                                  2015 IL App (1st) 141057WC

                                    FILED: October 2, 2015

                                       NO. 1-14-1057WC

                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                        FIRST DISTRICT

                  WORKERS' COMPENSATION COMMISSION DIVISION

 S&C ELECTRIC COMPANY,                       )       Appeal from
                                             )       Circuit Court of
             Appellant,
                                             )       Cook County
             v.                              )       No. 13L50711
 THE ILLINOIS WORKERS' COMPENSATION          )
 COMMISSION et al. (Edmundo Cortez,          )
 Appellees).                                 )       Honorable
                                             )       Robert Lopez-Cepero,
                                             )       Judge Presiding.
_______________________________________________________________________

               JUSTICE HARRIS delivered the judgment of the court, with opinion.
               Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart
               concurred in the judgment and opinion.

                                           OPINION

¶1             On March 16, 2011, claimant, Edmundo Cortez, filed an application for

adjustment of claim pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1

to 30 (West 2002)), seeking benefits from the employer S&C Electric Company in case No.

11WC10211. He alleged he suffered injuries to his lumbar spine while lifting and pulling

equipment at work on February 4, 2011. On April 5, 2012, claimant filed a second application

for adjustment of claim alleging injury to his "back man as a whole" resulting from lifting,

bending, and pulling in the performance of his employment on February 15, 2011, in case No.

12WC12147. Following a September 11, 2012, consolidated hearing, the arbitrator concluded in
2015 IL App (1st) 141057WC


case No. 11WC1021 claimant had established an accident that occurred on February 4, 2011,

that arose out of and in the course of his employment, and his current condition of ill-being in his

low back was causally related to the work accident. The arbitrator calculated claimant's average

weekly wage as $572.43 and awarded claimant total disability benefits of $381.62 per week for

the period of February 15, 2011, through September 11, 2012.

¶2             On review, the Illinois Workers' Compensation Commission (Commission)

affirmed and adopted the arbitrator's decision. The Commission also remanded the matter to the

arbitrator for further proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 399

N.E.2d 1322 (1980). On judicial review, the circuit court of Cook County affirmed the

Commission's decision. On appeal, the employer argues the Commission's (1) finding claimant

sustained a compensable work-related injury was against the manifest weight of the evidence and

(2) decision improperly included overtime hours in the calculation of claimant's average weekly

wage. We affirm and remand the matter for further proceedings.

¶3                                    I. BACKGROUND

¶4             The following evidence relevant to this appeal was elicited at the September 11,

2012, arbitration hearing.

¶5             Claimant began working for the employer in August 2010 as a "mechanical

assembler basic." Claimant testified that he worked 10 hours per shift, 5 days per week, which

included mandatory overtime. His job duties included assembling an average of three to four

stainless steel tanks each shift. Claimant testified his job required him to lift cables weighing 10

to 50 pounds and tools weighing 25 to 30 pounds. He installed one to two wire cables per tank,

tightening the bolts with a wrench-like tool that was at least one meter long and made of thick

metal. To tighten the bolts, claimant explained, "we have to insert [the wrench] to the nut almost


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to the eye level. Then we pull it down, all the way down to the floor, pull it taut and put it back

on the top again. Again, pull it down, bend it over all the way down to the floor until the nut is

securely tightened." According to claimant, this step is repeated 30 to 40 times before the bolt is

tight. He then had to lean over the tank and connect the wires. Claimant testified that, as a new

employee, he was not allowed to sit down while assembling the tanks.

¶6             Claimant testified that at approximately 10 p.m. on the night of the accident, he

was using a manual hand jack with a steel extension to pick up a pallet. Claimant explained

"[t]he steel extension [located on] the top of the hand jack is one-inch thick with almost like one

meter square on the top of the forklift." Claimant testified he had to pull the steel extension on

the hand jack up in order to slide the jack under the pallet. In order to do this, claimant stated, "I

stood in front of the hand jack. I bent at my waist. I pulled up the extension bars on the top of

it." According to claimant, "[t]hat is the time I felt the click on my back." Claimant continued to

pull up on the extension bar to lock it in place and then grabbed his back which was "painful

already." He described the location of the pain as "the left side of the lower back." Claimant

testified that one of his coworkers asked if he was okay. He replied, "I just have a click in my

back." Claimant explained although his back was already painful, he could still do his job and so

he continued to work. The accident occurred on a Friday, and over the weekend, claimant took

Advil, used a hot pack on his back, and lay on his couch. On cross-examination, claimant

acknowledged he worked the Saturday following the accident—as evidenced by his time card—

but testified the pain he experienced directly following the accident was "just like an ordinary

pain."

