Opinion
No. 5-19-0514WC
04-23-2021
JEFFREY PETERMEYER, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Alberternst Construction, Inc., Appellee).
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. Nos. 16-MR-297, 18-MR-156 Honorable Sarah Smith, Judge, presiding. JUSTICE BARBERIS delivered the judgment of the court.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Cavanagh concurred in the judgment.
ORDER
¶ 1 Held: We reverse the portions of the circuit court's order that reversed the Commission's denial of maintenance, penalties and fees; and that confirmed the Commission's denial of a wage differential award, in favor of a person as a whole award; we reverse the Commission's decision as to that issue and remand the case to the Commission for the entry of a wage differential award; we affirm the order in all other respects. We also vacate the Commission's decision on remand that reinstated the arbitrator's award of maintenance, penalties and fees; and vacate the circuit court's order confirming the Commission's decision on remand. ¶ 2 Claimant, Jeffrey Petermeyer, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for an injury he allegedly sustained while in the employ of respondent, Alberternst Construction, Inc. (Alberternst). Claimant specifically alleged that he injured his low back carrying interior doors up a flight of stairs on June 2, 2008, while working as a construction manager for respondent. ¶ 3 Following a hearing held pursuant to section 19(b) of the Act (id. § 19(b)), the arbitrator found claimant's injuries compensable and awarded claimant temporary total disability (TTD) benefits under section 8(b) of the Act (id. § 8(b)), and reasonable and necessary medical expenses under section 8(a) of the Act (id. § 8(a)). The Illinois Workers' Compensation Commission (Commission) affirmed and adopted the arbitrator's decision and remanded the case to the arbitrator for a determination of further temporary total compensation or compensation for permanent disability, if any, pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980). Alberternst did not seek judicial review of the Commission's decision. ¶ 4 Later, a second arbitration hearing was held to address disputed issues that had arisen between the parties since the section 19(b) hearing. The arbitrator found that claimant's current condition of ill-being in his low back was causally related to the June 2, 2008, work accident. The arbitrator awarded claimant additional TTD benefits and maintenance benefits under section 8(a) of the Act (820 ILCS 305/8(a) (West 2008)). However, the arbitrator denied claimant's request for permanent total disability (PTD) benefits under the odd-lot theory. The arbitrator, instead, awarded claimant permanent partial disability (PPD) benefits representing 50% loss of a person as a whole pursuant to section 8(d)(2) of the Act (id. § 8(d)(2)). Lastly, the arbitrator awarded attorney fees pursuant to section 16 of the Act (id. § 16) and penalties of $23,570.92 pursuant to section 19(k) of the Act (id. § 19(k)). ¶ 5 On September 26, 2016, on review of the arbitrator's decision filed by both parties, the Commission modified the arbitrator's decision in part, striking the award of maintenance benefits and the associated fees and penalties, but affirming and adopting the arbitrator's decision in all other respects. Claimant then filed for review in the circuit court of Madison County. ¶ 6 On June 15, 2017, the circuit court of Madison County entered an order (16-MR-297) reversing the portion of the Commission's decision that struck the arbitrator's award of maintenance and related fees and penalties. The court confirmed the Commission's decision in all other respects and remanded the case to the Commission with directions to reinstate the arbitrator's decision and award. The Commission, consistent with the circuit court's order, issued a decision and opinion on remand that reinstated the arbitrator's award of maintenance and penalties and related fees. The court subsequently entered an order (18-MR-156) confirming the Commission's decision. ¶ 7 Claimant appeals, arguing that the Commission erred in its September 26, 2016, decision by (1) denying claimant PTD benefits under the odd-lot category; (2) awarding claimant PPD benefits representing 50% loss of a person as a whole, rather than a wage differential award; (3) denying claimant maintenance; and (4) denying claimant fees and penalties.
¶ 8 I. Background
¶ 9 The following factual recitation is taken from the record on appeal, including the evidence adduced at the arbitration hearings held on June 28, 2010, and February 19, 2015, as well as the Commission's September 26, 2016, decision.
¶ 10 A. Section 19(b) Hearing
¶ 11 Although the facts are well known to the parties, we will recite certain facts relating to the section 19(b) hearing held on June 28, 2010, as necessary for a complete and accurate understanding of our decision. At the time of the hearing, claimant was 46 years old and had worked as a construction manager for Alberternst, a construction business owned by his in-laws, for nearly 30 years. The parties agreed that claimant sustained a work-related low back injury while carrying interior doors up a flight of stairs at a construction site on June 2, 2008. Alberternst initially paid claimant TTD benefits and medical expenses for evaluations and conservative treatment. However, Alberternst later refused to authorize a lumbar fusion surgery recommended by Dr. Brett Taylor, claimant's treating physician and orthopedic surgeon. Despite this, Dr. Taylor subsequently performed the recommended surgery on claimant in two phases. Dr. Taylor first performed a posterior lumbar fusion from L3 to S1 in January 2010 and then completed the anterior portion of the fusion in February 2010. Claimant later filed a request for a section 19(b) arbitration hearing. ¶ 12 Following the hearing, the arbitrator issued a written decision on July 16, 2010, finding claimant's condition of ill-being in his low back was causally related to the work accident. The arbitrator awarded claimant TTD benefits in the amount of $746.59 per week for 108 weeks (from June 2, 2008, through June 28, 2010), pursuant to section 8(b) of the Act (820 ILCS 305/8(b) (West 2008)), and reasonable and necessary medical expenses, including expenses for the 2010 fusion surgeries, totaling $410,669,79, pursuant to section 8(a) of the Act (id. § 8(a)). The Commission later issued a unanimous decision affirming and adopting the arbitrator's decision on May 17, 2011. The Commission remanded the case to the arbitrator for further proceedings for a determination of additional temporary compensation and permanent disability compensation, if any, pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327 (1980). Neither party sought judicial review of the Commission's decision.
¶ 13 B. Arbitration Hearing on Remand
¶ 14 Following the section 19(b) hearing, claimant received additional treatment from Dr. Taylor and Dr. Steven Granberg, a pain management specialist. Claimant's additional treatment also included postoperative physical therapy through January 31, 2011. Consequently, additional disputes arose between the parties, and the matter proceeded to a second arbitration hearing on February 19, 2015. At the second hearing, the disputed issues were causation (limited to future medical), claimant's entitlement to additional TTD benefits, temporary benefits and maintenance, the nature and extent of claimant's injury, and claimant's entitlement to fees and penalties. The parties presented the following evidence at the hearing.
