Opinion
5-20-0418WC
12-16-2021
SOUTHERN GLAZER'S WINE AND SPIRITS OF ILLINOIS, LLC, Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. Gary "Scott" Walston, Appellees.
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 First Judicial Circuit, Williamson County, Illinois Circuit Nos. 2020-MR-69 and 2018-MR-351 Honorable Jeffrey A. Goffinet, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the judgment.
ORDER
HOLDRIDGE PRESIDING JUSTICE
¶ 1 Held: (1) The Commission's initial finding that the claimant had failed to prove that he sustained an accidental injury arising out of and in the court of his employment was against the manifest weight of the evidence, and the circuit court's order reversing that decision and remanding the matter to the Commission was correct; (2) the Commission's implicit finding on remand that the claimant's condition of ill-being was causally connected to his work-related accident was not against the manifest weight of the evidence; (3) the Commission's finding on remand that the claimant's repetitive trauma injury manifested itself on November 18, 2013, was not against the manifest weight of the evidence; (4) the Commission's finding on remand that the claimant had given the employer timely and adequate notice of his
work-related injury was not against the manifest weight of the evidence; (5) the Commission's calculation of the claimant's average weekly wage on remand was not against the manifest weight of the evidence; and (6) the Commission's award of PPD benefits on remand in the amount of 25% of the person as a whole was not against the manifest weight of the evidence.
¶ 2 The claimant, Gary "Scott" Walston, filed a claim for benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)) against the respondent, Southern Glazer's Wine and Spirits of Illinois, LLC (employer), seeking benefits for a repetitive trauma injury to his back that he allegedly sustained while working for the employer. The claimant contended that the injury had a manifestation date of November 18, 2013. After conducting a hearing, Arbitrator Cellini found that the claimant had failed to prove that he sustained accidental injuries arising out of and in the course of his employment. The arbitrator denied benefits on that basis and found the remaining issues raised by the claimant (causation, notice, medical benefits, temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and the calculation of the claimant's average weekly wage) were moot.
¶ 3 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission). Commissioners Lamborn, Brennan, and Tyrrell affirmed and adopted the arbitrator's decision.
¶ 4 The claimant sought judicial review of the Commission's decision in the circuit court of Williamson County. Circuit court Judge Jeffrey Goffinet reversed and remanded the Commission's decision because it concluded that the Commission's finding of no accident was based on a misapprehension of relevant facts, baseless assumptions, and the failure to recognize that the case involved the aggravation of a preexisting condition. The circuit court also found it significant that the Commission had failed to consider the medical opinion of Dr. David Kennedy, who concluded that the increased lifting that the claimant was required to perform at work after mid-July of 2013 was more likely than not the cause of the claimant's worsening back symptoms. The circuit court therefore remanded the matter to the Commission for consideration of the of the issues that the Commission had previously found to be moot.
¶ 5 On remand, the Commission (Commissioners Doerries, Portela, and Parker) found that the claimant had sustained an accidental injury that arose out of and in the course of his employment, pursuant to the circuit court's remand order. The Commission assumed that the claimant's current condition of ill-being was causally connected to his employment because it believed that the circuit court had reached that conclusion in its remand order. The Commission further found that the manifestation date of the claimant's repetitive trauma injury was November 18, 2013, the date on which his pain management physician placed him on work restrictions that his employer could not accommodate and thereby rendered the claimant unable to perform his work duties. The Commission also found that the claimant had given the employer timely and adequate notice of his work-related injury by reporting the injury to the employer's benefits manager three days after the manifestation date of his injury. The Commission awarded the claimant medical expenses, TTD benefits from November 18, 2013, until he was released to work full duty on April 28, 2014, and PPD benefits in the amount of 25% loss of the person as a whole. In calculating the claimant's average weekly wage, the Commission included "incentive" and "rank payout" payments established by the collective bargaining agreement executed by the employer and the claimant's union.
¶ 6 The employer appealed the Commission's decision on remand to the circuit court of Williamson County. The parties agreed that the Commission had erred in calculating the number of weeks of TTD benefits and the PPD rate. Circuit Judge Goffinet accepted the parties' agreement and adjusted those figures as proposed by the parties. The circuit court otherwise confirmed the Commission's decision.
¶ 7 This appeal followed.
¶ 8 FACTS
¶ 9 The employer is a liquor distributor. The claimant is the employer's District Manager for its south region. He supervises sales representatives and merchandisers in his territory. Kevin Murphy (Murphy) was a merchandiser/material handler under the claimant's supervision and control. The claimant's job duties included delivering liquor and wine to stores and setting up "point of sale" display items at stores when others were not available to perform these tasks. The claimant also picked up and unloaded point-of-sale merchandise into his personal garage. In 2012 and 2013, the claimant had to perform material handling duties on a regular basis, both working with Murphy and without him. That involved stocking stores, creating displays, and moving liquor products.
¶ 10 On November 20, 2012, the claimant had surgery to repair his right rotator cuff. He was still recovering from that surgery and still undergoing shoulder therapy in February 2013. He returned to work with a restriction of lifting no more than 10 pounds below the shoulder. The claimant was still working under that restriction in February 2013. The claimant testified that his shoulder problem made him unable to lift away from his body at chin level. He stated that this impacted his ability to do material handling, because the more he lifted, the more his back hurt.
¶ 11 The claimant began experiencing low back pain radiating into his legs when he awoke on February 28, 2013. When he saw Dr. Dennon Davis, his primary care physician, on March 21, 2013, he reported having back problems for the past month. The claimant told Dr. Davis that he had undergone shoulder surgery and post-surgical therapy, and that he was having a lot of difficulty with lifting. In his medical report of that visit, Dr. Davis noted that the claimant was "not sure what he has done to aggravate this again." While examining the claimant, Dr. Davis noted tenderness over the lumbosacral spine. He prescribed pain medication and back exercises, and he advised the claimant to follow up with a chiropractor.
¶ 12 In April 2013, the claimant began treating with Dr. Dennis McGuire, a chiropractor. Prior to treating with Dr. McGuire, the claimant had not been diagnosed with, or treated for, a condition of the lumbar spine. The claimant reported experiencing low back pain radiating into his legs since February 28, 2013. The claimant told Dr. McGuire that his job required him to lift, shelve, and stack alcohol. The claimant testified that he did not have a specific, sudden accident that he knew caused a back injury, but that his back and leg pain increased over time. In a patient intake form, the claimant indicated that his condition was not due to an accident. In the ensuing months, the claimant informed Dr. McGuire that he had experienced increased pain during various activities, including increased pain due to work activities such as bending over to lift a case of beer at work. Dr. McGuire diagnosed a left S1 joint sprain and a lumbar sprain/strain, with a differential diagnosis of a lumbar disc bulge.
