                              2017 IL App (3d) 160363WC

                         Opinion filed June 16, 2017
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

              WORKERS’ COMPENSATION COMMISSION DIVISION
______________________________________________________________________________

SCOTT HOLOCKER,                        ) Appeal from the Circuit Court
                                       ) of the Tenth Judicial Circuit
                                       ) Peoria County, Illinois
      Plaintiff-Appellant,             )
                                       )
                                       )
         v.                            ) Appeal No. 3-16-0363WC
                                       ) Circuit No. 15-MR-343
ILLINOIS WORKERS’ COMPENSATION         )
COMMISSION, et al., (Komatsu America   ) Honorable
Corporation),                          ) Katherine Gorman,
                                       ) Judge, Presiding.
      Defendants-Appellees).           )
______________________________________________________________________________

       PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
       Justices Hoffman, Hudson, Harris, and Moore concurred in the judgment and opinion.
______________________________________________________________________________

                                            OPINION

¶1     The claimant, Scott Holocker, filed an application for adjustment of claim under the

Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)), seeking benefits for

work-related injuries he sustained on September 11, 2012, while he was working for Komatsu

America Corporation (employer). Following a hearing, an arbitrator found that the claimant was

entitled to receive temporary total disability (TTD) benefits from the time he was terminated by

the employer until the date of arbitration, a period of 15 and 1/7 weeks. The arbitrator denied the

claimant’s claims for penalties and attorney fees.
¶2     The claimant and the employer each sought review of the arbitrator’s decision before the

Illinois Workers’ Compensation Commission (Commission). The claimant appealed the

arbitrator’s calculation of his average weekly wage and the denial of his claims for penalties and

attorney fees. The employer appealed the arbitrator’s award of TTD benefits and also appealed

the arbitrator’s calculation of the claimant’s average weekly wage. The Commission

unanimously reversed the arbitrator’s award of TTD benefits and its calculation of the claimant’s

average weekly wage, and affirmed the arbitrator’s denial of penalties and attorney fees.

¶3     The claimant then sought judicial review of the Commission’s decision before the circuit

court of Peoria County. The circuit court reversed the Commission’s denial of TTD benefits and

adopted the arbitrator’s award of TTD benefits. The court also reversed the Commission’s

calculation of the claimant’s average weekly wage and affirmed the Commission’s denial of

penalties and attorney fees.

¶4     This appeal followed.

¶5                                      BACKGROUND

¶6     The claimant worked for the employer as a “transportation operator” at the employer’s

manufacturing facility in Peoria, Illinois. His duties included operating a 40-ton overhead crane.

On September 11, 2012, the claimant was operating the crane, placing together heavy steel

sections for an oversized mining truck. Each of the steel sections weighed several tons, and they

were secured by a chainmail strap. After placing a steel section on the mining truck, the

claimant was retracting the loosened chainmail strap when it got stuck. As the claimant looked

up at the crane to identify the problem, the chainmail strap snapped loose and hit the claimant,

striking him in the face and chest. The blow knocked him backwards, knocked out four of his

teeth (including three of his upper front teeth and one lower tooth), loosened other teeth, and

caused multiple facial fractures and chest contusions.

                                               -2-
¶7     After the accident, the claimant was taken by ambulance to St. Francis Medical Center

where he was noted to have facial and dental fractures and a large laceration of his lower lip

extending into his chin. Diagnostic studies showed multiple fractures of his right maxillary sinus

and right maxilla, as well as hemorrhage within the right maxillary sinus, the loss of four teeth,

and a left chest wall contusion. The claimant’s mouth laceration was repaired and he was

discharged with prescriptions for pain medications and follow-up recommendations.

