Opinion
5-22-0536WC
05-22-2023
THE EAST ST. LOUIS POLICE DEPARTMENT, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. DeAngelo Franklin, Appellee.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County No. 21MR290 Honorable Julie K. Katz, Judge, Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice Holdridge and Justices Hoffman, Hutchinson, and Barberis concurred in the judgment.
ORDER
CAVANAGH JUSTICE
¶1 Held: (1) In this workers' compensation case, an award of medical expenses for treatment of petitioner's left hip is vacated because the decision by the Illinois Workers' Compensation Commission contains no finding that the workplace accident caused the left-hip condition.
(2) By testifying that he did not intend to seek reimbursement of medical expenses for treatment of his cervical spine, petitioner waived his claim for those medical expenses.
(3) By finding that the accident aggravated preexisting conditions in petitioner's left knee and lumbar spine, the Commission did not make findings that were against the manifest weight of the evidence.
(4) Even though petitioner declined an offer of light-duty employment, he is entitled to temporary total disability benefits because, at the time of the offer, an off-work order by his treating physician was still in effect.
(5) Because respondent represented, in a request-for-hearing form, that it sought no credit for previously paid medical expenses, respondent is estopped from arguing, on appeal, that the Commission erred by failing to designate an amount of such credit.
¶ 2 On August 6, 2018, petitioner, DeAngelo Franklin, suffered injuries while working as an East St. Louis police officer. He filed a workers' compensation claim against respondent, the East St. Louis Police Department. The parties requested an immediate hearing pursuant to section 19(b) of the Workers' Compensation Act (Act) (820 ILCS 305/19(b) (West 2018)). After the hearing, the Illinois Workers' Compensation Commission (Commission) ordered respondent to defray petitioner's medical expenses and to pay him temporary total disability (TTD) benefits. Respondent sought review in the St. Clair County circuit court. The court confirmed the Commission's decision. Respondent appeals on five grounds.
¶ 3 First, respondent complains that the Commission's decision lacks conclusions as to whether the conditions of ill-being in petitioner's cervical spine and left hip were causally related to the accident of August 6, 2018. Nevertheless, petitioner waived any claim regarding the cervical spine. Therefore, a causation analysis regarding the cervical spine would have been superfluous. The left hip, however, remained at issue. The Commission violated its own rule by awarding medical expenses related to the left hip without explicitly finding a causal relationship between the left-hip condition and the accident. See 50 Ill. Adm. Code 9040.80(d), (e) (2016). Consequently, this award of medical expenses for the left hip, lacking a corresponding finding of causation, is vacated.
¶ 4 Second, respondent argues that, by finding a causal relationship between petitioner's left-knee condition and the accident, the Commission made a finding that was against the manifest weight of the evidence. We disagree. The Commission reasonably found that the accident had aggravated a preexisting condition of ill-being in the left knee. Because this finding has a basis in the evidence, we defer to this finding.
¶ 5 Third, respondent maintains that the Commission's finding of a causal relationship between petitioner's lumbar-spine condition and the accident is against the manifest weight of the evidence. Again, we disagree. As with the left-knee condition, the evidence lends some support to the Commission's finding that the accident aggravated a preexisting condition of ill-being in the lumbar spine.
¶ 6 Fourth, respondent contends that the award of TTD benefits is against the manifest weight of the evidence because petitioner was capable of performing light duties and he refused respondent's offer of light-duty employment. Petitioner's treating physician, however, had taken petitioner off work and had not lifted this restriction. Because of this off-work order from a treating physician, the TTD benefits are not against the manifest weight of the evidence.
¶ 7 Fifth, respondent claims that the Commission erred by failing to award a credit to respondent under section 8(j) of the Act (820 ILCS 305/8(j) (West 2018)). We conclude that the doctrine of invited error bars this claim.
