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                                     Appellate Court                            Date: 2017.02.14
                                                                                12:48:47 -06'00'




             Flexible Staffing Services v. Illinois Workers’ Compensation Comm’n,
                                 2016 IL App (1st) 151300WC



Appellate Court          FLEXIBLE STAFFING SERVICES, Appellant, v. THE ILLINOIS
Caption                  WORKERS’ COMPENSATION COMMISSION et al. (Frederick
                         Williams, Appellee).



District & No.           First District, Workers’ Compensation Commission Division
                         Docket No. 1-15-1300WC


Filed                    November 10, 2016



Decision Under           Appeal from the Circuit Court of Cook County, No. 14-MR-0631; the
Review                   Hon. Carl Anthony Walker, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Cathleen M. Hobson, James Jannisch, and Natasa Timotijevic, of Law
Appeal                   Offices of Meachum, Starck, Boyle & Trafman, of Chicago, for
                         appellant.

                         Timothy E. Takash, of Law Offices of Timothy E. Takash, of
                         Chicago, for appellees.



Panel                    JUSTICE HUDSON delivered the opinion of the court, with opinion.
                         Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart
                         concurred in the judgment and opinion.
                                             OPINION

¶1                                     I. INTRODUCTION
¶2       Respondent, Flexible Staffing Services, appeals a decision of the Illinois Workers’
     Compensation Commission (Commission) awarding benefits to claimant, Frederick Williams,
     in accordance with the provisions of the Workers’ Compensation Act (Act) (820 ILCS 305/1
     et seq. (West 2012)). Respondent contends that the Commission applied the incorrect legal
     standard in assessing claimant’s claim and that, in any event, its decision is contrary to the
     manifest weight of the evidence. We disagree and affirm.

¶3                                        II. BACKGROUND
¶4        It is undisputed that claimant sustained a work-related injury on October 7, 2011, while in
     respondent’s employ. Claimant was welding a section of rail, similar to a train track. The rail
     fell from a sawhorse, and claimant attempted to grab it. The rail weighed over 400 pounds. He
     felt immediate sharp pain in his right arm, and he heard something snap. Claimant reported the
     accident and sought medical care. He was diagnosed with a distal biceps tendon rupture.
¶5        On October 12, 2011, claimant, who was 45 years old at the time, sought treatment from
     Dr. Aribindi, an orthopedic surgeon. On November 7, 2011, Aribindi performed an outpatient
     repair of claimant’s right elbow. Claimant underwent physical therapy from November 28,
     2011, to February 8, 2012. Claimant saw Aribindi for a final time on March 7, 2012. On that
     date, claimant complained of numbness and diminished strength. Aribindi found that
     claimant’s range of motion in his right forearm was limited by 5 to 10 degrees. Nevertheless,
     Aribindi released claimant to full duty. When he attempted to return to full duty, respondent
     informed claimant that it no longer had work for him.
¶6        Dr. Mark Levin examined claimant on respondent’s behalf. Levin documented claimant’s
     complaints of continuing pain and impaired range of motion, as well as claimant’s continued
     use of Norco. Levin found claimant “cooperative.” According to Levin, claimant lacked three
     degrees range of motion in his right elbow. Levin noted “decreased pinprick sensation over the
     ulnar aspect of the right elbow.” Levin opined that the surgery claimant underwent was
     appropriate and that claimant is now at maximum medical improvement. Using the “AMA
     Guides to Evaluation of Permanent Impairment,” Levin calculated that claimant had a 6%
     upper extremity impairment and a 4% disability rating of the person as a whole.
¶7        Claimant testified that he had been employed as a welder-fabricator at the time of his
     accident. He considered his job to be physically demanding. He is right-hand dominant. He
     served in the Marine Corps for four years and received an honorable discharge. Following his
     surgery, claimant felt that he was progressing well in physical therapy, though he still
     experienced pain and lacked full range of motion. He expressed this to Aribindi during their
     last visit. Aribindi told claimant that his arm was “as good as it is going to get.” While he had
     progressed in physical therapy, claimant’s range of motion never fully recovered, which was
     significant because welding required him to hold his arm in various positions. When Aribindi
     released claimant to full duty, claimant told him that he did not feel he could perform his job.
     Claimant testified that he had worked other jobs prior to becoming a welder; however, they
     were all “physically demanding.”



