Opinion
1-21-1280WC
09-16-2022
F.E. MORAN FIRE PROTECTION CO., Plaintiff-Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION & FRANK MIONI, Defendants-Appellees.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 20-L-50435 Honorable John J. Curry, Jr., Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment.
ORDER
HUDSON JUSTICE
¶ 1 Held: Commission did not exceed the scope of the appellate court's mandate on remand; where evidence of record was conflicting, the Commission's decision regarding accident was not contrary to the manifest weight of the evidence. Affirmed.
¶ 2 I. INTRODUCTION
¶ 3 Respondent, F.E. Moran Fire Protection Company, appeals an order of the circuit court of Cook County confirming a decision of the Illinois Workers' Compensation Commission (Commission) granting the request of claimant, Frank Mioni, for benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2014)). This case previously came before this court after the Commission denied claimant's request for benefits. We reversed and remanded so that the Commission could reconsider its decision. On remand, it granted claimant benefits. On appeal, respondent raises two issues. First, it contends that the Commission exceeded the scope of our mandate on remand. Second, it argues that the Commission's decision is against the manifest weight of the evidence. We affirm and remand this matter in accordance with Thomas v. Industrial Comm'n, 78 Ill.2d 327 (1980).
¶ 4 II. BACKGROUND
¶ 5 This case returns to us following our remand to the Commission after the initial appeal in this case. In resolving that appeal, we set forth an extensive discussion of the facts of this case. See Mioni v. Illinois Workers' Compensation Comm'n, 2018 IL App (1st) 180101WC-U, ¶¶ 5-36. Accordingly, we will not restate them here.
¶ 6 Claimant brought an action in accordance with the Act seeking compensation for injuries to his right shoulder sustained in a work-related accident. The arbitrator found in claimant's favor, but the Commission reversed (with one commissioner dissenting). In the initial appeal, we reversed the Commission's decision that denied claimant's claim based on a negative assessment of claimant's credibility. Our reversal was based on the fact that the Commission relied on certain bad acts by claimant that were not otherwise relevant to the case to draw an adverse inference about his credibility. Id. ¶ 40. We remanded to allow the Commission to reassess the record without considering the improper evidence.
¶ 7 On remand, the Commission affirmed the arbitrator's decision and granted benefits to claimant. The Commission observed that "the Arbitrator found [claimant's] testimony credible, noting that [claimant] 'was subjected to lengthy, pointed and well prepared cross examination on each and every assertion' and 'answered forthrightly.'" The Commission credited the arbitrator's finding regarding claimant's credibility. It rejected respondent's arguments that claimant was not credible because (1) the accident was unwitnessed; (2) the accident occurred on claimant's last day of work; (3) claimant did not seek medical attention until a week after the accident occurred; (4) claimant's medical records do not mention an accident until he began physical therapy; (5) claimant did not comply with respondent's reporting procedures despite being a foreman; and (6) claimant threatened two of respondent's witnesses after they had testified (the Commission stated that, in accordance with our earlier decision, it was not considering the alleged threat). Regarding the delay in seeking treatment, the Commission noted that claimant testified that he had hoped his condition would improve and that it was not uncommon to experience bumps and bruises on the job. It also pointed to claimant's treating physician's testimony that at the time claimant first sought treatment, his office was implementing a new electronic record system, and his unfamiliarity with it "would account for the omission from the medical records." The Commission noted that the arbitrator found the doctor's testimony credible, and it agreed with this finding. The Commission acknowledged that claimant did not report the accident in the manner respondent specified; however, it found that this was not of sufficient weight to reject claimant's testimony. Accordingly, the Commission awarded benefits under the Act ($1320.33 for 75 weeks for temporary partial disability and $122,244.53 for medical expenses). Respondent sought review in the circuit court of Cook County, which confirmed. This appeal followed.
¶ 8 III. ANALYSIS
¶ 9 On appeal, respondent raises two issues. First, respondent argues that the Commission exceeded the scope of the mandate on remand. Second, it asserts that the Commission's decision regarding accident is contrary to the manifest weight of the evidence. We find neither contention persuasive.
