Opinion
No. 3-14-1011WC
04-25-2016
DAVID PAUL KAZMIERSKI, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Peoria Journal Star and Gatehouse Media, Appellees).
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 Peoria County
No. 14 MR 258
Honorable Michael P. McCuskey, Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart concurred in the judgment.
ORDER
¶ 1 Held: The decision of the Illinois Workers' Compensation Commission which denied the claimant benefits pursuant to the Workers Compensation Act (820 ILCS 305/1 et seq. (West 2006)) for injuries he allegedly sustained while working for the Peoria Journal Star is not against the manifest weight of the evidence.
¶ 2 The claimant, David Paul Kazmierski, appeals from an order of the circuit court of Peoria County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission) denying him benefits pursuant to the Workers Compensation Act (Act) (820 ILCS 305/1 et seq. (2006)) for injuries he allegedly sustained while working in the employ of the
Peoria Journal Star (Star). For the reasons which follow, we affirm the judgment of the circuit court.
¶ 3 The following factual recitation is taken from the evidence adduced at the arbitration hearing conducted on August 27, 2012.
¶ 4 The claimant began his testimony with a description of his job responsibilities since he began working for the Star. He testified that he was hired by the Star in 1978 as a mailer trainee and promoted two years later to journeyman mailer. During this time, his duties included inserting paper into machines by hand, stacking bundles of newspapers and inserts, and preparing newspapers to be mailed to customers. According to the claimant, for at least half of his shift, he was required to lift bundles of newspapers or news inserts that weighed between 15 and 30 pounds. He would lift the papers out of a stacker and stack them on a wooden skid or pallet that was located on the floor and about three or four inches high. The claimant estimated that he could lift hundreds of stacks per day in this manner.
¶ 5 By the early 1990s there were ergonomic aides, which, according to the claimant, included powered pallet lifts and turntables to assist workers in feeding the papers onto a conveyer belt. This led to less bending and twisting. However, the claimant testified that he was still expected, about 20% of the time, to lift bundles of papers, and also to lift empty pallets from the floor. The claimant stated that there were 3 types of pallets: wooden pallets, plastic pallets which weighed about 2 pounds, and a perfect pallet which weighed 40 pounds. In 2005, the claimant was promoted to "man in charge." The claimant testified that, in the new position, he spent no more than 20% of each shift lifting. The claimant testified that, in addition to his job at the Star, he also worked part-time as a bartender between the years of 1981 and 1987.
¶ 6 According to the claimant's testimony, the alleged accident giving rise to this claim occurred at some point in late August of 2007, although he waivered as to the exact date. He ultimately testified that, about 3 a.m. on August 24, 2007, he was placing a perfect pallet on top of a pile of plastic pallets without assistance, when he felt a tremendous shooting pain down his left leg like "getting stabbed [in the back] by an ice pick." The claimant described his pain intensity as 9 on a scale of 10 and the worst he had experienced in his life. According to the claimant, he had never felt these symptoms before the accident. In the ensuing 24 hours, he also developed numbness in his left leg. The claimant testified that he missed five continuous months of work as a result of his accident, beginning with August 25, 2007.
¶ 7 According to the claimant, within minutes of the accident, he notified his supervisor, Tim Burnside, that he had injured his back while picking up a pallet. Burnside told him to contact the head of the department, John Phillips. The claimant testified that, the following morning, he reported to Phillips that he had suffered a back injury, although he did not reference it as a work-related accident and did not submit an accident report. Within two days of the accident, the claimant notified the Star's human resources manager, Julie O'Donnell, that he had a back injury and would require medical care. The claimant stated that he also told the benefits manager, Marnie Roberts, that he had ruptured his disc, in order to ensure he had vacation pay to cover the period during which he would be obtaining medical care.
¶ 8 The claimant stated that, within a week of the accident, he saw his family physician, Dr. Timothy Lawless, who prescribed pain medication for him. Dr. Lawless' records state that the claimant presented for treatment on August 28, 2007, for "lower back pain [which] radiates down *** leg (new) x 10 days." However, the records contain no reference to any accident or occurrence giving rise to the claimant's symptoms. There is also no indication that Dr. Lawless
took the claimant off of work. Dr. Lawless ordered an MRI for the claimant which was taken on September 6, 2007. The report of the interpreting physician, Dr. Lawrence Wang, noted a large disc protrusion at the left L2-3 level. Dr. Wang's report also notes a "reason for exam" as "low back and L leg radiating pain, leg for one month, back for last 6 months."
