Opinion
1-21-0636WC
04-08-2022
NEXUS EMPLOYMENT SERVICES, INC., Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al., Danial Harvey, Appellee.
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County Nos. 19 L 050785 Honorable John J. Curry, Jr., Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Holdridge and Justices Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
HOFFMAN JUSTICE
¶ 1 Held: We affirmed the judgment of the circuit which confirmed a decision of the Illinois Workers' Compensation Commission, awarding the claimant, Daniel Harvey, benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2016)).
¶ 2 Nexus Employment Services, Inc., (Nexus) filed the instant appeal from an order of the Circuit Court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), awarding the claimant, Daniel Harvey, benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2016)), for injuries to his back sustained while working on October 9, 2017. For the reasons which follow, we affirm the judgment of the circuit court.
¶ 3 The following recitation of the facts relevant to a disposition of this appeal is taken from the evidence adduced at the arbitration hearing held on February 21, 2018.
¶ 4 The claimant testified that he was employed by Nexus, an employment staffing agency. For over 2 1/2 years prior to the events giving rise to the instant claim, he was assigned to work at TI Cold Storge (TI) as a pellet jack operator or runner.
¶ 5 According to the claimant, on October 9, 2017, he was instructed to "build the trucks up after lunch." He stated that he was stacking boxes of meat on the dock and, while "lifting one of the boxes" over his head to stack it on a pallet, he felt his back "rip." He testified that the box that he lifted was between 80 and 90 pounds.
¶ 6 The claimant testified that he reported the incident to his supervisor, Alfredo Gomez, who told him to continue working. He stated that Gomez told him that he would fill out an incident report. The claimant admitted that he did not report a work-related accident to Sara Vandermolen, TI's office manager. Following the incident, the claimant continued working and completed his work shift. He did not seek medical attention on that day.
¶ 7 Gomez testified that, on October 9, 2017, he was employed by TI as a "a regular worker." Gomez stated that he was not a supervisor. He denied any knowledge on that date of an injury to the claimant while working. He stated that he did not witness the claimant being injured on that date and did not observe him in discomfort.
¶ 8 The claimant stated that, on October 10, 2017, he reported for work and informed Gomez that his back was still bothering him. According to the claimant, Gomez started yelling and swearing at him. Gomez denied yelling at the claimant or threatening him. The claimant testified that he worked his full shift on that day without performing any lifting. He stated that he called the office of his family physician, Dr. Raymond Weiss, and scheduled an appointment for October 12, 2017.
¶ 9 On Wednesday October 11, 2017, the claimant reported for work. He stated that he was walking with a noticeable limp that both Gomez and Vandermolen noticed. According to the claimant, he told Vandermolen that he "had gotten hurt, I had to go to a doctor appointment, I had to leave early Thursday." He admitted, however, that he did not inform Vandermolen that his injury was work related, nor did he ask her whether Gomez had completed an accident report. The claimant stated that he was still experiencing back pain but was able to work by avoiding lifting. He testified that, when he asked Gomez if he had completed an accident report, Gomez yelled at him, but later told him (the claimant) that an accident report had been completed.
¶ 10 The claimant testified that he returned to work on October 12, 2017, and, before he left early to see his doctor, Gomez "caught me in the cooler" and showed him a piece of paper with the following written on it: "tell the doctor that you were lifting a washer, you hurt your back." He stated that Gomez told him he would be fired if he did not give the doctor that history. He admitted that he did not tell Vandermolen about that conversation.
¶ 11 Gomez denied ever having a conversation with the claimant in the cooler. He also denied telling the claimant to lie to his doctor or showing the claimant a note instructing him to tell his doctor that he was hurt while moving a washing machine.
¶ 12 On October 12, 2017, the claimant presented to Dr. Weiss, complaining of back pain. The history in Dr. Weiss's records of that visit state that the claimant reported experiencing a "pop" in his right lower back while moving a washer. Following his examination of the claimant, Dr. Weiss diagnosed a low back strain and a strain of the trapezius muscle. He ordered blood tests; prescribed medication, a Medrol dose pack, moist heat, and a back brace; and restricted the claimant from heavy lifting.
¶ 13 The claimant testified that he returned to work on October 13, 2017, and gave Vandermolen a note from Dr. Weiss with a restriction of no heavy lifting. He stated that Vandermolen told him that there was not enough work for him to do and sent him home. Later that evening, Vandermolen called him and told him that he was fired. According to the claimant, he told Vandermolen that he injured his back while working and asked her to fill out an accident report.
¶ 14 Vandermolen testified that she first became aware that the claimant was suffering from a back injury on October 13, 2017, when the claimant came to her office with a note from his doctor restricting him from heavy lifting. She denied that the claimant ever told her that he injured his back while working until after she told him that he would no longer be working at TI.