¶7             Claimant testified that his back was still painful when he returned to work the

following Monday, and noticed the pain increased when he bent over, pulled something, or


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tightened bolts. He continued to work the rest of the week despite the increasing pain. By

Wednesday, claimant stated he had started to notice pain running through his left leg. The

following weekend, he took Aleve and used hot packs on his back.

¶8             According to claimant, when he returned to work on Monday, February 14, 2011,

he spoke to his team leader, Robert Navarro, to inform him that he might see claimant sitting

down at his work station due to back pain. Claimant did not want Navarro to think he was lazy.

Claimant noted as of that Monday, his pain was "worse already, because it [was] running, really

going to my left leg. It [was] almost really difficult for me to walk."

¶9             Claimant testified that the following morning, February 15, 2011, Navarro

approached him and asked how his back was. Claimant stated he told Navarro it was "worse,

very painful." According to claimant, Navarro then told him to inform their supervisor, Jim

Wilson, and then go see the nurse. Claimant testified when he told Wilson he was going to see

the nurse, Wilson responded, in what claimant perceived to be a threatening manner, "that is not

work-related." Claimant stated that Wilson's comment scared him as he was still in his

probationary period at work.

¶ 10           James Wilson testified that he was a supervisor for the employer on the date of

the accident. Wilson testified claimant, as well as other employees, were allowed to leave early

from their shifts on February 1, 2011, due to a snow storm. Claimant did not work the following

day. According to Wilson, when claimant returned to work February 3, claimant showed him a

picture of the snow in the alley by his apartment and told him "he had to shovel the snow to get

out to the street." Claimant admitted to having shown Wilson a photograph of the snow, but he

denied telling Wilson he had to shovel the snow and testified he did not own a shovel at that

time.


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¶ 11           Wilson testified that employees are required to report all work injuries

immediately to someone in leadership. According to Wilson, when an employee reports an

accident to him, he immediately sends them to see the nurse. Wilson stated claimant did not

report an accident to him until February 15, 2011, at which time he sent claimant to see the

nurse. Wilson further testified claimant denied injuring himself at work when he and Navarro

asked, but he stated that claimant later attributed his injury to work because another employee

had experienced the same symptoms. According to Wilson, however, the other employee's

symptoms resulted from a tripping incident. Wilson denied telling claimant the injury "[was] not

work-related" and testified he had never threatened an employee for filing a workers'

compensation claim.

¶ 12           On cross-examination, Wilson testified that prior to February 2011, claimant

performed "at a very good level" and was able to perform all his job duties.

¶ 13           Robert Navarro testified that he worked for the employer in a leadership position.

He stated that all injuries, no matter how minor, were required to be reported immediately to

someone in leadership. Navarro testified the employees were aware of this rule. During his

testimony, claimant denied having any knowledge of this rule.

¶ 14           According to Navarro, on February 15, 2011, he noticed claimant "making

gestures on his face like he was hurting, like injured or something." He asked claimant if

something was wrong and claimant responded that his back and legs were hurting and that he

could not stand up for long. Navarro testified claimant told him "he used to get that pain when

he used to work at a liquor store. The pain used to go off and on." During his testimony,

claimant denied injuring his back while working at a liquor store. Navarro stated that as soon as

he became aware of claimant's back pain, he "persuaded" claimant to go see the nurse. Navarro


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denied having a conversation with claimant the day before regarding his back pain. According to

Navarro, claimant told him that he was not sure whether he had injured himself at work but noted

another employee had a similar injury.

¶ 15           Koffi Kongo, claimant's co-worker, signed an affidavit on May 16, 2011,

indicating that on or about February 4, 2011, he was working near claimant when he "saw him

injure his back in the course of his employment." Kongo further noted, "[a]fter witnessing

[claimant] grab for his lower back in obvious pain[,] I asked if he was alright and he told me[, ']I

felt a pop in my lower back.' " Kongo testified at his deposition that claimant did not appear to

have any back problems prior to the work accident. He was unable to recall the particular date of

the accident but stated it was in February.

