Opinion
1-21-0829
09-16-2022
KIMBERLY CURREY, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (New Ashley Stewart, Inc., Appellees).
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 Cook County, Illinois Circuit No. 2019-L-050476 Honorable John J. Curry, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
HOLDRIDGE PRESIDING JUSTICE
¶ 1 (1) The Commission's finding the prospective surgery recommended by her physician was not compensable was not against the manifest weight of the evidence; (2) the Commission's finding that the claimant was not entitled to maintenance benefits was not against he manifest weight of the evidence.
¶ 2 The claimant, Kimberly Currey, filed a claim for benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)) against the respondent, New Ashley Stewart, Inc. (employer), seeking benefits for injuries that she sustained to her right arm and shoulder on June 29, 2012, while working for the employer. The parties stipulated that the claimant suffered a work-related accident on that date, but disputed the amount of temporary total disability (TTD) benefits owed to the claimant, whether the claimant's current condition of ill-being was causally related to the accident, and whether the claimant was entitled to prospective medical care in the form of a surgical procedure recommended by her treating physician.
¶ 3 After conducting a hearing, Arbitrator Steffen awarded the claimant TTD benefits from July 2, 2012, until the date she began working part time for another employer, and maintenance benefits from that date through January 12, 2015. The arbitrator found that the claimant had reached MMI on January 18, 2015, and that the claimant had failed to prove that her condition of ill-being after that date was causally connected to her work accident. The arbitrator therefore denied prospective medical care and related expenses incurred after that date.
¶ 4 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission). A majority of the Commissioners (Commissioners Coppoletti and Portela) modified the arbitrator's decision in part and affirmed it in part. Specifically, the Commission found that the claimant's current condition of ill-being is causally related to her June 29, 2012, work accident. However, it found that the surgery recommended by the claimant's treating physician was neither reasonable nor necessary. The Commission denied the claimant's claim for medical treatment and related expenses after January 12, 2015, (the date on which claimant had reached maximum medical improvement (MMI), according to the Commission). The Commission also vacated the arbitrator's award of maintenance benefits and awarded the claimant temporary partial disability (TPD) benefits from January 2, 2013, through January 12, 2015. It affirmed and adopted the arbitrator's decision in all other respects.
¶ 5 Commissioner Tyrrell dissented. Commissioner Tyrrell concluded that the claimant was in need of ongoing medical treatment as a result of her June 29, 2012, work accident, and he did not agree that she had reached MMI. He found the treatments recommended by the claimant's doctor to be reasonable, necessary, and causally related to the work accident. Accordingly, Commissioner Tyrrell would have awarded the claimant prospective medical expenses and ongoing TTD benefits.
¶ 6 The claimant sought judicial review of the Commission's decision in the circuit court of Cook County, which confirmed the Commission's decision.
¶ 7 This appeal followed.
¶ 8 FACTS
¶ 9 The employer is a retail clothing store. The claimant worked for the employer as a sales associate and assistant manager. Her job duties included making daily bank deposits.
¶ 10 On June 29, 2012, the claimant left her employer's premises to make a bank deposit. On her way out the door, an assailant attacked her from behind and snatched her purse off of her right shoulder, running off with the store's money. The purse had a thick rubbery cording inside of it, so the assailant pulled down extremely hard when he grabbed the purse. Police later arrived and the claimant began writing up a report. As she wrote, she noticed that her right arm started hurting.
¶ 11 Later that day, the claimant noticed that the pain kept getting more severe, so she went to the emergency room at St. Margaret Mercy Hospital for treatment. She was assessed with a shoulder strain and released with restrictions of no use of the right arm.
¶ 12 The claimant returned to the ER on July 2, 2012, complaining of continued pain. She was treated by Dr. Anthony Wilko, an orthopedist. Dr. Wilko noted that the claimant had not sustained injuries to her right upper arm prior to the January 29, 2012, work accident. On examination, the claimant reported pain and exhibited a decreased range of motion with external rotation of the arm. Dr. Wilko noted that the claimant may have a rotator cuff tear and told her to see an orthopedist. In his treatment record, Dr. Wilko indicated that the injury mechanism was a pulled limb and that "the injury was related to work."
¶ 13 On July 31, 2012, the claimant presented to the St. Francis Health Services Orthopedic Clinic for follow-up. On examination, she exhibited tenderness along the anterior right shoulder near the long head of the biceps tendon, with limited right arm range of motion, positive lift-off test, and decreased strength during internal rotation. She was assessed with a right shoulder strain and instructed to continue home exercises.
¶ 14 On August 20, 2012, the claimant underwent an MRI of the cervical spine which disclosed a disk herniation at C5-6.
¶ 15 On September 5, 2012, the claimant presented to Dr. Joseph Schwartz at Bone & Joint Specialists. She complained of right-sided shoulder and neck pain, with cramping and spasms progressing down her whole arm. She also reported numbness progressing from her right elbow down into her pinky and ring finger. On examination, Dr. Schwartz noted that the range of motion of the claimant's right shoulder was "quite limited," and that range of motion of the claimant's neck was somewhat limited. Dr. Schwartz reviewed the MRI and concluded that it revealed supraspinatus tendinosis with a possible partial-thickness tear, as well as disk herniation and thecal compression at C5-C6. He assessed the claimant with neck and right shoulder pain with rotator cuff tendinosis, and numbness in the ulnar nerve distribution. Dr. Schwartz performed an injection and referred the claimant for nerve conduction studies.
