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Beverage v. The Illinois Workers' Compensation Commission

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

February 25, 2019


          Rule 23 order filed November 27, 2018

          Motion to publish allowed February 25, 2019

          Robert L. Smith, of Gaido & Fintzen, of Chicago, for appellee.

          Robert W. Burnett, of Burnett & Carson, Ltd., of Naperville, for appellant.

          Panel 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 employees.

         ¶ 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 Services (TMS).

         ¶ 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. ...

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