Opinion
NO. 5-16-0234WC
03-05-2018
JAMIE HATTEN, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Wal-Mart Associates, Inc., Appellee).
NOTICE
Decision filed 03/05/18. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Madison County. No. 14-MR-242 Honorable John B. Barberis, Jr., Judge, presiding. JUSTICE MOORE delivered the judgment of the court.
Justices Hoffman, Hudson, and Harris concurred in the judgment.
Presiding Justice Holdridge dissented.
ORDER
¶ 1 Held: The Commission's decision to award the claimant permanent partial disability benefits, rather than permanent total disability benefits, was not against the manifest weight of the evidence and the Commission did not abuse its discretion in cutting off medical expenses for the claimant past the date she reached maximum medical improvement pursuant to section 19(d) of the Workers' Compensation Act (820 ILCS 305/19(d) (West 2014)) due to her failure to comply with a weight loss treatment program that would have allowed her to have spinal surgery necessary to relieve her of her condition. ¶ 2 The claimant, Jamie Hatten, appeals the judgment of the circuit court of Madison County, which confirmed the decision of the Illinois Workers' Compensation Commission (Commission), to award her permanent partial disability (PPD) benefits, rather than permanent total disability (PTD) benefits, and cutting off medical expenses past the date she was found to be at maximum medical improvement (MMI), for injuries she sustained while working for the employer, Wal-Mart Associates, Inc. For the reasons that follow, we affirm the judgment of the circuit court of Madison County which confirmed the Commission's decision.
¶ 3 FACTS
¶ 4 On April 7, 2010, the claimant filed an application for adjustment of claim with the Commission pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)), alleging injury to her back while lifting at work for the employer. The claimant's application came before the arbitrator on April 18, 2013, where the following relevant evidence was adduced. ¶ 5 On September 9, 2011, the Commission entered an order on the claimant's section 19(b) (820 ILCS 305/19(b) (West 2010)) petition, addressing prior issues that arose between the parties surrounding temporary total disability (TTD) benefits, medical expenses, and penalties. The transcript of the 19(b) proceeding, as well as all subsequent written orders, is included in the record on appeal. From those proceedings, it can be determined that the claimant began working for the employer on November 1, 2008. Her lifting-related back injury, which occurred on September 22, 2009, is not in dispute. A January 28, 2010, MRI of her lumbar spine demonstrated a left foraminal/lateral protrusion at L3-L4 causing left foraminal encroachment and a broad-based protrusion and annular tear at L4-5 causing bilateral foraminal encroachment. By March 15, 2010, an orthopedic surgeon, Dr. Matthew F. Gornet, determined that the claimant had "failed physical therapy and conservative measures." He discussed various treatment options, including "distractor, fusion, or disc replacement." He noted that the claimant "understands her weight to some extent plays a role in our ability to treat her." ¶ 6 After a course of work hardening at Gateway Rehabilitation Company, the claimant returned to Dr. Gornet on May 13, 2010. Dr. Gornet noted:
"[Claimant] returns today. Her weight today is 282 pounds. She understands that she is far too obese to undergo any type of anterior procedure and I think her only option would be posterior spinous process distractor. We have talked about her target weight of 230 pounds. I think she needs to participate in her care. I have released her to return to work light duty no more than four hours per day, no lifting greater than 5 pounds, no repetitive bending or lifting. The real issue here is that I believe she has a structural back pain from the single level at L4-L5. Unfortunately, I believe with her size and weight her complication risk is too high to undergo surgery at this point. She is somewhat tearful and frustrated at this point given the fact that I believe she has a fairly constant level of pain but she
understands we need to move forward with treatment and do the best we can to try to treat her in the most beneficial fashion overall."¶ 7 The claimant performed part-time restricted duty for the employer through July 16, 2010. She returned to Dr. Gornet on July 15, 2010. Dr. Gornet noted that the claimant had gained three pounds since the previous visit. Dr. Gornet described the claimant as "somewhat frustrated." His note continues as follows:
"She stated and I quote her directly today, that 'if I don't get out of pain, I will get a gun and shoot any person at [the employer] who has become a problem for me.' She stated that her pain and symptoms affect all aspects of her life. We have talked about calorie reduction and taking some personal responsibility for her actions, her obesity, etc. I have tried to give her options regarding treatment but at this point in time she remains somewhat hostile to anyone who points out that she must share in the personal physical responsibility of her current condition. She can continue working with her weight limit. I will notify her attorney directly of the comments she made today regarding her physical threats. I will follow up with her as needed depending on whether she can obtain her weight goal but I would strongly recommend against any surgical intervention on this patient unless she has done something to participate in her overall care. She feels that they are not honoring her restrictions and not allowing her to sit and stand as needed. At this point, she understands that I will try and help her. I have had a long discussion with her and her husband today."¶ 8 Dr. Gornet referred the claimant to Dr. Hani C. Soudah at Stella Maris Internal Medicine & The Center for Medical Weight Loss for purposes of weight loss management. In his referral letter, Dr. Gornet stated the following:
