Opinion
Appeal No. 3-13-0184WC
04-27-2015
MICHEL BOYER, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Amico Metals/Alabama Metal, Appellee).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the Twenty-First Judicial Circuit Kankakee County, Illinois Circuit No. 10-MR-581, 10-MR-617 Honorable Adrienne W. Albrecht, Judge, Presiding. PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Hoffman, Hudson, and Stewart concurred in the judgment.
Justice Harris specially concurred.
ORDER
¶ 1 Held: The Commission's finding that the claimant failed to prove that his alleged psychological disability of "disabling anger" was causally related to a work-related physical injury was not against the manifest weight of the evidence. ¶ 2 The claimant, Michael Boyer, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)), seeking benefits for an injury to his right shoulder that he sustained while he was working for Amico Metals/Alabama Metal (employer). The claimant also sought benefits for an allegedly disabling psychological condition that he claimed was causally related to his work-related accident. After conducting a hearing, an arbitrator found that the claimant had suffered a "sprain/strain" of his right shoulder which "resolved no later than October 10, 2007," and that this injury was causally related to a work-related accident. Accordingly, the arbitrator awarded the claimant 18.8 weeks' permanent partial disability (PPD) benefits under section 8(e) of the Act (820 ILCS 305/8(e) (West 2004)) for 8% loss of use of the claimant's right arm. However, the arbitrator found that the claimant had failed to prove a causal relationship between a work-related accident and any alleged "physical and emotional maladies" that rendered the claimant permanently and totally disabled. Accordingly the arbitrator denied benefits for the claimant's alleged psychological condition. ¶ 3 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (the Commission). The Commission unanimously affirmed and adopted the arbitrator's decision. The claimant then sought judicial review of the Commission's decision in the circuit court of Kankakee County, which confirmed the Commission's ruling. This appeal followed.
¶ 4 FACTS
¶ 5 The claimant worked for the employer as a maintenance machinist repairman. On June 3, 2004, while he was tightening large nuts on a machine, he felt pain in his right shoulder and his right hand became swollen. The employer does not dispute that this work accident occurred. The claimant treated at a clinic located at the worksite, where he underwent an x-ray. The x-ray revealed degenerative changes in the claimant's right shoulder but did not show any fractures or dislocations. ¶ 6 On June 7, 2004, the claimant saw Dr. Rajeev Puri, an orthopedic surgeon. Dr. Puri ordered an MRI of the claimant's right shoulder, which Dr. Puri interpreted as revealing degenerative joint disease of the acromioclavicular (AC) joint with effacement of the supraspinatus tendon, tendonosis, and no tear. Dr. Puri noted in his medical records that, from the outset, the claimant's subjective complaints were inconsistent with the objective findings. ¶ 7 Dr. Puri refereed the claimant to Dr. Alexander Michalow, another orthopedic surgeon. The claimant saw Dr. Michalow on August 2, 2004. After examining the claimant and reviewing the MRI, Dr. Michalow concluded that the claimant's rotator cuff was intact and the claimant did not need surgery. Dr. Michalow recommended an EMG and additional follow up, but the claimant never returned to Dr. Michalow for a follow-up appointment. Approximately three weeks later, the claimant was examined by a third orthopedic surgeon, Dr. Michael Corcoran, who was unable to explain the claimant's symptoms. ¶ 8 Dr. Puri subsequently referred the claimant to Dr. Bradley Merk, an orthopedic surgeon at Northwestern Memorial Hospital. After reviewing the MRI results and examining the claimant on September 14, 2004, Dr. Merk concluded that the claimant had some tendenopathy as well as some degenerative changes in his right shoulder. However, he was unable to fully explain the defendant's condition. On September 28, 2004, the claimant underwent an EMG. ¶ 9 On November 9, 2004, the claimant saw Dr. Alan Shepard, a neurologist, for a neurological evaluation. Dr. Shapard concluded that the claimant's EMG study revealed mild right carpal tunnel syndrome, which was inconsistent with the claimant's complaints, and no evidence of brachial plexopathy. Dr. Shepard noted that the claimant's degree of sensation was difficult to assess because the claimant was not consistent in his responses. ¶ 10 On March 30, 2005, the claimant was examined by Dr. Paul Belich, a neurosurgeon. Dr. Belich diagnosed cervical spondylosis (i.e, degeneration of the cervical spine) and right shoulder strain, with possible brachial neuritis of the right shoulder. ¶ 11 On May 6, 2005, the claimant underwent a second EMG study. The results of the study were reviewed by another neurologist, Dr. Kenneth Holmes. Dr. Holmes diagnosed mild carpel tunnel syndrome and no evidence of brachial plexopathy. Dr. Holmes noted that this diagnosis did not correspond with the claimant's complaints. ¶ 12 On September 20, 2005, Dr. Belich reexamined the claimant. He diagnosed the claimant with chronic rotator cuff tendonitis and impingement of the right shoulder. The doctor noted that the claimant's symptoms did not