¶ 8 Therefore, we vacate the portion of the Commission's decision ordering the payment of medical expenses for treatment of the left hip. Also, we reverse the circuit court's judgment insomuch as it affirms that portion of the Commission's decision. Otherwise, we affirm the circuit court's judgment confirming the Commission's decision.
¶ 9 I. BACKGROUND
¶ 10 A. Disagreements Among the Physicians on the Question of Aggravation
¶ 11 Petitioner was employed by respondent as a police officer. On August 6, 2018, he helped another police officer subdue an individual who was attempting to run from the scene of a traffic stop. According to petitioner's account, his knee struck the pavement as he tackled the arrestee.
¶ 12 On September 18, 2019, petitioner filed a claim for workers' compensation benefits. The claim alleged that, in his physical encounter with the arrestee on August 6, 2018, petitioner sustained injuries to his back, neck, left knee, and bilateral hips. (In the ensuing arbitration hearing, however, petitioner testified he was not seeking medical expenses for the neck.)
¶ 13 Respondent admitted that, due to the accident, petitioner sustained injuries that arose out of and in the course of his employment. Respondent disputed, however, that petitioner's current condition of ill-being was causally related to the accident. Respondent further disputed it was liable for past and future medical expenses and for TTD benefits. The parties requested an immediate hearing pursuant to section 19(b) (id. § 19(b)). In the arbitration hearing, which took place on February 9, 2021, the evidence tended to show the following.
¶ 14 Petitioner had problems with his hips, spine, and left knee that predated the accident of August 6, 2018-problems that were the subject of two previous workers' compensation claims (see Franklin v. Illinois Workers' Compensation Comm n, 2016 IL App (5th) 150530WC-U). During the period of 2013 to 2016, Dr. Nathan Mall repeatedly recommended surgery to repair a tear of the anterior cruciate ligament (ACL) in petitioner's left knee. Petitioner wanted to undergo this knee surgery. Upon receiving a determination, however, that workers' compensation would not cover the surgery, he decided to put the surgery off.
¶ 15 From 2016, when petitioner last saw Dr. Mall, until the accident of August 6, 2018, petitioner performed his full, unrestricted duties as an East St. Louis police officer, except when he missed a few shifts because of an elbow injury. He testified that, despite Dr. Mall's recommendation of knee surgery, his knee seemed to get better on its own and that, until the accident in 2018, he experienced no symptoms from the ACL tear. He testified that after the accident, however, his knee became unstable, causing him to trip or to lose his balance.
¶ 16 Medical opinion was divided on whether the accident of August 6, 2018, had aggravated the preexisting conditions in petitioner's left knee and lumbar spine. On the one hand, an independent medical examiner, Dr. Ryan T. Pitts, saw no evidence that the left knee had been aggravated. To him, the magnetic resonance imaging scans (MRIs) of the left knee from before the accident looked the same as those from after the accident. Physical examinations of the knee yielded the same back-and-forth findings after the accident as before the accident. In some of petitioner's appointments with examining physicians, the knee seemed unstable, but in other appointments, the knee seemed stable. Another reason for Dr. Pitts's skepticism about causation was that ACL tears tended to be rotational injuries and did not typically result from falling directly on the knee, as petitioner said he had done when tackling the arrestee. In his deposition testimony, however, Dr. Pitts admitted that an ACL tear could be asymptomatic and that tackling someone could make it symptomatic-but Dr. Pitts saw no objective evidence of aggravation.
¶ 17 On the other hand, Dr. George A. Paletta Jr., who performed ACL surgery on petitioner's left knee in April 2019, opined that the accident of August 6, 2018, had aggravated the knee. Dr. Paletta agreed with Dr. Pitts that petitioner had a preexisting ACL tear and that falling directly on the knee was not a typical way of tearing the ACL. Nevertheless, because petitioner had been able to perform the duties of a police officer for an extended time before the accident, and because increased instability in his knee after the accident had incapacitated him from performing those duties, Dr. Paletta opined that the accident had aggravated the preexisting pathology of the left knee.