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¶8         The day after he received the release to full duty, claimant testified, he attempted to return
       to work for respondent. His former supervisor told him that they did not have a position for
       him. Since his release to full duty, claimant’s arm and fingertips continue to tingle. He is numb
       in the area where surgery was performed, and he continues to experience pain. He takes Norco
       three times per week. He experiences pain on a daily basis. He has welding equipment in his
       garage and tries to use it, but he finds it difficult. The pain and sensations he still experiences
       have not changed since he last saw Aribindi.
¶9         The arbitrator, applying the factors set forth in section 8.1b of the Act (820 ILCS 305/8.1b
       (West 2012)), determined that claimant had suffered 30% loss of use of his right arm. The
       Commission modified the award, finding claimant lost 25% of the use of his right arm. It did
       not articulate its reasoning. The trial court, on administrative review, remanded the case and
       directed the Commission to articulate the facts and reasoning upon which it relied in coming to
       its decision. On remand, the Commission first noted that Levin placed claimant’s level of
       “impairment” at 6%. It noted respondent’s argument that this rating should have been given
       more weight, but it felt that to do so would effectively discount the other factors set forth in
       section 8.1b. This section states:
               “Determination of permanent partial disability. For accidental injuries that occur on or
               after September 1, 2011, permanent partial disability shall be established using the
               following criteria:
                   (a) A physician licensed to practice medicine in all of its branches preparing a
               permanent partial disability impairment report shall report the level of impairment in
               writing. The report shall include an evaluation of medically defined and professionally
               appropriate measurements of impairment that include, but are not limited to: loss of
               range of motion; loss of strength; measured atrophy of tissue mass consistent with the
               injury; and any other measurements that establish the nature and extent of the
               impairment. The most current edition of the American Medical Association’s ‘Guides
               to the Evaluation of Permanent Impairment’ shall be used by the physician in
               determining the level of impairment.
                   (b) In determining the level of permanent partial disability, the Commission shall
               base its determination on the following factors: (i) the reported level of impairment
               pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of
               the employee at the time of the injury; (iv) the employee’s future earning capacity; and
               (v) evidence of disability corroborated by the treating medical records. No single
               enumerated factor shall be the sole determinant of disability. In determining the level
               of disability, the relevance and weight of any factors used in addition to the level of
               impairment as reported by the physician must be explained in a written order.” 820
               ILCS 305/8.1b (West 2012).
       The Commission stated that to give added weight to Levin’s opinion would “be to disregard
       the other factors and give them no weight at all.” The Commission noted that Section 8.1b(b)
       expressly states, “No single enumerated factor shall be the sole determinant of disability.” It
       further noted that “ ‘impairment’ in relation to the A.M.A. rating is not synonymous with the
       term ‘disability’ as it relates to the ultimate permanent partial disability award.” The
       Commission then discussed the other four factors set forth in the statute.
¶ 10       As for the second factor—claimant’s occupation—the Commission credited claimant’s
       testimony that the position of welder-fabricator was a “ ‘physically demanding job.’ ” It found

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       that a person with heavier job duties would suffer a greater degree of disability than someone
       with a light duty job relative to Levin’s impairment rating.
¶ 11       Regarding claimant’s age—the third factor—the Commission found that claimant was 45
       years old at the time of the hearing. Therefore, the Commission reasoned, claimant would “live
       longer with his disability than someone who is older.” It found that this warranted an increase
       in the level of disability.
¶ 12       Factor four is a claimant’s future earning capacity. Here, the Commission first noted that
       after claimant was released to full duty, respondent refused to employ him. It credited
       claimant’s testimony that he has been unsuccessfully looking for a job as a welder. Finally, it
       observed that when claimant attempts to use welding equipment that he owns, he has difficulty
       doing so. It concluded that claimant suffered a loss in future earning capacity and that claimant
       is “more prone to future injury associated with loss of income.”
¶ 13       The fifth factor is “evidence of disability corroborated by the treating medical records.”
       820 ILCS 320/8.1b (West 2012). Regarding this factor, the Commission noted that claimant’s
       medical records corroborate that he is right-hand dominant. His testimony (given during the
       arbitration hearing on June 5, 2012) that his pain level remains at 4 to 5 on a scale of 10 finds
       support in his final physical therapy record dated February 29, 2012. Moreover, Aribindi’s
       records indicate that claimant was still experiencing pain on March 7, 2012, when claimant
       was discharged from Aribindi’s care. Further, claimant’s testimony regarding not having a full
       range of motion and the resulting difficulties he has welding (at home) are corroborated by
       Aribindi’s records indicating claimant “lacked full supination of the right forearm.” Similarly,
       Levin’s records document a limited range of motion. Claimant’s testimony that he experienced
       numbness is corroborated by Levin’s finding that claimant “had decreased pinprick sensation
       over the ulnar aspect of the right elbow.”
¶ 14       The Commission concluded:
                “Based on the above, the Commission finds that the 6% impairment rating by Dr. Levin
                does not adequately represent [claimant’s] actual disability in this case. When
                considering the other factors, we find that [claimant’s] permanent partial disability is
                25% loss of use of the right arm.”
       It modified the arbitrator’s decision accordingly. Respondent appealed to the trial court, which
       confirmed. Respondent now appeals to this court.