correlate with his findings. ¶ 13 On November 16, 2005, the claimant underwent another MRI of his right shoulder. The MRI revealed degenerative joint disease of the AC joint but no rotator cuff tear. On January 26, 2006, the claimant was examined by yet another orthopedic surgeon, Dr. Jason Koh. Dr. Koh opined that the claimant's complaints were inconsistent with diagnoses of AC joint arthritis or subacromial tendonitis. Dr. Koh recommended that the claimant undergo functional training and chronic pain management. However, the claimant did not return to Dr. Koh for further treatment. ¶ 14 In May 2006, the claimant began treating with Dr. William Pearce, a vascular surgeon. Although Dr. Pearce noted that the claimant had multiple issues with his right upper extremity, he initially concluded that there was "no good evidence for thoracic outlet." However, on November 20, 2007, after treating the claimant for approximately a year and a half without reaching a specific diagnosis, Dr. Pearce opined for the first time that the claimant had "thoracic outlet" and impingement of his brachial plexis. Dr. Pearce concluded that the claimant was totally disabled. Dr. Pearce never ordered a functional capacity examination (FCE) or reviewed the claimant's job description. ¶ 15 At the employer's request, the claimant was examined by Dr. Babal Lami, an orthopedic spinal surgeon, on May 23, 2007. After examining the claimant and reviewing all of the previous reports, Dr. Lami opined that the claimant's complaints and symptoms were out of proportion to any objective physical findings. During his evidence deposition, Dr. Lami opined that there was no reason that the claimant could not work and stated that he was unclear as to what criteria Dr. Pearce used to reach his contrary conclusion. ¶ 16 The claimant underwent a work capacity evaluation on July 25, 2008, which was reviewed by Dr. Belich. Dr. Belich later testified that he found the claimant's work capacity evaluation invalid because of inconsistent effort on the claimant's part. ¶ 17 At the employer's request, the claimant was examined by Dr. Bill Grimm, a clinical psychologist. After examining the claimant and reviewing the prior medical records, Dr. Grimm prepared a written report on the claimant's psychological condition. In his report, Dr. Grimm ruled out any personality disorder and diagnosed the claimant with Depressive Disorder, Not Otherwise Specified. Based upon the claimant's history of giving inaccurate statements to his prior treaters and his "selective cooperation," Dr. Grimm opined that the claimant was engaging in malingering and symptom magnification. Based on his interview with the claimant, Dr. Grimm opined that the claimant had a "critical distrust and hostility towards the medical community" that "predate[d] his shoulder injury, and was apparently expressed or experienced previously" in response to his parents' health problems and medical issues. ¶ 18 During his subsequent evidence deposition, Dr. Grimm testified regarding his impressions and diagnoses of the claimant. Dr. Grimm stated that, although the claimant showed a lot of anger and resentment during his interview, he "rarely brought up" his shoulder condition. Dr. Grimm opined that the claimant's anger, hostility, and frustration "stem[med] from his perception of the entire [workers' compensation] process" and his frustration with his medical providers and insurance carrier rather that "a particular work accident or alleged shoulder condition." ¶ 19 Dr. Grimm testified that, given the claimant's "rather obvious anger and hostility and tendency to feel victimized," Dr. Grimm "did not have a great deal of confidence that the claimant would be successful in a workplace environment," at least not while "this entire situation was still ongoing." Dr. Grimm stated that he did not know whether the claimant would have difficulty containing his anger and frustration or whether he would "deliberately sabotage it." In any event, Dr. Grimm "did not feel that [the claimant] was doing his best *** to make a positive impression so as to return to work." Dr. Grimm opined that the claimant's current inability to work "stem[med] from the anger and the hostility and frustration" rather than his alleged shoulder condition. ¶ 20 Dr. Grimm also opined that the claimant was engaging in symptom magnification and "self-limiting behavior." He based this opinion on: (1) the claimant's denial that he had ever been given a home exercise program or shown any exercises to do, which contradicted the medical records and suggested that the claimant was not "being completely honest and forthright" during his interview; (2) indications in the medical records that the claimant's alleged symptoms were "out of proportion" to the medical findings; (3) indications in the medical records that the claimant's "behavior was inconsistent during an FCE"; and (4) the claimant's statement to Dr. Grimm that he "didn't want to get caught doing something by any surveillance people that might jeopardize his position in this matter." ¶ 21 On cross-examination, the following exchange took place between Dr. Grimm and the claimant's attorney:
"Q: Doctor, from everything I've heard today, I'm coming to a conclusion that you would agree that the anger that [the claimant] was experiencing was causally related to the original accident in that it's a sequela of the accident, would that be correct?
