Opinion
NO. 4-17-0737WC
05-02-2018
ABF FREIGHT SYSTEMS, INC., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Bradley Wildermuth, 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 Circuit Court of McLean County
No. 16MR668
Honorable Paul G. Lawrence, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Barberis concurred in the judgment.
ORDER
¶ 1 Held: The Commission committed no error in awarding claimant vocational rehabilitation and maintenance benefits.
¶ 2 On March 22, 2013, claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), seeking benefits from the employer, ABF Freight Systems, Inc. Following a hearing, the arbitrator determined claimant sustained a compensable, work-related injury and awarded him vocational rehabilitation benefits and maintenance benefits of $469.29 per week, beginning May 15, 2015. On review, the Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision without further comment. On judicial review, the circuit court of McLean County confirmed the Commission's decision. The employer appeals, arguing the Commission erred in
awarding claimant maintenance and vocational rehabilitation benefits and that such an award was improper under section 19(d) of the Act (820 ILCS 305/19(d) (West 2012)). We affirm.
¶ 3 I. BACKGROUND
¶ 4 At arbitration, claimant testified he was 45 years old. He described his education level as being "[h]igh school, GED." Claimant stated he had been a truck driver for the majority of his life. However, he also tended bar for seven years and bought and ran a restaurant. He still owned the restaurant but it was not open. In January 2011, he began working for the employer as a "[c]hecker/driver." Claimant testified his job duties were "[t]o work the dock and deliver freight throughout the day in a truck." He described the work he performed with his hands as including opening "all the bay doors"; getting freight ready; loading the trucks; using a pallet jack, two-wheeler, or fork truck; hooking up the trailers; bringing landing gear up; and shutting doors.
¶ 5 On January 9, 2012, claimant was injured at work while making a delivery at a Burger King. He testified he had to unload four large monitors and "caught" his right index finger in a "two-wheeler," i.e., a hand truck used to move freight. Claimant experienced a "really hot burning sensation" and his finger swelled. He reported his injury to his supervisor but continued with his work.
¶ 6 The same day as his accident, claimant sought medical care at Genesis Convenient Care. He underwent x-rays that showed no acute fracture and was given a splint and Ibuprofen. The following day, claimant began a course of treatment at Genesis Occupational Health. Initially, claimant was given work restrictions and received a recommendation for physical therapy. Medical records reflect he reported that he was unable "to return to his regular driving condition until he ha[d] full use and function of his hand due to the demands of loading and unloading, as well as the mechanism of shifting." On April 17, 2012, claimant saw Dr. Rick Garrels,
who diagnosed him with a "[r]ight 2nd metacarpophalangeal joint sprain" and chronic arthritis. Dr. Garrels recommended claimant resume regular work, stating he did "not see anything further to offer [claimant] treatment-wise."
¶ 7 On April 19, 2012, claimant visited Dr. Even Kvelland, his family physician, for a second opinion with respect to his right hand injury. Claimant provided a history of his work accident and reported that he experienced symptoms including reduced motion, swelling, impairment of the normal function of the thumb and index finger, and tenderness with right hand motion. Dr. Kvelland referred claimant to Dr. Tyson Cobb, an orthopedic surgeon.
¶ 8 On May 2, 2012, claimant saw Dr. Cobb for the first time and provided a history of injuring his right index finger at work in January 2012. Following an examination, Dr. Cobb's impression was a "[r]ight index MP sprain with probable ulnar collateral ligament tear." He recommended surgery and light-duty work restrictions.
¶ 9 On June 11, 2012, Dr. Cobb performed surgery on claimant in the form of a right index MP arthroscopy with synovectomy and debridement. Following surgery, claimant continued to follow up with Dr. Cobb and was given work restrictions. He also underwent physical therapy. Claimant testified that his finger did not improve after his surgery and only worsened.
¶ 10 On February 28, 2013, Dr. Cobb discussed fusion surgery with claimant but stated that claimant was "very resistant." He further noted as follows:
"[Claimant] states that his anxiety level is extreme and the thought of having the joint held in a fixed position is 'freaking him out.' He previously cut his cast off that we placed on him because of extreme anxiety. He sees Dr. Kvelland for his anxiety and has taken medications for the same in the past. I have encouraged him to see Dr. Kvelland for potentially getting medicated. We discussed that fusion
would require a period of casting for protection. He apparently has not ever tolerated immobilization in the past."
