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

29 N.E.3d 648

Kenneth LENHART, Appellant

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (USF Holland, Appellee).

No. 3–13–0743 WC.

Appellate Court of Illinois, Third District, Workers' Compensation Commission Division.

March 20, 2015.

David W. Olivero, of Louis E. Olivero & Associates, of Peru, for appellant.

John Campbell, of Keefe, Campbell & Associates, LLC, of Chicago, for appellee.

OPINION

Justice STEWART delivered the judgment of the court, with opinion.

¶ 1 The claimant in a workers' compensation case, Kenneth Lenhart, appeals a finding by the Illinois Workers' Compensation Commission (the Commission) that he failed to prove that he is permanently and totally disabled because of a workplace accident. Alternatively, he argues that the Commission erred in failing to determine whether he was entitled to a permanent partial disability (PPD) benefit award based on a wage differential calculation, rather than a percentage of a person as a whole award. For the following reasons, we agree with the latter argument, reverse the Commission's PPD award, and remand for a determination of whether the claimant is entitled to a PPD award based on a wage differential calculation.

¶ 2 BACKGROUND

¶ 3 The claimant worked for the employer, USF Holland, as a dockworker and truck driver. In December 2004, the claimant injured his low back in a workplace accident, underwent a course of medical treatments, and filed an application for adjustment of claim pursuant to the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2004)).

¶ 4 At the arbitration hearing, the parties disputed the extent of the claimant's injuries. The claimant presented evidence, including medical opinions from his treating physicians, in an attempt to show that he is permanently and totally disabled. The employer does not dispute that the claimant sustained a workplace accident, that he suffered conditions of ill-being to his back because of the accident, or that he can no longer perform the same physical demand level as a result of the accident. The employer stipulated that the claimant cannot meet the physical demands of a dockworker/truck driver as a result of his accident, but disputed the claimant's assertion that he is totally and permanently disabled. The employer presented evidence and opinions that the claimant exaggerated his physical limitations. The employer's evidence included videotape surveillance evidence showing the claimant engaged in various physical activities since the accident.

¶ 5 The claimant's workplace accident occurred on December 14, 2004, when he drove a forklift over a dock plate that buckled. The accident caused a jarring force to his low back. The claimant immediately experienced low back pain, which became worse over the next few days. He testified that prior to this accident, he was in good health. After the accident, the claimant underwent a significant amount of medical treatments, including injections, physical therapy, and two back surgeries, because of continuous low back pain. In addition, the claimant underwent multiple independent medical examinations (IMEs).

¶ 6 The record on appeal includes the surveillance video footage that the employer obtained and spanned an approximate three-year period from October 2007 through October 2009. The surveillance video footage showed the claimant engaged in numerous physical activities, including riding a motorcycle, attending football games, yard work, and some lifting and bending activities.

¶ 7 One of the claimant's treating physicians, Dr. George DePhillips, concluded that the claimant was permanently and totally disabled from work even after viewing some of the surveillance videos. During his evidence deposition, Dr. DePhillips explained that the claimant could obviously perform some work, “but the question is, how many hours a day and what are his restrictions, and at some point a patient has restrictions that deem them unemployable.” He admitted that he based his opinions about the claimant's restrictions, in part, on the claimant's subjective reporting of his condition.

¶ 8 The claimant's psychiatrist, Dr. Greg Hawley, diagnosed the claimant as having chronic pain disorder secondary to low back pain along with depression and impulse control disorder. Dr. Hawley believed that the claimant's conditions were causally related to the workplace accident.

¶ 9 At the request of the employer, Dr. Fransisco Espinosa conducted an IME of the claimant in January 2008, and he found that the claimant was at MMI at that time. He believed that the claimant was ready to work and could occasionally lift up to 25 pounds, could occasionally sit, and must avoid bending and twisting at the waist. In his opinion, these were permanent restrictions. Dr. Espinosa viewed some of the video surveillance of the claimant performing yard work on several occasions, and opined that the activities in the video did not “correlate with his alleged current symptoms.” The doctor concluded that the claimant was capable of performing light to medium level work.