A: I think that's a fair statement, correct.
Q: Okay. So therefore the accident was a contributory factor in the development of his anger?
A: In the sequence of which you spoke, I would conceptualize it as the
accident resulting in the worker's compensation process.¶ 22 On redirect examination, Dr. Grimm testified that, based on the history the claimant had provided him, the claimant's "pen[chant] for anger and blame" "predate[d]" his work accident. For example, Dr. Grimm noted that the claimant had expressed "anger and blame towards the medical community for the deaths of his parents." In an attempt to clarify his prior responses to the claimant's counsel's questions during cross-examination, Dr. Grimm stated that he had interpreted those questions as inquiring about the "factors to which [the claimant] was responding with anger," such as the death of a friend and *** so forth." Dr. Grimm explained that he "did not find those [factors]," and opined that the claimant was responding with anger "concerning the injury and worker's compensation system." However, Dr. Grimm testified that the claimant's "penchant" or "propensity" to respond with anger "goes way back" and "[was] not caused by" the claimant's work accident. ¶ 23 Dr. Grimm further clarified that: (1) anger was not a formal or clinical diagnosis, but rather a "characteristic or symptom of many different kinds of diagnoses"; and (2) Dr. Grimm's examination of the claimant (including his administration of the "Mini-mental State Examination") did not reveal any cognitive problems or anything else that would interfere with the claimant's ability to control his anger. ¶ 24 The claimant testified that he was angry at various people and entities (including doctors, lawyers, the employer, and the insurance adjuster) for the manner in which his workers' compensation claim was handled. He testified that he was angry at the workers' compensation "system" because his claim was unnecessarily delayed and mishandled in various other respects. Many of the alleged delays and other alleged events about which the claimant complained occurred years after his June 2004 work injury. The claimant did not testify that he was angry about the shoulder injury he suffered during the work accident or that he began experiencing debilitating anger immediately after the accident. Rather, he suggested that his anger arose in response to various actions taken or not taken by others during the workers' compensation process throughout the ensuing several years. ¶ 25 The arbitrator found that the claimant had suffered a "sprain/strain" of his right shoulder which "resolved no later than October 10, 2007," and that this injury was causally related to a work-related accident. Accordingly, the arbitrator awarded the claimant 18.8 weeks' permanent partial disability (PPD) benefits under section 8(e) of the Act (820 ILCS 305/8(e) (West 2004)) for 8% loss of use of the claimant's right arm. ¶ 26 However, the arbitrator found that the claimant had failed to prove a causal relationship between a work-related accident and any alleged "physical and emotional maladies" that rendered the claimant permanently and totally disabled. In particular, the arbitrator found that "there is no causal connection between [the claimant's] alleged anger and the *** work accident." Relying on Dr. Grimm's report and testimony, the other medical records (including Dr. Lami's records and testimony), and the claimant's own testimony, the arbitrator found that the claimant's anger "was not supported by any diagnosis" and was "unreasonable, self-serving, and completely controllable by [the claimant]." The arbitrator noted that, although the claimant testified that he was angry at "the company," at various individuals (including doctors, insurance adjustors, and his own lawyer), and at the "workers' compensation system," he "did not offer any testimony that his alleged anger was either directed, or as a result of" the work accident or that he was angry "at his alleged shoulder condition or *** because of shoulder pain." The Commission relied upon Dr. Grimm's testimony that: (1) the claimant "rarely brought up his shoulder" and "never indicated that his anger or hostility was directed at a work accident or shoulder condition"; (2) the Mini-mental state examination "revealed normal results for the claimant"; (3) the claimant's anger was situational and the claimant was able to control it; (4) anger is not a clinical diagnosis; and (5) the claimant's propensity to respond with anger was not caused by the work accident. ¶ 27 In sum, the arbitrator concluded that "[the claimant's] anger is directed at the workers' compensation process, and *** this does not arise to a compensable injury under the Act." Accordingly, the arbitrator denied benefits for the claimant's alleged psychological condition. ¶ 28 The claimant appealed the arbitrator's decision to the Commission, which unanimously affirmed and adopted the arbitrator's decision. The claimant then sought judicial review of the Commission's decision in the circuit court of Kankakee County, which confirmed the Commission's ruling. This appeal followed.