¶ 16 Dr. Schwartz subsequently referred the claimant to Dr. Zeshan Hydar, an orthopedic surgeon, for a neck evaluation. Dr. Hydar referred the claimant to Dr. Shaun Kondamuri, a pain management specialist, at Midwest Interventional Spine Specialists. After performing a nerve root block injection at C5-C6, Dr. Kondamuri diagnosed cervical radiculopathy, a left-center cervical disk herniation at C5-C6, and "right upper extremity pain presumably related to the above."
¶ 17 On November 12, 2012, Dr. Hydar performed a cervical discectomy and fusion at C5-C6 to treat the claimant's cervical radicular symptoms. During a subsequent follow-up appointment on January 8, 2013, the claimant reported that she was doing well. However, reported right shoulder pain on February 7, 2013 after "overdoing it" during physical therapy.
¶ 18 On February 18, 2013, the claimant underwent a CT scan of the cervical spine. The radiologist opined that the fusion "appear[ed] satisfactory." Three days later, the claimant underwent an EMG nerve conduction study which disclosed mild evidence of right sided carpal tunnel syndrome. On February 28, 2013, Dr. Schwartz opined that the claimant's symptoms were no longer originating from her neck, and he referred her to an upper arm specialist for further treatment.
¶ 19 On March 7, 2013, the claimant returned to Dr. Schwartz. She reported that her right arm began hurting her several weeks earlier and that the pain had been continuous ever since, worse with activity and with a popping sensation during passive motion. Dr. Schwartz reviewed her MRI and opined that it showed rotator cuff tendinosis with partial-thickness tearing of the supraspinatus. He recommended right shoulder arthroscopic surgery to address the damage.
¶ 20 On April 5, 2013, the claimant underwent a right shoulder arthroscopic rotator cuff repair and subacromial decompression. During the procedure, Dr. Schwartz observed a small tear in the anterior portion of the supraspinatus tendon, as well as a crescent-shaped tear in the subacromial space, both of which he sutured.
¶ 21 On June 6, 2013, the claimant returned to Dr. Schwartz for a follow-up appointment. She told Dr. Schwartz that, although her right shoulder pain had improved since the surgery, it still felt stiff. She further reported that the numbness and spasms in her pinky and ring finger, which went away during the two months following her cervical fusion surgery, had returned and were increasing in frequency and severity. Dr. Schwartz believed that she might be suffering from cubital tunnel syndrome, and he performed a right cubital tunnel injection. The injection gave the claimant relief for two weeks, after which the tingling from her elbow into her fourth and fifth digits returned and persisted over the ensuing months.
¶ 22 On October 16, 2013, the claimant underwent a Section 12 examination with Dr. Mark Cohen. She complained of constant tingling and numbness in her pinky and ring finger. After examining the claimant, Dr. Cohen opined that her condition was causally related to her work accident.
¶ 23 The claimant returned to Dr. Schwartz on January 8, 2014. She complained of right shoulder pain and occasional spasms which made it difficult to write, type, and use a vacuum cleaner. Dr. Schwartz recommended that the claimant undergo a cubital tunnel release, which she did on January 17, 2014. The following month, the claimant followed up with Dr. Schwartz and reported numbness in her right elbow. Dr. Schwartz put her on light clerical duty and instructed her to continue physical therapy.
¶ 24 On June 10, 2014, the claimant underwent a functional capacity evaluation (FCE). She was assessed to be capable of light-duty work. She was given permanent restrictions of no lifting or carrying more than 13 pounds occasionally, no lifting or carrying more than 5 pounds constantly, and limited overhead use of the right arm. Thereafter, the employer terminated the claimant's employment.
¶ 25 On June 18, 2014, Dr. Schwartz concluded that the clamant had reached MMI and discharged her from care.
¶ 26 On August 25, 2014, the claimant began treatment with Dr. Howard Freedberg, an orthopedic surgeon. At that time, she reported experiencing pain and stiffness in her neck, right shoulder, right elbow, and right hand as well as stiffness. Dr. Freedberg ordered an MRI arthrogram and an EMG. On September 5, 2014, the claimant underwent an MRI arthrogram of the right shoulder which disclosed undersurface thinning of the supraspinatus involving up to 50% of the tendon thickness, without a full-thickness tear.
¶ 27 On September 10, 2014, the claimant returned to Dr. Freedberg complaining of continued neck stiffness, pain in her right shoulder, and shooting pains from her right elbow into the fourth and fifth digits of her right hand with associated tingling and numbness. Dr. Freedberg gave her a triamcinolone injection in her right shoulder. He maintained the claimant at light duty and instructed her to follow up following a bilateral upper arm EMG.
¶ 28 When the claimant returned to Dr. Freedberg on November 19, 2014, she reported feeling substantial relief of her right shoulder symptoms for three to four weeks after the injection. Thereafter, she experienced neck cramping and pain radiating into her shoulder, and shoulder pain radiating down into her arm and fingertips. On examination, Dr. Freedberg noted tenderness to palpation over the cervical spinous process and pain with right shoulder movement, among other symptoms. He discussed surgery with the claimant, recommending a right shoulder arthroscopic rotator cuff repair, subacromial decompression, biceps "tenotomy vs. tenodesis," and possible distal clavicle excision. The claimant elected to proceed with the surgery.