¶ 11 Claimant testified his understanding of a fusion was that pins would be used to permanently fuse his finger in a straight position. He testified, however, that he suffered from obsessive compulsive disorder and claustrophobia. He did not like "closed spaces" and had "issues with being confined in any way." Claimant asserted he could not "have anything restricting [him]" and did not "think [he] could handle [his] finger being put straight." He believed that if his finger was fused he would "wake up in the middle of the night and try to break it." According to claimant, he had taken medication for his psychological conditions and they predated his work accident.
¶ 12 On March 6, 2013, claimant returned to Dr. Kvelland to discuss his anxiety and fears relating to the healing or repair of his right hand injury. In particular, Dr. Kvelland noted that recommendations of a fusion of claimant's finger into a straight position caused claimant "a great deal of consternation and dislike." Claimant also expressed that he could not tolerate the presence of a cast even though it might be beneficial to him. Dr. Kvelland suggested a psychiatry consult.
¶ 13 Claimant testified that, following his visit with Dr. Kvelland, he saw a therapist once or twice a week for six months. Claimant submitted records at arbitration, showing he began undergoing "mental health therapy" at Bridgeway Inc. on April 8, 2013, to assist him with managing his anxiety, panic disorder, and obsessive compulsive disorder symptoms.
¶ 14 On May 22, 2013, claimant followed up with Dr. Cobb, who recommended a hand-based orthoplast splint. The purpose of the splint was to simulate a fusion and test whether claimant could tolerate being restricted.
¶ 15 On June 6, 2013, claimant's therapist, Kurt Doyle, authored a letter regarding claimant's mental health condition. He noted that claimant had "ongoing panic and anxiety *** related to claustrophobia" and "struggle[d] with the thought of having his finger fused permanently." Doyle recommended that "other methods of treating [claimant's] finger be entertained." Further, he stated as follows:
"[Claimant] and I have discussed that Dr. Cobb *** suggested that a finger brace be used to simulate how his finger would be if permanently fused. My clinical concern is that with having [claimant's] finger fused permanently, not being able to move this finger[,] that this could cause him ongoing struggles with panic, personal safety issues[,] and the inability to get back to working the job he once had before his accident at work. It is my clinical opinion that the finger brace would be the least restrictive of options for [claimant] at this time and would follow the harm reduction approach to treatment."
¶ 16 Claimant testified that, in June 2013, he tried using the splint recommended by Dr. Cobb but he "psychologically" could not "get passed [sic] not being able to move [his] hand naturally." Claimant testified the splint did not help him because it gave him "more anxiety" and he continued to experience pain.
¶ 17 On September 3, 2013, Doyle authored another letter regarding claimant's mental health condition. He noted claimant was continuing to receive individual therapy and reiterated his concern that a finger fusion would cause claimant to struggle with "panic and personal safety issues." Again, Doyle believed that "the finger brace" was the least restrictive option for claimant. He stated that both he and claimant agreed that claimant "could return to work doing lighter duties successfully and accurately" while wearing the brace. Doyle opined claimant could not
"cope with" having his finger fused permanently.
¶ 18 On September 4, 2013, claimant followed up with Dr. Cobb, who noted that claimant and Doyle had "decided that fusion is not in [claimant's] best interest because of his inability to control his anxiety associated with being confined in one spot." According to Dr. Cobb, claimant's splint seemed "to be reasonably comfortable and it alleviate[d] the anxiety related issue because [claimant could] pull it off when he ha[d] one of his anxiety attacks." He stated the final solution was to proceed with a functional capacity evaluation (FCE).
¶ 19 On December 10, 2013, claimant underwent an FCE at Kewanee Physical Therapy and Rehabilitation. His evaluator determined he demonstrated the ability to perform within the light physical demand level and noted claimant's job as a truck driver/loader was classified within the very heavy physical demand level. The evaluator also noted that claimant "demonstrated a consistency of effort of 51.9%[,] which would suggest [that he] presented with significant observational and evidenced [sic] based contradictions resulting in consistency of effort discrepancies and self-limiting behaviors." She stated that, during objective functional testing, claimant reported reliable pain ratings 81.2% of the time[,] which would suggest that pain could have been considered a limiting factor during testing." Claimant's specific material handling abilities were identified as bilateral lifting of 12 pounds, bilateral carrying of 37 pounds, bilateral shoulder lifting of 37 pounds, and pushing 50 horizontal force pounds.