"I am treating [the claimant.] This patient has a complex spinal problem. Unfortunately my ability to treat [the claimant] is compromised by [her] overall size and weight. I would like to refer this patient to you for your weight loss program. It is my expectation that they will drop a substantial amount of weight in approximately six months of treatment."¶ 9 The employer terminated the claimant on July 30, 2010, based on her statement to Dr. Gornet which the employer found to violate its "Violence-Free Workplace Policy." The claimant testified at the 19(b) arbitration hearing that, but for the termination, she would still be working for the employer. As of that time, her restrictions were no lifting over five pounds, no repetitive bending or lifting, alternating between sitting and standing as needed, and no more than four hours of work per day. A shift manager for the employer, Jamie Tylka, testified at the 19(b) hearing that she is familiar with the employer's "light duty policy," and but for the claimant's termination, the employer would have still been accommodating any restrictions the claimant might have, even if the claimant could only work limited hours. ¶ 10 On September 23, 2010, the claimant returned to Dr. Gornet. At this visit, Dr. Gornet reported the claimant's weight to be 292 pounds and indicated the claimant had "just started seeing Dr. Soudah" for weight management. Dr. Gornet also indicated that the claimant had a "unique opportunity to participate in her care" by losing enough weight to consider a spinous process distractor at L4-L5. Dr. Gornet indicated he was giving the claimant "six months to lose a significant amount of weight" and he would place the claimant at MMI if she failed to accomplish this goal. He continued the previous work restrictions. ¶ 11 At the April 18, 2013, hearing, updated medical records from Dr. Gornet and Dr. Soudah were admitted into evidence. The claimant presented to Dr. Soudah for a bariatric consultation on September 16, 2010. Dr. Soudah noted that the claimant was referred by Dr. Gornet for preoperative evaluation and that her weight had been fluctuating between 250 and 294 pounds. Her weight was noted to be 294.8 at the initial consultation. Dr. Soudah also noted that the onset of the claimant's obesity came "years ago" and her risk factors for obesity are annual weight gain of greater than two pounds per year and sedentary lifestyle. Associated conditions include hyperlipidemia, hypertension, and hyperthyroidism. Dr. Soudah conducted a detailed physical examination, ordered a comprehensive set of laboratory studies, and recommended a restricted, low-glycemic, controlled diet using an epigenomic approach. Dr. Soudah stated that he discussed the claimant's nutrition and exercise plan with her in detail, including the importance of adherence with the micronutrient recommendations and the need to eat at least every eight hours and to eat slowly. Dr. Soudah noted that he would monitor the claimant closely. ¶ 12 The claimant returned to Dr. Soudah on September 23, 2010, and weighed in at 290.2, for a loss of 4.6 pounds. On that date, Dr. Soudah noted that the claimant was compliant with her treatment plan and discussed her dietary recommendations going forward as well as advancing her exercise program. On November 9, 2010, the claimant weighed in at 286.2. On November 22, 2010, the claimant weighed in at 290.2. At that time, Dr. Soudah noted that the claimant was noncompliant with her treatment plan and that he was concerned about the claimant's progress. ¶ 13 At a follow-up visit on November 22, 2010, Dr. Gornet noted the following:
"[The claimant] returns today. Her weight today is 294 pounds. She understands that she has six months to lose weight beginning at the end of September. If she has not done so, I will have to place her at [MMI]. Her last weight was 292 pounds so she has essentially not changed anything at this point. She understands this time frame and what is involved. I have again discussed this with her today and she is fully aware of the situation. She can continue working light duty with restrictions."¶ 14 The claimant returned to Dr. Soudah on December 28, 2010, weighing in at 291 pounds. Dr. Soudah noted that he again discussed with the claimant that he expected her to comply with her treatment plan. At a follow-up visit on January 6, 2011, the claimant again weighed in at 291 pounds. On January 24, 2011, at Dr. Soudah's office, the claimant weighed in at 289.6, but Dr. Soudah again noted that the claimant "had difficulties with compliance." ¶ 15 At a follow-up visit on January 24, 2011, Dr. Gornet noted the following:
"When I came into the room, [the claimant] was laying flat on the bed. She did not get up to even speak with me. Her weight is 292 pounds. It is unchanged from her last visit. I have been contacted by Dr. Soudah's office and they personally stated to me he felt she was noncompliant with treatment. I believe she continues to perceive that she is a 'victim' in all of this and has done nothing to improve her overall condition on her own and has taken little to no personal responsibility with trying to assist in management of her problem. If she has not lost significant weight at her next follow[-]up visit, she will be placed at [MMI] with the following restrictions: no lifting greater than ten pounds, alternating between sitting and standing, and no repetitive bending. I would recommend no further treatment as I do not believe it would be fruitful or beneficial. I have again discussed with her that her time is running out and I have left this up to her. I have talked to her about this today. She asked me directly about gastric bypass surgery and she understands I do not believe this is treatment that should be covered for a patient who has clearly demonstrated noncompliance. I will see her back in six to eight weeks time."¶ 16 At a follow-up visit with Dr. Soudah on February 7, 2011, Dr. Soudah noted the claimant's weight to be 290.6 pounds. He characterized the claimant's obesity problem as "severe" and noted that he had discussed the issue of the claimant's compliance with the delineated plan of obesity management with the claimant and related the claimant's noncompliance with medical management with Dr. Gornet. Dr. Soudah also emphasized that the claimant should be offered continued medical treatment, and not surgery, for her obesity. On February 28, 2011, Dr. Soudah noted that the claimant weighed in at 291 pounds. There are no other records from the claimant's treatment with Dr. Soudah. ¶ 17 At a follow-up visit on March 28, 2011, Dr. Gornet noted:
"[The claimant] returns today. Her weight is 304 pounds. At this point she understands there is little I can do to help her. I believe she will have some permanent pain and symptoms but she will be at [MMI]. I would like a functional capacity evaluation to place permanent restrictions on her. I think this will give us some assistance. We will set this up with her and I will see her back in six weeks time."¶ 18 The claimant presented for a functional capacity evaluation (FCE) at Apex Physical Therapy in Belleville on April 8, 2011, which concluded that she is capable of working at the "light" demand level. At a follow-up visit on May 9, 2011, Dr. Gornet noted:
"[The claimant] returns today. We have talked about a TENS unit for her and I have given her a prescription for this. Her functional capacity evaluation came in at light work and therefore the recommendation would be approximately a 25 pound limit with no repetitive bending. I think this is appropriate as does [the claimant.] She is at [MMI.] I have given her restrictions today as well as a prescription for a TENS unit."¶ 19 At the April 18, 2013, hearing, the claimant testified that she has always been obese. She weighed about 315 pounds when she started working for the employer, and while working, her lowest weight was around 253 pounds. The claimant testified that she was back up to about 315 pounds at the time of the hearing. She has never been successful at losing weight in the past, with the exception of one time in high school, when she was having family problems and got down from 238 pounds to 153 pounds. The claimant testified that she was unsuccessful at losing weight under Dr. Soudah's care because the program just did not work for her. The claimant disagreed with Dr. Soudah's notes stating that she was noncompliant with the weight loss treatment, stating that she did what he told her to do. She testified that she begged Dr. Gornet to refer her for gastric bypass. The claimant further testified that she did her best on the FCE to which Dr. Gornet referred her, and was sore for three days afterwards. Following that test, Dr. Gornet placed permanent restrictions on the claimant, which she testified included no repetitive bending and no lifting over 25 pounds. ¶ 20 The claimant testified that she met with Delores Gonzalez, a vocational counselor, and was honest with her. She tried her best on the testing Ms. Gonzalez administered but it was difficult. The claimant testified that she did not graduate high school because she was diagnosed as being dyslexic in the third grade. It is very difficult for her to read and write. She does not have a GED. She has tried taking the test twice and attended classes for about eight months. Although she paid for and earned a phlebotomist certificate, she is ineligible to work as a phlebotomist because she does not have a GED. ¶ 21 The claimant testified that prior to working for the employer, she worked for her father's business, Jamie's Video Darts, where she filled snack machines, soda machines, collected quarters, and made purchases for the business under her father's guidance. She began helping her father with the business as a 12-year-old girl. Her father paid her $100 per week until he died. When her father was angry at her, she delivered pizzas for Domino's, Papa John's, and Pizza Hut. ¶ 22 The claimant testified she undertook a job search from February 26, 2011, until April 9, 2013, and created a job search log. This was very difficult for her. She had difficulty understanding the job application when she applied at Target. During her job search, the only interview she was called to was for Weekends Only. She took a test at the interview and never received a call back. When she applied at the Dollar General in Godfrey she was told they could not accommodate her restrictions. No professional vocational rehabilitation counselor helped her during this process. The job search logs were admitted into evidence. ¶ 23 A vocational rehabilitation evaluation report from Delores Gonzalez was admitted into evidence. In the "Social and Vocational History" section of the report, Ms. Gonzalez states that "[the claimant] previously enjoyed crafting, socializing with friends, and handling the finances for her video game business." In the "Vocational History" section of the report, "Owner/Operator" at Jamie's Video Darts is listed as a previous employer from 1982 to 2009. Job duties for this position include reconciling cash with receipts, keeping operating records, and preparing records of transactions. The job duties section also states that the claimant made daily deposits at the bank, established contacts with business owners for merchandising purposes, and stocked vending machines. According to Ms. Gonzalez's report, the Dictionary of Occupational Titles classifies this job as light, skilled work. ¶ 24 In the "Vocational Testing" section of the report, Ms. Gonzalez states that she administered the Wide Range Achievement Test Fourth Edition (WRAT-4) to the claimant to measure her basic skills in the areas of reading, spelling, and arithmetic. According to the report, the claimant performed in the low range in word reading with a grade equivalency of 5.2 and at the fifth percentile, in sentence comprehension with a grade equivalency of 6.8 and at the fifth percentile, and in math computation with a grade equivalency of 5.2 and at the seventh percentile. Based on this information, Ms. Gonzalez opined that the claimant would not be expected to perform successfully in a post-secondary vocational or college training program, would not perform well in an entry-level, clerical-type position, and would probably not ever pass the GED. ¶ 25 With regard to the claimant's job search, Ms. Gonzalez characterized the claimant's