¶ 29 On January 12, 2015, the claimant was examined by Dr. Lawrence Lieber, an orthopedic surgeon who served as the employer's section 12 medical examiner. Upon physical examination, Dr. Lieber noted decreased strength in the claimant's right shoulder, tenderness to palpation in the right shoulder, and right shoulder range of motion decreased secondary to pain, among other symptoms. He noted that the claimant showed evidence of "significant restrictions to the right shoulder area upper extremity concerning range of motion, strength, pain, and discomfort."
¶ 30 Dr. Lieber reviewed the claimant's medical records. He interpreted the August 20, 2012, MRI of the claimant's cervical spine as showing "mild disk herniation at C5-C6." He read the August 20, 2012, MRI of the claimant's right shoulder as revealing "evidence of minor supraspinatus tendinitis" with an associated tear bursal inflammation. He interpreted the September 5, 2014, right shoulder MRI as showing "thinning of the rotator cuff supraspinatus area, but no evidence of any complete full-thickness tear."
¶ 31 Dr. Lieber opined that the claimant's treatment to date "appear[ed] to have been reasonable and necessary based upon the [claimant's] subjective complaints." He noted that it appeared that there was "somewhat of [an] indication for surgical intervention of the right shoulder area, based upon the diagnostic findings of the MRI confirmed via surgical intervention." However, Dr. Lieber opined that the claimant's current complaints did not require any further treatment and that the claimant had reached MMI from the work accident as of June 18, 2014, the date that Dr. Schwartz found her to be at MMI and released her from care. Dr. Lieber noted that the claimant showed evidence of "some pre-existing degenerative abnormalities that may be symptomatic at this point," but he opined that "there is no evidence of any significant aggravation of any preexisting abnormalities that can be associated with the work event of June 29, 2012."
¶ 32 On May 1, 2015, Dr. Lieber authored an addendum to his report addressing new medical records, including Dr. Freedberg's records, an EMG performed on January 7, 2015, an MRI of the claimant's right shoulder performed on September 7, 2014, and the claimant's physical therapists' notes from June of 2014. Based on his review of these records, Dr. Lieber opined that the objective findings show the claimant sustained a soft tissue injury to her cervical spine and her left upper arm, and a "minor rotator cuff tear" to her "right shoulder upper extremity area," associated with the June 29, 2012, work accident. However, he opined that the claimant's current subjective complaints were not consistent with either the June 29, 2012 work injury, as well as the subsequent treatment and diagnostic studies. Dr. Lieber concluded that "[o]verall, [the] diagnostic studies show stabilization of [the claimant's] isolated injuries from a surgical standpoint, as well as an objective standpoint noted via EMG as well as MRI arthrogram of the shoulder in September 2014." He opined that there is no causal connection between the claimant's potential current need for medical treatment and the June 29, 2012, work accident.
¶ 33 On February 17, 2016, the claimant returned to Dr. Freedberg reporting neck achiness and constant, severe pain in her right shoulder and arm with a burning sensation and radiation from the shoulder down the arm, as well as limited range of motion. She complained of spasms in her arm that could get so bad that she would be unable to move her arm at all. The claimant also reported constant, nagging pain in her elbow, with occasional sharp pains with movement and throbbing in her pinky and ring finger. On examination, she continued to exhibit positive tenderness to palpation over the cervical spine and elbow, with diffuse tenderness in the right shoulder and limited right arm range of motion. Dr. Freedberg recommended right shoulder arthroscopic surgery.
¶ 34 When the claimant followed up with Dr. Freedberg on March 23, 2016, her symptoms were unchanged. In his medical record of that visit, Dr. Freedberg noted that he had read Dr. Lieber's initial IME report and addendum and that he disagreed with Dr. Liber's conclusions. Dr. Freedberg wrote that he "absolutely disagree[d]" with Dr. Lieber and that it was "absolutely" his opinion that the claimant's current condition of ill-being is causally connected to the June 29, 2012, work accident. Dr. Freedberg further stated that "[i]t is no surprise to me that Dr. Lieber denied the causation as in all my years and having read many reports from this doctor he has NEVER agreed with causation in any patient according to my experience."
¶ 35 On September 14, 2016, Dr. Freedberg authored a letter further addressing Dr. Lieber's IME reports. In the letter, Dr. Freedberg reiterated that he "absolutely disagreed" with Dr. Lieber's conclusions. He opined that that the treatment at issue was "without question *** necessitated from the accident in question." Addressing Dr. Lieber's opinions that the claimant's current condition was not causally related to the work accident and that she had reached MMI, Dr. Freedberg wrote: "There is no question from the time that I have reviewed and evaluated this patient that that is clearly not a true statement. That is clearly inaccurate information based off the patient's presentation." Dr. Freedberg opined that "clearly, at this time, [the claimant] is in need for more treatment" and that "[t]here is no question in my mind within a reasonable degree of medical and orthopedic certainty that there is a positive causal relationship between the shoulder, elbow, cervical spine and shoulder complaints and the current conditions due to the work-related injury as so described." Dr. Freedberg noted that he felt "very strongly" about these opinions.