¶ 20 According to claimant, he was required to do a number of tasks during the FCE that involved lifting, pushing, and squeezing within a two to three hour period with no breaks. He stated he pushed his way to the end of the FCE and described the experience as "quite painful." Claimant testified he was advised that the results of the FCE were invalid.
¶ 21 On February 13, 2014, he underwent a second FCE at Rock Valley Physical
Therapy. The evaluator determined the FCE results were "functionally valid" in that claimant "demonstrated high levels of physical effort and was sufficiently reliable in his reports of pain and disability." Claimant was deemed to have the ability to work in the sedentary to light physical demand classifications. The FCE specifically stated claimant could lift 20 pounds from the floor using two hands and carry 10 pounds with his right hand, but that he should perform no firm grasping with his right hand. It further set forth claimant's capabilities as follows: (1) lifting 20 pounds 32 inches from floor to waist, (2) lifting 20 pounds 63 inches from waist to shoulder, (3) carrying 20 pounds 30 feet with two hands, (4) carrying 10 pounds 30 feet with one hand, (5) pushing 60 pounds 30 feet, and (6) pulling 60 pounds 30 feet.
¶ 22 According to claimant, his second FCE was different than his first in that the evaluator "consoled" him and asked him what he could and could not do. Again, he performed various tasks, including lifting, walking, carrying, and squatting, but the evaluator insisted claimant took breaks. Claimant stated the FCE ended early because his hand was swollen and he reported to the evaluator that he "couldn't do it anymore."
¶ 23 On March 12, 2015, claimant returned to see Dr. Cobb and reported sharp, aching, and throbbing pain in his right index finger, as well as numbness, tingling, swelling, and popping in his finger. Dr. Cobb noted claimant's condition was worsening and that rest made his symptoms better while activity made them worse. According to Dr. Cobb's records, claimant reported that the splint used to simulate a fusion "helped a lot with [his] symptoms." Dr. Cobb noted that, "although [claimant's] anxiety disorder does not allow him to have the extremity casted or otherwise immobilized, the splint[,] which he can take off when he needs[,] does not seem to create the same level of anxiety." He recommended that claimant "proceed with hand-based custom orthosis[,] which worked reasonably well for him before." Further, Dr. Cobb stated that he did
not have any surgical options for claimant and opined vocational rehabilitation was a "wise option." On April 1, 2015, Dr. Cobb authored a letter to claimant's counsel, stating the physical restrictions set forth in claimant's February 2014 FCE were reasonable.
¶ 24 At arbitration, claimant submitted Dr. Cobb's deposition, taken May 1, 2015. Dr. Cobb described his treatment of claimant, noting the surgical procedure he performed and his ultimate recommendation for a fusion. Further, he noted that immobilization would create anxiety for claimant. Dr. Cobb testified they "tried different things," including a splint to simulate a fusion, but claimant "just couldn't tolerate it." He recalled that claimant reported he would "tear [the splint] off in the night and would become very anxious." Dr. Cobb stated claimant was not a good candidate for fusion surgery due to his psychological issues. He recommended no further treatment for claimant and opined he had reached maximum medical improvement.
¶ 25 Dr. Cobb testified that claimant's functional capacity "depend[ed] on how [claimant] happens to be functioning on any given day." However, he also opined that claimant's February 2014 FCE was "a reasonable guide to establish restrictions." Dr. Cobb testified that those restrictions would be permanent for claimant and were the result of claimant's January 2012 work accident.
¶ 26 Dr. Cobb testified claimant's December 2013 FCE "showed some variability in his—in the validity testing relative to effort." He stated he "tend[ed] to ignore FCE's when a patient's failed a validity testing because it suggests that it's not an accurate assessment." Dr. Cobb stated a patient could "fail a validity testing" if they were having significant pain that caused them to self-limit. He testified, in such circumstances the patient might stop giving full effort because it was too painful. Further, Dr. Cobb knew the individual who performed claimant's second, February 2014 evaluation, and described him as an experienced therapist who did a good
job.
¶ 27 Dr. Cobb testified he did not know if either of claimant's FCEs were conducted with the use of his orthopedic splint. He testified aspects of claimant's functional abilities could be enhanced by use of the splint; however, they could also be inhibited "because the splint's going to limit motion." Dr. Cobb stated that a stable fusion "could increase [claimant's] function." Further, he opined that there was "a reasonably good chance" that a successful fusion would allow claimant to return to full-duty work. The following colloquy then occurred between Dr. Cobb and the employer's counsel:
"Q. So what would be different about the splint that simulates the same thing that would not allow him to return to full-duty work?