¶ 10 A. SCOPE OF THE MANDATE
¶ 11 Generally speaking, a lower tribunal is vested with jurisdiction on remand "only to take action that complies with the reviewing court's mandate." McDonald v. Lipov, 2014 IL App (2d) 130401, ¶ 44; see also Rapid Truck Leasing, Inc. v. Illinois Commerce Comm'n, 107 Ill.App.3d 624, 626 (1982) (applying rule in administrative proceeding). A lower tribunal "must obey precise and unambiguous directions on remand." McDonald, 2014 IL App (2d) 130401, ¶ 44. Where specific instructions are not given, the lower tribunal must examine the opinion and determine what further course is consistent with the opinion. Id. Whether a lower tribunal complied with the mandate is a question of law subject to de novo review. Quincy School District No. 172 v. Illinois Educational Labor Relations Board, 366 Ill.App.3d 1205, 1208 (2006).
¶ 12 Respondent contends that the Commission exceeded our mandate. It complains that the Commission reweighed all of the evidence instead of simply reconsidering the issue "tainted by" the evidence we found inadmissible during the first appeal in this matter. According to respondent, the Commission should have only reconsidered claimant's credibility, which we determined had been affected by the Commission's consideration of two bad acts not otherwise relevant to the case. We concluded our previous disposition thusly:
"In light of the following, we reverse the circuit court's judgment, vacate the Commission's decision, and remand so that the Commission may reconsider its decision while taking into account only appropriate evidence. [Citation.] On remand, the Commission shall reconsider all issues, as appropriate. However, it shall not take into account [the inadmissible evidence.]" Mioni, 2018 IL App (1st) 180101WC-U, ¶ 43.
We did clearly state that the Commission "shall reconsider all issues"; respondent reads "as appropriate" as a limitation.
¶ 13 What would have been "appropriate," according to respondent, would have been for the Commission to simply assess claimant's credibility without considering the erroneously admitted evidence. We disagree. At issue on remand was the ultimate decision of the Commission regarding accident, reconsidered given a fresh assessment of claimant's credibility. Quite simply, in order to assess the probative value of an item of evidence as it affects the outcome of a case, it must be considered in light of the totality of the evidence of record. See Miller v. Illinois Municipal Retirement Fund, 2019 IL App (5th) 180267, ¶ 19 ("More importantly, based upon the totality of the evidence before us, described in detail above, we do not conclude the IMRF decision is against the manifest weight of the evidence, and we do not believe the opposite conclusion to that reached in the decision is clearly evident."); In re Marriage of McCaskey, 167 Ill.App.3d 860, 864 (1988) ("Certainly the trial court's finding that it had jurisdiction of the subject matter was not against the manifest weight of the evidence, given the totality of the evidence before the court."). Reassessing claimant's credibility was not something the Commission could do in a vacuum.
¶ 14 More specifically, respondent complains that the Commission also reevaluated the credibility of claimant's treating physician. The Commission, in its pre-remand decision, found unpersuasive the treating physician's explanation of why he did not include claimant's report of an at-work accident in his medical records from the first day claimant sought treatment. Following remand, the Commission essentially reversed this finding:
"Petitioner's treating physician *** testified that Petitioner told him of the work-related injury during Petitioner's initial visit, explaining that his inexperience while transitioning
to electronic records would account for the omission from the medical records. The Arbitrator found the doctor's testimony on this point credible. The Commission agrees."
Respondent asserts that reassessing the doctor's credibility was outside the scope of the mandate.
¶ 15 This assertion is not well founded. We first note the Commission's initial, pre-remand finding:
"[Claimant's treating physician's] testimony that he had a recollection that [claimant] mentioned a work accident and his explanation of why there was no mention of it in his records, while conceivable, is not very persuasive, especially considering that his testimony about [claimant's] report of a work accident was equivocal at best. [Claimant's treating physician] testified that he thought he remembered something about [claimant] mentioning a work accident, but he was not 100% certain."