¶ 36 On November 8, 2016, Dr. Freedberg testified at an evidence deposition. He opined that, based upon a reasonable degree of medical and surgical certainty, the June 29, 2012, work accident was a cause or contributing factor for the claimant's conditions of ill-being in her cervical spine, right shoulder, elbow, and hand. Dr. Freedberg stated that the mechanics of the work injury causally contributed to all of the conditions for which the claimant had sought treatment. Specifically, he opined that, when the claimant's purse was pulled off her shoulder, breaking the strap, "her whole right upper extremity was tractioned, [a]nd that, in itself, is a mechanism that's potentially a complete reason to cause the cervical, shoulder, [and] elbow problems that she has experienced." Dr. Freedberg further noted that the claimant had had "continuity of care" from the date of the accident through his entire treatment of the claimant. He further opined that the claimant had "pathology that has been elucidated from the MRIs as well as from the EMG test that was done on January 7th of 2015."
¶ 37 Dr. Freedberg testified that he disagreed with the conclusions of Dr. Lieber and that he found Dr. Lieber's Section 12 reports be contradictory. Specifically, he noted that, in his initial report, Dr. Lieber stated that the claimant had problems of the upper arm and opined that the treatments for that condition had been reasonable and necessary. However, in his addendum report, Dr. Lieber opined that the claimant's complaints are not consistent with the work injury, that no treatment is necessary, and that there is no causal connection between the current need for treatment and the work injury. Dr. Freedberg stated that he did not understand that part of Dr. Lieber's conclusion because the claimant had "never gotten better."
¶ 38 Dr. Freedberg testified that he recommended an arthroscopic procedure to evaluate the claimant's rotator cuff and see if it needs to be re-repaired, to evaluate the claimant's biceps, and to resect about eight millimeters in her acromioclavicular joint. He stated that he believed that the claimant had pain emanating from her rotator cuff as well as from her biceps tendon. He testified that he would need an arthroscopy to determine how bad the damage is, as MRIs typically do not image these things very well. Dr. Freedberg opined that failure to address biceps tendon issues is a not-uncommon cause of failure in shoulder surgeries. He further testified that, while cervical spine and shoulder pathologies can have overlapping symptoms, his physical examinations revealed both shoulder problems and, independently, neck problems. He opined that the claimant could get better from this surgery and that it would hopefully improve her clinical condition, alleviate her symptoms, and improve her quality of life.
¶ 39 On December 7, 2016, Dr. Lieber testified at an evidence deposition. Dr. Lieber did not have a clear recollection of the claimant, and he relied upon his reports during the deposition. He acknowledged that the claimant showed decreased range of motion and weakness in her right shoulder as well as impingement syndrome and other deficits. He noted that these are objective findings, but that they can be affected by pain.
¶ 40 Dr. Lieber opined that the claimant's work accident caused the condition that Dr. Schwartz treated trough surgery. He further opined that the claimant's treatment was reasonable and necessary up through June 16, 2014. However, he concluded that the claimant required no further treatment after that time. Dr. Lieber testified that his opinions did not change after he saw the EMG reports of January 7, 2015, the right shoulder MRI of September 7, 2014, and Dr. Freedberg's records. Dr. Lieber continued to believe that the claimant does not need additional surgery. He testified that "[t]here's no objective evidence on any of the diagnostic studies *** directed by Dr. Freedberg or other physicians" indicating that the claimant has any abnormality that would warrant surgery on her right shoulder. He opined that the January 7, 2015, EMG showed normal nerve function and the September 7, 2014, MRI was normal. Although Dr. Lieber conceded that he claimant "certainly" had an abnormal MRI in that she had she had had prior neck surgery, prior shoulder surgery and a cubital tunnel release, he opined that the MRI was "normal from the standpoint that [he] didn't feel she had any new acute pathology" that would justify further surgical intervention. Dr. Lieber agreed that the September 2014 MRI showed thinning of the supraspinatus area of the rotator cuff. He testified that, due to the prior rotator cuff surgery, "the rotator cuff is going to be slightly abnormal." However, Dr. Lieber opined that it was "normal from the standpoint that [he] didn't see a surgical lesion."
¶ 41 Dr. Lieber further opined that the claimant's symptoms after the initial shoulder surgery were not consistent with the objective evidence, including the diagnostic studies. When asked whether the claimant's reports of pain in her right arm and shoulder after the initial surgery were "real or fake," Dr. Lieber responded that the claimant was "pretty functional" and that all of the objective criteria that were utilized by her treating physicians suggested that nothing was wrong. He stated that, when someone is complaining about pain and considering surgery when all the objective evidence is normal, he begins to wonder whether there is "some malingering going on." Dr. Lieber conceded that the claimant had a cervical spine problem and degenerative disk disease. However, he opined that she "had successful surgery on both those areas." He stated that he was not surprised that the claimant might be "somewhat symptomatic," but he opined that "there's not enough there to add up to the severity that she's complaining [sic]"
¶ 42 Dr. Lieber was asked whether Dr. Schwartz had looked at the claimant's biceps tendon. Dr. Lieber stated that, if Dr. Schwartz did an arthroscopic evaluation of the claimant's shoulder, "by definition" he looked at the biceps tendon.
¶ 43 The claimant testified that, if Dr. Freedberg's proposed surgery were authorized, she would have the surgery. As of the date of hearing, the claimant testified that she still has pain and tingling in her right shoulder and in the last two fingers on her right hand. She has problems resting and cannot get out of her clothes at night without the assistance of her daughter or without cutting them off. She also has problems writing, lifting things, and carrying things on her shoulder.
¶ 44 The claimant testified that she looked for administrative work and retail work within her restrictions. She stated that she applied for social security disability benefits, which she was awarded on December 19, 2014. However, she testified that she continued to look for work while collecting social security. In March 2013, the claimant began working in day care at Treadstone Baptist Church. The job involved answering phone calls between 20 and 25 hours a week. She made $12 an hour. The claimant testified that she was limited by social security in how many hours she could work.