¶ 13 Although chiropractic treatments provided temporary relief, the claimant's symptoms continued. Accordingly, Dr. McGuire ordered a lumbar MRI, which was taken on April 23, 2013. The MRI films, which were interpreted by a physician, showed various degenerative changes, including a disc protrusion at L5-S1 with degenerative changes about the S1 nerve and narrowing of the left lateral recess at L4-L5 predominantly due to facet joint arthropathy, among other conditions. On April 26, 2013, after reviewing the MRI results, Dr. McGuire diagnosed disc bulges at L3 to L5 with left side nerve impingement at L5, and L5-S1 disc herniation with left side nerve impingement at S1. Five days later, Dr. McGuire noted that that the claimant's lumbar condition was "complicated by his obesity and job that requires him to drive several hours a day."
¶ 14 The claimant testified he is a cigarette smoker, that he weighed between 315 and 320 pounds in 2013, but weighed between 265 and 270 at the time of the arbitration hearing.
¶ 15 The claimant testified that, while working with Murphy, he would move an average of 250 to 300 cases of liquor or wine per day at customer locations, which did not include readjusting previously shelved product or constructing point-of-sale displays. A case of liquor weighs 40 to 45 pounds on average. The claimant testified that, in order to build end cap displays, he had to repeatedly bend to stock the liquor. He also had to travel throughout his territory anywhere from 900 to 1200 miles per week on average.
¶ 16 The claimant testified that Murphy went on vacation in July 2013 and subsequently went off work due to knee surgery. Accordingly, the claimant was without a merchandiser from late July 2013 until he himself went off work on November 18, 2013. During that period, the claimant had to do the merchandiser's work, which required substantially more lifting. The claimant testified that more than 40 percent of the employer's business was during the holiday season from September through December. During that time, stores load up on inventory and the work greatly increases. The claimant asked the employer for help multiple times, but he never obtained a satisfactory replacement for Murphy. When the claimant returned to Dr. McGuire during that time period, he reported that he was lifting 350 cases of liquor per day.
¶ 17 The claimant testified that his symptoms increased in duration and severity when Murphy was not working. The more activity he did, the worse he got and the more pain he had. The pain and numbness started to radiate down to his toes and he developed numbness in both legs. The claimant described his back pain during this time as being like a hot poker jabbing his rear and causing him pain down the back of his legs and making his feet numb.
¶ 18 On August 7, 2013, the claimant returned to Dr. McGuire and reported that he was lifting 350 cases of liquor per day at work and that this low back was inflamed and worse as a result. Due to the claimant's increasing low back instability, Dr. McGuire sought a neurological consult with Dr. David Kennedy, a neurosurgeon.
¶ 19 The claimant first saw Dr. Kennedy on September 24, 2013. Dr. Kennedy reviewed the MRI, which he testified showed degenerative changes at multiple levels, most notably at L4-5 and L5-S1. Dr. Kennedy noted that these degenerative changes were not uncommon for a man of the claimant's age. Dr. Kennedy could not give an opinion as to how long the degenerative changes were present or the cause of the initial onset.
¶ 20 Dr. Kennedy also testified that the CT of the lumbar spine showed moderate to severe degenerative disc disease with soft tissue bulging that was more than is expected for a 50-year-old person. Dr. Kennedy also testified that a lumbar spine x-ray was performed and it showed degenerative spur formation and facet arthritis at L4-5 and L5-S1, the onset of which predated 2013. Although Dr. Kennedy acknowledged that smoking is considered a risk factor for the worsening of degenerative disc disease, he denied that there is an established cause and effect between smoking and degenerative changes of the spine. He also opined that the pain the claimant was experiencing could not have been caused by smoking alone. He further testified that a patient's degenerative disc disease or pain from such a condition is independent of a person's obesity.
¶ 21 The claimant told Dr. Kennedy that, when he returned to work following his shoulder surgery, he had to change the way he lifted objects at work in order to protect his injured shoulder. The claimant reported that the increase in the volume of lifting at work together with his altered lifting mechanics imposed to protect his injured shoulder caused him to experience progressively worsening, severe low back and leg pain. Dr. Kennedy's physical examination revealed a significant reduction in range of motion of the lumbar spine and tenderness in the lower lumbar area.
¶ 22 Dr. Kennedy initially tried to treat the claimant's low back pain conservatively. Because chiropractic treatment had not offered lasting pain relief, Dr. Kennedy referred the claimant to Dr. Barry Feinberg, a pain specialist, for a series of facet epidural injections. The claimant underwent injection treatments from September to November 2013. The injections did not relieve the claimant's symptoms for any extended period of time, and his lumbar pain and leg numbness continued to progress. Due to increased low back pain and spinal instability, Dr. Feinberg issued a 10-pound lifting restriction in November 2013. The claimant asked Dr. Feinberg to increase the limit to 25 pounds, which he did. However, the employer refused to allow the claimant to work with the revised 25-pound restriction and informed him that he could not continue working until his doctor released him to return full duty, which, according to the claimant's job description, required the ability to lift 100 pounds occasionally.
¶ 23 On November 21, 2013, the claimant sent an e-mail to Susan Drury, a benefits administrator for the employer. In that e-mail, the claimant reported that: (1) he had a degenerative condition in his lower back (which he claimed Drury was aware of); and (2) work-related injuries to his shoulder had changed his lifting mechanics which caused him to have problems with his lower back "since early Spring." The claimant again asked the employer to provide him with another merchandiser to help him so that he could continue working "during this most hectic time of the year." The employer refused this request for accommodation.
¶ 24 When the claimant returned for his next appointment with Dr. Kennedy on January 23, 2014, Dr. Kennedy noted that the claimant's condition had continued to worsen. The injections to date had failed to improve his condition. Dr. Kennedy ordered a lumbar myelogram that was performed on January 28, 2014. The myelogram showed compression, significant instability at levels L4-5 and L5-S1, and spinal cord stenosis. Dr. Kennedy opined that the spinal instability was of a more recent vintage than the degenerative changes and was the major cause of the claimant's stenosis. The claimant underwent further epidural injection treatments with Dr. Feinberg through April 2014, but the injections did not alleviate his pain.
¶ 25 Dr. Kennedy opined within a reasonable degree of medical certainty that the claimant's L4-5 and L5-S1 instability caused lumbar radiculopathy leading to pain in his legs and low back. Based on the continuing symptoms of instability and the myelogram results, Dr. Kennedy recommended a decompression and fusion at L4-5 and L5-S1.
¶ 26 Dr. Kennedy further opined that the claimant's condition did not develop quickly over a few weeks, but rather the spinal instability leading to his unremitting low back and leg pain developed over several months. Dr. Kennedy testified that the claimant's L4-5 instability caused his forward flexion instability. Kennedy further testified that he did not place any restrictions on the claimant when he first saw him on September 24, 2013. At that time, the claimant continued to perform his job duties as tolerated.
¶ 27 Dr. Kennedy acknowledged that the degenerative disc disease identified in the claimant's diagnostic studies would progress on its own, and that the type of pain the claimant experienced could be brought about by sleeping in the wrong position or twisting and turning at night. However, Dr. Kennedy opined, within a reasonable degree of medical and surgical certainty, that the claimant's daily repetitive bending and twisting while lifting and placing up to 350 cases of liquor weighing over 40 pounds each, in combination with hours of driving daily for work, were causative factors in his lumbar instability. Dr. Kennedy explained that the claimant's shoulder injury required him to lift, twist, and place the cases with his arms closer to his chest. Dr. Kennedy concluded the repetitive lifting and twisting while stacking the cases using the modified lifting technique placed undue stress on the claimant's lumbar spine.