We further observe that claimant testified that he told his treating physician that he was injured at work during that first visit. Thus, claimant's credibility would directly impact the credibility of the doctor. Crediting claimant's testimony on this point makes it corroborative of the doctor's equivocal testimony. These issues are intertwined. Obviously, a meaningful reassessment of claimant's credibility entails its effect on other evidence of record. In other words, the Commission's reexamination of the doctor's credibility was well within the scope of our directive to "reconsider all issues, as appropriate." Mioni, 2018 IL App (1st) 180101WC-U, ¶ 43.
¶ 16 B. MANIFEST WEIGHT
¶ 17 Respondent next contends that the Commission's finding regarding accident is contrary to the manifest weight of the evidence. It is, of course, the claimant's burden to prove he sustained an injury that arose out of and occurred in the course of his employment. Johnson Outboards v. Industrial Comm'n, 77 Ill.2d 67, 69-70 (1979). A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Shafer v. Illinois Workers' Compensation Comm'n, 2011 IL App (4th) 100505WC, ¶ 35. A claimant's testimony, standing alone, may support an award under the Act, so long as the manifest weight of the evidence does not indicate otherwise. Id. It is primarily the function of the Commission to assess the credibility of witnesses, weigh evidence, and resolve conflicts in the record. Id. We owe particularly great deference to the Commission on medical issues, where its expertise has long been recognized. Long v. Industrial Comm'n, 76 Ill.2d 561, 566 (1979).
¶ 18 On appeal, respondent sets forth six reasons it believes that the Commission's decision regarding accident is against the manifest weight of the evidence. First, respondent claims that the "contemporaneous medical records do not support [claimant's] claim of a work accident." It asserts that "[e]ven [claimant's] primary care physician *** could not remember [claimant] giving a history of tripping while carrying a pipe." Respondent ignores the fact that that doctor did recall claimant reporting that he was a pipefitter and he was injured at work. To what extent the doctor's inability to recall that particular detail was impeaching was a matter for the Commission to determine. Shafer, 2011 IL App (4th) 100505WC, ¶ 35. Somewhat disingenuously, respondent states that claimant's accident occurred on the last day of his employment; however, one of respondent's superintendents testified that claimant would have been sent to a new location when more work was available. Respondent argues that the Commission should have rejected the testimony of claimant's treating physician that claimant reported his injury during their first visit as it was not corroborated by claimant's medical records; however, it was corroborated by claimant's testimony. Resolving such conflicts in the evidence is primarily a matter for the Commission. Shafer, 2011 IL App (4th) 100505WC, ¶ 35. Respondent further points to the fact that claimant did not seek medical attention until a week after the accident. Claimant explained that he had a few days off and he "was hoping the pain would go away so [he] could continue to work." It was for the Commission to determine what effect this had on the weight to which claimant's testimony was entitled. Id. None of these purported deficiencies are of such magnitude that would allow us to conclude that an opposite conclusion to the Commission's is clearly apparent.
¶ 19 Second, respondent contends that claimant's testimony that he reported the accident on his field superintendent's voicemail is not credible. Respondent points out that the superintendent testified that he received no such message and then concludes that claimant's failure to report the accident provides evidence that no accident occurred. Respondent makes no attempt to explain why the Commission was required to accept the superintendent's testimony over claimant's testimony. This was simply a conflict in the evidence, which was for the Commission to resolve. Id. As such, we find this point completely unpersuasive.
¶ 20 Third, respondent points to claimant's testimony that he advised his supervisor of a five-pound lifting restriction on the day after the accident at the time he informed respondent of the accident's occurrence. Respondent points out that this would have been impossible, as claimant had not yet sought medical treatment. Claimant counters that his testimony was that he informed respondent of the accident on the day after it occurred and later told respondent of the lifting restriction. In fact, his testimony on this point is somewhat unclear. In any event, while this would certainly be impeaching, it is not of such significance as to render the Commission's decision against the manifest weight of the evidence. See Longanecker v. East Moline School District No. 37, 2020 IL App (3d) 150890, ¶ 45 ("Minor discrepancies in a witness's testimony are not unusual [citation] and do not destroy the witness's credibility.").