¶8     The claimant was off work from September 12, 2012, until October 16, 2012, when he

returned to work under light duty restrictions. On December 14, 2012, the claimant was released

to work full duty with no restrictions. He was still undergoing treatment for his work-related

injuries at that time. During the next 13 months, the defendant underwent four surgical

procedures to his face and mouth to correct his pallet and maxilla and to prepare for the insertion

of permanent dental implants. The claimant also treated with a dentist and underwent several

attempts at restoring his teeth. Prior to the claimant’s termination in October 2013, the employer

paid the claimant TTD benefits while he was off work following surgeries. 1

¶9     After his return to work in October of 2012, the claimant felt uncomfortable operating

cranes and he asked his supervisor not to assign him any crane duties. For the most part, the

employer accommodated the claimant’s request. The claimant was reassigned to work a

different shift in another building where there were no overhead cranes. The claimant testified

that he “may have” operated a large, overhead crane a few times in late 2012 and early 2013.



1
  For example, the employer paid the claimant TTD benefits while he was off work following dental
surgery from May 23, 2013 through June 12, 2013. However, the employer did not pay the claimant TTD
while he was off work following another dental surgery from November 13, 2013, through November 20,
2013 (after the claimant’s termination). Those TTD benefits are at issue in this case.




                                                -3-
Nevertheless, although the claimant was still classified as a transportation operator, operating

cranes was no longer part of his regular duties at that time. He primarily operated a fork truck.

¶ 10       In May 2013, however, the claimant was reassigned to his former job in the building

where his work accident had occurred. The claimant discussed his fear of operating cranes with

his new foreman, Ken Hoppe. Hoppe generally cooperated with the claimant’s request to avoid

working with cranes. Eventually, however, the claimant was required to operate a crane on two

or three occasions. Each time he did so, the claimant experienced considerable anxiety, his chest

tightened, and his heart raced. On July 3, 2013, the claimant experienced a panic attack while

operating the same 40-ton overhead crane that had injured him. He was so shaken afterwards

that he immediately visited the onsite occupational nurse, Lori Akers, and asked to be sent to the

emergency room. Another nurse diagnosed an anxiety attack and took the claimant off work

until he was cleared by his primary care physician, Dr. Alain Vilatte.

¶ 11      On July 11, 2013, the claimant treated with Dr. Vilatte. The claimant reported that,

during the six weeks following his return to the same job that had caused his work injury, he had

been experiencing increasing anxiety with palpitations, agitation, racing thoughts, feelings of

losing control, and difficulty concentrating. Dr. Vilatte noted that the claimant was experiencing

panic attacks and anxiety while doing his job. He prescribed an anti-anxiety medication and

recommended that the claimant undergo counseling. He also recommended that the claimant be

placed at another job while he adjusted to the medication.

¶ 12      Thereafter, the claimant asked the employer to reassign him to a different position. The

employer offered the claimant a full-time janitorial position at its Peoria facility, which would

not require the claimant to work on or near cranes. The claimant declined that position and

continued to work for the employer as a transportation operator. He was not required to operate

cranes.

                                                 -4-
¶ 13    On July 22, 2013, the claimant was evaluated by Dr. Edward Moody, a physician at OSF

Occupational Health who had previously served as the employer's company doctor. Dr. Moody

concluded that it was “the operation of the crane in question” that was provoking the claimant’s

anxiety. He cleared the claimant for full duty janitorial work and recommended a restriction of

no crane operation for six to eight weeks if he returned to his previous position as a

transportation operator. Thereafter, the claimant returned to work as a transportation operator

primarily driving fork trucks. He was not required to operate overhead cranes.

¶ 14    On August 13, 2013, the claimant began counseling sessions with Jennifer Boehs, a

Licensed Clinical Social Worker, for his crane-related anxiety. On September 18, 2013, Boehs

diagnosed the claimant with post-traumatic stress disorder as a result of his work injury. She

recommended that the claimant avoid operating a crane for at least one year. Boehs opined that,

if the claimant did need to operate a crane, he should do so gradually in order to build his

tolerance.