¶ 45 The arbitrator awarded the claimant TTD from July 2, 2012, until the day in 2013 when she began working at Treadstone Baptist Church, and maintenance benefits from that time until January 12, 2015. The arbitrator found that the claimant had reached MMI on January 18, 2015, and that the claimant had failed to prove that her condition of ill-being after that date was causally connected to her work accident. The arbitrator therefore denied prospective medical care and maintenance after that date.
¶ 46 The claimant appealed the arbitrator's decision to the Commission, which modified the arbitrator's decision in part and affirmed it in part. The Commission found that the claimant's current conditions of ill-being (including her post-surgical complaints of pain in her right shoulder) were causally related to her June 29, 2012, work accident. However, it found that the right shoulder surgery recommended by Dr. Freedberg was neither reasonable nor necessary. The Commission stated that Dr. Freedberg is recommending further surgery "specifically to address [the claimant's] biceps tendon based primarily upon [the claimant's] ongoing subjective complaints of pain," and that Dr. Freedberg "opined this recommendation was based upon the objective testing specifically the EMG and MRI." The Commission majority found, however, that neither of those tests "evidence any actual pathology." The Commission found that the EMG performed on January 7, 2015, shows "absolutely no shoulder pathology but instead indicates bilateral carpal tunnel syndrome and right sided ulnar neuropathy." It further concluded that the September 7, 2014, MRI evidences "no recurrent rotator cuff tear, and in fact, confirms an intact biceps tendon."
¶ 47 The Commission stated that Dr. Freedberg was recommending additional surgery because, in his opinion, shoulder surgeries performed by other doctors frequently fail "because the biceps is not addressed." The Commission suggested that this recommendation was contradicted by the fact that the claimant had recovered well from the prior surgery performed by Dr. Schwartz. The Commission noted that Dr. Freedberg "dismiss[ed] Dr. Schwartz's treatment and the accuracy of his medical records" because, in his words, "some surgeons egos are too grandiose for their own good," rendering them unwilling to accept that the surgery they performed was unsuccessful. The Commission rejected this opinion, noting that Dr. Freedberg acknowledged that he neither possessed nor recalled the contents of Dr. Schwartz's records and admitted that he was "guessing."
¶ 48 The Commission noted that, unlike Dr. Freedberg, Dr. Lieber reviewed a complete set of the claimant's medical records along with the MRI report and films. Dr. Lieber opined that the objective tests did not evidence abnormal pathology and, therefore, surgical intervention is not warranted. The Commission stated that, "[c]onsistent with the records of Dr. Schwartz, Dr. Lieber found [the claimant] underwent a successful shoulder surgery resulting in residual complaints, but such complaints do not warrant additional surgical intervention." The Commission afforded greater weight to the opinions of Dr. Lieber over those of Dr. Freedberg and denied the surgical treatment proposed by Dr. Freedberg, finding it to be neither reasonable nor necessary. In addition, based on Dr. Lieber's opinion, which the Commission found to be "wholly consistent" with Dr. Schwartz's opinions, the Commission found that the claimant had reached MMI on January 12, 2015.
¶ 49 The Commission affirmed the arbitrator's award of TTD from July 2, 2012, through January 1, 2013. However, it vacated the arbitrator's award of maintenance benefits and instead awarded TPD benefits from January 2, 2013, through January 12, 2015, the date that it found the claimant had reached MMI. The Commission noted that the Act entitled a claimant to maintenance benefits only while a claimant is engaged in a "rehabilitation program," such as physical rehabilitation, formal job training, or "a self-directed job search." The Commission found that "[i]t is uncontroverted that [the claimant] has not and is not engaged in a vocational rehabilitation program." The Commission stated that, "to the contrary, [the claimant] testified she was granted social security disability benefits on December 19, 2014" and attempted to supplement those benefits by working part time for Treadstone Baptist Church daycare. Moreover, the Commission noted that the claimant testified she was limited by her social security disability award regarding the hours she could work. For these reasons, the Commission found that the claimant is not entitled to maintenance under Section 8(a) and vacated the arbitrator's award of maintenance. The Commission affirmed and adopted the arbitrator's decision in all other respects.
¶ 50 Commissioner Tyrrell dissented. Commissioner Tyrrell concluded that the claimant was in need of ongoing medical treatment as a result of her June 29, 2012, work accident. He did not agree that her condition had stabilized or that she had reached MMI. He noted that the claimant continues to have significant complaints relative to her right shoulder. He noted that Dr. Freedberg's testimony refuted Dr. Lieber's causation opinion, his finding of MMI, and his claim that the claimant needed no further treatment. He found Dr. Freedberg's testimony on those issues to be persuasive. He further concluded that the Commission's reliance upon the opinion of "hired gun Dr. Lieber" was misplaced. Arbitrator Tyrrell believed that Dr. Freedberg's recommendation for arthroscopic surgery "to see what needs to be repaired" was reasonable, necessary, and causally related to the work accident. Accordingly, Commissioner Tyrrell would have awarded the claimant prospective medical expenses and ongoing TTD benefits.