¶ 15 On October 16, 2017, the claimant, with the assistance of Claudia Munoz, Nexus's branch manager, completed a Nexus Employment Employee Injury/Incident Statement. The document states that the claimant was injured while working at TI when he lifted a box weighing 80 or 90 pounds. The claimant reported that he continued working until October 13, 2017, when he provided a note from his doctor restricting heavy lifting and was told to go home and was later fired. The claimant testified that Munoz would not let him write that he was asked to lie about how he was injured.
¶ 16 Munoz testified that she was a branch manager for Nexus and the claimant's supervisor. She stated that she first became aware of the claimant's alleged accident on October 16, 2017, when he came in to fill out an accident report. According to Munoz, the claimant filled out the incident report, but she denied telling the claimant to omit any facts from that report. Munoz denied that the claimant told her that Gomez instructed him to lie about the manner in which he was hurt or that the claimant told her about a note that Gomez showed him. She stated that she spoke with Vandermolen on October 16, 2017, and informed her that the claimant had reported an injury while working at TI. Munoz testified that Vandermolen stated that she would investigate the matter.
¶ 17 The claimant was next seen by Dr. Weiss on October 18, 2017, complaining of right sided pain, shooting through the knee. The doctor's notes of that visit state that the claimant gave a history of having injured himself at work when he lifted 80 to 90 pound boxes but that his boss told him to state that he was injured at home. The claimant reported that he was fired after presenting a note restricting him from heavy lifting. On examination, Dr. Weiss noted pain with range of motion in the lumbar spine and negative straight leg raising. Dr. Weiss also noted that the claimant was neurologically intact with sensation and motor responses in the upper and lower extremities. X-rays of the claimant's cervical spine revealed straightening of the spine, which Dr. Weiss attributed to muscular spasm and limited flexion movements. Extension movements were adequate. Dr. Weiss's diagnosis remained unchanged; the claimant was suffering from a low back strain and a strain of the trapezius muscle. The claimant was released to work with no heavy lifting and referred to Dr. Daniel Troy for evaluation.
¶ 18 On October 20, 2017, Vandermolen completed a report for TI, stating that the claimant reported having injured his back on October 9, 2017, re-stacking cases and that he reported the incident to Gomez. According to her report, the claimant first told her that he was injured while working after she told him that he was terminated. Vandermolen testified that she spoke to Gomez on October 16, 2017, and he denied that the claimant told him that he was injured while working on October 9, 2017. However, when testifying, Gomez denied that Vadermolen ever spoke to him about the incident. Vandermolen concluded that, in the absence of any witnesses, there was no way to verify or disprove the claimant's assertions.
¶ 19 The claimant was seen by Dr. Troy on November 14, 2017, complaining of right-sided neck pain and right-sided low back pain. The doctor's notes of that visit contain a history of the claimant having experienced an acute onset of back pain when he lifted 80 to 90 pound boxes while working. On examination, Dr. Troy's assessment was acute onset of right-sided neck and low back pain with intermittent pain and symptomology radiating to the claimant's upper extremities. The imaging reviewed by Dr. Troy revealed normal views of the claimant's cervical and lumbar spine. At that visit, Dr. Troy diagnosed low back pain and cervicalgia. He prescribed physical therapy and medication and ordered an MRI of the claimant's lumbar spine.
¶ 20 When the claimant was examined by Dr. Weiss on November 21, 2017, he exhibited pain with range of motion in the cervical spine and flexion of the lumbar spine. Dr. Weiss's diagnosis remained unchanged, and he released the claimant to work with no heavy lifting.
¶ 21 At the arbitration hearing, the claimant testified that his back is worse and that he cannot sit for long periods. He stated that he feels numbness from the waist down. He was not working at the time of the arbitration hearing.
¶ 22 Following the arbitration hearing held on February 21, 2018, pursuant to section 19(b) of the Act (820 ILCS 305/19(b) (West 2016)), the arbitrator issued a written decision on April 25, 2018, finding that the claimant suffered an accidental injury on October 9, 2017, arising out of and in the course of his employment with Nexus. In so concluding, the arbitrator specifically found the claimant's testimony to be credible and persuasive and that the testimony of Gomez, Vandermolen, and Munoz was entitled to less weight. The arbitrator also found that the claimant's current condition of lumbar and cervical spine ill-being is causally related to his work accident of October 9, 2017. The arbitrator awarded the claimant 19 weeks of temporary total disability (TTD) benefits for the period of October 12, 2017, through February 21, 2018, at the rate of $360.00 per week. In addition, the arbitrator ordered Nexus to pay $1077 for reasonable and necessary medical expenses incurred by the claimant and to authorize the treatment recommendations of the claimant's treating physician including any incidental medical care.
¶ 23 Nexus filed a petition for review of the arbitrator's decision before the Commission. On December 2, 2019, the Commission issued a unanimous decision affirming and adopting the arbitrator's decision with additional supporting analysis of the testimony of the claimant, Gomez, and Vandermolen.