¶ 28 Dr. Kennedy opined that the claimant's job duties aggravated his lumbar condition to the point it became unstable and constantly symptomatic. Dr. Kennedy acknowledged that the claimant exhibited degeneration of the lumbar spine prior to the date of his MRI in April 2013, but concluded the primary factor causing his low-back pain and radiculopathy was the rotational stress involved with twisting with a loaded spine which was increased due to his modified lifting technique. Dr. Kennedy stated that this mechanism of injury has been established in peer-reviewed medical literature. The spine-particularly a degenerative spine-poorly tolerates excessive bending and twisting while loaded with weight, because the rotational movement puts excess force on the structures of the lumbar spine.
¶ 29 Dr. Kennedy performed a surgical decompression and fusion to address the spinal instability that was causing the claimant's symptoms. He opined within a reasonable degree of medical and surgical certainty that the claimant's spinal instability was causally related to his work activities.
¶ 30 Dr. Kennedy admitted that an MRI cannot establish how long a degenerative condition was present or whether lifting activities have changed the structure of the preexisting condition or aggravated the symptoms thereof. However, Dr. Kennedy testified that x-rays, MRIs, CT scans, and/or clinical examinations are not designed to provide evidence of medical causation. The mechanism of injury is the determinative factor in providing a causation opinion. Dr. Kennedy testified that, in order to render an opinion as to medical causation in a chronic pain situation, it is necessary for the physician to take a history that comports with the mechanism of injury shown by the objective tests. Dr. Kennedy opined that, in this case: (1) the claimant's pain aggravation corresponded with a known mechanism of injury of frequent bending, twisting, and stooping while his back was loaded; and (2) the claimant's explanation of worsening symptoms as his lifting duties increased is plausible in that it corresponds to known patterns of injury. Dr. Kennedy concluded that the claimant's mechanism of injury due to repetitive lifting is more likely than not the explanation for his lumbar condition. He testified that the claimant's history of lifting requirements is well recognized in terms of worsening or aggravating a back condition and that the claimant's increase in lifting was a causative factor in his condition. Dr. Kennedy opined that the claimant's activities of increased lifting caused the instability in lumbar spine that resulted in the need for surgery.
¶ 31 A bilateral lumbar laminectomy and foraminotomy with fusion was performed on March 17, 2014. The claimant suffered a severe post-surgical incision infection. As soon as the infection was under control, the claimant asked Dr. Kennedy to release him to work full duty. On April 24, 2014, Dr. Kennedy returned the claimant to work without restrictions, instructing the claimant to use a plastic corset and cautioning him to perform his duties only as tolerated.
¶ 32 When the claimant returned to work, he was unable to physically do what he was capable of doing prior to surgery. He avoided lifting as much as he could so as to not re-injure his back or delay the ongoing healing process. At his June 4, 2014 post-surgical follow-up appointment with Dr. Kennedy, the claimant reported an occasional increase in pain upon returning to work which required pain medication to control. Dr. Kennedy discovered that the claimant's fusion had not completely coalesced and that he was not at maximum medical improvement (MMI). To aid bone growth and accelerate fusion, Dr. Kennedy prescribed a bone growth stimulator and vitamin D supplements along with aqua therapy two to three times per week followed by land-based physical therapy.
¶ 33 In July 2014, the claimant returned to Dr. Kennedy complaining of significant and worsening pain in his left buttock and hip due to an increased workload. Dr. Kennedy ordered SI joint injections with Dr. Feinberg to address pain that can occur following a fusion of the lower segments of the lumbar spine. On August 26, 2014, Dr. Kennedy observed that the claimant had persistent pain on the left side occasioned by bending and twisting, which was a major part of his job. X-rays revealed maturation of the bone but a broken screw at S1. Dr. Kennedy testified that the broken screw was indicative of the types of stress on the claimant's low back that occurred in his work environment. Dr. Kennedy ordered a CT scan, performed on September 5, 2014, which verified a right-side screw fracture and further revealed an incompletely fused lateral mass without complete separation. Imaging studies taken on October 27, 2015, showed that the fusion was stable at that time.
¶ 34 The claimant last saw Dr. Kennedy on February 16, 2016. Dr. Kennedy concluded that the claimant's back appeared to be stable at that time. Dr. Kennedy was not sure whether the L5-S1 discs were completely fused, but they appeared to be clinically stable. Dr. Kennedy allowed the claimant to continue doing his job without restrictions.
¶ 35 The claimant testified that lifting activities at work continued to aggravate his low back and leg pain. Although the volume of lifting and material handling he currently does is high, it is not nearly as great as when he was without a material handler in 2013. The claimant continues to take narcotic pain medication to control his back and leg pain.
¶ 36 The claimant further testified that his back condition has also reduced his ability to enjoy activities such as softball, golf, and playing poker with friends. He is unable to play on his softball team due to his back condition, unable to sit for extended periods of time, and cannot play golf at the same level as he did before the accident due to pain and discomfort. The claimant testified he continues to have pain in his low back and down his legs accompanied by numbness. The leg pain occurs intermittently and presents in both legs. He continues to experience muscle spasms and cramps that he controls with muscle relaxers and he takes oxycontin daily to control his low back pain.
¶ 37 On June 6, 2014, the claimant was examined by Dr. David Fletcher, the claimant's AMA examiner. Dr. Fletcher is board-certified in preventive medicine and occupational health medicine. Dr. Fletcher took a history from the claimant and had him complete a pain drawing. Dr. Fletcher reviewed the medical records of Drs. Davis, McGuire, and Kennedy. He also reviewed the claimant's imaging reports. However, Dr. Fletcher reviewed only the radiologists' reports of the MRI and myelogram; he did not review the actual MRI or myelogram films. Dr. Kennedy noted that the radiologists' impression of films from January 2014 indicated degenerative disc pathology at multiple levels and that the radiologists' impressions of the myelogram and CT scan suggested instability and degenerative disc disease.
¶ 38 Dr. Fletcher agreed that an AMA rating should be conducted after the claimant has reached MMI. He opined that the claimant had reached MMI because he had returned to work. Dr. Fletcher reached this opinion despite the fact that, two days before he examined the claimant and conducted an AMA impairment assessment of the claimant, Dr. Kennedy had found that the claimant's fusion was incomplete and that he had not reached MMI.
¶ 39 Dr. Fletcher testified that the AMA impairment score is determined by factoring the results of a clinical physical examination and a functional history taken from a self-reported questionnaire completed by the patient. Based on this information, the patient is assigned an impairment range based on the AMA diagnosis-based impairment grid. The clinical physical examination of a person with a two-level fusion placed the claimant in an impairment grid with a possible impairment rating between 15% and 24%. The AMA suggested default impairment rating for a two-level fusion is 19%.