¶ 15    In early October 2013, the claimant took a scheduled vacation to Mexico. When he

returned, he was ill with severe nausea and diarrhea. He missed work from Tuesday, October 8,

2013, through Friday, October 11, 2013. He also missed the first four hours of his shift on

Monday, October 14, 2013. Although he called in sick on October 8, he failed to notify the

employer that he was unable to work his scheduled shifts from October 9 through October 11. 2

The collective bargaining agreement (CBA) between the employer and the claimant’s union

provided that an employee’s failure to call in or report to work for three consecutive days is

grounds for termination of employment. On October 15, 2013, the employer terminated the

claimant pursuant to this contractual provision. During the arbitration hearing, the claimant

2
  The claimant testified that he did not call in sick from October 9 through October 11 because he was
under the impression that his doctor’s office had faxed an off-work slip to the employer. He did not bring
a doctor’s note to the employer until October 12.

                                                  -5-
testified that he was aware of the terms contained in the CBA, including the provision

authorizing termination for three consecutive days of “no call, no show.”

¶ 16     The claimant underwent another dental surgery on November 13, 2013. His dental

surgeon, Dr. John Otten, took the claimant off work completely from November 13, 2013,

through November 20, 2013.

¶ 17     On January 9, 2014, the claimant underwent a psychological evaluation with Dr. Nancy

Landre, a clinical psychologist who served as the employer’s section 12 examiner. After ruling

out any malingering or exaggeration of symptoms by the claimant, Dr. Landre opined that the

claimant satisfied the criteria for an adjustment disorder with mixed anxiety and depression. She

further opined that it was reasonable to conclude that the claimant's current anxiety symptoms

were attributable to his injury on September 11, 2012. Based on an oral description of the

claimant’s job duties, Dr. Landre concluded that the claimant was able to perform all of the

duties required in his usual occupation except for operating a crane. Dr. Landre placed the

claimant on full duty with the restriction that he not be required to operate a crane for six

months.

¶ 18     An arbitration hearing took place on January 29, 2014. During the hearing, the claimant

testified that he continued to treat with a dentist and was in the process of obtaining dental

implants. He was still missing his top three center teeth and one lower tooth. He had an

appointment scheduled with Dr. Otten on February 7, 2014. Dr. Otten was considering

extracting an additional bottom tooth that had been loosened and moved during the work

accident. The claimant also stated that he was still attending counseling sessions with Jennifer

Boehs.




                                                -6-
¶ 19     The claimant testified that, since his termination, he had been actively seeking work for

positions within his union. He stated that he had some promising leads out of state, in San

Diego, but had made no effort to find employment near his home in central Illinois.

¶ 20     The claimant further testified that, from the time he returned to work on July 23, 2013,

until his termination October 15, 2013, the employer did not require him to operate an overhead

crane.

¶ 21     Chris Dubois, the employer's Human Resource Manager, testified on behalf of the

employer. Dubois stated that the employer allowed its employees to request reassignment for

different positions that matched their qualifications. Dubois testified that, following the

claimant’s appointment with Dr. Villate in July 2011, the claimant requested reassignment and

was offered a janitorial position that would not require him to work on or near cranes. The

janitorial position was permanent, full-time, and unionized, and it paid the same wage as the

claimant’s previous position as a transportation operator. However, according to Dubois, the

claimant declined to accept the janitorial position.

¶ 22     Dubois testified that the claimant’s work restriction barring him from operating cranes

did not preclude the claimant from performing the regular duties of the transportation operator

position. Dubois stated that there were 40 positions at the employer’s Peoria manufacturing

facility that were classified as “transportation operator” positions. Approximately one-third of

these positions required crane operation as a regular job duty. The remaining two-thirds of the

transportation operator positions primarily involved package handling and did not include crane

operation as a regular job duty. Dubois testified that, when the claimant returned to work on July

23, 2013, under the “no crane operation” work restriction, he was still classified as a

“transportation operator” but he was not required to operate a crane as part of his regular duty.



                                                -7-
¶ 23   Alia Massat, a certified rehabilitation counselor, also testified on behalf of the employer.

Massat testified that, based on the claimant's job experience, job description, and medical

evaluations, the claimant's restriction of no crane operation did not preclude the claimant from

reentering the work force. Based on a labor market survey she conducted, Massat opined that

there were various employers in Peoria who were hiring for positions that matched the claimant's

qualifications, salary, and restriction of no crane operation.