¶ 10 At the request of the employer, a clinical psychologist, Ronald Gahellen, also performed an IME. Gahellen examined the claimant, reviewed the claimant's medical records, and administered a number of objective tests to measure his personality, intellectual functioning, and emotional functioning. Gahellen concluded that during his examination, the claimant “responded in a guarded, self-favorable manner and made an effort to control the impression formed of him.” He believed that the claimant's condition involved “a significant psychological component” and that the claimant “appeared invested in remaining in a role as an invalid due to medical problems.” Gahellen also noted that the surveillance tapes that he reviewed showed the claimant “interacting in a comfortable, natural manner with other people.” This raised a concern with Gahellen that the claimant's self-reported “limitations in functioning may be misleading and exaggerated.”

¶ 11 The claimant underwent a functional capacity evaluation (FCE) in April 2009, which showed that the claimant could work at the “Very Light” physical demand level. He underwent a second FCE over a two-day period in May 2009. This FCE determined that the claimant could perform at the sedentary level with occasional lifting up to 15 pounds, walking limited to 10 minutes, and standing 30 minutes. The therapist commented that the claimant “demonstrated significant inconsistency of postural restriction and movement patterns throughout the course of the evaluation.” He believed that the claimant had significant nonorganic components to his level of pain and disability.

¶ 12 During the course of the claimant's medical treatments, the employer hired a vocational rehabilitation company, E.P.S. Rehabilitation, which performs vocational rehabilitation services. E.P.S. Rehabilitation performed a “Limited Telephonic Employer Sampling” of 16 businesses from the claimant's general area. A vocational rehabilitation counselor at E.P.S. Rehabilitation, Duane Bigelow, testified in an evidence deposition that the sampling is only a snapshot of employment opportunities, which may or may not be available at a point in time. Two of the 16 businesses included in the sampling reported job openings, and both openings were for service/parts managers. One opening required lifting 30 to 40 pounds, and the other position required alternate sitting and standing all day.

¶ 13 The claimant hired his own vocational specialist, Ron Malik, who opined that the two jobs available in E.P.S. Rehabilitation's sampling were outside the claimant's physical limitations. He also opined that if the claimant was released to work, he needed to work at the light physical demand level with no significant postural functions such as bending, stooping, crouching, or crawling. According to Malik, the claimant required a job with low stress, simple and repetitive tasks, and limited contact with the public, coworkers, and supervisors. Malik concluded that the claimant was unemployable without education and/or training for a new career.

¶ 14 On June 15, 2009, Bigelow began assisting the claimant with a self-directed job search. In July 2009, upon Bigelow's recommendation, the employer approved an introductory computer class for the claimant. The claimant subsequently took two eight-week computer courses and received passing grades in both classes.

¶ 15 Another vocational rehabilitation counselor from E.P.S. Rehabilitation, Edward P. Steffan, testified that he believed that the claimant was employable in the current labor market within his restrictions. When asked to explain his opinion, he testified as follows: “His rehabilitation variables, which we describe as his age, which is approximately 40 years, his available physical capabilities as we've discussed, his level of education, his training, his previous experience and acquired skills and knowledge allow him access to a readily available and stable labor market at positions in which he could earn between $10 and $15 per hour.” He opined that the top-earning capacity for the claimant was $33.65 per hour, but that he did not want to say that the claimant would be employable between $15 and $33.65 per hour because “that could be somewhat misleading.”

¶ 16 During his deposition testimony, Bigelow testified that they established a broader range of $8 to $33.65 per hour as the claimant's earning potential based on a “snapshot” of the labor market at a particular time. However, he believed that “the more likely median” would be the $10 to $15 range. Likewise, Steffan testified that $10 to $15 per hour was the “median or mean extracted from” the larger range of $8 and $33.65 per hour. He was “confident” that $10 to $15 dollars per hour was “a very realistic and achievable wage for [the claimant].” A report dated January 27, 2010, and signed by both Steffan and Bigelow stated that the claimant “is both placeable...