¶ 16           Janice McLeran, the employer's health services administrator, testified regarding a

February 15, 2011, nurse's note that indicated claimant reported "having a bad pain that is hard to

tolerate in certain positions" that "originates in low back" and "goes all the way down left leg to

calf along the back of the leg" which began approximately three weeks prior to the visit. The

note further stated, "RN attempted to discuss causation and he states day shift [employee] had

same symptoms so he feels this must be [related to] the job. He does not have a special moment

in time. He denies prior medical history of this." According to McLeran, she was present in the

room with claimant and the nurse when claimant "told us he was sure [the injury] was work-

related because somebody else in his department had the same symptoms." McLeran testified

she did not seek further information from claimant regarding a specific time or date of his injury.

She stated she had worked closely with claimant on short-term disability and had no recollection

of claimant telling her he was injured at work while using a hand jack. During his testimony,

claimant stated he told the nurse he did not know what caused his back pain because he was


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"scared of [Wilson] and my job. I might lose my job."

¶ 17           After seeing the company nurse on February 15, 2011, claimant was referred to

Peterson Urgent Care Center where he reported having pain in his left hip down into his left leg

for the last two weeks. He was diagnosed with acute lumbar pain and a possible herniated disc.

He returned to Peterson Urgent Care Center the following day and reported his pain was

"worsening day by day." The medical report from the latter visit indicated claimant had

experienced "mild pain when pulling something at work."

¶ 18           On February 17, 2011, claimant first saw Dr. Sara Brown, a family and sports

medicine physician. At that time, claimant reported experiencing severe low back pain shooting

down his left leg stopping at the mid-calf for approximately three weeks. When Dr. Brown

asked claimant whether he had suffered a trauma or injury, he initially responded, "no"; however,

she stated claimant immediately followed up by saying, "I think this happened at work." He told

her he did a lot of walking, bending, and pushing at work. She diagnosed claimant with

"lubago," or low back pain, which she believed was likely due to a disk herniation. Dr. Brown

ordered a magnetic resonance image (MRI) of claimant's back, prescribed steroids, ordered

physical therapy, and restricted him from lifting, pushing, or pulling at work.

¶ 19           Dr. Brown next saw claimant on March 1, 2011. At that time, claimant continued

to complain of low back pain that was worsening, a sharp shooting pain down his left leg, and

numbness in his left leg. She reviewed the results of his MRI, which indicated "a very severe

disk herniation at the L5-S1 level with impingement on the S1 nerve root." Dr. Brown testified

the MRI results were consistent with claimant's pain complaints. She explained that the MRI

also indicated some degenerative changes, but noted the severe extrusion of the disk was more

indicative of a traumatic change. Dr. Brown referred claimant to Dr. David Walega, an


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2015 IL App (1st) 141057WC


interventional spine specialist, for further treatment. She opined that claimant's disk herniation

was caused by a work injury based on the information he had provided.

¶ 20           On cross-examination, Dr. Brown denied that claimant related his injury to work

based on a co-worker's report of similar symptoms. She agreed that she had no knowledge of the

bending, pushing, and lifting requirements of claimant's job, and acknowledged claimant did not

specifically attribute his injury to any of these activities. She agreed a person could suffer a

herniated disk from shoveling snow.

¶ 21           Claimant saw Dr. Walega on March 8, 2011, and received an epidural steroid

injection that provided relief for two days. Thereafter, Dr. Walega referred claimant to Dr.

Joshua Rosenow, a neurosurgeon.

¶ 22           On March 18, 2011, claimant saw Dr. Rosenow. According to an April 6, 2011,

letter from Dr. Rosenow to Dr. Walega, claimant "[l]ifted something very heavy (hand jack

extension of at least 50 lbs) at work in February and felt a 'click' in his back with new onset of

LLE radicular pain increasing over several days." Due to claimant's failure to obtain relief

through conservative treatment, Dr. Rosenow recommended a surgical decompression. On

March 21, 2011, Dr. Rosenow performed a left L5-S1 laminectomy and microdiskectomy for

what he described as a "very large herniated disk." Following this surgery, claimant continued to

complain of lumbar and buttock pain as well as severe headaches. A May 4, 2011, MRI

demonstrated a cerebrospinal fluid leak and on May 6, 2011, claimant underwent a second

surgical procedure to repair the cerebrospinal fluid leak and dural tear, insert a spinal fluid drain,

and remove a recurrent herniated lumbar disk. Thereafter, claimant began physical therapy.