effort to search for work in 2011 as "minimal at best." Ms. Gonzalez stated that in March 2012, the claimant made a significant job search in which an average of 27 job contacts were made per month through November 2012. The claimant searched for jobs online and made a significant amount of in-person job contacts. However, Ms. Gonzalez opined that a careful review of the job search logs revealed that many of the jobs required a minimum of a GED to apply and many had lifting requirements that were beyond the claimant's restrictions. Furthermore, many jobs on the list, including some assistant manager positions and some retail sales positions, may have been beyond the claimant's skill level based on her education and prior work experience. Ms. Gonzalez concluded that although a significant good faith effort was made during these months, without the assistance of professional services, the claimant's job search was misdirected given her education and work experience. Ms. Gonzalez's report concluded as follows:
"The resistance [the claimant] faced in the workforce is a direct result of her lack of education, limited work experience, and possibly her appearance as she presents at over 300 pounds. Based on her education and experience, [the claimant] would be searching for jobs in the unskilled level of work. Employers, even in seeking to fill unskilled positions, search for the best candidates. Those candidates are educated with a minimum of a GED or better and generally have an overall well kept appearance. Due to the current state of the economy, the quality of the current candidates vying for the unskilled positions has risen. [The claimant] is competing for jobs with individuals who are generally more educated as she does not possess a GED. This is a significant hindrance in her ability to find work and greatly erodes her occupational base. Although [the claimant] is physically capable of performing work in the sedentary or light exertional category of work in addition to performing some limited medium demand work, prospective employers in the usual course of selecting new employees would avoid hiring an individual with [the claimant's] overall profile in favor of individuals who are younger, more work ready, who would have higher academic skills, and would not have to be accommodated as evidenced by the resistance she currently faces in the job market."¶ 26 The claimant testified that she wanted Dr. Gornet to perform surgery on her back and she really wants to find a job. She went to the emergency room at St. John's Hospital in June 2011 because she had lower back pain and her leg had started getting numb. The emergency room gave her medicine and told her to follow-up with her doctor. However, she did not have insurance so she could not go to a different doctor. She went again to the emergency room at Alton Memorial Hospital on Christmas Eve in 2011 because she sat down on the toilet and when she went to stand up she could barely stand upright due to lower back pain. Records and bills from both of these visits were admitted into evidence. On cross-examination, the claimant testified that if education could benefit her by helping her to find a job that she can work within her restrictions, she would have no problem going and getting an education. However, she has not tried again to pass her GED since before beginning work for the employer. She had not seen Dr. Gornet since May 9, 2011. ¶ 27 Tonya Curtis, assistant manager for the employer's Wood River location, testified that the employer's Wood River location has permanent jobs available that fit the claimant's permanent restrictions, including fitting room attendant, and people greeter. The employer's policy is that if someone is injured while working for employer and has permanent restrictions, if they remain employed with the employer, the employer would find them a permanent position that fit their restrictions. ¶ 28 Jo Ann Richter-Hill, a certified rehabilitation consultant, testified on behalf of the employer. She testified that she is also a licensed clinical professional counselor and a national board certified clinical hypnotherapist. She has been a vocational consultant for Work Finders since September 2012, but has worked in the field since 1989. As of the time of the hearing, half of her career focus is vocational consulting and the other half is therapy. She was retained by the employer to review Delores Gonzalez's report, interview the claimant, complete a labor market survey, and review the job search logs the claimant submitted. In preparation for her report, she also reviewed the medical records of Dr. Gornet and Dr. Soudah. ¶ 29 Ms. Richter-Hill testified that in interviewing the claimant, the claimant was cooperative and talked intelligently. She was tearful at times. She was concerned with her low level of education and not being able to read well, and Ms. Richter-Hill recommended that the claimant could get some free classes from Southwestern Illinois College that may help her with her reading skills. Based on her review of the claimant's records, Ms. Richter-Hill opined that there is a stable job market for the claimant in this geographic area taking into account the claimant's personal restrictions. Ms. Richter-Hill testified that it was her opinion that the claimant's 30-year history of consistent employment places her in a better position than most people with no diploma or GED because the claimant has several different marketable skills. Ms. Richter-Hill, based on her labor market survey, testified that the claimant currently qualifies for employment in telephone sales, telemarketing, and as a front desk clerk. Ms. Richter-Hill concluded that the claimant may be able to return to work in this job market and obtain a job at her previous average weekly wage or greater. ¶ 30 Ms. Richter-Hill testified that she reviewed the claimant's job search logs and found that the claimant was not applying for jobs commensurate with her restrictions. While the claimant needs to seek work in the "light" category, the claimant sought jobs in retail and food service, which are typically "medium" to "heavy." Ms. Richter-Hill also pointed out multiple duplicities or discrepancies in the logs, and concluded the logs do not exhibit a diligent job search. ¶ 31 Ms. Richter-Hill's testimony also included a critique of the report of the claimant's vocational expert, Delores Gonzalez. She testified that the report was judgmental regarding the claimant's appearance and put more emphasis on this factor than was warranted. Ms. Richter-Hill expressed that she believes, contrary to Ms. Gonzalez, that the claimant is capable of improving her reading skills and the computer skills the claimant does possess would be helpful in overcoming hurdles associated with the claimant's dyslexia. ¶ 32 On June 6, 2013, the arbitrator issued a decision which, inter alia, ordered the employer to pay all of the claimant's medical expenses excluding any bills for medical services provided subsequent to May 9, 2011. The arbitrator found that the claimant reached MMI as of that date because she was noncompliant with weight loss treatment that was essential to promote her recovery. In support of this conclusion, the arbitrator took judicial notice of section 19(d) of the Act (820 ILCS 305/19(d) (West 2012)) which the arbitrator quoted as follows:
"If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery,
the Commission may, in its discretion, reduce or suspend the compensation of any such injured employee."¶ 33 In addition, the arbitrator awarded the claimant PPD benefits at 25% loss of use of the body as a whole. The claimant appealed to the Commission, which, on September 5, 2014, unanimously reduced the claimant's PPD benefits to 15% loss of use of the body as a whole, but otherwise affirmed and adopted the arbitrator's decision. The claimant appealed to the circuit court of Madison County, which, on May 2, 2016, confirmed the Commission's decision. This appeal followed.
We note that the weights recorded by Dr. Soudah and Dr. Gornet on November 22, 2010, differ, and there is no explanation of record for this discrepancy.
We note that the weight recorded by Dr. Soudah and Dr. Gornet on January 24, 2011, again differed and there is no explanation of record for this discrepancy. --------
¶ 34 ANALYSIS
¶ 35 The first issue on appeal is whether the Commission's award of PPD benefits pursuant to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2014)), rather than a PTD award pursuant to section 8(f) (id. § 8(f)), is against the manifest weight of the evidence. "[A] PTD award is proper when [an] employee can make no contribution to industry sufficient to earn a wage." Lenhart v. Illinois Workers' Compensation Comm'n, 2015 IL App (3d) 130743WC, ¶ 32. "A person is not entitled to PTD benefits if [s]he is qualified for and capable of obtaining gainful employment without seriously endangering h[er] health or life." Id. Here, the claimant argues that she has established that she falls into the "odd lot" category. "The odd-lot category for purposes of a PTD award arises when a 'claimant's disability is limited in nature so that [s]he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability.' " Id. ¶ 33 (quoting Valley Mould & Iron Co. v. Industrial Comm'n, 84 Ill. 2d 538, 546-47 (1981)). "In these situations, the claimant can establish that [s]he is entitled to PTD benefits under the odd-lot category by proving the unavailability of employment to persons in h[er] circumstances." Id. ¶ 36 " 'The claimant ordinarily satisfies h[er] burden of proving that [s]he falls into the odd lot category in one of two ways: (1) by showing diligent but unsuccessful attempts to find work, or (2) by showing that because of h[er] age, skills, training, and work history, [s]he will not be regularly employed in a well-known branch of the labor market.' " Id. ¶ 34 (quoting Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 544 (2007)). "If the claimant establishes that [s]he fits into the odd-lot category, the burden shifts to the employer to prove that the claimant is employable in a stable labor market and that such a market exists." Id. ¶ 37 Applying the above-noted standards to the Commission's decision to deny the claimant's claim of odd-lot PTD status, we find that the record supports the Commission's decision. Both vocational experts in this case opined that the claimant's job search was flawed. The claimant's vocational expert, Ms. Gonzalez, characterized the claimant's effort to search for work in 2011 as "minimal at best." Ms. Gonzalez stated that in March 2012, the claimant made a significant job search in which an average of 27 job contacts were made per month through November 2012. The claimant searched for jobs online and made a significant amount of in-person job contacts. However, Ms. Gonzalez opined that a careful review of the job search logs revealed that many of the jobs required a minimum of a GED to apply and many had lifting requirements that were beyond the claimant's restrictions. Furthermore, many jobs on the list, including some assistant manager positions and some retail sales positions, may have been beyond the claimant's skill level based on her education and prior work experience. Ms. Gonzalez concluded that although a significant good faith effort was made during these months, without the assistance of professional services, the claimant's job search was misdirected given her education and work experience. ¶ 38 The employer's vocational expert, Ms. Richter-Hill, testified that she reviewed the claimant's job search logs and also found that the claimant was not applying for jobs commensurate with her restrictions. While the claimant needs to seek work in the "light" category, the claimant was seeking jobs in retail and food service, which are typically "medium" to "heavy." Ms. Richter-Hill also pointed out multiple duplicities or discrepancies in the logs, and concluded the logs do not exhibit a diligent job search. Our review of the logs is consistent with Ms. Richter-Hill's assessment. Accordingly, there is evidence in the record from which the Commission could find that the claimant failed to prove a diligent but unsuccessful job search. ¶ 39 In addition, the record supports a finding