A. Well, you still have an arthritic, unstable painful joint, whereas with a fusion we take all of that out, and the metacarpal grows to the proximal phalanx. So there's no painful joint to create discomfort once the fusion's occurred."
¶ 28 Dr. Cobb further testified that he and claimant discussed claimant's job duties as a delivery driver. He stated claimant's FCE suggested that he would "fall short of some of the loading activities" associated with his job duties and opined that claimant "was a lot more likely to be able to drive than he is to be able to drive and do some significant loading." Dr. Cobb testified that if claimant wanted to be a delivery driver, his recommendation was "to try to get a delivery job that didn't require any loading or unloading or at least nothing that he couldn't do with one hand." He did not believe it was "unreasonable" for claimant to try to return to work while using the splint "if he could find a position that would allow him to work within his limitations and if he felt that he was safe to operate a truck."
¶ 29 At arbitration, claimant also presented the testimony of Dr. Richard Hutchison, a
clinical psychologist. In July 2014, Dr. Hutchison evaluated claimant. He interviewed claimant, gave him various psychological tests, and diagnosed claimant with a panic disorder with agoraphobia, which he described as a "can't stand to be enclosed in small spaces kind of thing"; obsessive compulsive disorder; and major depressive disorder. Dr. Hutchison opined claimant was not a good candidate for a finger fusion, stating "the fusion and casting of [claimant's] finger would probably overwhelm him psychologically and lead to a significant deterioration in his mental status." He described claimant as having a "confinement issue" with the fusion surgery due to not being able to bend his finger and agreed it was like a "claustrophobic reaction." Dr. Hutchison testified a fusion would not be psychologically indicated for claimant.
¶ 30 On cross-examination, Dr. Hutchison also testified that claimant would "[p]robably not" be able to use a finger brace or to wear it "long enough to be of value to him." He stated claimant would have "tremendous difficulty" dealing with an assistive device or "anything that's confining to him" and his anxiety would increase. Dr. Hutchison found that claimant's anxiety disorder was "very significant" and "hard to treat," and that his work injury caused him to become more anxious and more depressed. Dr. Hutchison opined that returning to work in some way would decrease claimant's anxiety.
¶ 31 The employer submitted the deposition of Dr. Michael Vender, a hand surgeon, taken on January 21, 2015. Dr. Vender testified he performed an independent medical evaluation of claimant on February 14, 2013, and drafted a report. He physically examined claimant and diagnosed him with degenerative arthritis of the right index metacarpophalangeal joint. Dr. Vender agreed that claimant's treatment options included a surgical fusion of the MP joint. Although he did not believe claimant could return to work at the time of his evaluation, he opined claimant could do so if he underwent fusion surgery. Dr. Vender also found that it was "very
possible" claimant could work while using a splint.
¶ 32 On October 31, 2013, Dr. Vender authored a report in response to a letter from the employer's counsel. In drafting that report, he reviewed Dr. Cobb's treating records. Dr. Vender testified it was "hard to actually say what restrictions" were appropriate for claimant, stating he had a "very functional hand" but it was "just not as functional as it used to be." He stated claimant's injury would "limit his lifting somewhat with [his injured] hand" but that claimant would be "limited less" if he was able to use a protective splint. Ultimately, at the time of his October 2013 report, he opined claimant could return to full-duty work, either with or without a splint.
¶ 33 Additionally, Dr. Vender did not believe an FCE was necessary for claimant, stating they were too subjective and could be misleading by either underestimating or overestimating an individual's work capabilities. Further, he testified that an FCE was not necessary for claimant because his functional deficits were known and it did not "take much more than common sense to be able to figure out what" claimant could do.
¶ 34 On January 31, 2014, Dr. Vender authored a third report after reviewing the December 2013 FCE performed on claimant. He stated the validity finding on the FCE indicated claimant had a lack of motivation in trying to determine whether he could return to work. He did not feel that the FCE accurately reflected claimant's ability to return to work. Rather, Dr. Vender stated he was not sure that claimant needed any restrictions and opined that he could return to full-duty work.
