Kluber v. Ill. Workers' Comp. Comm'n

2015 IL App (2d) 131178WC-U

STEVEN KLUBER, Plaintiff-Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al.(Preferred Electric, Appellee).

NO. 2-13-1178WC

APPELLATE COURT OF ILLINOIS SECOND DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

March 20, 2015

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Kane County

No. 13MR348

Honorable David R. Akemann, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart concurred in the judgment.

ORDER

¶ 1 Held: (1) The testimony of uncertified vocational rehabilitation personnel at the arbitration hearing did not violate section 8(a) of the Workers' Compensation Act (820 ILCS 305/8(a) (West 2006)), which requires vocational rehabilitation counselors who provide services under the Act to "have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation."

(2) The Commission's reliance on the opinions of the employer's vocational rehabilitation expert was not against the manifest weight of the evidence.

(3) The Commission's decision to award claimant permanent partial disabilitybenefits for a 40% loss of the person as a whole rather than wage-differential benefits was not against the manifest weight of the evidence.

¶ 2 On May 5, 2008, claimant, Steven Kluber, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2006)), seeking benefits from the employer, Preferred Electric. The employer did not dispute that claimant sustained an accident that arose out of and in the course of his employment on April 12, 2007, and following a hearing in July 2011, the arbitrator determined (1) claimant's low back condition of ill-being was causally connected to his work accident and (2) claimant was entitled 43-6/7 weeks' maintenance benefits from August 11, 2010, through June 13, 2011, the day he refused to attend a job interview arranged by his job placement specialist. Neither party sought review of the arbitrator's decision.

¶ 3 In February and March 2012, further arbitration hearings were conducted in the matter regarding the issue of permanency. Following those hearings, the second arbitrator issued a decision, finding claimant entitled to 200 weeks' permanent partial disability (PPD) benefits for a 40% loss of use of the person as a whole. Claimant sought review with the Illinois Workers' Compensation Commission (Commission), which deleted several paragraphs of the arbitrator's decision but otherwise affirmed that decision. On judicial review, the circuit court of Kane County confirmed the Commission. Claimant appeals, arguing (1) the Commission erred in allowing the employer to present the testimony of uncertified vocational rehabilitation personnel, (2) the Commission erred by assigning probative value to the testimony of the employer's vocational rehabilitation expert, and (3) the Commission's decision to award claimant PPD benefits for a 40% loss of the person as a whole rather than wage-differential benefits was against the manifest weight of the evidence. We affirm.

¶ 4 I. BACKGROUND

¶ 5 Claimant (age 51 at the time of his accident) worked as an electrician for 32 years. The parties agreed, on April 12, 2007, he sustained accidental injuries while working for the employer. On July 8, 2011, an initial arbitration hearing was conducted in the matter pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2006)). Issues in dispute included whether claimant's current condition of ill-being was causally connected to his work injury and maintenance benefits. On August 2, 2011, arbitrator Jacqueline Kinnaman issued a decision, finding claimant's low back condition of ill-being was causally connected to his April 2007 work accident and ordering the employer to pay claimant 43-6/7 weeks' maintenance benefits. The arbitrator determined claimant's maintenance benefits should end as of June 13, 2011, the "day [claimant] refused to attend a job interview arranged by [his] job placement specialist." Neither party sought review of the arbitrator's decision.

¶ 6 Evidence presented at the arbitration hearing showed claimant was injured at work on April 12, 2007, while helping to unload conduit. He was carrying weight on his shoulder when he twisted and felt a sharp pain down his low back and into his right leg. Following his accident, claimant sought medical care. On April 26, 2007, he underwent a magnetic resonance imaging, which revealed a spondylolisthesis at L4 and L5, a disc herniation at L4-5, a spondylolisthesis of L5 over S1, and a posterior annular tear at L5. On January 2, 2008, Dr. Gurvinder Deol performed surgery on claimant in the form of an L4 to S1 decompression and fusion. On July 29, 2009, he underwent revision surgery performed by Dr. Steven Mather. A functional capacity evaluation (FCE) performed on June 14, 2010, showed claimant could work at a light-medium level, occasionally lift 35 pounds, and frequently lift 20 pounds. On June 21, 2010, Dr. Mather reviewed claimant's FCE, found claimant had reached maximum medical improvement (MMI), and released him to return to light-medium duty work with a permanent 35-pound lifting restriction.