by the Commission that the claimant failed to prove that because of her age, skills, training, and work history, she will not be regularly employed in a well-known branch of the labor market. We begin by noting that there is evidence in the record that she would still be employed by the employer within her restrictions had she not been terminated for violating the employer's "Violence-Free Workplace Policy." The claimant testified at the 19(b) arbitration hearing that, but for the termination, she would still be working for the employer. As of that time, her restrictions were no lifting over five pounds, no repetitive bending or lifting, alternating between sitting and standing as needed, and no more than four hours of work per day. A shift manager for the employer, Jamie Tylka, testified at the 19(b) hearing that she is familiar with the employer's "light duty policy," and but for the claimant's termination, the employer would have still been accommodating any restrictions the claimant might have, even if the claimant could only work limited hours. Tonya Curtis, assistant manager for the employer's Wood River location, testified that the employer's Wood River location has permanent jobs available that fit the claimant's permanent restrictions, including fitting room attendant, and people greeter. The employer's policy is that if someone is injured while working for employer and has permanent restrictions, if they remain employed with the employer, the employer would find them a permanent position that fit their restrictions. Based on this evidence, the Commission could conclude that the claimant's conduct, rather than her age, skills, training, and work history, has prevented the claimant from being regularly employed. ¶ 40 Aside from the claimant's termination from employment with the employer, we note that the claimant's vocational expert, Ms. Gonzalez, did not opine that because of her age, skills, training, and work history, the claimant will not be regularly employed in a well-known branch of the labor market. Ms. Gonzalez's vocational expert's report, quoted extensively above, contains no labor market data, but rather, opines, based on speculation, that the claimant will be passed over for employment due to her appearance and educational factors. While Ms. Gonzalez's report does not make a definitive statement that no stable labor market exists for the claimant, Ms. Richter-Hill, based on her review of the claimant's records, opined that there is a stable job market for the claimant in her geographic area taking into account the claimant's personal restrictions, due to transferable skills she developed while in the employ of Jamie's Video Darts over the course of her life. The Commission was free to adopt the opinion of Ms. Richter-Hill and find that the claimant failed to prove that there is no stable job market available for her. For these reasons, the Commission's decision to award the claimant PPD benefits pursuant to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2014)), rather than a PTD award pursuant to section 8(f) (id. § 8(f)), is not against the manifest weight of the evidence. ¶ 41 We turn briefly to the second argument in the claimant's brief, which states that "the [Commission]'s decision to find [the claimant's] inability to lose weight constituted an injurious practice under the Act therefore negating an odd lot permanent disability award is against the manifest weight of the evidence." This court can affirm the Commission on any basis in the record (see Freeman United Coal Mining Co. v. Industrial Comm'n, 283 Ill. App. 3d 785, 793 (1996)), and as set forth above, there is an independent basis in the record which supports the Commission's decision. In addition, as explained below, the correct standard of review on a Commission's finding pursuant to section 19(d) of the Act (820 ILCS 305/19(d) (West 2010)) is an abuse of discretion. See Global Products v. Illinois Workers' Compensation Comm'n, 392 Ill. App. 3d 408, 412 (2009). For these reasons, and those stated below regarding the Commission's 19(d) finding, we reject the claimant's second argument on appeal. ¶ 42 The claimant's third argument on appeal is that the Commission's decision to deny the claimant's medical bills incurred after May 9, 2011, is against the manifest weight of the evidence. However, the claimant cites no authority in support of this argument, and has therefore forfeited the argument. Esquinca v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 150706WC, ¶ 64 n.4 (citing Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016)). Forfeiture aside, and for the reasons that follow, we find that the claimant has stated the incorrect standard of review on this issue and that the Commission did not err. ¶ 43 The Commission's decision affirmed the arbitrator's decision that as of May 9, 2011, the claimant was at MMI because she was unable to have spinal surgery because of her failure to lose weight. The arbitrator, and thus the Commission, quoted section 19(d) of the Act (820 ILCS 305/19(d) (West 2010)), determining that the claimant's failure to lose weight in order to have her spinal surgery constituted an "injurious practice." Section 19(d), by its plain terms, vests the Commission with discretion to reduce an award in whole or in part where the claimant persists in an injurious practice tending to either imperil or retard her recovery. Id. There is no requirement that an injurious practice be the sole cause of a claimant's condition of ill-being for the Commission to reduce or deny compensation. Id. Rather, the Commission may, in its discretion, reduce an award in whole or in part if it finds that the claimant is doing things to retard her recovery. Keystone Steel & Wire Co. v. Industrial Comm'n, 72 Ill. 2d 474, 481 (1978). Section 19(d) vests the Commission's discretion on this subject, so we will only overturn its decision if that discretion is abused. See Global Products, 392 Ill. App. 3d at 412. An abuse of discretion occurs only where no reasonable person could agree with the position adopted by the Commission. Certified Testing v. Industrial Comm'n, 