¶ 18 There likewise was a difference of medical opinion on whether the accident had aggravated the preexisting deterioration of petitioner's lumbar spine. On the one hand, an independent medical examiner, Dr. David B. Robson, opined that (1) petitioner had suffered merely a "temporary exacerbation of his underlying degenerative disc disease" at L3-L4 and L4-L5, (2) he needed no back surgery, and (3) he was capable of returning to his full duties as a police officer.
¶ 19 On the other hand, Dr. Matthew F. Gornet, who had been treating petitioner for approximately 11 years, testified that an aggravation of the lumbar spine was evident in the before-and-after diagnostic studies. A computed tomography (CT) discogram from January 2015 revealed nonprovocative discs at L3-L4 and L4-L5 and an anterior annular tear at L3-L4. In February 2019, by contrast, a lumbar CT scan revealed facet changes at L3-L4 and L4-L5 and fluid in the facet joints at L4-L5. According to Dr. Gornet, the fluid in his facet joints was "an indicator of some inflammatory response and potential injury" and could only be reasonably attributed to the accident of August 6, 2018. Also, the later CT scan revealed that the annular tear had become more prominent. Given the failure of conservative treatment, Dr. Gornet recommended back surgery.
¶ 20 B. The Commission's Decision
¶ 21 On April 6, 2021, Arbitrator Jeanne L. AuBuchon issued a decision. She found petitioner's treating physicians, Dr. Paletta and Dr. Gornet, to be credible. However, she did not find petitioner to be credible. The arbitrator perceived petitioner as engaging in "case building." Often, in his testimony, he avoided answering the question and instead answered a question that was not asked but that he wanted to be asked. He had not been entirely forthright with Dr. Paletta, either. According to Dr. Paletta's testimony, petitioner never informed Dr. Paletta of Dr. Mall's prior recommendation of left-knee surgery for the ACL tear. (Dr. Mall, however, was Dr. Paletta's partner.) Also, there were discrepancies in petitioner's account of what he was physically able to do. He admitted that, in an application to take college classes that he submitted the previous year, he reported taking walks in the park, driving to neighboring towns to sightsee and dine out, and doing home-improvement projects with his son. Petitioner testified, however, that these representations in the college application were untrue and that a friend had filled out the application for him. For all these reasons, the arbitrator found that petitioner lacked credibility and that, consequently, the histories he had given his doctors "tainted," to some extent, his doctors' opinions.
¶ 22 Although, in the arbitrator's view, "Dr. Paletta's opinion ha[d] its weak point in that he relie[d] on the Petitioner's statements to him regarding pain and knee instability he was experiencing," the arbitrator chose to credit Dr. Paletta's opinion that the accident of August 6, 2018, at least exacerbated petitioner's left-knee condition. The arbitrator gave essentially two reasons for believing Dr. Paletta. First, Dr. Paletta had an advantage over Dr. Pitts in that Dr. Paletta had "a long history of treating the Petitioner" and, thus, had "a broader basis for his opinions." Second, there was no evidence that, from 2016 until the accident in 2018, petitioner had any left-knee symptoms of sufficient severity to prevent him from performing his normal duties as a police officer. Dr. Pitts admitted that petitioner's left knee could have been asymptomatic during that time.
¶ 23 As for petitioner's low-back injuries, the arbitrator gave two reasons for believing Dr. Gornet's finding of aggravation. The first reason was "the length of time Dr. Gornet had treated the Petitioner" and Dr. Gornet's resulting "familiarity with the Petitioner and his ability to make objective findings based on that continued treatment." The second reason was that Dr. Gornet had "noted specific changes in the Petitioner's lumbar spine from before and after the 2018 accident." Dr. Gornet had testified that diagnostic "testing from before and after the 2018 accident showed differences in the Petitioner's lumbar spine consisting of more of disc protrusion and annular tear at the level above L4-5 and more fluid in the joint." Also, to quote further from the arbitrator's decision, "a CT scan performed on November 14, 2019," showed "air in the joints above the prior fusion at L5-S1, which [Dr. Gornet] testified was consistent with irritation of the Petitioner's facet joints."