¶ 23           On August 4, 2011, claimant saw Dr. Michel Malek, a neurosurgeon. According

to Dr. Malek's evidence deposition, claimant was referred to him by Diversey Medical Center,


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but the record contains no indication of the reason claimant was seen at Diversey Medical

Center. According to Dr. Malek's records, claimant was still experiencing pain in his back that

radiated down his lower left leg. Dr. Malek ordered a repeat MRI scan of claimant's lumbar

spine. The results of the MRI indicated "post-operative changes at L5-S1, retrolistheses of L5 on

S1 with no evidence of recurrent disc herniation, primarily scarring *** [and] a small annular

tear at L4-5 and no significant foraminal narrowing." Dr. Malek recommended a lumbar fusion

at L5-S1. In Dr. Malek's opinion, short of proceeding with the lumbar fusion, claimant suffered

from a permanent disability and had reached MMI.

¶ 24           Dr. Malek further opined that claimant's current condition of ill-being in his low

back and his need for a lumbar fusion were the direct result of the February 4, 2011, work injury.

He noted that although claimant suffered from an underlying degenerative condition, the

degenerative condition was asymptomatic and unlikely to become symptomatic during claimant's

lifetime absent the February 4, 2011, injury. (We note that a portion of Dr. Malek's deposition,

specifically the portion in which he identified medical records he reviewed during his treatment

of claimant, is missing from the record.)

¶ 25           On August 8, 2011, claimant saw Dr. Morris Marc Soriano, a neurosurgeon, for

an independent medical evaluation. In addition to conducting a physical examination, Dr.

Soriano reviewed the initial investigation report, the Peterson Urgent Care records, the MRIs, the

operative reports, and the records of claimant's treating physicians. Dr. Soriano testified that

claimant still complained of pain with prolonged sitting or standing and intermittent left leg pain.

Following his physical examination of claimant, Dr. Soriano was of the opinion that claimant

was in the process of recovering from his disk herniation. However, Dr. Soriano opined that the

herniated disk and the corresponding surgery were not related to the February 4, 2011, accident.


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When asked what he based his causation opinion on, the following colloquy occurred:

                      "A. Well, what was in [the incident investigation report]

               was that [claimant] was actually directly asked by the team leader

               if he had been injured at work, and he replied that he had not been

               injured at work. So, that was part of the reason I formulated my

               opinion that this was not a work injury, since [claimant] himself

               was not of the opinion, at least [as] of [February, 15, 2011], that he

               was injured at work.

                      Q. Did you see anything in the initial records that related

               any of his complaints to lifting, pushing or pulling at work?

                      A. No.

                      Q. What, if any, significance did you attach to that?

                      A. Well, when he tells—when he gives the direct report to

               the nurse that he had not lifted, pushed or pulled anything that

               would account for his pain, then I mean again that's information

               that you utilize to try and formulate an opinion, determine whether

               it’s a work[-]related injury or not."

Dr. Soriano concluded that claimant would likely be able to return to work without restrictions

following another two to four weeks of work hardening.

¶ 26           On October 26, 2012, the arbitrator issued her decision in the matter, finding

claimant had established a February 4, 2011, accident, that arose out of and in the course of his

employment and his current condition of ill-being in his low back was causally related to the

work accident. The arbitrator specifically noted, "[i]n finding accident on [February 4, 2011],


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the [a]rbitrator places greater weight on the credible testimony of [c]laimant and his co-worker

and on the work accident reference recorded by Peterson Clinic and Dr. Brown than on the

testimony of Mr. Wilson, Mr. Navarro and the nurse." She further noted, "the record is devoid of

any credible evidence to suggest that [claimant] suffered any back problems prior to this

accident." The arbitrator calculated claimant's average weekly wage as $572.43 and awarded

claimant total disability benefits of $381.62 per week for the period of February 15, 2011,

through September 11, 2012. On review, the Commission affirmed and adopted the arbitrator's

decision. On judicial review, the circuit court of Cook County affirmed the Commission's

decision.

¶ 27           This appeal followed.

¶ 28                                     II. ANALYSIS

¶ 29           On appeal, the employer argues the Commission's (1) finding claimant sustained a

compensable work-related injury was against the manifest weight of the evidence and (2)

decision improperly included overtime hours in the calculation of claimant's average weekly

wage.

¶ 30           As a preliminary matter, we note that when it reviews the Commission's decision

pursuant to the manifest-weight-of-the evidence standard, the circuit court must examine the

evidentiary record. In this case, the circuit court found the Commission's decision was not

against the manifest weight of the evidence and entered its order confirming the decision on

March 13, 2014. However, two months later, on July 15, 2014, the court ordered the

Commission to prepare and file the administrative-review record, which included the evidentiary

record, with the circuit clerk. Thus, it does not appear the circuit court examined the record

before it made its decision. However, since on appeal, we review the Commission's decision and


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2015 IL App (1st) 141057WC


not the circuit court's judgment, we will consider the merits of this appeal. See Dodaro v.