¶ 15                                          III. ANALYSIS
¶ 16       On appeal, respondent raises two main issues. First, respondent contends that the
       Commission misapplied section 8.1b of the Act (820 ILCS 305/8.1b (West 2012)) as a matter
       of law. Second, it argues that the Commission’s application of that section was erroneous as a
       matter of fact, i.e., contrary to the manifest weight of the evidence. We disagree with both
       contentions.

¶ 17                               A. Misapplication as a Matter of Law
¶ 18       Respondent first contends that the Commission did not apply section 8.1b properly as a
       matter of law. Section 8.1b sets forth a list of factors for the Commission to consider in
       assessing permanent partial disability: “(i) the reported level of impairment pursuant to
       subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the

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       time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability
       corroborated by the treating medical records.” 820 ILCS 305/8.1b(b) (West 2012). According
       to respondent, any given factor should be considered only if there is evidence in the record
       regarding that factor. It cites section 1.1(e) of the Act (820 ILCS 305/1.1(e) (West 2012)),
       which states, “Decisions of an arbitrator or a Commissioner shall be based exclusively on
       evidence in the record of the proceeding and material that has been officially noticed.”
       Respondent further points out that section 8.1b later states that “the relevance and weight of
       any factors used in addition to the level of impairment as reported by the physician must be
       explained in a written order.” (Emphasis added.) 820 ILCS 305/8.1b(b) (West 2012). That the
       statute refers to “any factors used” indicates that not all factors must be used in assessing
       permanent partial disability. We have no quarrel with any of these propositions advanced by
       respondent.
¶ 19        Respondent goes on to argue that the Commission misapplied section 8.1b as a matter of
       law because it considered factors for which no evidence was present in the record. For
       example, it contends that the Commission considered claimant’s age as a factor weighing in
       favor of a greater degree of disability despite there being no evidence of record regarding the
       impact of claimant’s age on his disability. Similarly, according to respondent, the Commission
       found that claimant’s “upper extremity impairment makes him more prone to future injury
       with an associated loss of income” despite a purported lack of evidence on the issue.
¶ 20        Assuming, arguendo, that respondent is correct that no evidence exists in the record on
       such matters, respondent has not identified an error of law. A finding entered without sufficient
       evidentiary support is against the manifest weight of the evidence. See Wabash County v.
       Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 934-35 (2011); Johnson v. Industrial
       Comm’n, 89 Ill. 2d 438, 443 (1982) (holding Commission’s decision was contrary to the
       manifest weight of the evidence where “there simply was not evidence to show that her work
       activities caused her physical problem”); In re Estate of Martino, 99 Ill. App. 3d 907, 911
       (1981). Respondent attempts to frame this issue as the Commission misunderstanding the
       statute and believing that it could make findings on the factors set forth in section 8.1b
       “regardless of whether there was evidence in the record showing that the factor had an impact
       on Williams’ level of partial disability.” As we read the Commission’s decision, it believed it
       had evidence before it on all of the factors it considered. Thus, what respondent purports to
       have identified is actually findings by the Commission that allegedly do not find support in the
       record. This raises a factual question—namely, whether the Commission’s decision is contrary
       to the manifest weight of the evidence, which brings us to respondent’s second argument.

¶ 21                              B. Manifest Weight of the Evidence
¶ 22       On September 1, 2011, section 8.1b was added to the Act. In that statute, the legislature set
       forth a process for evaluating claims of permanent partial disability. Continental Tire of the
       Americas, LLC v. Illinois Workers’ Compensation Comm’n, 2015 IL App (5th) 140445WC,
       ¶ 10. As noted above, that section sets forth five factors to consider: “(i) the reported level of
       impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age
       of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v)
       evidence of disability corroborated by the treating medical records.” 820 ILCS 305/8.1b(b)
       (West 2012). It further provides that “[n]o single enumerated factor shall be the sole
       determinant of disability.” Id. Further, the legislature did not state that these factors are