¶ 24 Having made these credibility assessments, the arbitration decision proceeded to the question of what workers' compensation benefits should be awarded to petitioner. The arbitrator noted that petitioner was pursuing no claim regarding the cervical spine. The right hip, left hip, lumbar spine, and left knee, however, were still at issue. And yet, the arbitration decision omitted the left hip from its statement of issues and made no explicit finding of fact as to whether the left-hip problem was causally related to the accident. The arbitrator found a causal relationship between the accident and the conditions of petitioner's lumbar spine and left knee. But the arbitrator found the alleged causal relationship between the right-hip condition and the accident to be unproven. The arbitrator awarded all past medical expenses for which petitioner sought reimbursement, including those for treatment of the cervical spine and the left hip and for diagnostic procedures on the right hip. The arbitrator also awarded future medical expenses for treatment of the lumbar spine, the left knee, and the right hip. Finally, the arbitrator awarded TTD benefits but designated the cutoff date for these benefits as August 16, 2018, which was when petitioner declined an offer by Chief of Police Jerry Simon to employ him in a light-duty position.
¶ 25 Both parties filed petitions for review with the Commission, which affirmed the arbitrator's decision as modified. The Commission affirmed the arbitrator's findings on causation. The Commission also affirmed the arbitrator's award of medical benefits, except the award of prospective medical expenses for the right hip. In the Commission's view, an award of future medical expenses for a strain of the right hip was unwarranted. Also, the Commission disagreed with the arbitrator's cutoff date for TTD benefits. At the time of the light-duty offer, petitioner was still "held off work" by a treating physician, Dr. Paletta. Therefore, the Commission extended TTD benefits through the date of the arbitration hearing. Finally, because "no credit under Section 8(j) was claimed," the Commission struck from the arbitration decision certain hold-harmless language (namely, a provision that respondent was to indemnify and hold petitioner harmless from any claims by health providers or third parties arising from expenses for which they claimed credit). In all other respects, the Commission affirmed and adopted the arbitrator's decision.
¶ 26 Respondent sought review in the circuit court. On August 1, 2022, the court confirmed the Commission's decision, finding that the Commission's deference to petitioner's treating physicians was not against the manifest weight of the evidence.
¶ 27 On August 17, 2022, respondent filed its notice of appeal.
¶ 28 II. ANALYSIS
¶ 29 A. Claimed Omissions in the Commission's Conclusions of Law
¶ 30 In his workers' compensation claim, which he filed on September 5, 2018, petitioner alleged that the accident of August 6, 2018, had affected the following parts of his body: "Left Knee, Bilateral Hips, Back/Body as a Whole." On September 18, 2019, he amended his claim so as to add the neck.
¶ 31 In the parties' request for a hearing on this claim, the box is checked next to the following language: "A written decision, including findings of fact and conclusions of law, is requested pursuant to Section 19(b)." Respondent complains that the conclusions of law in the Commission's decision are incomplete. According to respondent, the Commission violated section 7030.80(b)(3) and (4) and section 7040.80(d) and (e) of its own rules by failing to provide any conclusions of law as to whether the conditions in petitioner's cervical spine and left hip were causally related to the accident.
¶ 32 Actually, sections 7030.80 and 7040.80 no longer exist. Section 7030.80 has been recodified as section 9030.80 (39 Ill. Reg. 9606 (eff. June 29, 2015)), and section 7040.80 has been recodified as section 9040.80 (39 Ill. Reg. 9605 (eff. June 29, 2015)). Subsections (b)(3) and (4) of section 9030.80 provide as follows:
"(b) After the closing of proofs, the Arbitrator shall issue a written decision that shall include:
* * *
(3) the Arbitrator's findings of fact and conclusions of law, separately stated, upon each contested issue, if requested by either party;
(4) applicable orders resulting from the findings of fact and conclusions of law ***." 50 Ill. Adm. Code 9030.80(b)(3), (4) (2016).
