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01/10/97 DANIEL STONE v. INDUSTRIAL COMMISSION ET

January 10, 1997

DANIEL STONE, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (R. OLSON CONSTRUCTION COMPANY, APPELLEE).



Appeal from the Circuit Court of Kane County. No. 95--MR--261. Honorable R. Peter Grometer, Judge, Presiding.

Released for Publication February 11, 1997.

The Honorable Justice Rakowski delivered the opinion of the court: McCULLOUGH, P.j., and Colwell, Holdridge, and Rarick, JJ., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Claimant, Daniel Stone, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1994)) for injuries to his low back that he sustained on April 2, 1990, while working for R. Olson Construction Company (employer). The arbitrator awarded claimant temporary total disability (TTD) of $433.95 for 219 4/7 weeks through January 20, 1994, terminating benefits because it found claimant failed to reasonably cooperate with rehabilitation. The Industrial Commission (the Commission) upheld the January 20, 1994, termination and, noting a miscalculation, modified TTD to $320.42 for 179 4/7 weeks. The circuit court of Kane County confirmed. Claimant appeals, contending that (1) the Commission erred in finding he failed to reasonably cooperate with vocational rehabilitation and (2) the Commission erred in allowing employer to terminate his benefits because termination was based on his religion and violated his right to freely exercise that religion. We affirm.

FACTS

Claimant injured his low back on April 2, 1990. He sought treatment from various physicians and, in June 1992, underwent surgery. He was released to work on March 9, 1993, with lifting restrictions, but did not return to work until July 6, 1993. Although claimant was given work within his restrictions and he does not contend otherwise, he quit on August 17, 1993, because his duties still caused him pain. During this July 6 to August 17 period, claimant only worked eight days.

Claimant testified that since the summer of 1993 he had looked for work on his own and had contacted 14 to 15 employers. He had a tenth-grade education, did not have a GED, and possessed no special skills or training. Six months prior to the accident, claimant became active in the World Wide Church of God, which restricted him from working certain holy days and Saturdays.

On October 22, 1993, employer referred claimant to James Boyd, a vocational rehabilitation specialist, to secure alternative employment. Boyd met with claimant on at least two occasions. He gathered claimant's background information, conducted aptitude tests to evaluate claimant's skills, and explained his role to claimant. On each occasion, Boyd advised claimant to obtain his GED. He also directed claimant to the library and recommended two resource books to assist claimant with determining some vocational interests. During the second meeting, Boyd assisted claimant in filling out a sample master application which he told claimant to bring to future interviews. Boyd worked with claimant on basic job skills, including how to dress, how to answer questions, and how to present himself in general. Finally, Boyd provided claimant with prospective employer contact sheets and referred him to Michelle Farmer, a job placement specialist, to assist him in scheduling interviews. According to Boyd, claimant presented himself in a dirty and unshaven manner and had dirty clothes, greasy hair, and body odor. Boyd found it difficult to establish a rapport with claimant as "[he] presented himself in a very unresponsive manner" with a "very flat affect and responded to all questions with a minimum of information."

In discussing vocational interests with Boyd, claimant only expressed an interest in being a game or fish warden and had given no thoughts to other options. Even after Boyd advised claimant of his skills based on the test results, claimant persisted in seeking a game or fish warden position. Claimant informed Boyd at each meeting he had not pursued measures to obtain his GED and had not visited the library. Claimant failed to tell Boyd he had a prior criminal conviction and failed to discuss his religion and its work restrictions.

Boyd scheduled an interview for claimant on January 5, 1994. However, when Boyd telephoned claimant, claimant told Boyd he needed 48 hours' notice before any interview. Boyd rescheduled the interview to January 10, 1994.

Farmer met claimant prior to the interview. He was unshaven, dirty, and inappropriately dressed. He failed to bring his master application, as Boyd had requested, and Farmer had to assist him in filling out the application. During this time, claimant told Farmer he had been convicted of a felony.

Claimant began the interview, but within 5 to 10 minutes, it was terminated. He advised the prospective employer that, due to his religion, he was unable to work on Saturdays. The position he was interviewing for mandated Saturday work.

Subsequent to the interview, Boyd spoke with claimant, who stated he had still done nothing to obtain his GED and had not researched other interests. Claimant also told Boyd he had not contacted any other employers. ...


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