¶ 15 1. Pain Management Treatment
¶ 16 Pain management treatment records admitted into evidence at the arbitration hearing reflect that claimant received pain management treatment every two to three months from Dr. Granberg throughout 2011 and 2012. In response to claimant's complaints of increasing back pain, Dr. Granberg administered a bilateral sacroiliac joint injection and trigger point injection in the lumbar paraspinous muscles above the level of the fusion on June 19, 2012. Following the injections, claimant reported some relief, but he continued to receive pain medications from Dr. Granberg. ¶ 17 On January 3, 2013, Dr. Granberg noted that claimant, who had been able to go three months between visits, was presently requiring more frequent visits due to increased pain. Dr. Granberg prescribed additional pain medication, Gabapentin, to claimant's previously prescribed Percocet regimen. ¶ 18 On May 31, 2013, claimant received a second set of bilateral sacroiliac joint and trigger point injections. At the follow-up visit on June 28, 2013, claimant reported 80% relief from the injections, although he only reported 65% relief from the medications. On July 26, 2013, Dr. Granberg prescribed a higher dosage of Percocet. Additional sacroiliac joint and trigger point injections were administered on October 7, 2013, and December 30, 2013, as well as February, April, June, July, September and December of 2014.
¶ 19 2. Functional Capacity Evaluation
¶ 20 A functional capacity evaluation (FCE), performed at Apex Physical Therapy on October 24, 2012, was admitted into evidence at the arbitration hearing. According to the FCE, claimant did not fully participate in the testing, but it was determined that he could function at least at the light-duty level. The FCE listed claimant's job title as "Carpenter," although it was noted that Alberternst did not provide claimant's job description.
¶ 21 3. Dr. Taylor's Supplemental Depositions and Records
¶ 22 On April 17, 2013, and October 28, 2014, Dr. Taylor testified via supplemental depositions regarding matters occurring after claimant's January 2010 and February 2010 fusion surgeries. Dr. Taylor opined that claimant had reached maximum medical improvement (MMI) on February 8, 2011. At that time, Dr. Taylor concluded that claimant could perform frequent lifting up to 10 pounds; occasional bending, kneeling, crawling, squatting, reaching overhead, climbing stairs, and reaching above shoulders; frequent sitting, standing, and walking; and limited vibration (e.g., sanding, drilling), grasping, and repetitive motion. Dr. Taylor explained that, although claimant could possibly perform a job with a medium level of physical demand, work at the medium level would increase claimant's back pain. Accordingly, Dr. Taylor recommended that claimant work at the light-demand level and imposed a permanent restriction of job duties in the "light demand level," as of February 8, 2011. ¶ 23 Dr. Taylor's records from June 26, 2012, November 2, 2012, and April 9, 2013, reveal the following. Dr. Taylor consistently recommended that claimant work within the light-demand level. Dr. Taylor found that the FCE's determination was aligned with his recommended permanent restrictions. The November 2, 2012, record also reflects that claimant had reported the sacroiliac joint injection, which was performed by Dr. Granberg on June 19, 2012, was effective in reducing his pain, but his hip and groin pain increased with activity. The April 9, 2013, record reflects that claimant called Dr. Taylor's office to request a note concerning his condition and, in response, a return to work status form was subsequently made available to claimant. According to Dr. Taylor, claimant presented no signs of malingering or somatization during his treatment, and claimant's medical care had been related to the original work injury. ¶ 24 On July 16, 2014, claimant again presented to Dr. Taylor, reporting that his pain had significantly worsened since his last visit, which caused him to be "markedly limited by the symptoms." Claimant further reported that the pain medications were providing little relief, but the injections had provided some short-term improvement. Dr. Taylor's examination findings were substantially similar to the physical findings noted at the visit on November 2, 2012. Dr. Taylor testified that claimant's symptoms were consistent with S1 joint pathology bilaterally. Also, on July 16, 2014, claimant underwent an EMG, which revealed results that were inconsistent with active radiculopathy. Dr. Taylor diagnosed claimant with end stage failed back syndrome due to S1 joint and L2-3 adjacent segment issues. Based on claimant's complaints of pain and his report of improvement following injections, Dr. Taylor determined claimant's back condition had deteriorated as of July 16, 2014. ¶ 25 Dr. Taylor also testified that he denotes "social restrictions" separate from work restrictions, and based on claimant's worsening symptoms, he placed a work restriction that effectively designated claimant as "unemployable." Dr. Taylor also placed sedentary social restrictions, including lifting at a maximum of five pounds with limited bending, kneeling, crawling, squatting, working overhead or reaching above shoulder level. Dr. Taylor explained that the term "unemployable" was based on his knowledge of claimant's condition and his desire that claimant avoid surgery. Dr. Taylor further explained that he felt that claimant's "overall prognosis would be best if [claimant] was not in the work environment" and functioned at the lowest level, "which is sedentary." Dr. Taylor further indicated that he imposed the July 2014 restrictions, which had increased from the April 2013 restrictions, primarily due to claimant's subjective report of symptoms and the description claimant gave of his capabilities and limitations. Dr. Taylor conceded that he was not an expert in vocational rehabilitation. ¶ 26 With regard to further treatment, Dr. Taylor testified that there is an extremely morbid operation that involves extending the fusion into the thoracic spine and past the S1 joint into the sacrum, essentially locking the sacrum or pelvis to the thoracic spine. At the time of the deposition, Dr. Taylor did not recommend that claimant have the additional fusion procedure, which is performed only "as a last resort." Dr. Taylor had not seen claimant since the July 16, 2014, visit.