¶ 9 The claimant saw Dr. Jeffrey Klopfenstein, a neurosurgeon, on September 20, 2007. According to Dr. Klopfenstein's records, the claimant was "a 51 year-old male who presents with chronic back pain and left anterior thigh pain since early August." The claimant reported pain intensity of 6 on a 10-point scale. Dr. Klopfenstein's records make no mention of any accident or other eventuality giving rise to the claimant's symptoms. A notation on the record states that Dr. Klopfenstein did not take the claimant off of work at that time. An examination revealed a positive reverse straight-leg raise test on the left and a positive crossed-reverse straight-leg raise on the right, which Dr. Klopfenstein believed were indicative of nerve root irritation. In his deposition, Dr. Klopfenstein testified that the MRI of September 6, 2007, disclosed diffuse spondylosis of the lumbar spine and a large left L2-3 disc herniation. Dr. Klopfenstein recommended that the claimant undergo a microdiscectomy at L2-3.
¶ 10 On October 8, 2007, the claimant underwent lower-back surgery with Dr. Klopfenstein at St. Francis Medical Center. In a post-operative record of November 9, 2007, the doctor's nurse practitioner, Jan Boerke, stated the claimant was doing very well and that she recommended he gradually increase his activities towards a resumption of his usual routine. The claimant, a smoker, was advised to quit smoking and also to proceed with physical therapy. Effective January 14, 2008, Dr. Klopfenstein released the claimant to return to full-duty work. At that time, he returned to work at the Star in the position of journeyman mailer. The claimant testified that, aside from an occasional missed day, he remained at work following his surgery, and no
physician ever removed him from full-duty status following his release to work in January 2008. The parties stipulated that, during his time off of work, the claimant received $9060.10 in non-occupational, short term disability benefits.
¶ 11 The claimant entered into evidence medical bills for the period of August 28, 2007, through at least January of 2011, for ongoing treatments he received for his chronic lower back and leg symptoms. The Star introduced into evidence an opinion letter prepared by Dr. M. Marc Soriano, an orthopedic surgeon. The letter was based upon the doctor's review of the claimant's medical records from September 1994 and March 26, 2002, and from August 28, 2007, through August 8, 2009. Dr. Soriano noted that the claimant's status was post-microdiscectomy and disc herniation at L2-3, left, and that he has a long history of low back pain with a new onset of left leg pain due to the herniated disc. Dr. Soriano opined that there existed no documented causal relationship between the herniation and any work-related injury. The doctor also noted that the claimant himself listed "other" as a cause of his disc herniation and did not check the "work-related" cause section on his intake form with Dr. Klopfenstein. Dr. Soriano opined that the claimant was at maximum medical improvement, and had attained that status as of January 14, 2008, when he returned to work.
¶ 12 On June 28, 2010, counsel for the claimant sent correspondence to Dr. Klopfenstein requesting a written opinion that the claimant's work for the Star had caused his bone spurring and ruptured disc, "with secondary consideration to the bulging discs and the deteriorating effect [of his work,] *** [o]ne in the long term, one as an event." When describing to Dr. Klopfenstein the type of work he performed, the claimant stated "32 years of lifting twisting and bending as the primary duties" of his job. The letter contains no reference to any specific accident or occurrence allegedly causing the claimant's injury.
¶ 13 In his deposition, Dr. Klopfenstein testified that he never responded to the letter request of June 28, 2010. The doctor testified that, in his opinion, the claimant's left anterior thigh pain was caused by the L2-3 herniated lumbar disc and his lower back symptoms were attributable to his spondylosis. The doctor defined spondylosis as degenerative changes within the spine which weaken the joints of the spine. In the claimant's case, the degenerative disc spaces were significantly collapsed, and there were bone spurs. According to the doctor, stress and strain on those joints and on the disc spaces could result in disc herniation as experienced by the claimant.