367 Ill. App. 3d 938, 947 (2006). ¶ 44 Here, the fact that the claimant was medically required to lose approximately 30 pounds in order to undergo the surgery, the referral of the claimant to a weight loss specialist who developed a comprehensive treatment program, and the claimant's noncompliance with that program, is well-documented in the medical records before the Commission and set forth in detail above. As of the date of arbitration, the claimant remained at a weight far in excess of that necessary for her to undergo the needed spinal surgery. For these reasons, we cannot say that no reasonable person could agree with the Commission's decision to reduce the claimant's medical expenses to those incurred prior to May 9, 2011, due to the claimant's failure to lose weight in order to be eligible to undergo the treatment she needed to relieve herself of the effects of her back injury. Accordingly, we find no abuse of discretion.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the circuit court of Madison County, which confirmed the Commission's decision, is affirmed. ¶ 47 Affirmed. ¶ 48 PRESIDING JUSTICE HOLDRIDGE, dissenting: ¶ 49 I would reverse the Commission's finding that the claimant had failed to establish entitlement to a PTD award under the odd-lot theory. As the majority noted, a claimant ordinarily satisfies the burden of proving entitlement to PTD benefits under the odd-lot theory in one of two ways: (1) by showing diligent but unsuccessful attempts to find 24 work, or (2) by showing that because of age, skill, training, and work history the claimant will likely not be regularly employed in a well-known branch of the labor market. Supra ¶ 36. If the claimant establishes entitlement to PTD benefits under the odd-lot theory, the burden then shifts to the employer to prove that the claimant is employable in a stable market and that such a market exists. Id. I would find that the overwhelming weight of the evidence established that the claimant met her burden of showing that she performed a diligent job search under the odd-lot theory and the employer failed to prove that a stable employment market existed for the claimant's skills. Although we must be reluctant to set aside the Commission's factual findings regarding disability, we should not hesitate to do so when the overwhelming weight of the evidence compels an opposite conclusion. Montgomery Elevator Co. v. Industrial Comm'n, 244 Ill. App. 3d 563, 567 (1993). In the instant matter, the opposite conclusion is clearly apparent from the record. Here, the Commission's determination as to PTD is against the manifest weight of the evidence and should be reversed. City of Springfield v. Illinois Workers' Compensation Comm'n, 388 Ill. App. 3d 297, 315 (2009). ¶ 50 Turning to the question of whether the claimant showed "diligent but unsuccessful attempts to find work," the record established that the claimant's search for work was both diligent and unsuccessful. There is nothing in the record to rebut the claimant's showing of diligence in her job search. The claimant's vocational expert, Delores Gonzalez, described the claimant's job search as "significant" in number of both "in-person" and "on-line" job contacts. Gonzalez also testified that the claimant made a "significant good faith" effort in seeking work. The Commission noted that Gonzalez was 25 critical of the claimant's applying for jobs that a vocational expert would have told her were beyond her skills and abilities. From this statement, the Commission inferred that the claimant's "misdirected" efforts, although performed in good faith, somehow showed the claimant lacked sufficient diligence in her search. This inference that the claimant was not diligent in her job search because she did not utilize the services of a vocational expert is completely unfounded and unsupported by the record. Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1019 (2005) (self-directed job search does not imply lack of diligence). ¶ 51 Moreover, the purpose of a diligent job search in the odd-lot analysis is to prove that no work is available for a person with the restrictions, qualifications, and background of the claimant. Valley Mould & Iron Co. v. Industrial Comm'n, 84 Ill. 2d 538, 546-47 (1981). Evidence of a diligent job search is sufficient, in and of itself, to show that a claimant is not employable. Residential Carpentry, Inc. v. Illinois Workers' Compensation Comm'n, 389 Ill. App. 3d 975, 982 (2009). A job search that is uncontroverted in its "significance" and "good faith" meets all objective criteria for diligence. There is no evidence in the instant matter that the claimant disregarded potential employment opportunities or refused work which had been offered to her. See City of Green Rock v. Industrial Comm'n, 255 Ill. App. 3d 895, 902 (1993). There is no evidence that the claimant applied for jobs that she knew were beyond her qualifications, that she magnified or falsified symptoms to limit her employment potential, or that she purposely avoided applying for jobs within her qualifications. See Lenhart v. Illinois Workers' Compensation Comm'n, 2015 IL App (3d) 130743WC, ¶ 35. 26 ¶ 52 The Commission gave greater weight to the opinion of the employer's vocational expert, Jo Ann Richter-Hill, that the claimant's search lacked "diligence," based upon an observation that the claimant was applying for employment in positions that were beyond her physical or mental capabilities. While the Commission is, of course, given great deference in determining the weight to be accorded to all evidence, including expert opinion testimony, where the evidence does not support the Commission's conclusion it is not entitled to such deference. Montgomery Elevator Co., 244 Ill. App. 3d at 567. Here, Richter-Hill opined that the claimant was not diligent because she applied for retail and food service jobs which were "typically medium to heavy" jobs, rather than "light category" jobs for which the claimant was better suited. While the record established that the claimant's FCE established that she could function at a "light" demand level, the object criteria established