Dr. Taylor's original deposition was taken on May 10, 2010, which was before the section 19(b) hearing. --------
¶ 27 4. Section 12 Examination
¶ 28 On October 24, 2014, claimant presented to Dr. Rhoderic Peter Mirkin, an orthopedic surgeon, for a section 12 evaluation at Alberternst's request. Prior to the section 19(b) hearing, Dr. Mirkin had conducted a section 12 evaluation of claimant on February 9, 2009, and prepared a report setting forth his findings and opinions regarding claimant's condition. Dr. Mirkin also submitted addendums to the initial report on July 23, 2009, and April 26, 2010. ¶ 29 On November 21, 2014, Dr. Mirkin testified to the following during his deposition. At the time of the October 24, 2014, section 12 evaluation, claimant reported that he was doing better than before the surgery and was able to limit his oxycodone use to four times per day. Claimant, however, also reported ongoing complaints of pain in his back and numbness in his legs. Upon examination, which involved lightly touching claimant's neck and back, Dr. Mirkin observed a positive Waddell sign. Dr. Mirkin also found that claimant had 70% range of motion, forward flexion within 15 inches of touching his fingers to the floor, the ability to walk on his heels and toes and squat and rise from the squat position, a negative straight leg raise test and intact motor and sensory examination. X-rays showed an intact fusion with hardware in place from L3 to S1, with the disc above the fusion appearing normal. Dr. Mirkin agreed with the October 2012 FCE, which determined that claimant could work, at least, in the light-demand capacity. Dr. Mirkin concluded that there was no evidence of progressive pathology of the spine and no physical findings which supported the need for further surgeries. Dr. Mirkin observed that claimant had mild subjective findings and only one objective finding—a prior fusion. Dr. Mirkin noted that claimant had worked following surgery, and therefore, in his opinion, was employable in some capacity. Dr. Mirkin opined that claimant does not need ongoing pain medications nor treatment.
¶ 30 5. Claimant's Testimony
¶ 31 Claimant, who was 51 years old and unemployed at the time of the arbitration hearing, testified to the following. After graduating high school in 1981, he attended a trade school for refrigeration, heating and cooling and completed a degree in construction management at Belleville Area College (B.A.C.). He first began working for Alberternst when he was 18 years old and has worked in the construction trade his entire life. Claimant testified that his job title was "construction management," and he described his job duties as "I get the jobs together, get them started, we stake them off, pour concrete, trim them out, just everything." He further testified that his job involved "some management," and his injury occurred while "trimming a house out and was carrying the interior doors up some stairs." ¶ 32 Following his 2010 surgeries, claimant's condition improved for a while, but he began developing hip pain radiating into his legs by late 2011. After his release to light-duty work on February 8, 2011, he conducted a self-directed job search but, due to his limited experience outside of the construction field, he restricted his search to light-duty work in the construction field. Claimant's job search records, which were entered into evidence as an exhibit, reflected that between April 4, 2011, his first job search entry, and January 9, 2012, claimant had 25 contacts with construction-related businesses. ¶ 33 Claimant next testified to his participation in vocational rehabilitation that Alberternst provided through Genex, a vocational case management service. His first meeting with Brenda Latham, a vocational counselor, was on March 15, 2012. Latham seldom contacted him after the first meeting, but she had provided him with a resumé that he could send to potential employers. He could not recall discussing a vocational rehabilitation plan with Latham. However, he followed up with every potential lead Latham provided and sent his resumé to a few businesses. Although he received a response from only one potential employer for a customer service representative position, he was not offered the job. By April 2012, while still on light-duty restrictions, he was unable to tolerate a lot of bending and lifting, which caused him pain or soreness that lasted for days. ¶ 34 Claimant also testified to his employment in 2012. He worked approximately 10 to 30 hours per week for a friend who was building a house in O'Fallon, Illinois. His duties included obtaining permits, helping with blueprints, organizing workers and going to the construction site to supervise the work progress. His job duties also included opening and closing the job site but did not involve physical labor. Because he was unable to walk on uneven ground, he could not inspect the outside of the house. Additionally, he was unable to climb a ladder, so he was unable to inspect the attic. ¶ 35 He also made deliveries for his brother-in-law's business from May 2012 through late 2013. However, because he was restricted to lifting 15 pounds or less, he was unable to deliver most items and, therefore, was unable to pursue permanent employment in that position. ¶ 36 Although he was willing to work if there was a job available within his restrictions, he stopped looking for work after receiving social security disability benefits at the end of 2012. Claimant was more capable earlier in the day, but he could not stoop or squat. He avoided bending at the waist, crouching, kneeling and walking on uneven surfaces, and anything that vibrated caused him increased pain. ¶ 37 In July 2014, Dr. Taylor increased his restrictions, further limiting his lifting capacity to five pounds and instructing him to remain sedentary. Presently, he is able to sit in a comfortable chair for only a half an hour or so before he needs to stand or lie in bed. He is unable to do much bending, stooping or lifting, and he has been unable to perform yard work since 2012.
¶ 38 6. Private Investigation of Claimant's Activities
¶ 39 Alberternst hired Ben Miller, a private investigator, to surveil claimant for three days from August 18, 2014, through August 20, 2014. Miller testified regarding the events surrounding the surveillance recordings, which were not provided to claimant's counsel prior to the arbitration hearing. Miller identified the surveillance videos, which were subsequently viewed and entered into evidence over claimant's objection at the arbitration hearing. ¶ 40 The surveillance video shows claimant using a leaf blower around the exterior of his home for approximately three to four minutes on August 19, 2014. In addition, on August 20, 2014, Miller recorded claimant travelling from his home to a retail shopping plaza in St. Louis, Missouri, to assist his brother-in-law in making repairs to the side-panels of a vehicle that was involved in an earlier traffic collision. Prior to his arrival, claimant was recorded fueling his truck and cleaning the windshield at a service station. While assisting his brother-in-law, claimant was recorded handing tools to his brother-in-law, using a small electric screwdriver and lightly pulling on a side-panel. The surveillance video also captured claimant bending and kneeling while watching his brother-in-law work on the vehicle.
¶ 41 7. Steven Dolan's Testimony
¶ 42 Steven Dolan, a vocational expert, testified to the following on behalf of claimant at a deposition on June 4, 2014. Dolan has a master's degree in literature and is a certified rehabilitative counselor with 23 years' experience. Dolan frequently testified as an unbiased witness for the social security administration. ¶ 43 Dolan met with claimant one time, on December 8, 2011, and then spoke to him on April 8, 2014. Dolan then prepared a vocational and rehabilitation assessment report. Dolan testified consistent with his report. Although claimant had a number of transferrable job skills, an excellent job history and beneficial qualities, Dolan did not perform a labor market survey. Dolan opined that a labor market survey was unnecessary because of claimant's "pain problem." ¶ 44 Dolan documented claimant's educational and employment histories. Dolan noted that claimant had graduated from high school, completed an associate degree at a trade school and obtained a certificate in construction management at Belleville Area College. Dolan reported claimant's duties as a construction manager for Alberternst, and he documented that claimant was required to perform several additional tasks requiring manual labor. Dolan reported that claimant typically worked three hours per day performing supervisory or management work and six to seven hours performing carpentry and manual labor. Dolan's report specifically provided the following.