¶ 14 When asked whether the claimant had described his "work activities" to him, Dr. Klopfenstein responded that he could not recall. Over objection by the Star, counsel for the claimant presented a hypothetical situation in an effort to garner an opinion from Dr. Klopfenstein as to the cause of the claimant's current lower back condition. The doctor was asked to assume that, from 1978 to his surgery, the claimant spent all of his 8-hour shift at the Star on his feet, lifting 15 to 25 pounds, or sometimes 30 pounds of paper hundreds of times per day; that his work involves regular and recurrent bending, twisting, flexion and extension at the waist; and that he picks up newspaper inserts from skids on the ground and loads them at waist height or shoulder height into the hoppers. Dr. Klopfenstein opined that it is "certainly conceivable" that, if the claimant were "lifting 25 to 30 pounds routinely and over the course of years to decades," this could have led to a herniated disc or contributed to his "overall degenerative picture." The doctor added that it is conceivable the claimant's work could have caused the herniated disc "depending in part on the temporal relationship of onset of symptoms and so on that you guys will determine with your investigation."
¶ 15 On cross-examination, Dr. Klopfenstein acknowledged that the claimant never gave him any indication that his back problems resulted from a work-related accident or injury. He also
confirmed that, on the claimant's initial intake form, a box inquiring whether his problem was work-related was checked "no." The doctor admitted that the claimant never made reference to any specific accident or theory of repetitive trauma giving rise to his symptoms. Finally, according to Dr. Klopfenstein, it is reasonable to infer that the claimant's condition in September of 2007 had been present for years prior to that time.
¶ 16 In his testimony, the claimant initially recalled suffering his alleged work injury between August 23rd and 29th of 2007 while working the night shift at the Star. When pressed to specify a date, the claimant stated that his injury occurred on August 24, 2007, because there was a "tremendous time lag" in his medical records and he "know[s] it wasn't the first of the month, *** it was at the end of the month," because he "would not have gone that long without treatment." According to the claimant, he reported to Dr. Lawless that he had injured his back on August 24, 2007, when he placed a plastic pallet on top of another plastic pallet.
¶ 17 On cross-examination, the claimant admitted that he never completed an accident form for his alleged work accident. He testified that, when he first saw Dr. Klopfenstein, he did not tell the doctor that he had hurt his back while lifting pallets, but he did state that his injury was work-related. However, when confronted with the patient information sheet he completed at Dr. Klopfenstein's office, the claimant admitted he did not check the box on the form that reflected a work-related accident, but instead check the box designated "other." The form also indicates an injury date of August 1, 2007, but does not specify the nature of that accident or injury. The claimant then testified that he told Dr. Klopfenstein that his injury was work-related but that his statement was "anecdotal," meaning it was not intended as a workers' compensation claim at that point. The claimant stated that, when he completed the paperwork seeking short-term disability benefits, he never represented that he had a workers' compensation claim.
¶ 18 On further cross-examination, the claimant admitted that he filed his application for adjustment of claim on July 10, 2009, alleging an injury based upon repetitive lifting and an accident date of August 3, 2007. He also admitted that the application made no reference to a herniated disc. Finally, the claimant acknowledged that his attorney's letter to Dr. Klopfenstein of June 28, 2010, seeking a causation opinion makes no mention of any work-related accident. The claimant denied that he had ever been a weightlifter, and testified that he did not know why a medical record from Dr. Lawless' office on March 26, 2002, stated that he was a weightlifter and had suffered with back spasms for three weeks.
¶ 19 On re-direct examination, the claimant confirmed that there were situations where he told a treating physician that the accident was work-related, and situations where he did not tell the physician "or other person" that the accident was work-related. The claimant's counsel then asked the claimant the reason for this inconsistency, drawing an objection from counsel for the Star which was sustained by the arbitrator. The claimant acknowledged having previously settled a workers' compensation claim with the Star for an unrelated claim in 1992. He admitted having completed an accident report for that claim, and that he understands the procedures required in making a claim.
¶ 20 Julie O'Donnell testified that she is the human resources manager for the Star and her responsibilities include processing workers' compensation claims for employees. According to O'Donnell, the Star had a very specific procedure for reporting employee injuries, and at no time in August of 2007 did she have any conversation with the claimant about a work injury during that month. Rather, O'Donnell stated that she first became aware of the claimant's work-related injury when she received a copy of his application for adjustment of claim in July of 2009.