in her permanent restrictions report showed a lifting restriction of approximately 25 pounds and no repetitive lifting. Richter-Hill gave no explanation as to how a typical retail or food service job would require either repetitive lifting motions or lifting over 25 pounds. Moreover, she did not provide any specific analysis to explain how any of the jobs for which the claimant applied were beyond her physical restrictions. In addition, the record clearly established that he claimant had prior retail sales and food service experience. ¶ 53 The majority further points out that the claimant's job search was "flawed" by a perceived lack of efforts to acquire a GED, or address her dyslexia and her weight problems. I disagree. The majority cites no authority, nor have I uncovered such authority, to support the proposition that a claimant must take extraordinary steps to 27 improve his or her employability in order to demonstrate a diligent job search. Indeed, the proposition that a claimant has an affirmative duty to improve his or her current condition in order to demonstrate "diligence" turns the very purpose of a diligent job search on its head. The purpose of the diligent job search in odd-lot analysis is to establish that the claimant in his or her current condition is unemployable in the current labor market. Valley Mould, 84 Ill. 2d at 546. By all objective criteria, the record clearly established that this claimant acted with due diligence in searching for appropriate employment and the Commission's finding to the contrary was against the manifest weight of the evidence. ¶ 54 I also strongly disagree with the majority's conclusion that the circumstances surrounding the employer's decision to terminate the claimant's employment have any bearing on her current employability. The unfortunate occurrence where Dr. Gornet chose to disclose the claimant's statement made in a confidential medical setting under obvious physical and mental stress, and the employer's decisions to terminate the claimant based on that disclosure should not have any bearing on the claimant's current employability. The majority's supposition that, had the claimant not made the statement she would still be employed, likewise has no relevance to the question of her employability in the current labor market. Because I would find that the claimant established through a diligent but unsuccessful job search that there existed no stable job market for someone in her circumstances, I would find that the claimant had met her burden of proving entitlement to PTD benefits under the odd-lot theory. I would therefore reverse the decision of the Commission on that issue. 28 ¶ 55 I also dissent from the majority's holding that the Commission properly applied section 19(d) of the Act when it determined that the claimant's inability to lose weight constituted an injurious practice negating the claimant's entitlement to a PTD award under the odd-lot theory. 820 ILCS 305/19(d) (West 2010) ("If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce of suspend the compensation of any such injured employee."); Global Products v. Illinois Workers' Compensation Comm'n, 392 Ill. App. 3d 408, 411 (2009). ¶ 56 In the instant matter, the Commission determined that the claimant's inability to lose 30 pounds so as to allow her to undergo surgery that might alleviate her back condition was an intentional injurious practice that negated the claimant's entitlement to benefits. While the Commission may exercise discretion in determining what constitutes an injurious practice and whether the claimant's actions imperiled or retarded her recovery, that decision must be overturned where no reasonable person would agree with that conclusion. Keystone Steel & Wire Co. v. Industrial Comm'n, 72 Ill. 2d 474, 481 (1978). I would find that the Commission's position that the claimant's inability to lose weight was an injurious practice under these circumstances was objectively unreasonable. ¶ 57 The record established without contradiction that the claimant suffered from medically diagnosed morbid obesity, complicated by hyperlipidemia, hypertension, and hyperthyroidism. Likewise, the record established that the claimant had suffered from these conditions for several years prior to her injury. Moreover, the record established 29 that the claimant's weight in the years prior to her injury had fluctuated between 250 and 294 pounds. Clearly, the claimant's weight condition developed over several years and was not simply the result of self-inflicted practice. Dr. Soudah's ultimatum that the claimant lose 30 pounds in 6 months or he would declare her to be at MMI is nowhere supported by objective criteria. ¶ 58 This court has interpreted section 19(d) of the Act in terms of whether the claimant engaged in the alleged injurious practice purposely with intent to "imperil or retard" recovery. Gallego v. Industrial Comm'n, 168 Ill. App. 3d 259, 268-69 (1988) (claimant intentionally wrapped his hand in cloth in a deliberate attempt to impair circulation and delay recovery). I would find our holding in Global Products particularly instructive in this matter. In that case, the claimant's smoking habit inhibited and retarded his recovery from surgery. This court noted that there was nothing in the record to indicate that the claimant smoked in order to impair his recovery. Global Products, 392 Ill. App. 3d at 413 ("claimant smoked in spite of its potential impact on his recovery, not because of it"). The same must be said here. There is a complete lack of evidence that the claimant engaged a "practice" of morbid obesity and that her inability to lose weight was done with the intent of sabotaging her recovery. Like the claimant's smoking in Global Products, the claimant in the instant matter was afflicted with her condition for years prior to being injured and there is no evidence to establish to any reasonable mind that the claimant simply chose not to lose weight in order retard her recovery. ¶ 59 For the foregoing reasons, I would reverse the decision of the Commission and I therefore, respectfully, dissent from the judgment of this court.