"[Claimant] did manual labor: for instance[,] spreading and finishing concrete, doing internal trim on new homes, and making changes to construction, i.e. correcting mistakes made by his crews. He, for instance, moved the studding of new interior walls that had been built not quite where they were supposed to be, changed closet studding so that the door to the closet opened into the room it was supposed to serve, changed placement of shower stalls, etc. He also fetched material for crews when they ran short. He sometimes had to go get and deliver tools such as table saws, to move the saw from one house under construction to another. He said that there could be anywhere from 18 to 30 homes under construction at any one time, not all in the same subdivision."While working for Alberternst, claimant earned $1150 per week with two weeks paid vacation each year. Alberternst also provided claimant with a company truck and paid the insurance and fuel expenses. ¶ 45 Dolan also documented that claimant had worked as a construction consultant in the construction of a large house in 2011 and as a part-time courier for a company called DZ Trucking. Claimant had mentioned some companies that he was familiar with because they had been suppliers to Alberternst, but none had been willing to hire him. Claimant reported that he discontinued his work activities because they were exacerbating his pain problem. ¶ 46 Dolan next testified that claimant reported that he could stand for approximately one hour, so long as he was able to move around; walk a mile and a half, so long as the ground was not rough or sloped; and push or pull with slight force without using his low back. Claimant also reported that he was unable to sit comfortably for more than 10 to 15 minutes without changing positions. Claimant further indicated that he was unable to crouch, squat or kneel, and that he had to avoid bending at the waist due to pain. ¶ 47 Dolan opined, within a reasonable degree of professional certainty, that claimant was unable to obtain gainful employment in any regular and continuous marketplace due to his "pain problem," which required claimant to take "massive dosages" of narcotic pain medication. Dolan agreed that claimant performed a number of tasks as a construction manager that were within the light-duty demand level, including reading blueprints, allocating manpower, budgeting, and obtaining permits. Despite this, Dolan further testified that claimant's transferrable skills (such as reading blueprints) did not make him qualified for any job within the construction environment. ¶ 48 Assuming "Dr. Taylor's restriction of light demand level is the only true restriction," Dolan concluded that:
"[T]here are jobs [claimant] could do at the light and sedentary exertion levels. Such jobs, such as fast food counter workers, telemarketers, cashiers in some settings, cleaners in some settings[,] are all low pay jobs paying typically from the minimum wage of $8.25 per hour to $10.00 per hour. These jobs typically do not provide benefits."However, Dolan found that claimant was unable to tolerate a regular work schedule due to his inability to control his pain.
¶ 49 8. Vocational Case Management
¶ 50 a. Brenda Latham's Reports
¶ 51 Alberternst retained Genex, a vocational case management provider, to conduct a vocational evaluation and placement. Latham, a certified vocational counselor employed by Genex, met with claimant at his attorney's office on March 15, 2012, and prepared a vocation case management report on March 22, 2012. Latham also prepared two progress reports on April 19, 2014, and April 30, 2014. Latham did not testify at the arbitration hearing, but the three reports were admitted at the arbitration hearing and collectively provide the following summary. ¶ 52 When Latham met with claimant on March 15, 2012, claimant was working for a friend as a part-time construction manager overseeing the construction of a new home. Claimant also occasionally worked for his brother-in-law as a delivery driver. According to Latham's March 22, 2012, report, claimant's attorney provided Latham a list of employers that claimant had contacted between April 2011 and January 2012. Claimant reported that the job search was unsuccessful, with most employers stating that the work was "too slow" or that the work exceeded his physical restrictions. Latham suggested claimant pursue other possible jobs related to construction management, including "light" driving jobs, security/gate guard work, and sales of construction related equipment. ¶ 53 Latham worked with claimant from March 2012 through May 2012, forwarding him several job leads and developing a rehabilitation plan. In March 2012, Latham provided three job leads, which included a sales associate position at Home Depot, a transporter at Hertz Rent A Car, and a part-time insurance inspector. On April 2, 2012, claimant reported that he had "filled out" four job leads. On April 3, 2012, Latham provided an additional job lead for "deck and fence services." ¶ 54 On April 19, 2012, Latham provided additional job leads and developed a vocational plan. Latham noted that she was unable to complete a face-to-face meeting with claimant since the March 15, 2012, meeting due to scheduling conflicts and difficulties reaching him by phone or email. ¶ 55 On April 24, 2012, Latham met with claimant to review job placement services and the rehabilitation plan. Claimant was agreeable to the listed job goals. Claimant requested that Latham arrange the job appointments for him, stating that he did not want to "run around" to various employers, as he was not receiving any benefits. Latham opined that claimant was refusing to abide by the vocational rehabilitation plan, which required him to contact at least 10 employers per week via phone, mail or online. ¶ 56 The record reflects that on May 18, 2012, Latham contacted claimant for the last time. She wrote claimant a letter informing him that she had provided him with three job contacts but had not received any contact records from him. Latham inquired as to whether he was still interested in job placement assistance and reminded him that he needed to maintain regular contact with her to coordinate vocational services. The record also reflects that Latham retired in December 2013.