¶ 35 On March 17, 2014, Dr. Vender evaluated claimant for a second time and drafted a fourth report. On physical examination, he noted swelling and tenderness in and around claimant's right index finger. Dr. Vender stated it was hard to determine whether the swelling would prevent claimant from performing his job duties at full capacity "because [claimant was] not at
the same capacity he was prior to this problem." He stated that although claimant could not lift the same as he previously did, that did not mean "that he's still not capable of lifting what he has to for the job." Dr. Vender opined claimant still had "a very functional hand" and "[i]t would be reasonable for him to go back to work." He stated that if claimant encountered difficulties, those could be identified and "if necessary restricted." Finally, Dr. Vender testified he reviewed both of claimant's FCEs and did not find either one representative of claimant's ability to work.
¶ 36 At arbitration, claimant testified that he did not believe he could return to work for the employer and perform his previous work duties. He noted his job was very physical and shifting his truck required constant use of his right hand and index finger. He also did not believe a splint would help him return to work, stating he did not know if he could "handle" using one and that a splint would "get in the way of [his] shifting."
¶ 37 Claimant testified he was right-hand dominant and had full use of his right hand and fingers prior to his work accident. Following his accidental injury, his hand would swell and was constantly bothering him. Claimant stated he could not do anything without pain, including preparing food for his restaurant, gardening, mowing, or playing with his son. Claimant testified that at the end of an average day, he experienced numbness and tingling at the end of his fingers and pain would shoot up into his elbow. He also experienced pain in the middle of the palm of his hand. The pain would keep him up at night. The more claimant used his hand, the more it would hurt, swell, and cause him discomfort.
¶ 38 The employer presented the testimony of Denice Vogrich, a certified rehabilitation counselor. Vogrich conducted a labor market survey with respect to claimant at the employer's request and prepared a report dated May 12, 2015, as well as an addendum report dated June 29, 2015.
¶ 39 In performing her labor market survey, Vogrich looked at truck driving positions within claimant's abilities and qualifications, as determined by (1) Dr. Vender's evaluation report, expressing the opinion that claimant was able to work full duty without restriction and (2) the job application claimant submitted to the employer, reporting that he had over 15 years of truck driving experience. Although Vogrich also reviewed the results of an FCE study that placed claimant at a light-duty work capacity, she did not take that study into account when performing her survey because she "was not asked to do a Labor Market Survey based on the FCE." Further, she testified that she was unaware of any permanent restrictions given to claimant by Dr. Cobb.
¶ 40 In her labor market survey report, Vogrich listed potential truck driving positions with 16 different employers. She found the hourly wage for those positions ranged from $18.28 to $27.52. Vogrich opined that those truck driving positions were within claimant's abilities and qualifications. Vogrich also opined that claimant could return to work making a similar wage to what he was making prior to his injury.
¶ 41 Vogrich testified that she was aware of the job duties of a truck driver and that duties varied from company to company. She testified "no-touch freight" truck driving jobs existed and described them as "where a driver brings a trailer to another location and drops the trailer" with no loading or unloading of the freight. She stated such jobs involved putting landing gear down and disengaging the trailer from the truck, but asserted such tasks could be completed using one hand. Vogrich opined claimant could perform the tasks required by a "no-touch freight" position. She specifically identified two of the employers listed in her labor market survey as having "no-touch freight" positions—Dart Transportation and Western Express.
¶ 42 Additionally, Vogrich reviewed job search records compiled by claimant. She
stated they did not "seem to be a complete job search record form, or at least one that [she] would utilize with somebody that's conducting a job search." Vogrich specifically noted that for many of the jobs contained in claimant's records, it was "not listed what position was applied for" by claimant. Also, she noted claimant's records listed dates and phone numbers but she could not determine "exactly what [claimant] did" during his job search from looking at his records. Finally, Vogrich testified vocational services were beneficial in assisting someone with finding employment. Whether her services would be a benefit to claimant depended upon his cooperation level.
¶ 43 Claimant testified he began looking for employment on May 15, 2015. He identified an exhibit containing his job search records and stated he sent out a resume and made a follow-up call to every employer listed in the exhibit. Claimant's exhibit indicates he contacted 26 potential employers and the Illinois Department of Human Services, Division of Rehabilitation Services, for assistance with his job search. It also shows that he contacted 13 (all but 3) of the prospective employers listed in Vogrich's labor market survey. According to claimant's records, six of those employers expressly stated that they were unable to accommodate claimant's restrictions or that he did not qualify for the available position. The record indicates claimant also looked for work with various stores, hotels, and fast food restaurants without success.