                                                   -5-
       exclusive, so the Commission remains free to evaluate other relevant considerations. See
       People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 184-85 (2009) (“We may not depart from a
       statute’s plain language by reading into it exceptions, limitations, or conditions the legislature
       did not express.”). As explained in the background section of this opinion, the Commission
       made detailed findings regarding each factor. As this is a factual matter, we will assess
       respondent’s arguments using the manifest weight standard and reverse only if an opposite
       conclusion is clearly apparent. Teska v. Industrial Comm’n, 266 Ill. App. 3d 740, 741-42
       (1994).
¶ 23       Regarding the second factor, respondent argues that “[t]here was no evidence to support
       consideration of [the second factor,] the occupation of the injured employee.” It contends that
       the only basis for finding that claimant’s job was physically demanding was his testimony. It
       adds, “[Claimant] only testified in generalities as to his duties at work,” and “[h]e did not
       provide the detailed evidence for the Commission to reach its conclusion.”
¶ 24       Nevertheless, claimant did testify that he felt his job was physically demanding.
       Respondent cites nothing that would indicate that the Commission could not consider and give
       weight to claimant’s evaluation of the demands of his job. Furthermore, claimant testified that
       he is right-hand dominant and described his physical impairment. He testified that welding
       requires him to hold his arm in various positions and that his injury has diminished his range of
       motion. Additionally, claimant finds it difficult to use the welding equipment he has in his
       garage. Thus, contrary to respondent’s claims, there was evidence in the record from which the
       Commission could draw inferences about claimant’s disability as it relates to his occupation.
¶ 25       Respondent cites Caterpillar Tractor Co. v. Industrial Comm’n, 98 Ill. 2d 400, 405-06
       (1983), in support of its position. That case is readily distinguishable. There, the Commission
       found that no evidence supported the claimant’s assertion that his repetitive trauma injury to
       his left wrist was caused by his employment. Id. It noted that the claimant’s theory was that the
       injury was caused by driving; however, the claimant testified that he drove primarily with his
       right hand. Id. While a doctor testified as to a causal relationship, the doctor stated that the
       injury was caused by lifting 50 pounds repeatedly with his left arm. Id. The Commission
       pointed out that there was no evidence as to whether or how often the claimant lifted this
       amount. Id.
¶ 26       In Caterpillar Tractor Co., there was no evidence that the claimant used his left arm to
       drive; here, it is undisputed that claimant suffered an injury to the arm at issue. In that case, a
       doctor opined as to causation without knowing details of claimant’s employment relevant to
       the subject. Here, the opinion that claimant’s work was physically demanding came from
       claimant himself, and it cannot seriously be disputed that claimant knew what his own job
       entailed. In short, the Commission had evidence of claimant’s disability relating to his
       occupation before it, and we cannot say that an opposite conclusion is clearly apparent.
¶ 27       As for the third factor, respondent contends that there was no evidence to show a
       relationship between claimant’s age and his level of disability. Respondent contends that “[t]he
       finding that [claimant] will have to live with [his disability] longer is an assumption that is not
       based on any evidence in the record of his life expectancy.” That a younger person will
       probably live longer than an older person is hardly a controversial proposition. The
       Commission is not required to abandon common sense in rendering its decision. See People v.
       Greene, 50 Ill. App. 3d 872, 875 (1977).