¶ 57 b. Kelly Burger's Testimony
¶ 58 Kelly Burger, a Genex vocational case manager, testified to the following on behalf of Alberternst. She has a master's degree in vocational rehabilitation counseling and is a nationally certified rehabilitation counselor. In preparing an August 21, 2014, vocational assessment at claimant's request, she did not meet with claimant, but she reviewed various medical records, Dolan's vocational rehabilitation evaluation, and Latham's vocational evaluation and progress reports. ¶ 59 Burger found that claimant had an excellent work history, which included supervisory and customer service skills that were transferrable to several light and sedentary positions. She completed a labor market survey on August 26, 2014. Burger contacted 15 companies, located approximately within a 50-mile range from claimant's residence, between August 22, 2014, and August 26, 2014. She discovered that nine of the companies were presently hiring, and one had hired in the past month, for positions within claimant's restrictions and skills. She also found that the wages ranged from $8 to $16, with most employers offering $9 to $10 per hour, which she believed was in the normal range for entry-level positions. Based on her analysis, she concluded that a labor market exists for positions within his restrictions and skills. ¶ 60 Burger disagreed with Dolan's conclusion that claimant was unemployable and unable to tolerate a regular work schedule due to uncontrolled pain. According to Burger, claimant was employable as a "supervisor or manager, customer service rep[resentative], file clerk, things like that." Burger also concluded that claimant was not motivated to look for employment or participate in job search activities based on his conduct during the vocational rehabilitation efforts conducted in early 2012. ¶ 61 On cross-examination, Burger acknowledged that she was unaware of claimant's present sedentary work restrictions that had been put in place by Dr. Taylor on July 16, 2014. She responded, however, that the greater restrictions would not change her opinion as to claimant's employability in the current job market because of the multitude of factors involved in her analysis. ¶ 62 The arbitrator issued a decision on October 8, 2015, finding that claimant's current condition of ill-being was causally related to the accident and awarded claimant TTD benefits of $746.59 per week for 140 2/7 weeks (from June 3, 2008, through February 8, 2011), pursuant to section 8(b) of the Act (820 ILCS 305/8(b) (West 2008)), and maintenance benefits for 63 1/7 weeks (from February 9, 2011, through April 24, 2012), pursuant to section 8(a) of the Act (id. § 8(a)). ¶ 63 In regard to the award of maintenance benefits, the arbitrator found that claimant conducted a job search following his release to light duty by Dr. Taylor but was unable to locate work on his own. The arbitrator stressed that there was no contrary medical opinion, yet Alberternst paid no benefits and offered no vocational rehabilitation services. The arbitrator noted that claimant was clearly incapable of returning to his former employment. However, Alberternst did not provide vocational rehabilitation services until March 15, 2012, when Latham met with claimant. The arbitrator found that claimant failed to fully comply with the vocational services provided as of April 24, 2012, when he refused to agree to contact at least 10 employers per week. ¶ 64 In regard to the surveillance videos, the arbitrator noted that claimant proceeded at a leisurely pace with the leaf blower, which did not appear heavy. The arbitrator further noted that the tools were within claimant's weight restrictions, and claimant's activities were limited to a few minutes. Lastly, the arbitrator noted, during the three days that claimant was surveilled, claimant was recorded performing activities for a total of four to six minutes, and all of the activities were within his work restrictions. ¶ 65 Next, the arbitrator found that claimant failed to prove entitlement to PTD benefits under an odd-lot theory but, instead, found claimant was entitled to permanent partial disability (PPD) benefits of $636.15 per week for 250 weeks representing 50% loss of a person as a whole pursuant to section 8(d)(2) of the Act (id. § 8(d)(2)). In rejecting a wage differential award, the arbitrator stated, "[w]hile the possibility exists that [claimant] may have suffered some diminishment of earning capacity which may have entitled him to a wage differential award, the record in this case contains no evidence from which the amount of any such award could be determined." Lastly, the arbitrator awarded attorney fees of $9428.37, as provided in section 16 of the Act (id. § 16), and penalties of $23,570.92, as provided in section 19(k) of the Act (id. § 19(k)). Both parties subsequently sought review before the Commission. ¶ 66 The Commission issued a decision on September 26, 2016, which modified the arbitrator's decision by striking the award of maintenance benefits and related fees and penalties. In modifying the arbitrator's decision, the Commission noted that claimant failed to present any documentation of his self-directed job search and his testimony was insufficient to show that there were no construction management positions available within his light-duty restrictions. Therefore, the Commission found claimant had failed to prove that "he performed a diligent yet unsuccessful self-directed job search" following his light-duty release. ¶ 67 In addition, the Commission found that claimant (1) was employed and receiving compensation, from March 2011 through the end of 2013, but failed to present corroborating documentation of his employment and income, (2) failed to cooperate fully with vocational counselling and services, (3) refused to sign a vocational plan requiring 10 employer contacts per week, (4) stopped looking for work by the end of 2012, and (5) received social security benefits with back pay to 2009. Based on these findings, the Commission concluded that claimant was not entitled to maintenance benefits, from February 9, 2011, through April 24, 2012, nor the related award of attorney fees and penalties. In all other aspects, the Commission adopted the arbitrator's decision. Claimant then filed for review in the circuit court of Madison County. ¶ 68 The circuit court entered an order (16-MR-297) on June 15, 2017, which affirmed the portion of the Commission's decision that found claimant was not entitled to PTD benefits under an odd-lot theory but reversed the portion of the Commission's decision striking the arbitrator's award of maintenance and related attorney fees and penalties. The court remanded the case to the Commission with directions to reinstate the arbitrator's decision and award in that regard. ¶ 69 On May 18, 2018, the Commission entered its decision and opinion on remand. Consistent with the circuit court's order, the Commission reinstated the arbitrator's award of maintenance and related fees and penalties. Claimant, again, filed for judicial review. ¶ 70 On October 10, 2019, the circuit court entered an order (18-MR-156) confirming the Commission's decision and opinion on remand. The court entered an amended order correcting a scrivener's error on November 8, 2019, and claimant then filed this appeal.
