Court of Appeals of Illinois, First District, Workers' Compensation Commission Division
from the Circuit Court of Cook County, No. 15-L-50296; the
Hon. Edmund Ponce De Leon, Judge, presiding.
J. Spingola, of Oak Brook, for appellant.
Stephen R. Patton, Corporation Counsel, of Chicago, for
JUSTICE MOORE delivered the judgment of the court, with
opinion. Presiding Justice Holdridge and Justices Hoffman,
Hudson, and Harris concurred in the judgment and opinion.
1 The claimant, Carl Crittenden, appeals the judgment of the
circuit court of Cook County, which confirmed the decision of
the Illinois Workers' Compensation Commission
(Commission) in favor of the employer, the city of Chicago
(City). An arbitrator awarded the claimant, inter
alia, a wage differential pursuant to section 8(d)(1) of
the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1)
(West 2012)), and the Commission reduced the amount of the
wage differential. The circuit court entered a judgment
confirming the Commission's decision. The claimant now
appeals the circuit court's judgment. For the following
reasons, we reverse, vacate the Commission's decision,
and remand this matter to the Commission with directions.
3 The claimant filed an application for benefits under the
Act. 820 ILCS 305/1 et seq. (West 2012). An
arbitration hearing was conducted on January 4, 2013, wherein
the following evidence was presented. The claimant testified
that he was employed by the City as a sanitation laborer for
27 years. He injured his lower back on April 11, 2008, while
bending over, lifting a bag of compost, and throwing it into
the back of a garbage truck.
4 After receiving medical treatment, the claimant saw Dr.
Kern Singh on September 3, 2009. Dr. Singh recommended that
the claimant undergo a functional capacity evaluation (FCE),
which was conducted on October 17, 2009. The FCE indicated
that the claimant reported current work limitations of 20
pounds of lifting-with additional limitations on bending and
standing-and such restrictions could not be accommodated by
his employer. The FCE concluded that the claimant could only
meet light physical demands and could not satisfy the
physical requirements of his previous job. The FCE further
indicated that the claimant was at maximal functional
improvement and recommended that he never lift more than 20
pounds on an occasional basis and up to approximately 13
pounds on a more frequent basis. Further restrictions
included no pushing or pulling with greater than 40 pounds of
force; no frequent or repetitive bending or twisting;
positional changes as needed to avoid constant standing,
walking, or sitting over a full workday; and no walking for
more than 10 minutes.
5 The claimant returned to Dr. Singh on March 18, 2010. After
conducting an independent medical reexamination (IME), Dr.
Singh concurred that the claimant is able to perform only
light-duty work-with a 20-pound lifting restriction-and
advised that the restriction is permanent and the claimant
has reached his maximum medical improvement (MMI). The
claimant was subsequently examined by Dr. Samuel Chmell on
March 27, 2010. Dr. Chmell agreed that the claimant had
reached his MMI and can never return to his regular job due
to the permanent physical restrictions.
6 The claimant testified that he met Steven Blumenthal, who
conducted a vocational rehabilitation assessment on July 27,
2010. Blumenthal did not testify at the hearing, but his
report was submitted by the claimant and admitted into
evidence as petitioner's exhibit No. 7. The claimant
testified that he told Blumenthal that he lost his
driver's license following a DUI. Blumenthal's report
states that the claimant informed him that he was arrested
for DUI in 1995, that his driver's license was suspended
after he received two speeding tickets, and that he expected
to have his license reinstated in December 2010. The claimant
told Blumenthal that he graduated from high school in 1980,
but he testified at the hearing that he had neither graduated
nor completed his GED.
7 Blumenthal's detailed report contains an array of
information, including background and medical information,
based on his interview with the claimant as well as the
results of numerous vocational evaluation tests. Regarding
the claimant's work history, Blumenthal's report
states that during the six months immediately preceding his
injury, he worked part-time cleaning a hospital, where he
earned $12 per hour. He also worked part-time as a customer
service supervisor for Target from 1997 to 2003, earning $11
per hour. The claimant informed Blumenthal that he is
currently able to perform customer service work.
8 Blumenthal lists several occupations in his report that he
opines may be suitable for the claimant in his current
physical condition. These include cashier; retail
salesperson; counter and rental clerk; hotel, motel, and
resort desk clerk; school bus driver; and security guard.
Blumenthal lists, based on data from the Illinois Department
of Employment Security, the entry hourly wage and the median
hourly wage for each occupation. However, Blumenthal notes as
follows with regard to these positions:
"it is also very clear that [the claimant] will require
specialized job placement assistance to identify job settings
where his physical abilities can be accommodated by the
employer. Certain job descriptions [sic] as an
unarmed security guard in a gated community or industrial
guard shack where [the claimant] could sit/stand as needed,
or as a school bus driver where he could get in and out of
the bus to change positions would be consistent with his
documented physical abilities [sic] ([the claimant]
stated he enjoyed driving workers around in the past).