¶ 24   The arbitrator found that the claimant was entitled to receive TTD benefits from the time

he was terminated by the employer until the date of arbitration, a period of 15 and 1/7 weeks.

The arbitrator noted that, as of the date his employment was terminated by the employer, the

claimant had not been released to unrestricted full duty work. Although the claimant had been

released to return to work with restrictions and he was able to perform that work, the arbitrator

stressed that none of the physicians who examined or treated the claimant indicated that he had

reached maximum medical improvement (MMI). Moreover, the arbitrator found that the medical

evidence established that the claimant “continue[d] to be treated for his injuries and * * *

continue[d] to experience symptoms connected with his work related injury.” Thus, the arbitrator

concluded that the claimant's condition had not stabilized as of the date his employment was

terminated by the employer, and awarded TTD benefits on that basis.

¶ 25   The arbitrator determined that, in the year preceding the injury, the claimant earned an

average weekly wage of $982.78. The arbitrator declined to impose attorney fees and penalties

under sections 16, 19(k), and 19(l) of the Act (820 ILCS 305/16, 19(k), 19(l) (West 2012))

because it found that the employer's failure to pay TTD “was not unreasonabe and vexatious or

without good and just cause.”

¶ 26   The claimant and the employer each sought review of the arbitrator’s decision before the

Commission. The claimant appealed the arbitrator’s calculation of his average weekly wage and

                                                 -8-
the denial of his claims for penalties and attorney fees. The employer appealed the arbitrator’s

award of TTD benefits and also appealed the arbitrator’s calculation of the claimant’s average

weekly wage. The Commission unanimously reversed the arbitrator’s award of TTD benefits

and its calculation of the claimant’s average weekly wage, 3 and affirmed the arbitrator’s denial

of penalties and attorney fees.

¶ 27   As to TTD benefits, the Commission noted that the claimant had sought TTD benefits

after he was terminated for reasons unrelated to his work injury pursuant to the Illinois Supreme

Court’s decision in Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Commission,

236 Ill. 2d 132 (2010) “on the basis that his work-related condition had not yet stabilized.” The

Commission acknowledged Interstate Scaffolding’s holding that an employer's obligation to pay

TTD benefits to an injured employee does not cease because the employee had been

discharged—whether or not the discharge was for “cause.” However, relying upon Interstate

Scaffolding, the Commission noted that: (1) when an injured employee has been discharged by

his employer, “the determinative inquiry for deciding entitlement to [TTD] benefits remains, as

always, whether the claimant's condition has stabilized”;and (2) an injured employee is entitled

to TTD benefits after termination “if [he] is able to show that he continues to be temporarily

totally disabled as a result of his work-related injury.”

¶ 28   The Commission found Interstate Scaffolding to be distinguishable from the claimant’s

case in several material respects. In Interstate Scaffolding, “the claimant's ability to find work in

the open labor market was significantly limited or precluded by his work-related condition.”

Here, by contrast, the Commission noted that the claimant had “offered no evidence that he was

significantly limited or precluded from reentering the labor market because he needed to


3
  The Commission found that the claimant’s average weekly wage was $1,008.34, not $982.78, as the
arbitrator had found.

                                                 -9-
temporarily avoid cranes.” The claimant offered “no explanation at all for why he had been

unable to secure employment since termination, despite testifying that he performed a self-

directed job search and locating potential employers.” The Commission found it significant that

the employer's vocational expert testified that a labor market survey “found several employers

within the Peoria area who were hiring for positions that matched [the claimant's] qualifications

and salary and did not involve crane usage.” Furthermore, the Commission noted that neither the

claimant nor the employer’s vocational expert had “indicated that [the claimant's] need for dental

care had any impact on his employability in his usual and customary field of employment.”