¶ 21 Following a hearing held pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2012)), the arbitrator issued a decision denying the claimant benefits pursuant to the Act. The arbitrator found that the claimant failed to prove that (1) he suffered an accident arising out of and in the course of his employment, and (2) the current condition of ill-being in his lower back resulted from his employment with the Star. The arbitrator also found that the claimant failed to provide the Star with timely notice of his alleged injury.
¶ 22 The claimant filed for a review of the arbitrator's decision before the Commission. On March 31, 2014, the Commission issued a unanimous decision affirming and adopting the arbitrator's decision.
¶ 23 The claimant sought judicial review of the Commission's decision in the circuit court of Peoria County. On December 4, 2014, the circuit court entered an order confirming the Commission's decision. The instant appeal followed.
¶ 24 The claimant first argues that the arbitrator abused her discretion in disallowing his proffered testimony explaining why he had failed to report his medical condition as a work-related injury. In response, the Star maintains that the attempted explanation went beyond the scope of what was asked of the claimant on cross-examination, which was simply whether he told his treatment providers that he was injured at work.
¶ 25 On direct and cross-examination, the claimant testified that he had informed Dr. Lawless within days of his alleged accident that he had been injured at work while placing a plastic pallet on top of another plastic pallet. With regard to Dr. Klopfenstein, the claimant first testified that he did not tell the doctor that he had hurt his back while lifting a pallet, although he did tell him that his injury was work-related. Counsel for the Star then impeached the claimant with his patient information sheet from Dr. Klopfenstein's office, in which the claimant failed to check a
box representing that his injury was caused by his work. On re-direct examination, the claimant confirmed that "there were situations where [he] told a treater that the accident was work-related, and situations where [he] did not tell the treater it was work-related." When the claimant's attorney asked the reason for this inconsistency, the arbitrator sustained an objection by the Star and disallowed the claimant's response.
¶ 26 At the conclusion of O'Donnell's testimony, the claimant's attorney made the following offer of proof:
"If allowed to testify [the claimant] would testify that he did not file an Application for Adjustment of Claim or tell his supervisor other than Mr. Burnside that there was in fact an on-the-job injury.
Because of his experience with the previous worker's compensation claim, his observation of other employees under his direction that filed worker's compensation claim that those individuals were not treated well, that they were not paid their salary, that they were called back to work when they weren't ready to come back.
In other words, this was a protection as he saw it to make sure he was not treated unfairly or discriminatorily, and that he got the treatment that he needed because he was afraid that the provider would not provide it, he will so testify if called as a witness."
¶ 27 The claimant now argues that the exclusion of this testimony was erroneous and highly prejudicial to his case. We disagree.
¶ 28 Evidentiary rulings, particularly those pertaining to an offer of proof, are within the sound discretion of the Commission and not subject to reversal absent a clear abuse of that discretion. See People v. Wheeler, 226 Ill. 2d 92, 132 (2007); see also Coriell v. Industrial Comm'n, 83 Ill. 2d 105, 111 (1980). The purpose of an offer of proof is to disclose to the
Commission and opposing counsel the nature of evidence to which an objection has been interposed, as well as to enable the reviewing court to evaluate whether the exclusion of the evidence was proper. See Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451 (2004); see also People v. Andrews, 146 Ill. 2d 413, 421 (1992). The failure to both raise an objection to excluded evidence and to make a sufficient offer of proof results in a forfeiture of the issue of whether the evidence was improperly excluded. See Andrews, 146 Ill. 2d at 421.
¶ 29 Here, the offer of proof bore no relationship to the inconsistency that was exposed on cross-examination and to which the Star's counsel objected: namely, why the claimant supposedly reported his work-related injury to Dr. Lawless but not to Dr. Klopfenstein or his other treating physicians. The offer of proof, by contrast, sought only to explain why the claimant had failed to report his injury to his supervisors or to file an application for adjustment of claim. There was no attempt by either party, either on direct or cross-examination, to elicit testimony regarding why the claimant failed to report the accident to his supervisors. In fact, as he argues, it was his position that he had notified Burnside of a work injury within hours after it occurred. The offer of proof, therefore, had no connection to any evidence alleged to be excluded during the hearing. Accordingly, we find no abuse of discretion in the arbitrator's refusal to allow the proffered testimony.