¶ 44 On cross-examination, claimant testified he was not familiar with "no-touch freight" truck driving jobs. He did not believe those types of jobs existed. Claimant's job search records reflect that he contacted both Dart Transportation and Western Express, the two employers that Vogrich asserted had "no-touch freight" positions. According to claimant's records, both of those employers stated they were unable to accommodate claimant's work restrictions. Additionally, claimant testified he was never offered "a job back" with the employer and, instead, he
was fired from his employment.
¶ 45 Finally, at arbitration, the employer submitted exhibits containing surveillance video of claimant along with investigation reports. The surveillance videos taken on various dates showed claimant sweeping snow off of a roof with a broom, pushing snow through a gutter with a broom handle, carrying items in both of his hands and putting them in a vehicle, using his left hand to wrap wire around his right hand, and spraying a car with a pressure washer wand.
¶ 46 On August 28, 2015, the arbitrator issued his decision in the matter and found claimant sustained a compensable work-related injury and awarded him vocational rehabilitation benefits and maintenance benefits of $469.29 per week, beginning May 15, 2015. In awarding benefits, the arbitrator found claimant's injury caused a reduction in his earning power. He described claimant's work for the employer as a "heavy job" and noted that his injury affected his ability to lift. Further, he found the testimony of both Dr. Cobb and Dr. Vender resulted in a reasonable inference "that some restrictions were needed, along with a modified job." The arbitrator also noted that claimant conducted a "substantial job search," applying for several jobs within a five-week period without being hired.
¶ 47 With respect to the surveillance videos submitted by the employer, the arbitrator noted as follows:
"The videos simply do not demonstrate [claimant] doing any sustained gripping and lifting with the hand while putting the right index finger into positions which the doctors said he could not do. Neither do they indicate that [claimant] is able to exceed the limitations set forth in the FCE of February 13, 2014, which Dr. Cobb adopted as his recommended restrictions. They do not show [claimant] carrying objects over [10] pounds a distance of over [30] feet. They al-
so do not show him lifting over [20] pounds with either or both hands to shoulder level."
¶ 48 On review, the Commission affirmed and adopted the arbitrator's decision without further comment. Further, it remanded the case to the arbitrator pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980), to determine claimant's entitlement to further compensation under the Act, if any. On August 28, 2017, the circuit court of McLean County confirmed the Commission's decision.
¶ 49 This appeal followed.
¶ 50 II. ANALYSIS
¶ 51 A. Manifest Weight of the Evidence
¶ 52 On appeal, the employer challenges the Commission's award of vocational rehabilitation and maintenance benefits as against the manifest weight of the evidence. Relying on Dr. Vender's medical opinion, it maintains claimant's "functional deficiencies are not so great as to preclude him from returning to truck driving." The employer also argues that the surveillance videos, Dr. Cobb's statements regarding claimant's use of a splint, and Vogrich's labor market survey support a finding that claimant was employable and not entitled to benefits as awarded by the Commission.
¶ 53 The Act provides for both physical and vocational rehabilitation, and mandates that an employer pay maintenance costs and expenses incidental to that rehabilitation. Nascote Industries v. Industrial Comm'n, 353 Ill. App. 3d 1067, 1075, 820 N.E.2d 570, 577 (2004). Specifically, the Act provides that "[t]he employer shall *** pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto." 820 ILCS 305/8(a) (West 2012).
¶ 54 "A claimant is generally entitled to vocational rehabilitation when he sustains a work-related injury which causes a reduction in his earning power and there is evidence that rehabilitation will increase his earning capacity." Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1019, 832 N.E.2d 331, 347 (2005) (citing National Tea Co. v. Industrial Comm'n, 97 Ill. 2d 424, 432, 454 N.E.2d 672, 676 (1983)). "Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution." 820 ILCS 305/8(a) (West 2012). Additionally, "rehabilitation efforts may be undertaken even though the extent of the permanent disability cannot yet be determined." Freeman United Coal Mining Co. v. Industrial Comm'n, 318 Ill. App. 3d 170, 180, 741 N.E.2d 1144, 1152 (2000).
¶ 55 Whether a claimant is entitled to vocational rehabilitation and maintenance benefits is for the Commission to decide "and its finding will not be reversed unless it is against the manifest weight of the evidence." W.B. Olson, Inc. v. Workers' Compensation Comm'n, 2012 IL App (1st) 113129WC, ¶ ¶ 31, 39, 981 N.E.2d 25. "In resolving such a question, it is the function of the Commission to judge the credibility of the witnesses, resolve any conflicts in the testimony, and draw reasonable inferences from the evidence presented." Id. ¶ 31. On review, the Commission's decision will not be reversed unless an opposite conclusion is clearly apparent. Id. Further, "[w]here the Commission's decision is supported by competent evidence, its finding is not against the manifest weight of the evidence." Id.