¶ 29    Although the Commission acknowledged that, like the employee in Interstate

Scaffolding, the claimant “had yet to reach [MMI] at termination,” 4 it concluded that “[MMI] is

not alone dispositive on the issue of whether a claimant's condition has stabilized.” The

Commission found that: (1) the claimant was working full duty within his job classification of

“transportation operator” until he was terminated; 5 (2) he performed one of the numerous jobs

that did not involve any crane usage; (3) it was not necessary for the employer to either modify

an existing job or create an accommodating job on account of the claimant's work restrictions;

(4) after he returned to work following his panic attack, the claimant “continued working for [the

employer] as a transportation operator while entirely avoiding cranes”; and (5) “the employer's

representative, Mr. Dubois, testified credibly that [the claimant] could have continued to work

for [the employer] indefinitely without any mandatory crane exposure.” Accordingly, the




4
 The Commission observed that the claimant had not been placed at MMI by the date of his termination
because he required additional dental work and continued to have symptoms of anxiety.
5
  The Commission noted that it was undisputed that “transportation operator” is a job classification that
“encompasses many different jobs within [the employer’s] company” and that many such jobs “do not
involve any work with cranes.”

                                                 - 10 -
Commission found that “[t]he evidence shows that at termination, [the claimant's] work related

injuries had stabilized and had no impact on his employment.”

¶ 30      The claimant then sought judicial review of the Commission’s decision before the circuit

court of Peoria County. The circuit court reversed the Commission’s denial of TTD benefits and

adopted the arbitrator’s award of TTD benefits. The court also reversed the Commission’s

calculation of the claimant’s average weekly wage 6 and affirmed the Commission’s denial of

penalties and attorney fees.

¶ 31      This appeal followed.

¶ 32                                            ANALYSIS

¶ 33      On appeal, the employer argues that the Commission’s denial of TTD benefits after the

claimant’s termination was not against the manifest weight of the evidence and that the circuit

court therefore erred in reversing the Commission’s decision on that issue.

¶ 34      An employee is temporarily totally incapacitated from the time an injury incapacitates

him from work until such time as he is as far recovered or restored as the permanent character of

injury will permit. Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 118

(1990); Shafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 45.

To be entitled to TTD benefits, it is the claimant’s burden to prove not only that he did not work

but also that he was unable to work. Shafer, 2011 IL App (4th) 100505WC, ¶ 45; McDaneld v.

Industrial Comm’n, 307 Ill. App. 3d 1045, 1053 (1999). A TTD award is proper when the

claimant cannot perform any services except those for which no reasonably stable labor market

exists. Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d at 118; Zenith Co. v.

Industrial Comm'n, 91 Ill. 2d 278, 287 (1982); McDaneld, 307 Ill. App. 3d at 1053; Ingalls



6
    The circuit court concluded that the claimant’s average weekly wage was $1,063.91.

                                                   - 11 -
Memorial Hospital v. Industrial Comm’n, 241 Ill. App. 3d 710, 716 (1993). “The fundamental

purpose of the Act is to provide injured workers with financial protection until they can return to

the work force.” Interstate Scaffolding, 236 Ill. 2d at 146; Flynn v. Industrial Comm'n, 211 Ill.

2d 546, 556 (2004). “Therefore, when determining whether an employee is entitled to TTD

benefits, the test is whether the employee remains temporarily totally disabled as a result of a

work-related injury and whether the employee is capable of returning to the work force.”

Interstate Scaffolding, 236 Ill. 2d at 146.

¶ 35   Whether a claimant is entitled to TTD benefits and for how long are questions of fact to

be determined by the Commission, and a reviewing court will not disturb the Commission’s

determination of these issues unless they are contrary to the manifest weight of the evidence.

Archer Daniels Midland, 138 Ill.2d at 119–20; Shafer, 2011 IL App (4th) 100505WC, ¶ 45;

McDaneld, 307 Ill. App. 3d at 1053. A factual finding is contrary to the manifest weight of the

evidence only when an opposite conclusion is clearly apparent. Durand v. Industrial Comm'n,

224 Ill. 2d 53, 64 (2006). The test is whether there is sufficient factual evidence in the record to

support the Commission's determination, not whether this court, or any other tribunal, might

reach an opposite conclusion. Pietrzak v. Industrial Comm’n, 329 Ill. App. 3d at 828, 833

(2002); Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450 (1995). The determination of

witness credibility and the weight to be accorded the evidence are matters within the province of

the Commission. Pietrzak, 329 Ill. App. 3d at 833; Presson v. Industrial Comm’n, 200 Ill. App.