¶ 40 Nevertheless, Dr. Fletcher opined that the claimant had a 15% impairment rating. Dr. Fletcher testified his clinical examination of the claimant was not significant in his downgrading of the claimant's impairment rating. Rather, Dr. Fletcher testified he deviated downward from the default rating based primarily on the results of the functional history form that the claimant had provided in his subjective responses on a pain disability questionnaire. The self-reported disability questionnaire is a standardized questionnaire developed for low back pain assessment in relation to AMA impairment ratings used in the State of Illinois since the Workers' Compensation Act was amended in 2011. The questionnaire consists of two parts: a functional section and psychosocial section. In the psychosocial section, the claimant completed a pain drawing indicating lower back pain radiating to the right lower extremity and left anterior thigh pain radiating to the left upper calf. However, as to the functional component (which Dr. Fletcher relied on in lowering the claimant's impairment rating), Dr. Fletcher admitted on cross-examination that the questionnaire's pain scale was not completed by the claimant as required. Rather contrary to AMA guidelines, Dr. Fletcher assigned a pain impairment rating of "4" without consulting the claimant. A "4" rating is characterized as: "Moderate pain. Requires medication. Sleep disturbed and avoiding daily tasks on occasion."
¶ 41 Based on the functional and psychosocial portions of the questionnaire, including the pain scale assignment that was provided by Dr. Fletcher instead of the claimant, Dr. Fletcher concluded that the claimant's disability was at the mild level, which warranted applying a modifier to lower the impairment rating below the established default (19%) to 15%, the lowest possible rating.
¶ 42 Dr. Fletcher opined that smoking was a risk factor for the development and progression of the claimant's degenerative disc disease and possibly contributed to the non-union of the spinal fusion. Dr. Fletcher further opined that degenerative disc disease is a progressive, age-related condition and that morbid obesity was also a risk factor which could cause the acceleration and progression of degenerative disc disease, particularly at L5-S1.
¶ 43 Dr. Fletcher agreed that the AMA guides are not designed to aid in the diagnosis of conditions and that the rating report is based on impairment as opposed to disability. He acknowledged that an individual might have significant limitations in their activities and job performance despite having a very low impairment rating, or even an impairment rating of zero.
¶ 44 Dr. Fletcher opined that the instability of the claimant's lumbar spine was due to advanced degenerative disc disease and not to a traumatic event or to the claimant's work activities. He stated that the claimant's age, weight, and history of smoking were recognized risk factors for the disease, and he opined that there was no clear relationship between the claimant's condition and his employment. In support of this opinion, Dr. Fletcher noted that there was no identifying history that the claimant's condition started or developed at work, and the claimant did not report that he got better on weekends or got worse while working.
¶ 45 Dr. Fletcher testified that he was aware of peer-reviewed medical studies showing an association between low back pain and frequent lifting, and he agreed there are cases where continuous and sustained lifting aggravates back conditions. However, Dr. Fletcher noted that, in order for a work activity to be considered "frequent" according to the U.S. Department of Labor Dictionary and of Occupational Titles, the individual would have to engage in the activity for more than two-thirds of the work day. Applying this definition, Dr. Fletcher did not find that the claimant's lifting had been frequent or continuous.
¶ 46 Dr. Fletcher was not informed of the claimant's increased lifting duties in the summer and fall of 2013. He never asked and was not told by the claimant that, from July 2013 through November 2013, the claimant was lifting 350 cases of liquor per day on average.
¶ 47 The arbitrator found that the claimant had not proven that he sustained an accident arising out of and in the course of his employment. The arbitrator found that the e-mails presented into evidence showed that Murphy did not go off work for his own work injury until October 2013, not July 2103, as the claimant alleged. The arbitrator noted that October 2013 was "well after the [the claimant's] February 2013 onset of symptoms" and that, "[b]y the time Murphy went off work, [the claimant] had been experiencing symptoms for months, and he had been treating for months." The arbitrator stated that the fact that claimant may have felt pain while performing his work activities in mid to late 2013 did not equate to proof of an accidental injury because at that time the claimant had already had an initial onset of back pain that had not ended. The arbitrator found that there was "no objective evidence that his condition changed between the February 2013 onset and the claimed 11/19/13 *** accident/manifestation date, or that there was any acute change of condition after February 2013." The arbitrator further noted that there was no indication in the medical records that the claimant's lumbar condition ever resolved after February 2013.
¶ 48 The arbitrator found that the claimant's lumbar condition was "significantly due to a degenerative condition." He noted that Dr. Kennedy admitted that the degenerative findings found on the MRI on April 23, 2013, pre-dated the alleged injury, and that there was nothing in the diagnostic study or his evaluations to determine what brought about or caused the claimant's pain. Although the arbitrator acknowledged that" [a] ctivities can aggravate or accelerate a preexisting condition and result in compensability under the law," he found that the preponderance of the evidence in this case did not support that such an aggravation or acceleration occurred as a result of the claimant's repetitive work duties. Moreover, the arbitrator noted that it appeared that "the claimant's total job duties involve a large variety of tasks" and the claimant had "failed to prove the time periods or percentages of his day that he performed significant sustained lifting activities on a regular basis."
¶ 49 The arbitrator further noted that, when Murphy was off work, the claimant was moving and lifting "350 cases per week." The arbitrator noted that, while Murphy was working with the claimant, the claimant stated that he was lifting 250 to 300 cases. The arbitrator found it implausible that the actual merchandiser, whose job it was to lift cases of liquor, would have diminished the claimant's amount of lifting by such a small amount. The arbitrator also observed that, because the claimant testified that he spent 17 hours per week driving, it was unclear how much time he could have spent lifting.
¶ 50 The arbitrator concluded that the greater weight of the evidence, particularly the contemporaneous medical evidence, supported the finding that the claimant's lumbar condition started after he woke up on February 28, 2013. He noted that there was no testimony or other evidence suggesting that the claimant's work activities prior to that date were a cause or a contributing factor. The arbitrator also found that the greater weight of the evidence "reflects a degenerative condition that was likely continuing to progress with no break in symptoms or treatment from 2/28/13 through the date of surgery."
¶ 51 The claimant appealed the arbitrator's decision to the Commission, which affirmed and adopted the arbitrator's decision.
¶ 52 The claimant sought judicial review of the Commission's decision in the circuit court of Williamson County. The circuit court reversed and remanded the Commission's decision. The circuit court ruled that the Commission's finding of no accident was based on a misapprehension of relevant facts. Specifically, the court found that the Commission's findings as to (1) the number of cases of liquor moved per day by the claimant, (2) the date he began to move additional cases, and (3) the manifestation date of the injury, were all against the manifest weight of the evidence. The court found that Commission incorrectly found that the claimant moved 350 cases per week after Murphy left, instead of 350 cases per day, as the claimant testified. The arbitrator also assumed without foundation that the claimant's testimony "would mean that his co-worker must have only moved a small number of cases, thereby implying [that the claimant was] not credible on the issue." The Commission noted that there was no testimony as to the total number of cases that were moved by the team each day for the arbitrator to reach that conclusion. Moreover, the court found that here was no testimony to contradict the claimant as to the date he began to move additional cases or as to the manifestation date of the injury.
¶ 53 The circuit court further concluded that the arbitrator's decision "fail[ed] to acknowledge that this is an aggravation case." As such, the arbitrator's reliance on evidence of the claimant's condition in March 2013 and before was misplaced because such evidence merely established that the claimant had a preexisting condition.