¶ 71 II. Analysis
¶ 72 Before proceeding to the merits of the appeal, we note that Alberternst complains that claimant's brief, or portions of his brief, violate various provisions of Illinois Supreme Court Rule 341 (eff. Oct. 1. 2020) by failing to cite to the record and by misstating facts. Due to these violations, Alberternst complains that it is difficult to ascertain whether claimant is making factual statements or making argument. Alberternst's complaints are well taken. ¶ 73 Illinois Supreme Court Rule 341(h)(6) provides, in pertinent part, that an appellant's statement of facts "shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal ***." Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). Where violations of supreme court rules are so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be warranted. Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d 520, 527 (1998). ¶ 74 In this instance, rather than strike the claimant's brief and dismiss this appeal, we will disregard any improper factual statements or arguments that find no support in the record. We also admonish the claimant's attorney to follow the requirements of the supreme court rules in future submissions. We now turn to the merits of this appeal. ¶ 75 Claimant raises four issues on appeal regarding the Commission's September 26, 2016, decision. Claimant argues that the Commission's decision is against the manifest weight of the evidence where the Commission decided to: (1) deny claimant PTD benefits under the odd-lot category; (2) award claimant PPD benefits representing 50% loss of a person as a whole, rather than a wage differential award; (3) deny claimant maintenance; and (4) deny claimant fees and penalties under sections 16 and 19(k) under the Act (820 ILCS 305/16, 19(k) (West 2008)). We address these issues in turn. ¶ 76 On appeal from a final judgment of the circuit court confirming a decision of the Commission on remand, this court will consider the propriety of the Commission's earlier decision. See F&B Manufacturing Co. v. Industrial Comm'n, 325 Ill. App. 3d 527, 531 (2001). Therefore, as in the instant matter, where the Commission's decision was reversed because it is against the manifest weight of the evidence, this court initially considers the propriety of the original Commission decision before reviewing the Commission decision entered following remand. Id. Accordingly, although the circuit court reinstated the arbitrator's award of maintenance, penalties and fees, we review the Commission's decision striking the award. ¶ 77 In resolving factual matters, it is the function of the Commission to assess the credibility of the witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences therefrom. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill. App. 3d 665, 674 (2009). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291 (1992). The appropriate test is whether there is sufficient evidence in the record to support the Commission's determination, not whether this court or any other tribunal might reach an opposite conclusion. Pietrzak v. Industrial Comm'n, 329 Ill. App. 3d 828, 833 (2002). With these principles in mind, we will review the Commission's September 26, 2016, decision.
¶ 78 A. PTD Benefits
¶ 79 1. Contribution to Work Force
¶ 80 Claimant first argues that the Commission's decision denying claimant PTD benefits is against the manifest weight of the evidence. We disagree. ¶ 81 A claimant is entitled to PTD benefits pursuant to section 8(f) of the Act (820 ILCS 305/8(f) (West 2014)) if, as the result of his work injury, he can make no contribution to the work force sufficient to earn a wage. Lenhart v. Illinois Workers' Compensation Comm'n, 2015 IL App (3d) 130743WC, ¶ 32. Whether a claimant is permanently and totally disabled is a question of fact to be resolved by the Commission, and its resolution of the issue will not be disturbed by a reviewing court unless it is against the manifest weight of the evidence. Ameritech Services, Inc. v. Illinois Workers' Compensation Comm'n, 389 Ill. App. 3d 191, 203 (2009) (citing Ceco Corp. v. Industrial Comm'n, 95 Ill. 2d 278, 288-89 (1983)). ¶ 82 In this case, the Commission found that claimant failed to prove that he qualified for PTD benefits through a preponderance of the medical evidence. The Commission resolved the conflicting medical evidence in favor of Alberternst. The Commission emphasized that Dr. Taylor placed light duty restrictions on claimant as of February 8, 2011, the MMI date. The Commission further found that Dr. Taylor changed the restrictions to "unemployable" based merely on subjective complaints. ¶ 83 In contrast, Dr. Mirkin saw no physical finding that supported restrictions beyond light duty and that claimant's condition had not changed over time. The Commission emphasized that the objective findings by Drs. Taylor and Granberg, including radiograph studies, revealed little change in claimant's condition. The Commission ultimately concluded that claimant could work at least at a sedentary level if he could function socially at a sedentary level, consistent with the FCE performed on October 24, 2012, and as Dr. Taylor opined. In light of the evidence in support of the Commission's decision, we cannot say that the Commission's decision that claimant failed to establish a permanent and total disability is against the manifest weight of the evidence.
¶ 84 2. Odd-Lot Category
¶ 85 The Commission next addressed claimant's claim of entitlement to PTD benefits under an odd-lot theory. Here, the Commission found that claimant failed to prove either factor necessary to achieve odd-lot status. "Whether a claimant falls into the odd-lot category is a factual determination to be made by the Commission, and that determination will not be set aside unless it is against the manifest weight of the evidence." Westin Hotel v. Industrial Comm'n, 372 Ill. App. 3d 527, 544 (2007). A claimant generally satisfies the burden of establishing that he falls into the odd-lot category in one of the following ways: (1) by showing a diligent but unsuccessful job search, or (2) by demonstrating that he will not be regularly employed in a well-known branch of the labor market due to his age, skills, training, and work history. Id. (citing Alano v. Industrial Comm'n, 282 Ill. App. 3d 531, 534-35 (1996)). A claimant may fall into the odd-lot category if he "is unable to perform services except those that are so limited in quantity, dependability, or quality that there is no reasonably stable market for them." Id. (citing Alano, 282 Ill. App. 3d at 534). If the claimant establishes that he falls 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. (citing Waldorf Corp. v. Industrial Comm'n, 303 Ill. App. 3d 477, 484 (1999)). ¶ 86 In the present case, the Commission first emphasized that claimant did not provide sufficient documentation of a diligent job search. This finding is supported by the record. The record shows that claimant did not look for work for two months after reaching MMI. Claimant's job search records reflect that he contacted only two to three employers per month from April 4, 2011, to January 9, 2012, totaling only 25 contacts. Claimant testified that he did not believe there were any construction management positions available within his light-duty restrictions. Furthermore, because he had received social security benefits retroactive to 2009, claimant testified that he stopped looking for work by the end of 2012. The Commission also relied on Burger's testimony, and Latham's reports, that claimant failed to cooperate fully with vocational counselling and services, and he refused to sign a vocational plan requiring 10 employer contacts per week. ¶ 87 The Commission further found that claimant failed to demonstrate that he was unable to be regularly employed in a well-known branch of the labor market due to his age, skills, training, and work history. In support of its decision, the Commission viewed Burger's testimony and labor marker survey as more persuasive than Dolan's testimony and vocational and rehabilitation assessment report. Dolan found that claimant had a number of transferrable job skills, an excellent job history and beneficial qualities. Burger agreed with Dolan, testifying that claimant had an excellent work history, which included supervisory and customer service skills that were transferrable to several light and sedentary positions. Unlike Burger, Dolan did not conduct a labor market survey. Dolan found that claimant's subjective complaints of uncontrolled pain precluded the need for a labor market survey. Burger disagreed. ¶ 88 Burger's labor market survey demonstrated, based on her analysis of a multitude of factors, a labor market exists for positions within claimant's restrictions and skills. She also disagreed with Dolan's opinion that claimant could not tolerate a regular, full workday due to his functional limitations. Burger identified numerous positions within claimant's restrictions and skill, including, inter alia, supervisor, manager, supply clerk, inspector, dispatcher, customer service representative, telephone solicitor, front desk clerk, bus monitor and light assembly or production. The Commission also gave greater weight to Burger's testimony because her opinion was in line with the social restrictions placed by Dr. Taylor and consistent with the FCE. ¶ 89 Based on the foregoing, we find sufficient evidence to support the Commission's findings that claimant failed to meet his burden in establishing permanent and total disability and entitlement to PTD benefits under the odd-lot category, and we cannot say that an opposite conclusion is clearly apparent. Consequently, the Commission's determination that claimant is not entitled to PTD benefits is not against the manifest weight of the evidence.
