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Crittenden v. The Illinois Workers Compensation Commission

Court of Appeals of Illinois, First District, Workers' Compensation Commission Division

February 24, 2017

CARL CRITTENDEN, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (The City of Chicago, Appellee).

         Appeal from the Circuit Court of Cook County, No. 15-L-50296; the Hon. Edmund Ponce De Leon, Judge, presiding.

          Joseph J. Spingola, of Oak Brook, for appellant.

          Stephen R. Patton, Corporation Counsel, of Chicago, for appellee.

          Panel 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.

          OPINION

          MOORE, JUSTICE

         ¶ 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.

         ¶ 2 FACTS

         ¶ 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). ...

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