                                                    -6-
¶ 28        Respondent also contends that there was no evidence to support the Commission’s findings
       regarding claimant’s future earning capacity (the fourth factor). It is true, as respondent points
       out, that Aribindi released claimant to full duty. However, it is also true that at the time
       claimant was so released, he protested, indicating that he did not feel he could perform his job.
       It is undisputed that respondent refused to reemploy claimant. Moreover, claimant testified
       that he had difficulty using the welding equipment that he personally owns. Claimant also
       testified that other positions he had held in the past involved physically demanding jobs. From
       this evidence, the Commission could draw inferences about claimant’s future earning capacity,
       so it cannot be said that the Commission’s decision finds no evidentiary support in the record.
¶ 29        Respondent takes particular issue with the Commission’s finding that claimant’s “future
       earning capacity has been diminished and his upper extremity impairment makes him more
       prone to future injury with an associated loss of income.” Respondent contends that “there was
       no evidence in the record that [claimant] was more prone to future injury.” It is unclear here
       whether the Commission was speaking of a future physical injury or a future economic injury,
       though the latter seems more likely to us given that this factor concerns future earning
       capacity. It does not strike us as an unreasonable inference that, given the nature of claimant’s
       condition, he will become less employable as his physical skills diminish as he ages. His
       injury-related physical limitations will likely become more significant as his other physical
       attributes diminish with age. Thus, it is inferable that claimant is more prone to economic
       injury following his accident. Moreover, it is worth remembering that the Commission is an
       administrative body, possessing unique skill and expertise in the areas of medical and workers’
       compensation issues. See Presson v. Industrial Comm’n, 200 Ill. App. 3d 876, 881 (1990)
       (“Because of the Industrial Commission’s expertise in the area of workers’ compensation, its
       finding on the question of the nature and extent of permanent disability should be given
       substantial deference.”); Long v. Industrial Comm’n, 76 Ill. 2d 561, 566 (1979) (“Therefore, a
       finding of fact by the Commission on this issue, based on any medical testimony or on
       inferences to be drawn from medical testimony, should be given substantial deference because
       of the expertise acquired by the Commission in this area.”). We therefore owe it substantial
       deference on this issue. Long, 76 Ill. 2d at 566.
¶ 30        The fifth factor concerns “evidence of disability corroborated by the treating medical
       records.” 820 ILCS 305/8.1b(b) (West 2012). Respondent identifies particular portions of
       claimant’s testimony and asserts that there is no corroboration for them and that, in turn, the
       Commission was not entitled to rely upon them. For example, respondent states that nothing in
       his medical records corroborates that claimant was still taking Norco at the time of the
       arbitration hearing. Black’s Law Dictionary defines “corroborate” as “[t]o strengthen or
       confirm; to make more certain.” Black’s Law Dictionary 348 (7th ed. 1999). Of course, the
       plain language of a statute is the most reliable indicator of its meaning. Evanston Insurance Co.
       v. Riseborough, 2014 IL 114271, ¶ 15. Moreover, we are to interpret the Act liberally to
       effectuate its primary purpose of providing financial protection to workers. Cassens Transport
       Co. v. Illinois Industrial Comm’n, 218 Ill. 2d 519, 524 (2006). Hence, we will not take
       “corroborate” to mean that there must be a point-by-point coincidence between the nonmedical
       evidence relied upon and the accompanying medical record. Rather, so long as the medical
       record tends to confirm, strengthen, or make the nonmedical evidence more certain, it provides
       sufficient corroboration such that the nonmedical evidence may be considered under the fifth
       factor. Cf. People v. Cloutier, 156 Ill. 2d 483, 503 (1993) (holding that evidence is sufficient to


                                                    -7-
       corroborate a confession and establish the corpus delecti of a crime where it tends “to confirm
       a defendant’s confession”). Indeed, a strict construction of “corroborate” would allow the
       consideration of nonmedical evidence only when it was cumulative of evidence in the medical
       records.
¶ 31       Thus, the Commission properly found that claimant’s testimony that his pain level remains
       at 4 to 5 on a scale of 10 is corroborated by his final physical therapy record dated February 29,
       2012. That claimant was still experiencing pain on March 7, 2012, as corroborated by
       Aribindi’s records, makes it more certain that claimant experienced pain subsequently. Since
       Aribindi provided no further care after that date, the Commission could infer that claimant’s
       condition—his pain—remained the same thereafter, which also corroborates claimant’s
       testimony that he was taking a pain killer. The same is true of Aribindi documenting claimant’s
       limited range of motion in his right forearm. In other words, since claimant was experiencing
       problems at the time Aribindi ceased care, it is inferable that there was nothing more that could
       be done for these issues and that they continued past March 7, 2012. This provides
       corroboration for much of claimant’s testimony concerning his medical condition. The
       documented impairment of his range of motion also corroborates claimant’s testimony
       regarding the difficulties he had trying to weld (which also could be considered under the
       second factor without corroboration).
¶ 32       Thus, none of respondent’s contentions regarding the Commission’s findings lacking
       evidentiary support are well founded. In turn, we reject respondent’s argument that the
       Commission erred in determining the level of disability as it purportedly could only rely upon
       the first and, to an extent, the fifth factors. Quite simply, we owe the Commission considerable
       deference on such medical questions. Long, 76 Ill. 2d at 566. It is not within our purview to
       rebalance the five factors set forth in section 8.1b(b) and substitute our judgment for that of the
       Commission. Divittorio v. Industrial Comm’n, 299 Ill. App. 3d 662, 671 (1998). Furthermore,
       we also cannot say that the Commission’s decision is contrary to the manifest weight of the
       evidence.

¶ 33                                       IV. CONCLUSION
¶ 34      In light of the foregoing, the judgment of the circuit court of Cook County confirming the
       decision of the Commission is affirmed.

¶ 35      Affirmed.




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