Illinois Workers' Compensation Comm'n, 403 Ill. App. 3d 538, 543, 950 N.E.2d 256, 260 (2010).

¶ 31                                 A. Compensable Injury

¶ 32           On appeal, the employer first argues the Commission's finding claimant sustained

a compensable work-related injury on February 4, 2011, is against the manifest weight of the

evidence. The employer's assertion is based on its contentions that (1) claimant and Kongo were

not credible, and (2) claimant's theory of the injury was not supported by the contemporaneous

medical histories he provided to his treating physicians.

¶ 33           "To obtain compensation under the Act, a claimant bears the burden of showing,

by a preponderance of the evidence, that he has suffered a disabling injury which arose out of

and in the course of his employment." Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 203,

797 N.E.2d 665, 671 (2003). An injury generally arises "in the course of employment" when it

occurs "within the time and space boundaries of the employment." Id. Further, an injury "arises

out of" employment when "the injury had its origin in some risk connected with, or incidental to,

the employment so as to create a causal connection between the employment and the accidental

injury." Id. at 203, 797 N.E.2d at 672.

¶ 34           "The determination of whether an injury arose out of and in the course of a

claimant's employment is a question of fact for the Commission to resolve, and its finding in that

regard will not be set aside on review unless it is against the manifest weight of the evidence."

Springfield Urban League v. Illinois Workers' Compensation Comm'n, 2013 IL App (4th)

120219WC, ¶ 24, 990 N.E.2d 284. "In resolving questions of fact, it is the function of the

Commission to judge the credibility of witnesses and resolve conflicting medical evidence."

City of Springfield v. Illinois Workers' Compensation Comm'n, 388 Ill. App. 3d 297, 315, 901


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N.E.2d 1066, 1081 (2009). "For a finding of fact to be contrary to the manifest weight of the

evidence, an opposite conclusion must be clearly apparent." Springfield Urban League, 2013 IL

App (4th) 120219WC, ¶ 24, 990 N.E.2d 284.

¶ 35           The employer asserts that Kongo's testimony was not credible in that he (1)

contradicted claimant regarding whether claimant solicited his testimony and (2) could not recall

the specific date or time of the incident or the specific activity claimant was performing at the

time of his injury. Although, as the employer notes, Kongo could not recall the specific date or

time of the incident, he testified that he observed claimant "using the hand[]jack, like pulling the

skid" and then reaching back with his left hand and grabbing his lower back in February of 2011.

We decline to find that Kongo's inability to recall the specific date or time of the accident renders

his testimony incredible. The employer also points to a discrepancy between Kongo's testimony

that he thought claimant called him on the telephone to ask him to testify, and claimant's

testimony that the two of them saw each other in a department store and Kongo offered to testify

on claimant's behalf. To the extent an inconsistency exists in the witnesses' testimony in this

regard, we find it is immaterial and does not undermine the arbitrator's credibility determination.

¶ 36           The employer next provides a bulleted list of "facts" in its brief which it claims

demonstrates claimant's allegations of a work injury are not supported by the record. Many of

these "facts" are simply portions of claimant's testimony which were contradicted by his

supervisor or team leader. For example, the employer notes claimant's testimony (1) denying

having told Navarro that he suffered intermittent back pain while working at the liquor store

when Navarro testified claimant told him this; (2) that he told Navarro of his back pain the day

before seeing the nurse, and Navarro's denial of any such conversation; and (3) that he felt

threatened by Wilson's statement regarding the injury not being work related, and Wilson's


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denial of having made such a statement. In addition, the employer argues claimant's credibility

was further undermined by his denial that he shoveled snow on February 2, 2011, when Wilson

testified claimant told him he had shoveled snow. This argument by the employer amounts to

nothing more than an invitation to reweigh the evidence and find the employer's witnesses more

credible then claimant's. However, as noted above, it was for the Commission to weigh the

evidence and resolve any conflicts in the testimony. Here, the Commission, having heard the

testimony of each witness, specifically found claimant's and Kongo's testimony more credible.

Based on this evidence, we find that the Commission's credibility determination was not against

the manifest weight of the evidence.