¶ 33 Subsections (d) and (e) of section 9040.80 in turn provide as follows:
"In all cases in which, at or before the closing of proofs on Review, a party has filed a written request for a full written decision pursuant to Section 19(e) of the Act, the Commission will issue a decision, which shall include:
* * *
(d) the Commission's findings of fact and conclusions of law upon each claim of exceptions to the Arbitrator[']s decision, including a statement of the particular evidence in the record upon which the findings and conclusions are based;
(e) applicable Orders resulting from the findings of fact and conclusions of law ***." 50 Ill. Adm. Code 9040.80(d), (e) (2016).
¶ 34 Under section 9040.80(d), then, the Commission must make "findings of fact and conclusions of law" only "upon each claim of exceptions to the Arbitrator[']s decision." Id. § 9040.80(d). In the argument of respondent's brief, there is no discussion of any "claim of exceptions to the Arbitrator[']s decision." Id. Therefore, respondent has not established, by reasoned argument, that the Commission violated section 9040.80(d) of its rules.
¶ 35 Additionally, though, respondent maintains that the arbitrator violated section 9030.80(b)(3) by failing to provide any conclusions of law as to whether the problems in petitioner's neck and left hip were causally related to the accident. (Strictly speaking, a statement of causation would be a finding or conclusion of fact, not a conclusion of law. See ABF Freight System v. Illinois Workers' Compensation Comm 'n, 2015 IL App (1st) 141306WC, ¶ 19.) The arbitrator explained, however, why she did not include a conclusion about the neck. On the first page of her decision, she wrote, "The Petitioner is not pursuing a claim regarding his cervical spine, so that issue will not be addressed herein." In noting that petitioner was not pursuing a claim regarding his cervical spine, the arbitrator presumably had in mind an answer that petitioner gave in his testimony of February 9, 2021. Petitioner was asked:
"Q. So are you asking for medical bills associated with any treatment with you neck up till today is related to the accident?
A. No, sir.
Q. So the MRI that Dr. Gornet had you do on your neck after August 6th of 2018, you're not claiming that's related to the accident?
A. I'm claiming it's related to the accident, but, again, I don't want it to be one of those things that I am asking for too much, you know, or I'm trying to fabricate this, I'm trying to fabricate that, or something like that, but, yes, it's related to the incident, sir."
Thus, even though petitioner took the position that the MRI of his neck was related to the accident, he declined to seek compensation for medical expenses associated with treatment of his neck. It appears, then, that the record contains a basis for the arbitrator's statement that petitioner was not pursuing a claim regarding his cervical spine, namely, petitioner's own testimony that he was not doing so. Section 9030.80(b)(3) required the arbitrator to make "findings of fact *** upon each contested issue." 50 Ill. Adm. Code 9030.80(b)(3) (2016). According to petitioner's testimony in the section 19(b) hearing, whether respondent should pay the medical bills for treatment of petitioner's cervical spine was not a contested issue. Therefore, section 9030.80(b)(3) required no causation conclusion on the cervical spine.
¶ 36 It is unclear, however, why the arbitrator's decision omitted a causation conclusion on the left hip. According to the workers' compensation claim, the body parts affected by the accident included the "Bilateral Hips"-meaning the left hip as well as the right hip. Nevertheless, the arbitrator's decision framed the issue more narrowly as whether "Petitioner's *** left knee, lower back[,] and right hip injuries experienced after August 6, 2018," were "causally related to the accident." (Emphasis added.) The left hip was left out of the arbitrator's statement of issues, and it is unclear why.