¶ 56 Here, the Commission determined claimant's case was "ripe" for vocational rehabilitation. In so holding, it relied on Dr. Cobb's medical opinions and his adoption of the findings in claimant's February 2014 FCE. It also relied on claimant's testimony regarding his inability to work. Further, the Commission found both Dr. Vender's opinions and Vogrich's testimony un
persuasive. After reviewing the record, we find the Commission's decision is supported by competent evidence and an opposite conclusion is not clearly apparent.
¶ 57 On appeal, the employer does not dispute that claimant sustained a work-related injury to his right index finger. Additionally, the record shows claimant's injury caused continued symptoms in his hand, including pain and swelling. Per both Dr. Cobb and Dr. Vender, claimant's work injury affected his ability to function with his right hand. Although both doctors recommended fusion surgery for claimant, the evidence supports a finding that claimant's psychological issues made him a poor candidate for such a surgery.
¶ 58 As claimant could not undergo surgery, Dr. Cobb recommended an FCE to determine claimant's physical capabilities. Claimant underwent two FCEs. As noted by the Commission, claimant's initial FCE classified his work for the employer as being within the very heavy physical demand level. However, both FCE's described claimant as capable of working within only the light physical demand level. Dr. Cobb adopted the findings of the second FCE, stating it reasonably set forth claimant's physical restrictions, which he deemed permanent. Further, he noted claimant's restrictions would cause claimant to "fall short" of the physical requirements for his delivery driver job duties. As of March 2015, Dr. Cobb deemed vocational rehabilitation a "wise option" for claimant and the record reflects claimant's own job search did not result in employment.
¶ 59 The employer relies on Dr. Vender's medical opinions to support its contention that claimant was capable of returning to work as a truck driver. In fact, Dr. Vender ultimately opined claimant could return to full-duty work either with or without the use of a splint. The Commission's decision indicates, however, that it found Dr. Cobb's opinions more persuasive and that it gave less weight to Dr. Vender, noting it had "trouble reconciling" portions of his tes
timony. Its finding is supported by the record.
¶ 60 Dr. Vender initially recommended fusion surgery for claimant and, at the time of his initial evaluation in February 2013, opined that claimant could not return to work, but could do so if he underwent fusion surgery. He stated claimant could also have "possibly" worked while using a splint. However, by October 2013, Dr. Vender determined claimant could return to full duty, either with or without a splint. He made such a determination although there had been no improvement or real change in claimant's physical condition. Moreover, at the same time, Dr. Vender acknowledged that claimant was "not as functional as he used to be" and expressed that it was "hard to actually say what restrictions" were appropriate for claimant. Further, after being unable to specify claimant's physical deficiencies, Dr. Vender then inconsistently expressed that an FCE was unnecessary for claimant because claimant's functional deficits were known and it did not "take much more than common sense to be able to figure out what" claimant could do. Given Dr. Vender's inconsistencies, it was not error for the Commission to give his opinions little weight.
¶ 61 The employer also challenges the Commission's reliance on Dr. Cobb's opinions based on Dr. Cobb's decision to adopt the findings of claimant's second FCE over the first FCE. It asserts such a decision was "misguided" and complains that Dr. Cobb chose to "ignore" the first FCE in its entirety. However, at his deposition, Dr. Cobb explained his decision and provided a sufficient and logical basis for adopting the findings of claimant's February 2014 FCE. He noted the initial FCE showed variability in claimant's "validity testing relative to effort," which suggested it was not accurate. Dr. Cobb explained that a patient could "fail a validity testing" due to significant pain causing them to self limit. The therapist who performed claimant's second FCE determined it was valid and did not have the same validity concerns. Dr. Cobb knew the
therapist who performed the second FCE and described him as experienced and good at his job.
¶ 62 As indicated, it was within the province of the Commission to determine the weight to be given to the medical opinion evidence. Here, the Commission committed no error in finding Dr. Cobb's opinions more persuasive than those offered by Dr. Vender.