¶ 51 The claimant sought judicial review of the Commission's decision in the circuit court of Cook County, which confirmed the Commission's decision. The circuit court rejected the claimant's argument that the thinning of the supraspinatus tendon in her right shoulder revealed in the September 7, 2014, MRI constituted sufficient pathology to require the surgery recommended by Dr. Freedberg. The circuit court concluded that" 'thinning' is not equal to a 'tear,'" and because there was no evidence of a tear in the rotator cuff, the Commission had properly considered Dr. Lieber's opinions that the claimant had achieved MMI and that no further treatment was justified. The circuit court found that the claimant failed to identify evidence in the record requiring the conclusion that the thinning of the tendon constitutes a condition of pathology that necessitates the arthroscopic treatment and other procedures recommended by Dr. Freedberg. According, the circuit court found that the Commission's finding of MMI was not against the manifest weight of the evidence.
¶ 52 The circuit court further concluded that Dr. Lieber did not contradict himself by acknowledging evidence of an "abnormal" condition in the September 2014 MRI because he related the abnormality "to a by-product of the procedure performed by Dr. Schwartz," which could be be consistent with Dr. Lieber's finding of MMI. Moreover, the circuit court found that Dr. Lieber's observation that the abnormal condition may have been a by-product of Dr. Schwartz's surgery "does not negate the fact that a thinning, and not a tear, is the most extreme condition uncovered by the 2014 MRI." Because thinning alone was the most aggravated objective finding, the Commission adopted Dr. Schwartz's and Dr. Lieber's findings of MMI. The circuit court held that the claimant failed to "firmly identify the existence of objective findings in the medical record which compel a contrary finding that further treatment is necessary." The circuit court stated that "sufficient objective findings must exist to warrant further medical treatment." It suggested that the fact that claimant continued to have subjective pain complaints after her shoulder surgery does not suffice. Moreover, the circuit court found it "notable" that Dr. Freedberg did not examine (or could not recall or reference) Dr. Schwartz's records and findings, whereas Dr. Lieber examined the entire medical record, including the records of Drs. Schwartz and Freedberg.
¶ 53 The circuit court held that "this case is not one in which no rational trier of fact would have agreed with the Commission's decision." It found that the Commission's decision to deny the surgery recommended by Dr. Freedberg was not against the manifest weight of the evidence.
¶ 54 The circuit court also upheld the Commission's denial of maintenance benefits. It rejected the claimant's argument that her uncorroborated testimony regarding her self-directed job search entitled her to maintenance benefits. The circuit court noted that the claimant had applied for and obtained social security disability benefits and had admitted that, as a result, she could not work more than a certain number of hours per week. Accordingly, the claimant worked part-time at Treadstone Baptist Church to supplement her income. The circuit court noted that the claimant failed to address these issues in her argument. Accordingly, the circuit court found that the Commission's decision denying maintenance benefits was not against the manifest weight of the evidence.
¶ 55 This appeal followed.
¶ 56 ANALYSIS
¶ 57 1. Prospective Medical Care
¶ 58 The claimant argues that the Commission's denial of the shoulder surgery recommended by Dr. Freedberg is based upon factual errors and is against the manifest weight of the evidence. As an initial matter, the claimant argues that we should deem the employer's arguments on this issue waived because only one of those arguments was supported by citations to the record. We disagree. The employer includes citations to most of its arguments, and the few arguments that lack supporting citation are mostly characterizations of the Commission's findings. The employer often cites generically to exhibit numbers without including the specific page numbers within those exhibits to which it is citing. That is improper, and we caution the employer to include more specific record citations in future briefs filed in this court. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (providing that the argument section of a brief "shall contain the contentions of the [party] and the reasons therefor, with citation of the authorities and the pages of the record relied on." (Emphasis added)). However, in this case, the citations that the employer provided allowed us to identify the specific pages relied upon with relative ease. In any event, the doctrine of waiver is a limitation upon the parties and not a restriction upon a reviewing court. Roper Contracting v. Industrial Comm'n, 349 Ill.App.3d 500, 505 (2004). We will therefore consider the merits of the employer's arguments. See id.; Sinclair v. Berlin, 325 Ill.App.3d 458, 468-69 (2001) (reaching merits of contention despite party's failure to comply with Rule 341(e)(7)).
¶ 59 Section 8(a) of the Act requires an employer to pay for medical and surgical services and expenses which are "reasonably required to cure or relieve from the effects of the accidental injury." 820 ILCS 305/(8)(a) (West 2012); F & B Manufacturing Co., 325 Ill.App. At 534 ("Under Section 8(a) of the Act, the claimant is entitled to recover reasonable medical expenses that are causally related to the accident and that are determined to be required to diagnose, relieve, or cure the effects of claimant's injury.").
¶ 60 The claimant has the burden of proving that the medical services and expenses is seeks are reasonable and necessary. Homebrite Ace Hardware v. Industrial Comm'n, 351 Ill.App.3d 333, 337 (2004). What is reasonable and necessary is a question of fact for the Commission. Id.; F & B Manufacturing Co., 325 Ill.App.3d at 534. In resolving disputed issues of fact, it is the Commission's province to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine what weight to give testimony, and resolve conflicts in the evidence, including conflicting expert testimony. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill.App.3d 665, 675 (2009). We will overturn the Commission's finding only when it is against the manifest weight of the evidence. Id.; F & B Manufacturing Co., 325 Ill. .App. 3d at 534. A factual finding is against the manifest weight of the evidence only if the opposite conclusion is "clearly apparent." Swartz v. Industrial Comm'n, 359 Ill.App.3d 1083, 1086 (2005). 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). Put another way, we may reverse a factual finding made by the Commission only "when no rational trier of fact could have agreed with the [Commission]." Durand v. Industrial Comm'n, 224 Ill.2d 53, 64 (2006).