¶ 37           The employer next takes issue with claimant's failure to initially provide details of

the accident to his treating physicians, instead attributing his injury to work only because a co-

worker had suffered similar symptoms. According to the employer, claimant provided the

specific details of his alleged injury only after he was confronted with the lack of documentation

supporting a work injury.

¶ 38           Our review of the record reveals that on February 15, 2011, claimant reported to

the company nurse that the pain in his low back and left leg began three weeks prior to his visit.

While claimant did not identify a specific event as having caused the injury at that time, he

denied any prior medical history of low back pain and attributed his injury to work. Although

claimant told the nurse he thought his injury must be work-related because a coworker was

experiencing similar symptoms, he testified that directly prior to seeing the nurse, he spoke with

Wilson who told claimant the injury was "not work related." We further note that McLeran, who

was in the room with claimant and the nurse, testified she did not ask claimant for specific

information regarding his injury. Immediately after seeing the company nurse, claimant was


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seen at Peterson Urgent Care, where claimant complained of pain in his left hip and left leg for

the last two weeks. The next day, February 16, 2011, claimant again reported to Peterson Urgent

Care, and the medical report from the later visit indicates claimant experienced "mild pain when

pulling something at work." Further, on March 18, 2011, claimant reported to Dr. Rosenow that

he was lifting an extension on a hand jack when he felt a click in his back followed by low back

pain that increased over several days. Thus, contrary to the employer's contention, the medical

records do provide details of a work injury suffered by claimant on February 4, 2011.

¶ 39           In addition, we note that Dr. Malek concluded claimant's injury was the direct

result of the February 4, 2011, work injury. The sole medical opinion disputing causation in this

case was Dr. Soriano's. He testified his finding of no causation was based on (1) the incident

investigation report that noted claimant denied having injured himself at work when asked by

Navarro and (2) his interpretation of the nurse's report as claimant having told the nurse he had

not lifted, pushed or pulled anything that would account for his pain. We note, however, that the

Commission specifically found the testimony of claimant and his co-worker more credible than

the testimony of Navarro. In addition, the nurse's report referred to by Dr. Soriano did not

contradict claimant's description of the mechanism of the injury, but stated only, "[h]e does not

have a specific moment in time."

¶ 40           Based on the above evidence, we find the Commission's determination that

claimant sustained a compensable work-related injury on February 4, 2011, was not against the

manifest weight of the evidence.

¶ 41           B. Propriety of Including Overtime Hours in the Calculation of Claimant's Wage

¶ 42           Last, the employer argues the Commission improperly included overtime hours in

its calculation of claimant's average weekly wage. Claimant asserts his overtime hours were


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properly included in the calculation of his wage.

¶ 43           "In a workers' compensation case, the claimant has the burden of establishing his

or her average weekly wage." Kawa v. Illinois Workers' Compensation Comm'n, 2013 IL App

(1st) 120469WC, ¶ 134, 991 N.E.2d 430. "The determination of an employee's average weekly

wage is a question of fact for the Commission, which will not be disturbed on review unless it is

against the manifest weight of the evidence." Id. Although overtime wages are generally

excluded from the calculation of an employee's compensation, an exception exists where the

overtime hours are consistent and required by the employer. 820 ILCS 305/10 (West 2010);

Airborne Express v. Illinois Workers' Compensation Comm'n, 372 Ill. App. 3d 549, 554, 865

N.E.2d 979, 983 (2007).

¶ 44           Despite the contentions of both the employer and claimant, neither the arbitrator

nor the Commission included overtime hours in the calculation of claimant's average weekly

wage. In fact, the arbitrator's decision, which was adopted and affirmed by the Commission,

states, "[i]n calculating the average weekly wage, the [a]rbitrator finds that [claimant] failed to

prove that overtime should be included in the calculation." (Emphasis added.) The arbitrator

noted, "the record is devoid of ample evidence to conclude that any time worked over 8 hours is

mandatory." Accordingly, the arbitrator subtracted claimant's overtime earnings of $1,127.23

from his gross wage of $15,438.25 and divided that amount ($14,310.93) by the number of

weeks he worked (25) to obtain his average weekly wage of $572.43. As such, we find this

claim lacks merit.

¶ 45                                    III. CONCLUSION

¶ 46           For the reasons stated, we affirm the circuit court's judgment confirming the

Commission's decision and remand for further proceedings pursuant to Thomas, 78 Ill. 2d 327,


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399 N.E.2d 1322.

¶ 47         Affirmed and remanded.




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