Q: Um-hum.
A: Resulting in the anger of which I spoke.
Q: In other words, he wasn't upset because his mother treated him badly when he was three years old, he wasn't upset because he had a problem with his wife, he wasn't upset because his best friend died in a war, he was upset because of this case and his experiences with it?
A: That was my understanding, correct.
Q: Okay. And the anger that he's feeling is - well, to begin with it's genuine anger, he wasn't just pretending to be angry?
A: I sensed that it was genuine.
Q: And it was disabling in the sense that as long as he felt this degree of anger, he wouldn't be able to be employed?
A: I believe that to be true."
In its brief on appeal, the employer states that the claimant's undisputed work accident occurred on June 4, 2004. However, in his appellate brief and his application for adjustment of claim, the claimant alleges that the work accident took place on June 3, 2004. The arbitrator found that the accident occurred on June 3, 2004.
"Brachial plexopathy" is a form of peripheral neuropathy that occurs when there is damage to the brachial plexus, an area on each side of the neck where nerve roots from the spinal cord split into the nerves in each arm.
"Brachial neuritis" is an inflammation of the brachial plexus that causes sudden-onset shoulder and arm pain, followed by weakness and/or numbness.
"Thoracic outlet syndrome" is a term used to describe a group of disorders that occur when there is compression, injury, or irritation of the nerves and/or blood vessels in the lower neck and upper chest area.
¶ 29 ANALYSIS
¶ 30 Prior to addressing claimant's argument, we direct his attorney to Supreme Court Rule 341, which governs the form and contents of appellate briefs. In particular, Rule 341(h)(3) provides: "[t]he appellant must include a concise statement of the applicable standard of review for each issue, with citation to authority, either in the discussion of the issue in the argument or under a separate heading placed before the discussion in the argument." Ill. S. Ct. R. 341(h)(3) (eff. Feb. 6, 2013). Rule 341(i) requires the appellee to include a statement regarding the applicable standard of review "to the extent that the presentation by the appellant is deemed unsatisfactory." Ill. S. Ct. R. 341(i) (eff. Feb. 6, 2013). In this case, neither party included any statement regarding the applicable standard of review. Accordingly, both parties violated Rule 341. Moreover, we note that claimant's opening brief is not paginated, as required by Supreme Court Rule 341(a). Ill. S. Ct. R. 341(a) (eff. Feb. 6, 2013). ¶ 31 In addition, the claimant failed to include a complete copy of the arbitrator's decision in this matter. Due to an apparent copying error, the appellant's appendix includes only the odd-numbered pages of the arbitrator's decision, thereby omitting approximately half of the decision. Supreme Court Rule 342(a) provides that "[t]he appellant's brief shall include, as an appendix, *** a copy of the judgment appealed from" and "any opinion, memorandum, or findings of fact filed or entered by *** any administrative agency or its officers." Ill. S. Ct. R. 342(a) (eff. Jan.1, 2005). The claimant violated this rule, and the employer did not seek to rectify the matter by attaching a complete copy of the arbitrator's decision to its brief on appeal. ¶ 32 "Our supreme court's rules are mandatory rules of procedure, not mere suggestions." Menard v. Illinois Workers' Compensation Comm'n, 405 Ill. App. 3d 235, 238 (2010). A party's failure to abide by Rule 341 makes appellate review of his or her claim more onerous and may result in waiver. Id.; see also McDuffee v. Industrial Comm'n, 222 Ill. App. 3d 105, 111 (1991). We opt not to take such a harsh measure in this case given that the facts are relatively uncomplicated, the issue is simple, and a complete copy of the arbitrator's decision is included in the record and is also available on Westlaw. Nevertheless, we warn counsel for both parties to adhere to Rule 341 in the future. We now turn to the merits of the appeal. ¶ 33 Psychological injuries are compensable under the Act when they are related to and caused by a work-related physical injury. Matlock v. Industrial Comm'n, 321 Ill. App. 3d 167, 171 (2001). In these so-called "physical-mental" cases, even a minor physical contact or injury may be sufficient to trigger compensability. Id.; see also Marshall Field & Co. v. Industrial Comm'n, 305 Ill. 134 (1922); Chicago Park District v. Industrial Comm'n, 263 Ill. App. 3d 835, 842 (1994). Moreover, the work-related physical trauma need not be the sole causative factor, but need only be a causative factor of the subsequent mental condition. City of Springfield v. Industrial Comm'n, 291 Ill. App. 3d 734, 738 (1997); see also Amoco Oil Co. v. Industrial Comm'n, 218 Ill. App. 3d 737, 747 (1991). Accordingly, "[a] pre-existing condition