¶ 54 Further, the circuit court stressed that the Commission did not consider Dr. Kennedy's testimony that increased lifting was a causative factor in the claimant's condition and symptoms. The court noted that" [n]o medical testimony contradicted that opinion."
¶ 55 The circuit court concluded that "[t]he manifest weight of the uncontradicted testimony was that [the claimant] had a pre-existing condition which could at times be symptomatic. In mid-July, 2013 and ongoing after that date, [the claimant] was doing extra lifting at his job. That extra lifting, per Dr. Kennedy, more likely than not is the causative explanation for his worsening or aggravating symptoms. The symptoms were connected to his job's work requirements and as such were an accidental injury within the meaning of the Act."
¶ 56 The court therefore remanded the matter to the Commission so that the Commission could consider issues that it had previously found moot and therefore did not reach.
¶ 57 On remand, the Commission found that the claimant had sustained an accidental injury that arose out of and in the course of his employment, pursuant to the circuit court's remand order. The Commission also assumed that the claimant's conditions of ill-being were causally connected to his employment, which it believed had also been determined by the circuit court.
¶ 58 The Commission found that the manifestation date of the claimant's repetitive trauma injury was November 18, 2013, the date on which the claimant's pain management physician placed him on work restrictions that his employer could not accommodate, and thereby rendered the claimant unable to perform his work duties.
¶ 59 The Commission further found on remand that the claimant had notified the employer of his current injury via an e-mail he sent to Susan Drury on November 21, 2013. Because the claimant sent that e-mail three days after the manifestation date of his repetitive trauma injury, the Commission found that the claimant gave timely notice to the employer.
¶ 60 The Commission also awarded the claimant medical expenses. It noted that the employer's only dispute as to medical expenses was based on its position that it was not liable for the claimant's injuries. Because the Commission had found the employer liable, it awarded the claimant the reasonable and necessary medical expenses he sought.
¶ 61 The Commission also awarded the claimant TTD benefits from November 18, 2013, until he was released to work full duty on April 28, 2014.
¶ 62 After considering and weighing the relevant factors prescribed in amended section 8. 1b(b) of the Act (820 ILCS 305/8. 1b(b) (West Supp. 2011)), the Commission awarded the claimant PPD benefits to the extent of 25% loss of the person as a whole.
¶ 63 In calculating the claimant's average weekly wage for the purpose of awarding benefits, the Commission included compensation that was paid through "ranking" and "incentive" pools established by the collective bargaining agreement executed by the employer and the claimant's union. The Commission found that the compensation paid to the employer's qualifying employees through these pools is a contractual obligation imposed upon the employer by the collective bargaining agreement. Accordingly, the Commission found that such compensation is part of the claimant's actual earnings (and not a "bonus"), and therefore must be included when calculating the claimant's average weekly wage pursuant to section 10 of the Act (820 ILCS 305/10 (West 2012)).
¶ 64 The employer appealed the Commission's decision on remand to the circuit court of Williamson County. The parties agreed that the Commission had erred in calculating the number of weeks of TTD benefits and the PPD rate. The circuit court accepted the parties' agreement and adjusted those figures as proposed by the parties. The circuit court otherwise confirmed the Commission's decision.
¶ 65 This appeal followed.
¶ 66 ANALYSIS
¶ 67 1. The Commission's Initial Finding of No Accident
¶ 68 The employer argues that the Commission's initial finding of no causation was not against the manifest weight of the evidence and was erroneously reversed by the circuit court.
¶ 69 When the circuit court reverses the Commission's initial decision and the Commission enters a new decision on remand, we must determine whether the Commission's initial decision was proper. Noonan v Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 152300WC; Vogel v Industrial Comm'n, 354 Ill.App.3d 780, 785-86 (2005); F&B Manufacturing Co. v Industrial Comm'n, 325 Ill.App.3d 527, 531 (2001). If it was proper, then the Commission's decision on remand was void and must be vacated.
¶ 70 An employee's injury is compensable under the Act only if it arises out of and in the course of the claimant's employment. 820 ILCS 305/2 (West 2012). Both elements must be present at the time of the claimant's injury in order to justify compensation. Illinois Bell Telephone Co. v. Industrial Comm 'n, 131 Ill.2d 478, 483 (1989). Arising out of the employment refers to the origin or cause of the claimant's injury. Cox v. Illinois Workers' Compensation Comm'n, 406 Ill.App.3d 541, 544 (2010). For an injury to arise out of the employment, its origin must be in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury. Caterpillar Tractor Co. v. Industrial Comm 'n, 129 Ill.2d 52, 58 (1989). An injury arises out of one's employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. Id. A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his or her job duties. McAllister v. Illinois Workers' Compensation Comm'n, 2020 IL 124848, ¶ 36.
¶ 71 "In the course of the employment" refers to the time, place, and circumstances under which the claimant is injured. Id. ¶ 34. A compensable injury occurs "in the course of" employment when it is sustained while a claimant is at work or while he performs reasonable activities in conjunction with his employment. Id. Injuries sustained at a place where the claimant might reasonably have been while performing his duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of the employment. Id.; Caterpillar Tractor Co., 129 Ill.2d at 57.
¶ 72 Whether the claimant sustained an accidental injury that arose out of and in the course of his employment is a question of fact. Hosteny v. Illinois Workers' Compensation Comm'n, 397 Ill.App.3d 665, 674 (2009). In resolving disputed issues of fact, it is the Commission's province to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine what weight to give testimony, and resolve conflicts in the evidence, particularly medical opinion evidence. Id. at 675; Fickas v. Industrial Comm'n, 308 Ill.App.3d 1037, 1041 (1999); Swartz v. Industrial Comm'n, 359 Ill.App.3d 1083, 1086 (2005). We will overturn the Commission's finding only when it is against the manifest weight of the evidence. A factual finding is against the manifest weight of the evidence only if the opposite conclusion is "clearly apparent." Swartz, 359 Ill.App.3d at 1086. The test is whether the evidence is sufficient to support the Commission's finding, 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).
¶ 73 In this case, the Commission's initial determination that the claimant had failed to prove that his injury arose out of and in the course of his employment was against the manifest weight of the evidence. The Commission's finding was predicated on a misapprehension of relevant facts, including: (1) the number of cases of liquor that the claimant moved per day after Murphy left (the period when the claimant's degenerative lumbar condition was alleged to have been aggravated); (2) the dramatic increase in lifting that the claimant performed during that period; and (3) the fact that the claimant altered his lifting mechanics in order to protect his post-surgical, work-related shoulder condition. The Commission either misrepresented or ignored these facts.