¶ 7 On August 12, 2010, claimant began seeing Dr. Akil Moinuddin, who prescribed him pain medication. On a patient self-history form, claimant identified his occupation as "retired."

¶ 8 In August 2010, claimant began a vocational rehabilitation program with MedVoc Rehabilitation (MedVoc). He worked with Laura Roberts and Diamond Warren, job placement specialists. Roberts and Warren provided claimant with job leads on a weekly basis and asked him to research his own leads. Claimant testified he submitted 18 job applications based upon his own leads and made 658 job contacts during the course of his search. He acknowledged his contact count included inquiries he made by phone and did not mean that he visited 658 potential employers or submitted 658 job applications.

¶ 9 The record reflects MedVoc performed two labor market surveys with respect to claimant. First, a labor market survey was performed in August and September 2010, from which it was determined that claimant was "employable in positions such as bidding, estimation, material ordering, and light electrical." The wage range for the targeted positions was $23.73 to $25.73 per hour. In June 2011, an "updated" labor market survey was performed and "targeted additional position." Claimant was deemed "employable in positions such as bidder/estimator, light electrical, material order, dishwasher, maintenance, and machine operator." His wage range was identified as being $14.38 to $16.38 per hour.

¶ 10 Warren scheduled an interview for claimant at Steak 'n Shake on June 5, 2011, for a dishwashing job—the first interview claimant obtained from his job search. However, claimant testified that, after walking in a Memorial Day parade and performing gardening and yard work in early June 2011, he noticed that his back had tightened up and sought medical care. Heinformed Warren he would not go to the Steak 'n Shake interview due to back pain. Warren rescheduled the interview for June 8, 2011. Claimant did not attend the June 8 interview and Warren again rescheduled it for June 13, 2011. On June 10, 2011, claimant saw Dr. Mather and complained of thoracic pain and low back soreness. Dr. Mather recommended claimant get off narcotics, which he believed were unnecessary, and that claimant resume his home exercises and quit smoking. He renewed claimant's 35-pound lifting restriction but did not restrict him from doing a job search. Nevertheless, claimant did not go to the June 13, 2011, interview.

¶ 11 The employer presented the testimony of both Warren and Roberts at the arbitration hearing. Warren testified the Steak 'n Shake job was within claimant's work restrictions and in his geographical area. She believed the interview would have allowed claimant to work on his interviewing skills. Warren testified the Steak 'n Shake job paid $9.45 an hour and claimant might have gotten the job if he had gone to the interview. She identified other concerns she had regarding claimant's participation in vocational services. Specifically, claimant failed to follow up in a timely manner on a job application for another potential employer and was not completing employment applications in connection with his own job search.

¶ 12 Roberts described her interactions with claimant during his job search. She discussed with him the importance of making in-person contact with potential employers and submitting applications. Roberts testified claimant declined her suggestion that he consider a volunteer position, which she believed could have expanded his job skills, made him more marketable, and given him experience in networking. She testified other problems she had while working with claimant included two instances when his friends or family members came with claimant to visit a potential employer. Additionally, on one occasion, claimant discussed stomach problems he was having due to his medications in front of a potential employer. Roberts told him not tospeak that way in front of the employer and claimant responded that he did not care as it was just a minimum wage job. On cross-examination, Roberts testified no one had recommended termination or suspension of claimant's vocational rehabilitation prior to the Steak 'n Shake incident. She also acknowledged claimant informed her he had been doing volunteer work with veterans.

¶ 13 On August 2, 2011, the arbitrator issued her decision in the matter. As stated, she determined claimant's low back condition of ill-being was causally connected to his April 2007 work accident. However, she determined, according to Dr....