does not preclude an award of compensation where the Industrial Commission may legitimately infer from the evidence that the claimant's occupational activity was a causative factor in the injury." Smith v. Industrial Comm'n, 161 Ill. App. 3d 383, 391-92 (1987). ¶ 34 However, mental disorders which develop over time in the normal course of the employment relationship are not compensable. Matlock, 321 Ill. App. 3d at 171. Moreover, a "physical-mental" case involves a claim that some type of physical stress is a causative factor of a mental injury. Baggett v. Industrial Comm'n, 201 Ill. 2d 187, 195 (2002). "The presence of a physical trauma, not an employee's subjective physical reaction to some nonphysical incident, determines whether a case qualifies as a 'physical-mental' case." Northwest Suburban Special Education Organization v. Industrial Comm'n, 312 Ill. App. 3d 783, 789 (2000) (quoting Skidis v. Industrial Comm'n, 309 Ill. App. 3d 720, 724 (1999)). ¶ 35 Whether a psychological condition is causally related to a physical work injury is a factual question that is uniquely in the province of the Commission, and we will not overturn the Commission's decision unless it is against the manifest weight of the evidence. City of Springfield, 291 Ill. App. 3d at 739; Chicago Park District, 263 Ill. App. 3d at 843. In determining causation, it is the Commission's responsibility to assess the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, draw reasonable inferences from the evidence, and choose between conflicting inferences. City of Springfield, 291 Ill. App. 3d at 740; Chicago Park District, 263 Ill. App. 3d at 842. A decision is against the manifest weight of the evidence only when the opposite conclusion is "clearly apparent." Elgin Board of Education School District U-46 v. Illinois Workers' Compensation Comm'n, 409 Ill. App. 3d 943, 949 (2011). The test is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other tribunal might reach an opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 833 (2002). Accordingly, "[a] reviewing court will not reweigh the evidence, or reject reasonable inferences drawn from it by the Commission, simply because other reasonable inferences could have been drawn" from the same set of facts. Durand v. Industrial Comm'n, 224 Ill. 2d 53, 64 (2006); Chicago Park District, 263 Ill.App.3d at 842. ¶ 36 Applying these standards, we cannot say that the Commission's conclusion that the claimant failed to prove a disabling psychological condition that was causally connected to his June 2004 work injury is against the manifest weight of the evidence. Dr. Grimm, the only expert witness who offered an opinion on the causal relationship between the claimant's June 3, 2004, work injury and his subsequent psychological condition, opined that the claimant's penchant or propensity to respond to situations with anger predated and was not caused by the accident. Although Dr. Grimm appeared to admit during cross-examination that the accident had causally contributed to the claimant's anger by causing his involvement with the workers' compensation system, he later clarified that, when he made those statements, he was talking about the content or object of the claimant's anger (i.e., the "factors to which [the claimant] was responding with anger"), rather than the claimant's "penchant" or "propensity" to respond with anger. In other words, he was discussing what the claimant was angry about (i.e., the workers' compensation system), not what caused the claimant's psychological disposition to experience excessive anger. Regarding the latter issue, Dr. Grimm opined unequivocally that the claimant's propensity to respond with anger predated and was not caused by the June 2004 work accident. ¶ 37 Moreover, the claimant's own testimony supports a reasonable inference that any excessive anger the claimant was experiencing at the time of the hearing was not causally connected to the shoulder injury he suffered in the June 3, 2004, work accident. Although the claimant raised a litany of complaints against various actors in the workers' compensation "system," he never explicitly connected his anger to his work-related injury per se. Nor did he testify that he began experiencing a new and disabling type of anger immediately following the work accident. Rather, his testimony arguably suggests that his anger arose and gradually increased during the years following the accident in response to delays and other obstacles he allegedly encountered as he pursued his workers' compensation claim. To obtain compensation for a disabling psychological condition under a "physical-mental" theory, an employee must establish a causal connection between an actual physical trauma and the resulting psychological condition; it is not enough merely to establish a subjective psychological reaction to some nonphysical incident. See Baggett, 201 Ill. 