¶ 63 Next, the employer suggests that the Commission's award of vocational rehabilitation and maintenance benefits was in error because "Dr. Cobb admitted on cross-examination that [claimant] should be functionally capable of more than the findings on the second FCE if he were to utilize his splint." At his deposition, Dr. Cobb specifically testified that aspects of claimant's functional abilities could be enhanced by use of his splint, but that they could also be inhibited "because the splint's going to limit motion." Further, he set forth the differences between fusion surgery—which he opined created a "reasonably good chance" that claimant could return to full-duty work—and the use of a splint to simulate a fusion. In particular, Dr. Cobb noted that with the use of only a splint, claimant would "still have an arthritic, unstable[,] painful joint" that would create discomfort. Thus, to the extent the employer argues Dr. Cobb's testimony established that claimant was capable of returning to his regular work duties with the use of a splint, we disagree.
¶ 64 The employer further argues that the surveillance videos it submitted at arbitration contradicted claimant's description of his condition both to Dr. Cobb and at arbitration. Again, we disagree. First, as noted by the Commission, although the surveillance videos showed claimant using his right hand, they did not demonstrate that he was exceeding his physical capabilities as determined by the February 2014 FCE or Dr. Cobb. Second, Dr. Cobb's testimony indicated claimant's symptoms and right hand functionality might fluctuate. He testified claimant's functional capacity "depend[ed] on how [claimant] happens to be functioning on any given day." He
also noted in his medical records that rest lessened claimant's symptoms while activity made them worse. Thus, it is reasonable to infer that claimant's ability to use his right hand at any one moment in time is not necessarily representative of his overall functional capacity. Accordingly, the surveillance footage does not warrant reversal of the Commission's decision.
¶ 65 Finally, the employer relies on Vogrich's labor market survey to establish that claimant was employable even "within the unnecessary restrictions provided by his treating doctor." It notes that Vogrich identified "no-touch freight" jobs that would have been within claimant's work restrictions. Importantly, however, claimant's job search records indicate he contacted the two prospective employers that Vogrich identified as having "no-touch freight" positions and, according to claimant, both of those employers reported that they were unable to accommodate his work restrictions.
¶ 66 Here, the record contains sufficient evidence from which the Commission could find that claimant sustained a work-related injury that caused a reduction in his earning power and that rehabilitation would increase his earning power. Therefore, the Commission's award of vocational rehabilitation and maintenance benefits was not against the manifest weight of the evidence.
¶ 67 B. Section 19(d)
¶ 68 On appeal, the employer also argues section 19(d) of the Act (820 ILCS 305/19(d) (West 2012)) precluded an award of vocational rehabilitation and maintenance benefits to claimant due to his refusal to undergo fusion surgery or to work with an assistive splint. Under that section, the Commission "may, in its discretion, reduce or suspend the compensation of any *** injured employee" if the employee refuses to submit to "medical, surgical, or hospital treatment as is reasonably essential to promote [the employee's] recovery." Id.
¶ 69 "If a claimant's response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer's damages." Rockford Clutch Division, Borg-Warner Corp. v. Industrial Comm'n, 34 Ill.2d 240, 247-48, 215 N.E.2d 209, 212 (1966). Thus, the question "is whether the course of treatment chosen by claimant was unreasonable." Bob Red Remodeling, Inc. v. Illinois Workers Compensation Comm'n, 2014 IL App (1st) 130974WC, ¶ 43, 23 N.E.3d 1248. Ultimately, the "issue presents a question of fact, which we review using the manifest-weight standard." Id.
¶ 70 Here, claimant presented evidence that he suffered from significant psychological issues and would be unable to tolerate the results of fusion surgery. Based on those issues, Dr. Cobb opined claimant was not a good candidate for a fusion. Thus, the record does not support a finding that claimant refused surgical treatment. Rather it shows such treatment was not recommended due to claimant's mental health issues.
¶ 71 Further, the evidence shows claimant was given a splint to help stabilize his finger and simulate a fusion. Contrary to the employer's arguments, the record reflects claimant wore the splint but testified his anxiety and pain continued. Additionally, claimant was terminated from his position with the employer, and the record contains no evidence that he refused to attempt work with the aid of a splint or any offers of employment.
¶ 72 Given the facts presented, section 19(d) did not preclude the Commission's award of vocational rehabilitation or maintenance benefits. The employer's arguments are without merit.
¶ 73 III. CONCLUSION
¶ 74 For the reasons stated, we affirm the circuit court's judgment, which confirmed the Commission's decision, and remand for a determination of claimant's entitlement to further
compensation, if any, pursuant to Thomas, 78 Ill. 2d 327.
¶ 75 Affirmed and remanded.