¶ 74 Moreover, in finding no accident, the Commission relied heavily on its conclusion that Murphy went off work for knee surgery in October 2013 rather than July 2013. The Commission inferred from this that the claimant would not have been required to increase his lifting until late October at the earliest. However, the claimant's testimony that Murphy was off work from the time he went on vacation in July 2013 through the time he had recuperated from knee surgery in December 2013 was unrebutted. Moreover, the claimant's testimony on this issue was supported by an e-mail that the claimant sent to Ed Cooke, the employer's regional manager, on September 16, 2013, in which the claimant stated that Murphy suffered a knee injury that rendered him unable to work "over a month ago." The fact that the claimant's lifting had increased during the summer and early fall was also reflected in the history the claimant gave to Drs. McGuire and Kennedy. The claimant told Dr. McGuire in August 2013 that he "was having to lift 350 cases of liquor a day over the last 2 weeks." Similarly, the claimant told Dr. Kennedy in September 2013 that he had been doing a lot more lifting during the last several months when he developed pain as a result of his work demands.
¶ 75 Moreover, Dr. Kennedy testified that the instability of the claimant's lumbar spine and his increased pain symptoms were caused primarily by his increased lifting at work from July through November of 2013. In addition, Dr. Fletcher conceded that peer-reviewed medical studies have documented the relationship between repetitive lifting and lumbar pain and instability, and Dr. Fletcher's finding of no causal connection between the claimant's lifting and the aggravation of the claimant's symptoms was based on incomplete knowledge. When Dr. Fletcher rendered his opinion, he was unaware of the claimant's increased lifting duties in the summer and fall of 2013, and he did not know that the claimant was lifting an average of 350 cases of liquor per day during that period. Moreover, Dr. Fletcher's finding that the claimant was not doing "frequent" lifting at work merely because he was not lifting for more than two-thirds of his work day is both baseless and irrelevant; it does not establish that the actual amount of lifting the claimant was doing per day was sufficient to cause or aggravate his back condition. Thus, Dr. Fletcher's opinion lacked an adequate foundation in the evidence.
¶ 76 Accordingly, the Commission's initial finding that the claimant had failed to prove an accident arising out of and in the course of his employment was against the manifest weight of the evidence, and the circuit court's order reversing that decision and remanding the matter to the Commission was correct.
¶ 77 2. Causation
¶ 78 To obtain compensation under the Act, a claimant must prove that some act or phase of his employment was a causative factor in his ensuing injuries. Land & Lakes Co. v. Industrial Comm 'n, 359 Ill.App.3d 582, 592 (2005). A work-related injury need not be the sole or principal causative factor, as long as it was a causative factor in the resulting condition of ill-being. Sisbro, Inc. v. Industrial Comm 'n, 207 Ill.2d 193, 205 (2003). Thus, even if the claimant had a preexisting degenerative condition which made him more vulnerable to injury, recovery for an accidental injury will not be denied as long as he can show that his employment was also a causative factor. Id.; Swartz, 359 Ill.App.3d at 1086. A claimant may establish a causal connection in such cases if he can show that a work-related injury played a role in aggravating his preexisting condition. Mason & Dixon Lines, Inc. v. Industrial Comm'n, 99 Ill.2d 174, 181 (1983); Azzarelli Construction Co. v. Industrial Comm'n, 84 Ill.2d 262, 266 (1981); Swartz, 359 Ill.App.3d at 1086.
¶ 79 Whether a claimant's condition of ill-being is attributable solely to a degenerative process of her preexisting condition or to an aggravation or acceleration of that preexisting condition because of a work-related accident is a factual determination to be decided by the Commission. Sisbro, 207 Ill.2d at 205-06. Thus, where the claimant alleges accidental injuries caused by a repetitive trauma, it is for the Commission to determine whether a claimant's disability is attributable solely to a degenerative condition or to an aggravation of a preexisting condition due to a repetitive trauma. Cassens Transport Co. v. Industrial Comm'n, 262 Ill.App.3d 324, 331 (1994).
¶ 80 In resolving disputed issues of fact, including issues related to causation, it is the Commission's province to assess the credibility of witnesses, draw reasonable inferences from the evidence, determine what weight to give testimony, and resolve conflicts in the evidence, particularly medical opinion evidence. Hosteny, 397 Ill.App.3d at 675; Fickas, 308 Ill.App.3d at 1041. We will overturn the Commission's causation finding only when it is against the manifest weight of the evidence, i.e., when the opposite conclusion is "clearly apparent." Swartz, 359 Ill.App.3d at 1086. The test is whether the evidence is sufficient to support the Commission's finding, not whether this court or any other tribunal might reach an opposite conclusion. Pietrzak, 329 Ill.App.3d at 833.
¶ 81 In this case, the Commission did not analyze causation on remand because it believed that the issue had been decided by the circuit court in the court's remand order. That appears to be mistaken. The Commission's initial decision found no accident and found all other issues moot, including causation. The circuit court reversed that decision and remanded for the Commission to decide the issues it had previously found moot, which presumably included causation. Thus, neither the circuit court nor the Commission on remand explicitly analyzed the issue of causation.
¶ 82 Nevertheless," [w]e may affirm the Commission's decision on any basis supported by the record regardless of the Commission's findings or its reasoning." Dukich v. Illinois Workers' Compensation Comm'n, 2017 IL App (2d) 160351WC, ¶ 43 n.6; see also General Motors Corp. v. Industrial Comm'n, 179 Ill.App.3d 683, 695 (1989). In other words, we review the result reached by the Commission, not the Commission's reasoning.
¶ 83 Here, the Commission's decision on remand is predicated on an assumed finding of causation, and the other issues it decided could not have been reached unless the Commission believed causation had been established. Thus, we may properly assume that the Commission implicitly found causation. See Illinois Bell Telephone Co. v. Industrial Comm 'n, 265 Ill.App.3d 681, 686 (1994) (holding that "the Commission's failure *** to specifically address the issue of causal connection [did] not require reversal" because the Commission "could have implicitly found a causal connection between claimant's injury and his state of ill-being based upon the evidence in the record"); Doyle v. Industrial Comm'n, 86 Ill.2d 544, 552 (1981) (concluding that the Commission made an implicit factual finding based on the Commission's reference to certain testimony in the record); Stanly v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 152301WC-U, ¶ 33 (concluding, in light of the "the entirety of the Commission's opinion," that the Commission made an implicit factual finding that was not expressed in its decision).
¶ 84 In any event, the record contains ample evidence to support a finding of causation, including: (1) Dr. Kennedy's detailed and exhaustive opinion testimony establishing a causal link between the claimant's increased lifting duties at work and the development of his lumbar instability and the aggravation of his pain symptoms; (2) the medical records; and (3) the claimant's unrebutted testimony tying his increased pain symptoms to his increased lifting with altered mechanics. As noted, Dr. Fletcher's finding of no causation lacks foundation in the evidence. We may affirm the Commission's decision on remand (and a finding of causation) on the basis of this evidence, regardless of whether the Commission actually addressed the causation issue in its decision. Dukich, 2017 IL App (2d) 160351WC, ¶ 43 n.6; General Motors Corp., 179 Ill.App.3d at 695.
¶ 85 Thus, a finding that the claimant's increased, repetitive lifting in the summer and fall of 2013 caused or aggravated his previous degenerative condition is not against the manifest weight of the evidence.
¶ 86 3. Manifestation Date
¶ 87 The employer argues that the Commission's finding on remand that the claimant proved a work-related repetitive trauma injury with a manifestation date of November 18, 2013, was against the manifest weight of the evidence.