2d at 195; Northwest Suburban Special Education Organization, 312 Ill. App. 3d at 789; Skidis, 309 Ill. App. 3d at 724. Here, the claimant offered nothing to suggest that his propensity to disabling anger was caused by the June 2004 work injury (i.e., by the physical trauma to his shoulder). If anything, the claimant's testimony arguably suggests that this propensity to anger was caused by the psychological impact of the many obstacles he encountered within the workers' compensation system. ¶ 38 Further, the Commission appeared to base its rejection of the claimant's "physical-mental" claim, in part, on its negative assessment of the claimant's credibility. The Commission noted that the claimant's anger "was not supported by any diagnosis" and was "unreasonable, self-serving, and completely controllable by [the claimant]." The arbitrator also observed that the claimant did not state that his alleged anger was either directed at or as a result of the June 2004 work accident, either during the arbitration hearing or during his interview with Dr. Grimm. Moreover, the Commission noted that the Mini-mental state examination "revealed normal results for the claimant." Credibility determinations are within the Commission's province. City of Springfield, 291 Ill. App. 3d at 740. In light of the evidence referenced by the Commission, plus the ample evidence in the medical records suggesting that the claimant had a tendency to malinger and to amplify his symptoms, we cannot say that the Commission's negative assessment of the claimant's credibility was against the manifest weight of the evidence. ¶ 39 The claimant argues that his "physical-mental" claim is supported by a "chain of events" analysis. "A causal connection between a condition of ill-being and a work-related accident can be established by showing a chain of events wherein an employee has a history of prior good health, and, following a work-related accident, the employee is unable to carry out his duties because of a physical or mental condition." Kawa v. Illinois Workers' Compensation Comm'n, 2013 IL App (1st) 120469WC, ¶ 96 (quoting BMS Catastrophe v. Industrial Comm'n, 245 Ill. App. 3d 359, 365 (1993)). The claimant argues that he was able to perform physically demanding work prior to his work injury and that, "[a]lthough he may have had a propensity for anger, it had in no way interfered with his work performance prior to the accident." The claimant argues that this "chain of events" evidence establishes that his disabling propensity to anger was caused (or, at a minimum, aggravated) by the work accident. ¶ 40 We do not find this argument persuasive. Although the Commission could have inferred that the claimant's anger was caused or aggravated by the June 2004 work accident based upon a "chain of events" analysis, it was not required to do so given the wealth of contrary evidence. Dr. Grimm opined that the claimant's propensity to respond with anger predated and was not caused by the work accident. His was the only expert opinion presented on that issue. Moreover, the claimant's own testimony arguably did not support his causation argument because he did not expressly connect the onset of his disabling anger with the work accident. Moreover, Dr. Grimm opined that the claimant was able to control his anger, and there was ample evidence suggesting that the claimant's testimony about his anger was not credible. The Commission could have reasonably inferred that this evidence undermined or outweighed the claimant's "chain of events" evidence. Given this record, the Commission's decision not to draw an inference of causation under a "chain of events" theory was not against the manifest weight of the evidence.
During oral argument, the claimant's counsel argued that the June 2004 work accident caused the depressive disorder which Dr. Grimm later diagnosed and that the depressive disorder, in turn, caused the claimant to experience a new and disabling type of anger. The claimant did not raise this issue in his brief on appeal and mentioned it for the first time at oral argument. Consequently, we deem the argument waived. See Swanson v. Industrial Comm'n, 128 Ill. App. 3d 631, 634 (1984).
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¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County, which confirmed the Commission's decision. ¶ 43 Affirmed. ¶ 44 JUSTICE HARRIS, specially concurring. ¶ 45 I agree with the result reached by the majority in this case. However, in my opinion, the Commission properly found that "Petitioner's anger * * * does not arise to a compensable injury under the Act." According to Dr. Grimm, anger is not a clinical diagnosis. No contrary evidence appears in the record. Therefore, since the Commission's determination of a lack of injury is not against the manifest weight of the evidence, we need not reach the issue of causation in order to affirm.