3d 876, 880 (1985).

¶ 36   Applying these standards, we cannot say that the Commission’s decision to deny TTD

benefits after the claimant’s termination on October 15, 2013, was against the manifest weight of

the evidence. It is undisputed that, at the time of his termination, the claimant had not reached

MMI and he was still undergoing dental treatments and attending counseling sessions for his

                                                - 12 -
crane-related anxiety. (The claimant testified that he was still undergoing dental treatments and

counseling at the time of arbitration.) However, it is also undisputed that, from the time he

returned to work for the employer after his panic attack in July 2013 until his termination on

October 15, 2013: (1) the claimant had been released to work fully duty with only one work

restriction, i.e., that he not operate a crane; (2) the claimant continued to work full duty as a

“transportation operator” within his original job classification without being required to operate a

crane; and (3) it was not necessary for the employer to either modify an existing job or create a

“light duty” job to accommodate the claimant's work restrictions. Moreover, DuBois, the

employer’s Human Resources Manager, testified that the claimant could have continued to work

for the employer in his current position without being required to operate a crane.

¶ 37   In addition, the employer’s vocational expert testified that, based on the claimant's job

experience, job description, and medical evaluations, the claimant's restriction of no crane

operation did not preclude the claimant from reentering the work force. Based on a labor market

survey she conducted, the employer’s vocational expert opined that there were various

employers in Peoria who were hiring for positions that matched the claimant's qualifications,

salary, and restriction of no crane operation. The claimant did not dispute that he was

employable despite his current work-related physical and psychological conditions. To the

contrary, he testified that he had been actively conducting a job search and already had some

promising leads in San Diego.

¶ 38   Accordingly, there was ample evidence to support the Commission finding that, at the

time of his termination, the claimant's work-related injuries had stabilized to the extent that he

was able to reenter the workforce and his injuries had no impact on his employment. The

Commission’s decision to deny the claimant’s claim for TTD benefits after his termination was

not against the manifest weight of the evidence, as the opposite conclusion is not “clearly

                                                - 13 -
apparent.” See, e.g., Lukasik v, Industrial Comm’n, 124 Ill. App. 3d 609, 615 (1984) (holding

that the Commission’s decision to terminate TTD benefits after two doctors released the claimant

for light-duty work was not against the manifest weight of the evidence, even though “the record

reflect[ed] that the claimant may not have fully recovered” from his work-related injuries,

because the Commission “could properly have determined that he was no longer totally disabled

and unable to work” at that time); see also Gallentine v. Industrial Comn’n, 201 Ill. App. 3d 880,

887 (1990); Rambert v. Industrial Comm’n, 133 Ill. App. 3d 895, 902-03 (1985).

¶ 39   Relying on Interstate Scaffolding and Matuszczak v. Illinois Workers’ Compensation

Comm’n, 2014 IL App (2d) 130532WC, the claimant argues that: (1) the only dispositive

question is whether the claimant had reached MMI prior to his termination; and (2) because he

had not, the Commission erred as a matter of law in denying him TTD benefits after his

termination. We disagree. It is true that Interstate Scaffolding and Matuszczak each state that

“when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimant's condition

has stabilized, i.e., whether the claimant has reached maximum medical improvement.”