¶ 88 To obtain compensation under the Act, a claimant must prove by a preponderance of the evidence that he was injured in an accident which arose out of and in the course of his employment. Stapleton v. Industrial Comm 'n, 282 Ill.App.3d 12, 17 (1996). To prove a compensable accident, an employee who suffers a repetitive trauma injury must meet the same standard of proof as an employee who suffers a sudden injury from a discrete event. Durand v. Industrial Comm 'n, 224 Ill.2d 53, 64 (2006). That means, inter alia, that an employee suffering from a repetitive trauma injury must point to a specific "manifestation date," i.e., a date within the limitations period on which both the injury and its causal link to the employee's work became plainly apparent to a reasonable person. Id. at 65; see also Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.2d 524, 531 (1987).
¶ 89 The standard for determining the manifestation date in a repetitive trauma case is flexible and fact-specific and is guided by considerations of fairness. Durand, 224 Ill.2d at 71 ("The facts must be closely examined in repetitive-injury cases to ensure a fair result for both the faithful employee and the employer's insurance carrier."); see also Oscar Mayer & Co. v. Industrial Comm'n, 176 Ill.App.3d 607, 612 (1988); Three "D" Discount Store v. Industrial Comm 'n, 198 Ill.App.3d 43, 49 (1989). The date on which the employee notices a repetitive trauma injury is not necessarily the manifestation date. Oscar Mayer & Co., 176 Ill.App.3d at 611; see also Durand, 224 Ill.2d at 68. Instead, the date on which the employee became unable to work, due to physical collapse or medical treatment, helps determine the manifestation date. Oscar Mayer & Co., 176 Ill.App.3d at 611; see also Durand, 224 Ill.2d at 68-69. "[C]ourts considering various factors have typically set the manifestation date on either the date on which the employee requires medical treatment or the date on which the employee can no longer perform work activities." Durand, 224 Ill.2d at 72. A formal diagnosis is not required. Id. However, because repetitive trauma injuries are progressive, the employee's medical treatment, as well as the severity of the injury and particularly how it affects the employee's performance, are relevant in determining objectively when a reasonable person would have plainly recognized the injury and its relation to work. Id.; see also Oscar Mayer & Co., 176 Ill.App.3d at 610.
¶ 90 The determination of the manifestation date is a question of fact to be resolved by the Commission (Durand, 224 Ill.2d at 65), and the Commission's decision will not be set aside on appeal unless it is against the manifest weight of the evidence (Three "D" Discount Store, 198 Ill.App.3d at 47). A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent. Dye v. Illinois Workers' Compensation Comm 'n, 2012 IL App (3d) 110907WC, ¶ 10.
¶ 91 Applying these standards, we cannot say that the Commission's finding of a repetitive trauma injury with a manifestation date of November 18, 2013, was against the manifest weight of the evidence. Although the claimant had a degenerative lower back condition prior to November 18, 2013, that caused him pain and limited his work abilities, it was not until that date that he was unable to work. On November 18, 2013, Dr. Feinberg put the claimant on a 25-pound work restriction. In response, the employer told the claimant that it would not allow him to return to work until his doctor released him to work full duty because his job required him to lift up to 100 pounds. Thus, the claimant became "unable to work, due to *** medical treatment" on November 18, 2013.
¶ 92 Although the claimant discovered the connection between his increased lifting duties and the aggravation of his pain symptoms prior to November 18, 2013, reported that fact to his employer, and continued performing his job duties until November 18, 2013, it would be unfair to the claimant to set the manifestation date prior to November 18, 2013. "A date based purely on discovery would penalize those employees who continue to work without significant medical complications when the eventual breakdown of the physical structure occurs beyond the statute of limitations period." Zion-Benton Township High School District 126 v. Industrial Comm 'n, 242 Ill.App.3d 109, 114 (1993). Consequently, where the employee continues to work until the day his structure collapses or surgery is required, that can reasonably be considered by the Commission to be the date of accident in certain instances. Id. Here the claimant continued to work even after the increased lifting at work aggravated his lower back condition. He did not stop working until he experienced the breakdown of his lumbar spine condition requiring lifting restrictions that his employer could not accommodate. Thus, the circuit court's finding that the claimant's aggravated lower back condition manifested itself on November 18, 2013, is not against the manifest weight of the evidence.
¶ 93 4. Notice
¶ 94 The employer argues that the Commission erred in finding on remand that the claimant gave it timely and adequate notice.
¶ 95 Notice of an injury shall be given to an employer as soon as practicable but no later than 45 days after the accident. 820 ILCS 305/6(c) (West 2012). "No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy." Id.
¶ 96 The purpose of the notice requirement is "both to protect the employer against fraudulent claims by giving him an opportunity to investigate promptly and ascertain the facts of the alleged accident and to allow him to minimize his liability by affording the injured employee immediate medical treatment." United States Steel Corp. v. Industrial Comm'n, 32 Ill.2d 68, 75 (1964); Tolbert v. Illinois Workers' Compensation Comm'n, 2014 IL App (4th) 130523WC, ¶ 67. Notice is jurisdictional, and the failure of the claimant to give notice will bar his claim. Thrall Car Manufacturing Co. v. Industrial Comm'n, 64 Ill.2d 459, 465 (1976); Tolbert, 2014 IL App (4th) 130523WC, ¶ 67.
¶ 97 However, the legislature has mandated a liberal construction on the issue of notice. Atlantic & Pacific Tea Co. v. Industrial Comm'n, 67 Ill.2d 137, 143 (1977). A claim is barred only if no notice whatsoever has been given. Silica Sand Transport, Inc. v. Industrial Comm 'n, 197 Ill.App.3d 640, 651 (1990). "If some notice has been given, but the notice is defective or inaccurate, then the employer must show that he has been unduly prejudiced." Id. Compliance with the notice requirement is achieved when the employer is given the facts related to the accident within the statutory period. Seiber v. Industrial Comm 'n, 82 Ill.2d 87, 95 (1980).
¶ 98 Whether the claimant gave timely notice required by section 6(c) of the Act is a finding to be made by the Commission which will not be disturbed on appeal unless it is against the manifest weight of the evidence. Gano Electric Contracting v. Industrial Comm 'n, 260 Ill.App.3d 92, 95 (1994).
¶ 99 In this case, the Commission found that the claimant gave notice to the employer on November 21, 2013, when he e-mailed Susan Drury, the employers benefits administrator. In that e-mail, the claimant told Drury how the work-related injury to his shoulder required him to change his lifting mechanics, causing him lower back pain when he lifted cases of liquor at work. He asked the employer to provide him with another merchandiser to help him so that he could continue working "during this most hectic time of the year." Although the claimant had reported back pain to the employer and requested similar accommodations on prior occasions, this was the first time that he did so after being removed from work by his employer. In other words, this was the first time that the claimant reported that his prior condition had deteriorated and been aggravated to the extent that he was placed on work restrictions that rendered him unable to work, according to the employer. That level of deterioration occurred on November 18, 2013. The claimant reported this new level of disability three days later, well within the 45-period mandated by the Act. Thus, the claimant gave timely and adequate notice of his injury.