¶ 37 Even so, by petitioner's understanding, the compensability of the left hip was effectively determined. Petitioner reasons that "as the expenses related to [the left hip] were awarded by the Arbitrator and Commission," "the Commission determined that [petitioner had] met his burden of proof on the issue of causal connection for" the left hip. In other words, the Commission ordered respondent to pay an itemized list of medical bills, among which were bills for treatment of the left hip-and the Commission would not have so ordered (so the logic goes) unless it implicitly had found a causal connection between the accident and the condition of ill-being in the left hip.
¶ 38 Respondent is unsatisfied with this process of inference-and justifiably so. "Having *** established rules and regulations pursuant to statutory authority, an administrative agency is bound by those rules and regulations and may not violate them." (Internal quotation marks omitted.) Pace Realty Group, Inc. v. Property Tax Appeal Board, 306 Ill.App.3d 718, 729-30 (1999). Section 19(e) of the Act provides, "The Commission shall by rule adopt a format for written decisions for the Commission and arbitrators." 820 ILCS 305/19(e) (West 2018). Pursuant to that statutory authority, the Commission has adopted section 9030.80, which, in subsections (b)(3) and (4), requires that the arbitrator's decision contain "findings of fact and conclusions of law," as well as "applicable orders resulting from the findings of fact and conclusions of law." 50 Ill. Adm. Code 9030.80(b)(3), (4) (2016). The arbitrator's decision contains an order that respondent pay for past medical treatment of petitioner's left hip. That order, however, was to result from a finding offact and a conclusion of law. See id. Although petitioner alleged an injury to his left hip, and although the parties requested a written decision on all issues, the arbitrator's decision lacks a finding of fact as to whether the condition of ill-being in the left hip is causally related to the accident. Under its rules, which "have the force and effect of law" (People ex rel. Madigan v. Illinois Commerce Comm n, 231 Ill.2d 370, 380 (2008)), the Commission lacks authority to order the payment of medical expenses without a finding of fact and conclusion of law from which the order results.
¶ 39 B. Aggravation of the Left-Knee Condition
¶ 40 To receive compensation under the Act, the claimant must prove that "some act or phase of his or her employment was a causative factor in his or her ensuing injury"-not necessarily the sole or even the principal cause but a causative factor. Land &Lakes Co. v. Industrial Comm 'n, 359 Ill.App.3d 582, 592 (2005). Causation exists, for instance, if the workplace accident aggravated a preexisting condition (Schroeder v. Illinois Workers' Compensation Comm 'n, 2017 IL App (4th) 160192WC, ¶ 28) or "accelerate[d] the need for surgery" (emphasis in original) (id. ¶ 32).
¶ 41 We will overturn the Commission's finding of causation only if the finding is against the manifest weight of the evidence. Dickman v. Illinois Workers' Compensation Comm'n, 2022 IL App (2d) 210709WC-U, ¶ 60. To be against the manifest weight of the evidence, a finding must be outside the range of reasonableness. See id. Being debatable is not enough to make a finding against the manifest weight of the evidence. See Pietrzak v. Industrial Comm'n, 329 Ill.App.3d 828, 833 (2002). Our mere disagreement with a finding is not enough to make the finding against the manifest weight of the evidence. See id. Rather, a finding is against the manifest weight of the evidence only if it is "clearly apparent," from the evidence in the record, that the "opposite" finding should have been made. (Internal quotation marks omitted.) See Dickman, 2022 IL App (2d) 210709WC-U, ¶ 60. The Commission's finding of causation is a factual finding, to which we owe "great deference," especially in view of the Commission's "long-recognized expertise" in "medical matters." ABF, 2015 IL App (1st) 141306WC, ¶ 19.
¶ 42 In reliance on Dr. Paletta's opinion, the Commission found that "[petitioner's left knee condition" was "causally related to the accident of August 6, 2018." Respondent contends that, for essentially three reasons, this finding is against the manifest weight of the evidence. First, Dr. Paletta agreed with Dr. Pitts that hitting one's knee on the ground was not a typical way of sustaining an ACL tear. Second, the findings from physical examinations of the left knee before and after the accident were similar. Third, Dr. Pitts opined that the MRI of the left knee taken after the accident "looked *** essentially the same" as the MRI of the left knee taken before the accident.