Interstate Scaffolding, 236 Ill. 2d at 142; Matuszczak, 2014 IL App (2d) 130532WC, ¶ 14. It is

also true that, in each of those cases, the reviewing court held that TTD benefits be continued

after the claimant’s termination for cause even though the claimant was working light duty at the

time. However, Interstate Scaffolding and Matuszczak are each distinguishable from the instant

case in material respects. In both Interstate Scaffolding and Matuszczak, the question was

whether the claimant’s termination for conduct unrelated to the claimant’s injury cut off the

claimant’s preexisting entitlement to TTD benefits. In each of those cases, it was undisputed

that, at the time of termination, the claimant’s condition had not stabilized, that the claimant was

unable to perform the job he had been performing for the employer prior to the work accident,

and that when the claimant returned to work after the accident, it was in a light duty capacity.

                                               - 14 -
Thus, in each case, it was undisputed that the claimant’s work injury had diminished his ability

to work, thereby entitling him to collect TTD benefits at the time of his termination. The only

question was whether the misconduct that led to the claimant’s termination in each case (writing

religious graffiti in the employer’s store room in Interstate Scaffolding, and stealing cigarettes in

Matuszczak) justified the termination of TTD benefits. Here, by contrast, the claimant was

working full time and full duty in his original job classification prior to his termination, and the

employer’s vocational expert testified that the claimant’s work-related injuries did not affect his

employability in the labor market. Thus, the dispositive question is this case is whether the

claimant was entitled to TTD benefits as a result of his work injuries in the first place,

irrespective of his termination or the reasons for his termination. As noted above, the

Commission’s finding that the claimant was not entitled to TTD benefits in this case because his

work injuries had no effect on his employment was not against the manifest weight of the

evidence.

¶ 40   Moreover, Interstate Scaffolding does not support the claimant’s argument that an injured

employee is entitled to TTD as a matter of law unless he had reached MMI. Near the beginning

of its analysis in Interstate Scaffolding, the supreme court states that, when a claimant seeks TTD

benefits, the “dispositive inquiry is whether the claimant’s condition has stabilized,” i.e., whether

the claimant has reached [MMI].” Interstate Scaffolding, 236 Ill. 2d at 142. However, later in its

analysis, the supreme court clarified that an injured employee is entitled to TTD benefits “if [he]

is able to show that he continues to be temporarily totally disabled as a result of his work-related

injury” (id. at 149), and that “when determining whether an employee is entitled to TTD benefits,

the test is whether the employee remains temporarily totally disabled as a result of a work-related

injury and whether the employee is capable of returning to the work force” ((Emphasis added.)

(id. at 146). Moreover, the supreme court also noted that, in two prior appellate court decisions

                                                - 15 -
upon which it relied, “the touchstone for determining whether the claimants were entitled to TTD

benefits was * * * whether the claimants’ conditions had stabilized to the extent that they were

able to reenter the workforce.” (Emphasis added.) Id. at 148. Thus, like Archer Daniels

Midland, Zenith Co., Schafer, McDaneld, Lukasik, and other cases, Interstate Scaffolding

confirms that a claimant is not entitled to receive TTD benefits when his work injuries no longer

impact his ability to work or his employability.

¶ 41   One final point bears mentioning. The claimant argues that we should review the

Commission’s decision de novo because the facts are undisputed and no conflicting inferences

may be drawn from the facts. We disagree. Although the claimant was able to work within his

original job classification without operating cranes when he returned to work in July 2013, he

had not yet reached MMI and he continued to undergo dental treatments thereafter, including at

least one dental surgery in November 2013 that kept him off work entirely for one week.

Moreover, although the operation of overhead cranes was no longer part of the claimant’s regular

job duties after July 2013, and it was undisputed that the claimant was not required to operate a

crane between July 23, 2013, and his termination, it was not undisputed that the claimant would

never have had to operate a crane in his capacity as a transportation operator. Accordingly, the

record supported conflicting inferences as to whether the claimant’s injuries had stabilized to the

extent that he was no longer entitled to TTD benefits. We have therefore reviewed the

Commission’s decision under the manifest weight of the evidence standard.

¶ 42                                     CONCLUSION

¶ 43   For the foregoing reasons, we reverse the judgment of the circuit court, which reversed

the decision of Commission, and reinstate the Commission’s decision.

¶ 44   Circuit court’s judgment reversed; Commission’s decision reinstated.



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