¶ 24 Nexus sought a judicial review of the Commission's decision in the circuit court of Cook County. On May 3, 2021, the circuit court confirmed the Commission's decision, and this appeal followed.
¶ 25 Nexus argues that the Commission's finding that the claimant suffered injuries on October 9, 2017, that arose out of and in the course of his employment is against the manifest weight of the evidence. In support of its argument, Nexus contends that the claimant's testimony upon which the Commission relied is contradicted by the history which he gave to Dr. Weiss at the time of his initial visit on October 12, 2017. According to Nexus, the only evidence that the claimant suffered a work-related accident on October 9, 2017, is his own "inconsistent and self-serving testimony." It asserts that "the testimony of Mr. Gomez and Ms. Vandermolen should be accepted in their entirety and the contradictions to the *** [claimant's] testimony should be highlighted." Nexus contends that "there is no evidence that Ms. Munoz, Mr. Gomez, or Ms. Vandermolen lied in any way. Instead, it is clear that the *** [claimant] fabricated his story to cover his otherwise true history of accident when he injured his back while moving a washing machine." Simply put, Nexus's entire argument rests upon the assertion that the Commission erred in finding the claimant credible.
¶ 26 To obtain compensation under the Act, the claimant must establish by a preponderance of the evidence that he suffered a disabling injury that arose out of and in the course of his employment. Land & Lakes Co. v. Industrial Comm'n, 359 Ill.App.3d 582, 591-92 (2005). Whether an employee suffered an accident which arose out of and in the course of his employment is a question of fact to be resolved by the Commission and its resolution of the issue will not be disturbed on review unless it is against the manifest weight of the evidence. Farris v. Illinois Workers' Compensation Commission, 2014 IL App (4th) 130767, ¶ 68. For the Commission's resolution of a fact question to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Tolbert v. Illinois Workers' Compensation Comm 'n, 2014 IL App (4th) 130523WC, ¶ 39. Whether a reviewing court might reach the same conclusion is not the test of whether the Commission's determination of a question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission's determination. Benson v. Industrial Comm'n, 91 Ill.2d 445, 450 (1982). It is the function of the Commission to judge the credibility of witnesses, determine the weight to be accorded their testimony, and resolve conflicts in the evidence. Illinois Bell Telephone Co. v. Industrial Comm'n, 131 Ill.2d 478, 483 (1989); O'Dette v. Industrial Comm'n, 79 Ill.2d 249, 253 (1980).
¶ 27 Nexus correctly notes that, in the history of accident that the claimant gave to Dr. Weiss on October 12, 2017, he reported that he had injured his back moving a washing machine. However, Nexus neglects to acknowledge that the claimant both admitted that he had lied and gave his reasons for so doing. The claimant testified that Gomez told him he would be fired if he did not give the doctor that history. The Commission found it understandable that, given his fear of being terminated, the claimant would follow Gomez's instructions. However, as the Commission correctly found, the claimant was, nevertheless, terminated after presenting his doctor's note restricting him to no heavy lifting. After being fired, the claimant had no further incentive to continue reporting that he was injured moving a washing machine. After being fired, the claimant gave consistent histories of having injured his back when he lifted a box while working to Vandermolen, Dr. Weiss, Dr. Troy, and Munoz.
¶ 28 Addressing the credibility of Gomez's testimony, the claimant notes that, although Gomez denied that he was a supervisor and only "a regular worker," the claimant identified Gomez as his supervisor and in IT's Accident Report dated October 20, 2017, Gomez is identified as a "Dock Supervisor." The claimant reasons that, as his supervisor, Gomez was the appropriate person for him to report his work injury and that he could reasonably rely upon Gomez to fill out an incident report. Thus explaining why he never told Vandermolen that his back injury was work related until after he was fired.
¶ 29 The Commission also found that the timeline of the claimant's report of a work-related injury is consistent with Vandermolen's testimony. The claimant testified that, immediately after he was fired, he informed Vandermolen that he had injured his back while working, which is consistent with Vandermolen's testimony.
¶ 30 This case involves nothing more than a conflict between the testimony of the claimant and the testimony of Gomez. Although the testimony of each is subject to contradictory evidence, the Commission found the claimant's version of events to be credible and gave its reasons for so doing. Whether we might have reached the same conclusion is not the test of whether the Commission's resolution of the issue is supported by the manifest weight of the evidence. Based upon the record and the Commission's articulated rationale, we are unable to conclude that an opposite conclusion is clearly apparent.
¶ 31 Nexus's only argument in support of its contention that the Commission's finding that the claimant sustained accidental injuries arising out of and in the course of his employment is against the manifest weight of the evidence is its assertion that the Commission erred in finding the claimant credible. Having rejected the underlying premise of Nexus's argument, we reject its argument itself.
¶ 32 For the reasons stated, we affirm the judgment of the circuit court which confirmed the Commission's decision and remand the matter to the Commission for further proceedings.
¶ 33 Affirmed and remanded.