¶ 43 These MRIs were objective evidence, as opposed to petitioner's subjective accounts of his symptoms. Respondent reasons that, because of petitioner's "lack of credibility" (as the arbitrator put it), petitioner could prove an aggravation of his preexisting left-knee condition only by objective evidence, not by his own untrustworthy representations. In respondent's assessment, the record lacks any such objective evidence. What is more, according to respondent, the record includes before-and-after MRIs that objectively disprove the alleged aggravation of the left-knee condition.
¶ 44 According to Dr. Pitts, however, MRIs are not foolproof. In his deposition, he agreed that "MRIs aren't always hundred percent for documenting pathology." He also agreed it was "certainly possible" that "somebody [could] have change or an increase in their symptoms that could even be permanent without seeing necessarily a change on their MRI." Similarly, Dr. Mall testified, "I think it is very difficult to state on an MRI whether or not someone is having instability symptoms[,] and this needs to be more of an examination and clinical suspicion." Thus, even though the before-and-after MRIs of the left knee looked the same to Dr. Pitts, aggravation of the left-knee condition or an increase in instability symptoms was still a possibility. To echo Schroeder, on which petitioner relies, "the absence of objective evidence does not clearly point to an opposite conclusion." Schroeder, 2017 IL App (4th) 160192WC, ¶ 30.
¶ 45 Indeed, there are notable similarities between Schroeder and the present case. In Schroeder, the claimant underwent two back surgeries (id. ¶ 4), and her doctor recommended a third back surgery (id. ¶ 5). The claimant decided, for the time being, that she did not want to undergo another back surgery. Id. Instead, she took a refresher course on truck driving and got a job as a truck driver. Id. ¶ 6. For some seven months, she worked full-time driving a truck. Id. ¶¶ 6-7. Then, at a distribution center, she slipped on some ice and fell. Id. ¶ 7. Her back and her left leg began hurting. The pain would not go away, and it was so severe she could no longer drive a truck. Id. ¶ 8. She decided to undergo the previously recommended third back surgery, and she filed a claim for workers' compensation benefits. Id. In opposing this claim, the employer observed that X-rays and MRIs taken of the claimant's back after the accident did not differ significantly from those taken of her back before the accident. Id. ¶ 17. Despite these comparable diagnostic tests, the appellate court upheld the Commission's finding that the slip and fall on the ice had aggravated the claimant's back condition. Id. ¶ 35. In the light of testimony by the claimant's treating physician, the X-rays and MRIs did not have to be regarded as dispositive. Id. ¶ 30. The claimant's treating physician testified that "the correlation between objective changes and symptomatic changes [was] not always clear, citing his own experience with patients." Id. Similarly, in the present case, Dr. Pitts agreed that MRIs did not always show pathology. Also, Dr. Mall testified that MRIs were ill-suited to detecting increased instability in the knee. Therefore, what the appellate court said in Schroeder arguably holds true in the present case: there is "[a] clear basis in the record" for finding that "absence of changes in objective testing such as MRIs" "lacks significance." Id.
¶ 46 According to the appellate court in Schroeder, the Commission could find significance, instead, in (1) the claimant's demonstrated physical ability to do her job before the accident compared with her physical inability to do her job after the accident (id. ¶ 26) and (2) her decision, soon after the accident, to undergo the back surgery she previously declined (id. ¶ 32). Like the claimant in Schroeder, petitioner worked, without restriction, for years before the accident, despite his preexisting left-knee condition. Also, like the claimant in Schroeder, he underwent a postaccident surgery for this condition-a surgery he declined to undergo before the accident.