¶ 61 Applying these deferential standards, we cannot say that the Commission's refusal to award the arthroscopic shoulder surgery recommended by Dr. Freedberg was against the manifest weight of the evidence. Dr. Lieber opined that the thinning of the supraspinatus area of the claimant's rotator cuff, while "abnormal," did not necessitate any surgical intervention. Dr. Lieber further opined that the symptoms that the claimant reported after the initial shoulder surgery were not consistent with the diagnostic studies. He concluded that that the claimant was "pretty functional" and that all of the objective criteria that were utilized by her treating physicians suggested that nothing was wrong. Dr. Lieber conceded that the claimant had a cervical spine problem and degenerative disk disease. However, he opined that she "had successful surgery on both those areas." He stated that he was not surprised that the claimant might be "somewhat symptomatic," but he opined that "there's not enough there to add up to the severity" of the symptoms she is currently reporting. He agreed with Dr. Schwartz that the claimant had reached MMI from her work-related injury. Although Dr. Freedberg strenuously disagreed with each of Dr. Lieber's opinions, it is the Commission's province to judge the credibility of witnesses, to weigh the evidence, and to resolve conflicts among expert medical expert opinions. Hosteny, 397 Ill.App.3d at 675.
¶ 62 Dr. Freedberg's (and the claimant's) argument that the surgery Dr. Freedberg recommended is reasonable and necessary is predicated in large part on the fact that the claimant continued to experience the same symptoms after the initial shoulder surgery, and that the Commission found that those symptoms were causally related to the work accident and necessitated the shoulder surgery performed by Dr. Schwartz. However, Dr. Lieber opined that the claimant's continued symptoms were inconsistent with the results of the September 7, 2014, MRI and the January 7, 2015, EMG. The Commission credited Dr. Lieber's opinions over those of Dr. Freedberg, noting that Dr. Lieber's finding of MMI was consistent with Dr. Schwartz's opinion (which was rendered after the shoulder surgery he performed). The Commission also found it significant that, unlike Dr. Freedberg, Dr. Lieber had reviewed all of the medical records before rendering his opinions. The evidence in this case supports more than one reasonable inference. However, we may not disturb the Commission's decision on that basis. Rather, we may reverse only "when an opposite conclusion is clearly apparent-that is, when no rational trier of fact could have agreed with the [Commission]." Durand, 224 Ill.2d at 64. That is not the case here.
¶ 63 The claimant argues that the Commission based its decision on certain errors of fact. Specifically, she notes that the Commission found that the September 2014 MRI revealed no pathology even though Dr. Lieber admitted that the thinning of the rotator cuff was pathological. Moreover, the claimant maintains that the Commission misapprehended the purpose of the surgery proposed by Dr. Freedberg as being limited to an examination of the biceps tendon. As the claimant correctly notes, Dr. Freedberg opined that the proposed surgery was also necessary to evaluate the rotator cuff to determine whether it needs to be repaired again and to repair damage to the acromioclavicular joint. However, "[w]e may affirm the Commission's decision on any basis supported by the record regardless of the Commission's findings or its reasoning." Dukich v. Illinois Workers' Compensation Comm'n, 2017 IL App (2d) 160351WC, ¶ 43 n.6; see also General Motors Corp. v. Industrial Comm'n, 179 Ill.App.3d 683, 695 (1989). In other words, we review the result reached by the Commission, not the Commission's reasoning. Here, the claimant failed to establish by a preponderance of the evidence that the particular surgery recommended by Dr. Freedberg was required to cure, treat, or alleviate the claimant's current condition of ill-being. The Commission was entitled to credit Dr. Lieber's opinion that it was not. Moreover, Dr. Lieber's opinion that the current condition of ill-being in the claimant's shoulder is not connected to her work accident or to her prior shoulder surgery supports a reasonable inference that the surgery proposed by Dr. Freedberg would not be necessary to evaluate or diagnose any work-related condition. The Commission was entitled to draw that inference, notwithstanding Dr. Freedberg's opinion to the contrary.
¶ 64 The claimant further argues that Dr. Lieber's opinion does not support the Commission's findings because: (1) Dr. Lieber conceded that the initial shoulder surgery caused the thinning of the claimant's rotator cuff tendon; and (2) conditions caused by a prior surgery that was causally connected to a work injury are themselves compensable. Although these statements are both accurate, they do not require reversal of the Commission's decision. The dispositive issue is whether some physical condition of the claimant's shoulder is responsible for her current condition of ill-being, and whether the particular surgery proposed by Dr. Freedberg is reasonable and necessary to treat her condition. The claimant failed to present evidence sufficient to prove these propositions by a preponderance of the evidence. The Commission's choice to credit Dr. Lieber's contrary opinions and to deny the surgery recommended by Dr. Freedberg was not against the manifest weight of the evidence.
¶ 65 2. Maintenance Benefits
¶ 66 The claimant also argues that the Commission erred in denying her maintenance benefits. Section 8(a) of the Act provides that an employer must 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). Section 8(a) conditions the award of maintenance benefits on a claimant's undergoing vocational rehabilitation. Roper Contracting, 349 Ill.App.3d at 506.