¶ 90 B. PPD Award
¶ 91 The next issue raised by claimant concerns the Commission's decision to award PPD benefits representing 50% loss of a person as a whole under section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 2008)). Claimant asserts that he proved, "at a minimum," entitlement to a wage differential award under section 8(d)(1) of the Act (id. § 8(d)(1)), rather than a percentage-of-the-person-as-a-whole award. We agree. ¶ 92 Section 8(d) of the Act sets out two types of PPD awards: subsection (1) provides a wage differential award, and subsection (2) provides a percentage-of-the-person-as-a-whole award. Id. § 8(d)(1), (2); Gallianetti v. Industrial Comm'n, 315 Ill. App. 3d 721, 727 (2000). The supreme court has expressed a preference for wage differential awards over scheduled awards. General Electric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 438 (1982). ¶ 93 In order to qualify for a wage differential award under section 8(d)(1), a claimant must prove: (1) a partial incapacity which prevents him from pursuing his "usual and customary line of employment" and (2) an impairment of his earnings. 820 ILCS 305/8(d)(1) (West 2008); Greaney v. Industrial Comm'n, 358 Ill. App. 3d 1002, 1014 (2005) (citing Yellow Freight Systems v. Industrial Comm'n, 351 Ill. App. 3d 789, 794 (2004)). Alternatively, section 8(d)(2) of the Act provides for a PPD award based on a percentage-of-the-person-as-a-whole, rather than a wage differential, under three circumstances: (1) when the claimant's injuries do not prevent him from pursuing the duties of his employment but he is disabled from pursuing other occupations or is otherwise physically impaired; (2) when his "injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity"; or (3) when the claimant having suffered an "impairment of earning capacity elects to waive his right to recover under [8(d)(1)]." 820 ILCS 305/8(d)(2) (West 2008). ¶ 94 Here, the Commission determined that claimant was permanently and partially disabled to the extent that his injuries caused a 50% loss of the person as a whole under section 8(d)(2) of the Act. Id. Based on this conclusion, the first element of a wage differential claim was established (i.e., claimant sustained a partial incapacity that prevented him from pursuing his usual and customary employment as a construction manager). ¶ 95 Alberternst argues, contrary to the Commission's decision, that claimant failed to prove the first element of a wage differential claim. In support, Alberternst argues that claimant cannot show that his impairment prevented him from pursuing his usual and customary line of employment, because he successfully found work as a construction manager after he was placed at MMI and released for light duty by Dr. Taylor in 2011. We are not persuaded. ¶ 96 Even though claimant managed the construction of a home for a friend, he testified that he was physically incapable of performing some of the typical duties of a construction manager, such as walking on uneven ground to inspect work being performed on the outside of the house and climbing a ladder to inspect the attic. Claimant explained, while working for his friend, that he was required to perform only managerial tasks, such as obtaining permits, helping with blueprints, organizing workers, going to the construction site to make sure workers were performing the job and opening and closing the job site, as well as supervising what work was done throughout the day. ¶ 97 In contrast, although Alberternst did not provide a description of claimant's job duties for the purposes of the October 24, 2012, FCE, claimant's unrebutted testimony was that his employment with Alberternst, in addition to "some management," required manual labor. Dolan's report noted that claimant typically worked three hours per day performing supervisory or management work and six to seven hours performing carpentry and manual labor. Specifically, claimant testified that he would "get the jobs together, get them started, we stake them off, pour concrete, trim them out, just everything." Dolan's report corroborated claimant's testimony by documenting other forms of manual labor performed, such as relocating the studding of interior walls, fetching materials and moving equipment, such as table saws. Furthermore, consistent with claimant's testimony, the parties agree that claimant's injuries occurred while performing physical activities—"trimming a house out" and carrying interior doors up a flight of stairs. Thus, the record demonstrates that claimant's usual and customary line of employment, as Alberternst's construction manager, required manual labor, which included some carpentry work in addition to his supervisory tasks. ¶ 98 Given the extent of claimant's work restrictions and his employment history, as detailed above, the Commission's determination that claimant was permanently and partially disabled is not against the manifest weight of the evidence. We next turn to the second element that must be proven for a wage differential award—proof of an impairment of earnings. ¶ 99 Here, claimant argues that the Commission's finding was against the manifest weight of the evidence because "there is foundation for determining the wage differential parameters." In response, Alberternst argues, even if claimant proved he was permanently and partially disabled, the Commission correctly determined that claimant failed to provide sufficient evidence to establish a diminished earnings capacity under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)). ¶ 100 In order to receive compensation for the duration of his disability, the second element under section 8(d)(1) requires, in pertinent part, a claimant to show the following:
"the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident." (Emphasis added.) Id.Here, in adopting the arbitrator's decision, the Commission agreed that "[w]hile the possibility exists that [claimant] may have suffered some diminishment of earning capacity which may have entitled him to a wage differential award, the record in this case contains no evidence from which the amount of any such award could be determined." ¶ 101 The record establishes by stipulation that claimant's gross annual income from working as a construction manager for Alberternst was $58,234.28 ($28 per hour) prior to the accident. The record further shows that claimant received additional benefits, including paid vacation, a company truck, and insurance and fuel expenses. Claimant presented Dolan's vocational and rehabilitation assessment report, which found that jobs in the light and sedentary exertion levels typically pay from $8.25 per hour to $10 per hour with no additional benefits. Although Dolan did not perform a labor market survey, his findings are consistent with Burger's subsequent labor market survey that concluded claimant could return to work as a manager or supervisor earning between $8 and $16 per hour, but, as Burger acknowledged on cross-examination, most jobs were in the $9 to $10 range. Burger also acknowledged that she was unaware of claimant's sedentary work restrictions that had been put in place by Dr. Taylor on July 16, 2014. ¶ 102 Given these facts, we believe the Commission's finding that "[claimant] may have suffered some diminishment of earning capacity which may have entitled him to a wage differential award, the record in this case contains no evidence from which the amount of any such award could be determined" is against the manifest weight of the evidence. As explained above, the record clearly establishes claimant's pre-accident income and the projected average range of the diminished amount that claimant would be able to earn in some suitable employment or business after the accident. Consequently, we reverse that portion of the circuit court's order confirming the Commission's September 26, 2016, decision denying claimant a wage differential award, and we remand this matter to the Commission with directions to enter a wage differential award consistent with this order.