¶ 100 5. Average Weekly Wage
¶ 101 The employer argues that the Commission erred in calculating the claimant's average weekly wage on remand.
¶ 102 Section 10 of the Act provides that the weekly benefits to which an injured employee is entitled for PPD under section 8 of the Act shall be computed on the basis of his or her average weekly wage. 820 ILCS 305/10 (West 2012). The statute defines "average weekly wage" as the actual earnings of the employee, excluding bonuses. Id. For purposes of section 10, a "bonus" is "something in addition to what is expected or strictly due." Arcelor Mittal Steel v. Illinois Workers' Compensation Comm'n, 2011 IL App (1st) 102180WC, ¶ 40. An employee receives a bonus "for no consideration or in consideration of overall performance at the sole discretion of the employer." Id. The claimant has the burden of establishing his average weekly wage. Edward Don Co. v. Industrial Comm'n, 344 Ill.App.3d 643, 655 (2003).
¶ 103 The Commission's determination of an average weekly wage is a question of fact which we will reverse only if it is contrary to the manifest weight of the evidence. Sylvester v. Industrial Comm'n, 197 Ill.2d 225, 231-32 (2001); Chlada v. Illinois Workers' Comm'n, 2016 IL App (1st) 150122WC, ¶ 46. A finding of fact made by the Commission is against the manifest weight of the only when an opposite conclusion is clearly apparent. City of Springfield v. Illinois Workers' Compensation Comm'n, 388 Ill.App.3d 297, 315 (2009).
¶ 104 In calculating the claimant's average weekly wage on remand, the Commission included compensation that was paid to the claimant through "ranking" and "incentive" pools established by the collective bargaining agreement executed by the employer and the claimant's union. The Commission found that the compensation paid to the employer's qualifying employees through the "ranking" and "incentive" pools is a contractual obligation imposed upon the employer through the collective bargaining agreement. Accordingly, the Commission found that such compensation is part of the claimant's actual earnings rather than a bonus, and therefore must be included when calculating the claimant's average weekly wage pursuant to section 10 of the Act.
¶ 105 The employer argues that the Commission's inclusion of the rank and incentive pool payments was against the manifest evidence for several reasons. First, the incentive payments were not guaranteed and they depended on factors other than hours worked. In addition, the incentive payments were funded by suppliers and therefore had to be considered "bonuses" because, if the suppliers did not fund them, the employer would not have to pay them to the employees. Moreover, the employer had to pay predetermined and invariant amounts to the incentive and rank payout pools, and the amount to be paid out to members of each team does not depend on sales. Members of each team compete to obtain larger shares from the employer contribution.
¶ 106 We do not find the employer's arguments to be persuasive. As the Commission correctly found, the incentive pool is distributed only to those employees who meet certain criteria. Employees are ranked within the pool based on things such as case quotas, distribution goals, dollar volume goals, and/or account servicing goals. Both the "A" pool and the "B" pool had to list quotas to meet. Moreover, if no one meets the performance goal, no one gets the money and it rolls over to the next month. As the claimant acknowledges, the employer was required to fund the pools in predetermined, invariant amounts. Accordingly, funds awarded from the pool are performance-based payments that the employer is contractually required to pay to its employees according to predetermined criteria and rules. They are not gratuities awarded entirely within the employer's discretion. Accordingly, the Commission's finding that the incentive and ranking pool payments were earnings required to be included when calculating the claimant's average weekly wage was not against the manifest weight of the evidence.
¶ 107 5. PPD Benefits
¶ 108 The employer argues that the Commission erred on remand when it awarded the claimant PPD benefits to the extent of 25% of the person as a whole. The employer maintains that the PPD award should be lowered to 15% person as a whole.
¶ 109 Section 8.1b(b) of the Act provides that, for accidental injuries that occur on or after September 1, 2011, as here, the Commission must base its determination of the amount of PPD awarded on a consideration of the following factors: (1) the reported level of impairment contained in a physician's written impairment report prepared pursuant to AMA guidelines; (2) the injured employee's occupation; (3) the employee's age at the time of injury; (4) the employee's future earning capacity; and (5) evidence of disability corroborated by the treating medical records. 820 ILCS 305/8.1b(b) (West 2012). "None of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability." Corn Belt Energy Corp. v. Illinois Workers' Compensation Comm'n, 2016 IL App (3d) 150311WC, ¶ 49. A determination of the extent of a claimant's disability is a question of fact, and the Commission's decision will not be set aside unless it is against the manifest weight of the evidence. Peabody Coal Co. v. Industrial Comm 'n, 355 Ill.App.3d 879, 883 (2005).
¶ 110 Here, the Commission considered each of the required factors and made written findings explaining its reasoning and the weight it attached to each factor, as required by the Act. The Commission assigned "some weight" to Dr. Fletcher's AMA impairment rating of 15% person as a whole, and "moderate weight" to the fact that the claimant is now working the same job with the same responsibilities that he had prior to his accident (which the Commission found "mitigated the impact" of the claimant's alleged impairment). The Commission placed "significant weight" on the fact that the claimant was 50 years old on the date of his accident and "will likely work with a permanent partial disability for another 10 plus years with the aftereffects [sic] of his November 18, 2013, accident." The Commission found it "notable" that the claimant is now earning more money than he earned before the accident, and gave "some weight" to the fact that the claimant has suffered no diminished earning capacity as a result of his accident.
¶ 111 Moreover, the Commission reviewed the claimant's medical records for the period after Dr. Kennedy discharged him for care on February 16, 2016, and found that "no objective disability is corroborated in the medical records." The Commission purported to give this factor "significant weight." After carefully examining and extensively discussing the relevant medical records, the Commission found that" [the claimant's] obtaining pain medication without subjecting himself to a physical examination and his debunked claims that his November 18, 2013, accident precluded him from engaging in certain activities calls into question the extent to which [he] remains impaired as a result of his November 18, 2013, accident." The Commission then found, "based on the foregoing," that the claimant sustained PPD in the amount of 25% loss of the person as a whole as a result of the November 18, 2013, work-related accident.
¶ 112 The Commission's award of PPD benefits to the extent of 25% of the person as a whole is not against the manifest weight of the evidence. The Commission considered and weighed each of the factors contained in section 8.1b(b) of the Act and made specific findings as to each factor. The Commission placed "significant weight" on the fact that the claimant was 50 years old on the date of his accident and "will likely work with a permanent partial disability for another 10 plus years with the aftereffects [sic] of his November 18, 2013, accident." "[B]ecause of the Commission's expertise in the area of worker's compensation, its findings on the question of the nature and extent of permanent disability should be given substantial deference." Mobil Oil Corp. v. Industrial Comm'n, 309 Ill.App.3d 616, 624 (1999). Although some of the findings made by the Commission cut against its decision to award PPD benefits to the extent of 25% of the person as a whole, the evidence presented does not compel a different conclusion. We cannot say that an opposite conclusion is "clearly apparent."
¶ 113 CONCLUSION
¶ 114 For the foregoing reasons, we affirm the judgment of the circuit court of Williamson County, which confirmed the Commission's decision.
¶ 115 Affirmed.