¶ 67 "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 (2005); see also National Tea Co. v. Industrial Comm'n, 97 Ill.2d 424, 432 (1983)). A claimant is not required to request vocational rehabilitation before being entitled to an award of maintenance. Greaney, 358 Ill.App.3d at 1019. A claimant may be "properly awarded maintenance benefits for the period of time he was undertaking his self-created and self-directed rehabilitation program," including a self-directed job search. Roper Contracting, 349 Ill.App.3d at 506.
¶ 68 However, if the claimant is not engaged in some type of physical rehabilitation program, formal job training, or a self-directed job search, the employer is not obligated to provide maintenance. Id. "In attempting rehabilitation of the injured employee, there are boundaries which reasonably confine the employer's responsibility, including a requirement that the claimant make good faith efforts to cooperate in the rehabilitation effort." (Internal quotation marks omitted.) Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill.2d 107, 115-16 (1990).
¶ 69 "[W]hether a claimant is entitled to maintenance benefits is a question to be decided by the Commission, and its finding will not be reversed unless it is against the manifest weight of the evidence." W.B. Olson, Inc. v. Illinois Workers' Compensation Comm'n, 2012 IL App (1st) 113129WC, ¶ 39. A finding is against the manifest weight of the evidence only where "an opposite conclusion is clearly apparent-that is, when no rational trier of fact could have agreed with the [Commission]." Durand, 224 Ill.2d at 64.
¶ 70 In this case, the Commission found that "[i]t is uncontroverted that [the claimant] has not and is not engaged in a vocational rehabilitation program." The Commission stated that, "to the contrary, [the claimant] testified she was granted social security disability benefits on December 19, 2014" and attempted to supplement those benefits by working part time for Treadstone Baptist Church daycare. Moreover, the Commission noted that the claimant testified she was limited by her social security disability award regarding the hours she could work. For these reasons, the Commission found that the claimant is not entitled to maintenance under Section 8(a) and vacated the arbitrator's award of maintenance benefits.
The claimant notes, correctly, that the Commission erred by stating that it was "uncontroverted" that the claimant is not engaged in a vocational rehabilitation program. To the contrary, the claimant argued before the Commission that she was engaged in vocational rehabilitation in the form of a continuing self-directed job search. However, despite this error, the Commission went on to identify evidence in support of its finding that the claimant was not conducting an ongoing job search. Accordingly, the error is harmless. In any event, we review the result reached by the Commission, not its reasoning. Dukich, 2017 IL App (2d) 160351WC, ¶ 43 n.6; General Motors Corp, 179 Ill.App.3d at 695. Here, the Commission's decision to deny maintenance benefits is supported by the evidence.
¶ 71 We cannot say that the Commission's decision is against the manifest weight of the evidence. Although the claimant testified that she looked for jobs within her work restrictions after her TTD benefits were terminated, she did not explicitly testify that she continued looking for jobs after she began receiving social security benefits and working part time for the Treadstone Baptist Church. Nor did she produce any logs, other documents, testimony, or other evidence detailing her efforts to find jobs, such as job applications or scheduled interviews. She did not present evidence of a successful job search that increased her earning potential as did the claimant in Roper. Moreover, she offered no explanation as to why her allegedly continuing job search had been unsuccessful for more than four and a half years (from January 2, 2013, through the date of arbitration on August 24, 2017).
¶ 72 In addition, the claimant testified that, because she was receiving social security benefits, she was limited in the number of hours she could work and in the amount of compensation she could earn in order to maintain those benefits. The claimant's testimony supports a reasonable inference that she chose to work for the church part time, rather than full time, because she did not want to lose her social security benefits, and that she was more interested in maintaining those benefits that she was in in finding full-time employment.
¶ 73 The claimant relies upon Schmidgall v. Industrial Commission, 268 Ill.App.3d 845, 848- 49 (1994) for the proposition that the receipt of social security benefits does not preclude an award of maintenance benefits. However, Schmidgall merely holds that the receipt of social security retirement benefits does not automatically terminate a claimant's entitlement to TTD benefits, especially when that claimant remains temporarily totally disabled. In other words, Schmidgall holds that the receipt of social security benefits does not preclude TTD benefits as a matter of law. Schmidgall does not hold or imply that the claimant's receipt of social security benefits may not be considered as evidence that that claimant had stopped looking for full-time work. In fact, we have considered such evidence in prior cases. See Petermeyer v. Illinois Workers' Compensation Commission, 2021 IL App (5th) 190514WC-U (affirming the Commission's finding that the claimant's efforts were inadequate to establish that he had engaged in vocational rehabilitation through a self-directed job search where, inter alia, he had been receiving social security); Sutton v. Illinois Workers' Compensation Comm'n, 2016 IL App (3d) 150657WC-U (affirming the Commission's finding that the claimant's actions demonstrated a lack of motivation to commit to additional vocational rehabilitation services where, inter alia, he told his rehabilitation consultant that he was applying for social security). Here, the Commission found that the fact that the claimant was collecting social security, which limited her ability to work full time without forfeiting those benefits, and the fact that she had chosen to work part time so as to maintain those benefits, supported the inference that she was not conducting an ongoing self-directed job search. That inference was reasonable based on the evidence of record.
¶ 74 In sum, the clamant provided insufficient evidence to establish that she was engaged in an ongoing self-directed job search, and the evidence supported a contrary inference. Thus, the Commission's decision to vacate the arbitrator's award of maintenance benefits was not against the manifest weight of the evidence.
¶ 75 CONCLUSION
¶ 76 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County, which confirmed the Commission's decision.
¶ 77 Affirmed.