¶ 21 Fourth, respondent asserts that claimant's testimony that he had no problem with his shoulder prior to the accident at issue in this case lacked credibility. It is true that claimant answered affirmatively when asked, "And it's your testimony today that you had no problems with your shoulder whatsoever before your slip and fall accident." However, claimant immediately clarified that he saw his treating physician "about six or seven months prior to the accident date and complaining [sic] of pain in [his] shoulder." Thus, claimant was not denying having any problem at any time prior to the accident, and the Commission could infer that claimant's affirmative response concerned the period immediately preceding the accident. Respondent points to a record from the treating physician dated September 23, 2013, stating, "First time able to lift his r. arm over his head in 3 years." As claimant acknowledged seeing this doctor for a shoulder issue "six or seven months prior to the accident," this is not truly impeaching. More fundamentally, the inference respondent seeks to draw from this testimony is not material to the outcome of this appeal. Respondent concludes, "[T]he conclusion that [claimant] was not credible when he testified that he had no prior problems with his shoulder is plainly apparent." It is axiomatic that the existence of a pre-existing condition is not a bar to recovery under the Act. Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 205 (2003). So long as employment is a cause of an employee's condition of ill-being, an award is appropriate. Id. Respondent makes no attempt to explain how the evidence is clearly apparent that claimant's condition arose solely from this pre-existing condition. As such, respondent's argument is off point.
¶ 22 Fifth, respondent asserts that the Commission erred in finding credible the testimony of claimant's treating physician that claimant reported a work-related injury to him during his initial visit. We discussed this testimony in the context of respondent's first argument and note that some of our observations are pertinent here. As we stated, the Commission credited claimant's testimony, and claimant testified that he informed the doctor of his accident. Hence, the doctor's testimony, albeit somewhat vague, was also corroborated. As such, we cannot say that an opposite conclusion is clearly apparent.
¶ 23 Sixth, respondent contends that the medical evidence indicates that claimant's injury did not have a traumatic origin. It is true that respondent's examining doctor, Ryon Hennessy, opined that the condition of claimant's right shoulder was not causally related to his employment with respondent. It is noteworthy, however, that Hennessy relied on the records of claimant's treating physician to the extent they suggest that claimant did not report an accident during his initial visit. He stated that the history provided by claimant "was more of a routine *** degenerative process that can flare at times in middle-aged men and women." On cross-examination, Hennessy acknowledged that he had not reviewed the testimony of claimant's treating physician. Claimant's attorney asked Hennessy to assume that claimant had reported to his doctor during the first visit that he had fallen at work and hurt his shoulder. When asked whether that would change his opinion, Hennessy replied, "Yes, it-In this particular case it would have a significant bearing in my opinion." Hennessy testified that, though he could not say definitively, if this accident had occurred, it had "the potential to change" his opinion regarding the existence of a causal relationship between claimant's employment and injury. Of course, the Commission found that claimant did tell his treating physician of his accident (a finding that is not against the manifest weight of the evidence), which undermines Hennessy's opinion as he, himself, testified. Given Hennessy's frank acknowledgement, we certainly cannot say that it was clearly apparent that the Commission should have accepted his testimony that no such causal relationship existed.
¶ 24 Finally, we note that while respondent has identified some evidence that weighs in its favor, it is not our role to reweigh evidence and substitute our judgment for the Commission. ABF Freight Systems, Inc. v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 141306WC, ¶ 19. None of respondent's arguments are so compelling that, even in aggregate, we could conclude that an opposite conclusion to the Commission's is clearly apparent.
¶ 25 IV. CONCLUSION
¶ 26 In light of the foregoing, the judgment of the circuit court of Cook County confirming the decision of the Commission is affirmed. This cause is remanded for further proceedings, if any, consistent with Thomas, 78 Ill.2d 327.
¶ 27 Affirmed and remanded.