-46, 69 Ill. Dec. 407 (1983), the Supreme Court of Illinois summarized the rules relating to PTD as follows:

"This court has frequently held that an employee is totally and permanently disabled when he 'is unable to make some contribution to the work force sufficient to justify the payment of wages.' (E.g., Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 268, 35 Ill. Dec. 780, 399 N.E.2d 1308; Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11, 15, 39 Ill. Dec. 776, 405 N.E.2d 755.) The claimant need not, however, be reduced to total physical incapacity before a permanent total disability award may be granted. ( Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 176, 56 Ill. Dec. 23, 427 N.E.2d 103; Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275, 35 Ill. Dec. 778, 399 N.E.2d 1306.) Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable market. ( A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 487, 34 Ill. Dec. 132, 397 N.E.2d 804.) Conversely, an employee is not entitled to total and permanent disability compensation if he is qualified for and capable of obtaining gainful employment without serious risk to his health or life. ( E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362, 17 Ill. Dec. 207, 376 N.E.2d 206.) In determining a claimant's employment potential, his age, training, education, and experiences should be taken into account. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 489, 34 Ill. Dec. 132, 397 N.E.2d 804; E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362, 17 Ill. Dec. 207, 376 N.E.2d 206.

In considering the propriety of a permanent and total disability award, this court recently stated:

'Under A.M.T.C., if the claimant's disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim a total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the "odd-lot" category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen's Compensation sec. 57.51, at 10-164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen's Compensation sec. 57.61, at 10-164.97 (1980)).' (Emphasis ...


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