Court of Appeals of Illinois, Second District, Workers' Compensation Commission Division
23 order filed November 27, 2018
to publish allowed February 25, 2019
L. Smith, of Gaido & Fintzen, of Chicago, for appellee.
W. Burnett, of Burnett & Carson, Ltd., of Naperville, for
JUSTICE BARBERIS delivered the judgment of the court, with
opinion. Presiding Justice Holdridge and Justices Hoffman,
Hudson, and Cavanagh concurred in the judgment and opinion.
1 The claimant, John Bohentin, appeals the circuit
court's order setting aside the Illinois Workers'
Compensation Commission's (Commission) decision to award
maintenance benefits, finding that the record did not
demonstrate that the claimant participated in a vocational
rehabilitation program or self-directed job search between
April 25, 2012, and June 8, 2015, and confirming the
Commission's decision to award permanent partial
disability benefits as a percentage of the person as a whole.
2 I. Background
3 At the arbitration hearing on September 28, 2015, the
parties stipulated that the claimant had sustained a
workplace accident on May 24, 2011, arising out of and in the
course of his employment with Euclid Beverage (Euclid) and
that he had provided timely notice. The issue before the
arbitrator was whether a causal relationship existed between
the accident and the claimant's current condition of
ill-being. The parties also disputed the claimant's
entitlement to benefits.
4 As a condition of his employment with Euclid, the claimant
testified that he underwent a physical examination and
functional screening test to demonstrate his ability to lift
50 pounds. He was subsequently hired by Euclid in 1999 as a
sales supervisor and held that position until November 2011.
In his capacity as sales supervisor, the claimant called
various retailers, such as Jewel-Osco, and took orders for
beer sales on a handheld device, filled shelves, and built
displays to hold anywhere from 10 to 1000 cases of beer. The
claimant testified that he performed repetitive lifting of up
to 50 pounds, as well as bending, twisting, and reaching
throughout the day.
5 The claimant next testified regarding his previous
employment. Prior to Euclid, the claimant worked for Courtesy
Distributors for approximately 18 years, first as a delivery
driver and then as a delivery manager for four months. As
delivery manager, he supervised multiple delivery drivers and
ensured proper display and rotation of merchandise. According
to the claimant, he was not required to operate a computer;
manage inventory or sales; or hire, evaluate, or terminate
6 The claimant testified that on May 24, 2011, he experienced
a sharp pain in his back that radiated down his right leg and
"knocked [him] down" while stocking a cooler at a
Jewel-Osco location. Following this incident, the claimant
contacted Sonia Madalinski, Euclid's human resources
director, before a coworker transported him to Tyler Medical
7 Shortly thereafter, the claimant presented to TMS and was
examined by Dr. George Pappas. After Dr. Pappas documented
the claimant's symptoms as "pain radiating into the
right leg with tingling," he diagnosed the claimant with
a "lumbar sprain with spasms." Dr. Pappas
recommended chiropractic treatment and light-duty work
restrictions, which included bending, as tolerated, and
lifting no more than 10 pounds.
8 The claimant testified that he received medical attention
for a low back injury prior to the May 24, 2011, accident,
although it was asymptomatic prior to the 2011 accident. The
claimant's June 2011 MRI of the lumbar region showed a
degenerative change in the lumbar spine with disc disease at
L2-L3 to L5-S1 and associated lower lumbar ligamentum flavum
and facet hypertrophy, which further contributed to central
canal and foramina narrowing at L4-L5 and L5-S1. The claimant
was referred to a neurosurgeon, Dr. Matthew Ross.
9 On September 14, 2011, Dr. Ross diagnosed the claimant with
lumbar radiculopathy, likely due to disc disease at L5-S1.
Dr. Ross recommended nonsurgical treatment with lumbar
epidural and transforaminal cortisone injections. Dr. Ross
also recommended the claimant avoid lifting over 20 pounds
and begin a gradual decrease in work activities.
10 On September 30, 2011, the claimant presented to Dr.
Christopher J. Bergin, an orthopedic surgeon, for a medical
evaluation pursuant to section 12 of the Illinois
Workers' Compensation Act (Act) (820 ILCS 305/12 (West
2010)) at Euclid's request. Because the claimant's
earlier low back injury had been asymptomatic prior to the
May 24, 2011, accident, and the mechanism of injury was
consistent with aggravation of an underlying degenerative
condition, Dr. Bergin concluded that the claimant's
condition of ill-being was causally related to the May 24,
2011, accident. Dr. Bergin recommended physical therapy,
lumbar epidural injections, and light-duty work restrictions.
11 On November 22, 2011, Madalinski and Emmett McEnery,
Euclid's president, terminated the claimant after
informing him that his light-duty work restrictions would no
longer be accommodated. The claimant did not seek or gain
employment following termination. As such, from November 23,
2011, through April 24, 2012, the claimant received temporary
total disability (TTD) benefits. ...