¶ 30 The claimant next argues that the Commission's determination that he failed to prove that he suffered an accident while at work is contrary to the manifest weight of the evidence. He argues that his own unrebutted testimony established that, on August 24, 2007, he was lifting a heavy pallet when he suddenly experienced a severe shooting pain down his left leg which he had never experienced before. He also points to the medical evidence which he asserts indisputably proves that, in August of 2007, he had a herniated disc, stenosis and bone spurring.
¶ 31 We will not reverse a decision by the Commission unless it is contrary to law or against the manifest weight of the evidence (Durand v. Industrial Comm'n, 224 Ill. 2d 53, 64 (2006)), meaning that no rational trier of fact could have agreed with the outcome. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120 (1996). It is the function of the Commission to judge the credibility of witnesses and resolve any conflicts in the evidence. O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980); University of Illinois v. Industrial Comm'n, 365 Ill. App. 3d 906, 911 (2006).
¶ 32 In order to be entitled to recovery under the Act, a claimant must prove, by a preponderance of the evidence, all elements necessary to justify an award. Quality Wood Products Corp. v. Industrial Comm'n, 97 Ill. 2d 417, 423 (1983). Whether he is basing his claim upon an acute injury or repetitive trauma, the burden of proof is the same: that the claimant suffered an injury that arose out of and in the course of his employment. Durand, 224 Ill. 2d at 64. In cases involving an acute-trauma injury, the claimant must show that the injury is traceable to a definite time, place, and work-related cause. See Majercin v. Industrial Comm'n, 167 Ill. App. 3d 894, 900 (1988); Darling v. Industrial Comm'n, 176 Ill. App. 3d 186, 192-93 (1988). In repetitive-trauma cases, the claimant must identify the date on which the injury manifested itself. Darling, 176 Ill. App. 3d at 191. Recovery under the Act cannot rest upon imagination, speculation or conjecture; it must be based upon facts affirmatively connecting the employee's duties as a cause of the resulting injury. Arbuckle v. Industrial Comm'n, 32 Ill. 2d 581, 585 (1965); Chicago Rotoprint v. Industrial Comm'n, 157 Ill. App. 3d 996, 1000 (1987). Whether an injury arose out of a claimant's employment is a question of fact to be resolved by the Commission, and its findings on this issue will not be set aside unless it is against the manifest weight of the evidence. University of Illinois, 365 Ill. App. 3d at 910.
¶ 33 In this case, there is sufficient evidence to support the Commission's decision that the claimant failed to prove the occurrence of an accident arising out of and in the course of his employment, and its decision in that regard is, therefore, not against the manifest weight of the evidence. The claimant alleged in his application for adjustment of claim that his lower back condition was the result of "repetitive lifting," giving an accident date of August 3, 2007. At the hearing, however, he attempted to prove a specific accident. He was at first uncertain as to when the accident occurred, but he ultimately testified to a date of August 24, 2007, stating unequivocally that it was at the end rather than the beginning of the month. None of the claimant's medical records, however, contain a reference to any specific accident or injury at or near this time period. Although he testified that the accident triggered a sudden "tremendous" leg pain greater than any he had experienced in his lifetime, medical records from his first visit to Dr. Lawless four days later on August 28, 2007, make no mention of any particular occurrence precipitating the claimant's visit or symptoms. Nor is there any evidence that he was taken off of work by Dr. Lawless. The records of Drs. Klopfenstein and Wang, as well as the testimony of Dr. Klopenstein, similarly contain no indication of any specific occurrence that caused the claimant to seek treatment. Rather, the records in the month following the alleged accident consistently note that the claimant suffered from chronic back pain, with Dr. Wong specifying over the last six months, and radiating leg pain beginning in early August. Further, the claimant's testimony that he reported his injury to Dr. Lawless finds no support in Dr. Lawless' records. Although the claimant's testimony of events alone may be sufficient to sustain an award in his favor (Morin Erection Co., Inc. v. Industrial Comm'n, 81 Ill. 2d 72, 75 (1980)), the Commission need not accept such testimony when it is contradicted by other evidence in the record. Smith v. Industrial Comm'n, 98 Ill. 2d 20, 23 (1983); Caterpillar Tractor Co. v.