¶ 103 C. Maintenance, Penalties and Fees
¶ 104 Claimant next argues that the Commission's September 26, 2016, decision denying claimant maintenance benefits is against the manifest weight of the evidence. Claimant asks this court to affirm the Commission's decision on remand, which reinstated the arbitrator's October 8, 2015, decision awarding claimant maintenance benefits. In turn, Alberternst argues that the original Commission decision correctly determined that claimant was not entitled to an award of maintenance benefits. Accordingly, Alberternst requests that we vacate the Commission's decision on remand and affirm the Commission's September 26, 2016, decision. ¶ 105 Section 8(a) of the Act (820 ILCS 305/8(a) (West 2012)) authorizes an award of maintenance benefits only when a claimant is engaged in a prescribed vocational or physical rehabilitation program. A claimant is not required to request vocational rehabilitation before being entitled to an award of maintenance. Greaney, 358 Ill. App. 3d at 1019. However, if the claimant is not engaged in some type of physical rehabilitation program, formal job training or a self-directed job search, there is no obligation to provide maintenance. Id. "[W]hether a claimant is entitled to maintenance benefits is a question to be decided by the Commission, and its finding will not be reversed unless it is against the manifest weight of the evidence." W.B. Olson, Inc. v. Illinois Workers' Compensation Comm'n, 2012 IL App (1st) 113129WC, ¶ 39. ¶ 106 Here, the arbitrator awarded claimant maintenance benefits for 63 1/7 weeks (from February 9, 2011, through April 24, 2012). The arbitrator found that claimant conducted a job search following his release to light duty by Dr. Taylor but was unable to locate work on his own. The arbitrator noted that Alberternst did not provide vocational rehabilitation services until Latham met with claimant on March 15, 2012. The arbitrator also found that claimant, as of April 24, 2012, failed to comply fully with the provided vocational services when he refused to agree to contact at least 10 employers per week. ¶ 107 The Commission disagreed with the arbitrator and struck the award of maintenance. The Commission provided its reasoning for denying claimant an award of maintenance benefits. The Commission determined that claimant failed to provide sufficient proof of a diligent job search after Dr. Taylor found that he had reached MMI and released him to light duty on February 8, 2011. In addition, the claimant testified that he was working in the construction field as of March 2011, as well as working part-time running deliveries for his brother-in-law's business in the spring of 2012. The Commission stressed that while the claimant testified to the amount of income earned from both jobs, he failed to provide any documentation. ¶ 108 Claimant asserts that he "attempted to locate work on his own" and was successful in finding part-time work for some periods. Thus, claimant argues that he has shown entitlement to maintenance. Although a claimant may be "properly awarded maintenance benefits for the period of time he was undertaking his self-created and directed rehabilitation program" (Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506 (2004), here, the Commission found claimant's efforts inadequate to establish that claimant engaged in vocational rehabilitation through a self-directed job search following his release to light duty on February 8, 2011. ¶ 109 Although the claimant began working for a friend in March 2011, his job search log shows that he performed no job searches from February 8, 2011, to April 4, 2011, and contacted only two to three employers per month from April 4, 2011, to January 9, 2012, totaling only 25 contacts. Moreover, Dolan testified that claimant informed him of several companies that he had contacted but did not provide him with documentation. Claimant testified that he limited his job search activities to businesses he knew from working for Alberternst, even though he did not believe a job existed with his restrictions in the construction field. Thus, there is ample evidence to support the Commission's finding, and, under these circumstances, we cannot say that an opposite conclusion is clearly apparent. ¶ 110 Based on the foregoing, the Commission's decision, which struck the arbitrator's award and denied claimant maintenance for the period of February 9, 2011, through April 24, 2012, is not against the manifest weight of the evidence. Likewise, the Commission's decision denying claimant penalties and fees based on Alberternst's failure to pay maintenance is not against the manifest weight of the evidence. As discussed above, a reasonable basis exists for Alberternst's refusal to pay claimant maintenance benefits following Dr. Taylor's determination that claimant had reached MMI and could return to light-duty work. ¶ 111 In sum, we cannot say that the Commission's decision that claimant failed to establish a permanent and total disability is against the manifest weight of the evidence, where the Commission reasonably resolved the conflicting medical evidence in favor of Alberternst. Likewise, claimant failed to establish entitlement under an odd-lot theory by a preponderance of the evidence, where the Commission concluded that claimant failed to show a diligent but unsuccessful job search, or that he would not be regularly employed in a well-known branch of the labor market due to his age, skills, training, and work history. We also find that the Commission's decision denying claimant maintenance benefits, penalties and fees is not against the manifest weight of the evidence. We do, however, find that the Commission's decision denying claimant a wage differential award is against the manifest weight of the evidence, where the record clearly establishes claimant's pre-accident income, and the experts effectively agree as to the amount of diminished hourly earnings available to claimant in some suitable employment or business after the accident.
¶ 112 III. Conclusion
¶ 113 Based upon the foregoing, we reverse the portions of the circuit court's order of June 15, 2017, that set aside the Commission's denial of maintenance, penalties and fees, and that confirmed the Commission's denial of a wage differential award, in favor of a person as a whole award; we reverse the Commission's decision as to that issue and remand the case to the Commission for the entry of a wage differential award; we affirm the circuit court's order in all other respects. We also vacate the Commission's decision on remand that reinstated the arbitrator's award of maintenance, penalties and fees; and vacate the circuit court's order of November 8, 2019, confirming the Commission's decision on remand. ¶ 114 No. 16-MR-297, Affirmed in part, reversed in part, and the Commission decision on remand vacated. Cause remanded with directions. ¶ 115 No. 18-MR-156, Vacated.