Industrial Comm'n, 73 Ill. 2d 311, 315 (1978). There was sufficient evidence in this case for the Commission to find that the claimant's symptoms were not the result of any specific work accident, but rather of a longstanding back condition.
¶ 34 Next, the claimant challenges the Commission's finding that his current state of ill-being is unrelated to his employment. As an apparent alternative to his second argument, he asserts that the opinion of Dr. Klopfenstein established that he suffered repetitive trauma, manifested in his injury of August of 2007, as a result of his 32 years of employment with the Star. We disagree.
¶ 35 Even if the claimant could demonstrate that he suffered lower back trauma which manifested itself at some point in August of 2007, he has fallen short of showing that his condition was work-related. An employee may obtain benefits under the Act as a result of repetitive trauma, but he still must prove that his condition of ill-being is connected to the repetitive stresses of his usual work tasks. Darling, 176 Ill. App. 3d at 192 (citing General Electric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 434 (1982)). Furthermore, it is particularly important in repetitive trauma cases that the claimant provide explicit medical testimony establishing the requisite causal connection. Darling, 176 Ill. App. 3d at 193 (citing cases); Majercin, 167 Ill. App. 3d at 900-01.
¶ 36 In support of his position, the claimant relies upon Dr. Klopfenstein's testimony in response to the claimant's hypothetical description of his work duties at the Star from 1978 until his surgery on October 8, 2007. The doctor was asked to assume that the claimant spent his entire shift on his feet, lifting 15 to 30 pounds of paper hundreds of times per day, and that his work involved regular and recurrent bending, twisting, flexion and extension at the waist. Dr. Klopfenstein opined that it is "certainly conceivable" that, if the claimant were "lifting 25 to 30
pounds routinely and over the course of years to decades," this could have led to a herniated disc or contributed to his "overall degenerative picture."
¶ 37 This testimony fails to establish the requisite causation for an award based upon repetitive trauma. Far from opining, to a reasonable degree of medical certainty, that the claimant's degenerative condition was more likely than not caused by his work duties, the doctor at best acknowledges the possibility that the duties described in the hypothetical led to the claimant's herniated disc and spinal degeneration. Opinion testimony as to mere possibilities is insufficient prove causation under the Act. County of Cook v. Industrial Comm'n, 68 Ill. 2d 24, 31 (1977). Further, we find that the duties posed in the hypothetical differed significantly from those to which the claimant actually testified. Although the claimant did describe repetitive lifting of paper bundles and recurrent bending and twisting, he also testified that this aspect of his job diminished substantially with the introduction of ergonomic aids in the early 1990s, and that his work-related lifting accounted for no more than 20% of his daily shift from this time through his promotion in 2005, and until his injury. Expert testimony is permissible based upon hypothetical assumptions; however, those assumptions must find reasonable support in the record. Guardian Electric Manufacturing Co. v. Industrial Comm'n, 53 Ill. 2d 530, 535 (1973); Carter v. Johnson, 247 Ill. App. 3d 291, 297 (1993). We find no basis for an assumption that that claimant was routinely lifting 25 to 30 pounds as part of his job in the years or even the decade leading to his alleged injury. Based upon our review of the record, the disparity between the hypothetical posed to Dr. Klopfenstein and the actual physical requirements of the claimant's job is sufficiently broad so as to render Dr. Klopfenstein's opinion of little probative value. For these reasons, the Commission could properly have found that the claimant failed to prove that his back condition of ill-being was causally related to his work for the Star.
¶ 38 Having found no error in the Commission's causation finding, we need not reach the claimant's argument that the Commission's determination that he failed to provide the requisite notice of his claim was against the manifest weight of the evidence.
¶ 39 For the reasons stated, we affirm the judgment of the circuit court which confirmed the Commission's decision denying the claimant benefits pursuant to the Act.
¶ 40 Affirmed.