¶ 47 Even so, an argument might be made that Schroeder is distinguishable for two reasons. First, there was no question in Schroeder that a fall on the ice could aggravate a back injury. In the present case, by contrast, the mechanism of the injury was problematic. Both Dr. Pitts and Dr. Paletta testified that falling directly on the knee was not a typical way of sustaining an ACL tear. Nevertheless, Dr. Pitts could be understood as admitting that tackling a suspect might aggravate a previously asymptomatic ACL tear. Dr. Pitts agreed that a partial tear of the ACL "could certainly be asymptomatic in some people." He further agreed that "trying to tackle a suspect" "could *** potentially aggravate a preexisting injury problem that somebody" had in the knee. From these concessions, it might be reasonably inferred that tackling a suspect could exacerbate a preexisting ACL tear and make it symptomatic. Dr. Paletta testified to similar effect. He agreed that, by falling directly on his knee, petitioner did not suffer the typical contact or noncontact mechanism for ACL tears. Dr. Paletta opined, however, that the accident had "caused either an aggravation [of a] preexisting condition or an increase in petitioner's symptoms." Granted, despite his concessions, Dr. Pitts remained unconvinced that the accident had aggravated petitioner's left-knee condition. However, it is the Commission's role, not ours, to choose among competing medical opinions. Dickman, 2022 IL App (2d) 210709WC-U, ¶ 64. The Commission had the right to believe Dr. Paletta over Dr. Pitts-especially considering that Dr. Paletta was a treating physician. "[I]t is for the Commission to determine which medical opinion is to be accepted, and it may attach greater weight to the treating physician's opinion." Piasa Motor Fuels v. Industrial Comm n, 368 Ill.App.3d 1197, 1206 (2006).
¶ 48 A second possible argument for distinguishing Schroeder would center on the credibility of the individual making the claim. In Schroeder, the Commission never found that the claimant lacked credibility, whereas in the present case, the Commission found that petitioner lacked credibility. This argument for distinguishing Schroeder might be further elaborated along these lines. In Schroeder, absent objective evidence of aggravation, the treating physician and the Commission could only rely on the claimant's representations that the accident had made her back worse. Thus, the claimant's credibility was, at least implicitly, important to the outcome in Schroeder. By contrast, the Commission regarded petitioner as an unreliable witness.
¶ 49 Nonetheless, the Commission could draw inferences from petitioner's actions as distinct from his mere representations, just as in Schroeder the Commission drew inferences from the claimant's actions. Even though, in 2013 and 2014, Dr. Mall recommended surgery on petitioner's left knee, petitioner declined to undergo the knee surgery. From 2016 to 2018, notwithstanding his left knee condition, petitioner fully performed his duties as a police officer (except that, from July 13 to August 6, 2018, he worked only four full shifts because of an elbow injury). On April 9, 2019-after the accident of August 6, 2018-he underwent the left-knee surgery he previously declined. From this evidence, the Commission could reasonably infer that the accident had caused the left knee to deteriorate from its "previous condition" (Schroeder, 2017 IL App (4th) 160192WC, ¶ 26) and that the accident had "accelerate[d] the need for surgery" (emphasis omitted) (id. ¶ 32).
¶ 50 In sum, by finding that the accident had aggravated the preexisting problem in petitioner's left knee, the Commission did not make a finding that was against the manifest weight of the evidence. The evidence in the record does not "clearly" require the "opposite conclusion," i.e., a conclusion that such causation was unproven. Dickman, 2022 IL App (2d) 210709WC-U, ¶ 60.
¶ 51 C. Aggravation of the Lumbar Spine
¶ 52 On the basis of Dr. Gornet's testimony, the arbitrator found that petitioner's "low back condition" was "causally related to the accident of August 6, 2018." Dr. Gornet was petitioner's longtime treating physician, and in his opinion, the accident had aggravated the condition of ill-being in petitioner's lumbar spine. Respondent argues that this causation opinion by Dr. Gornet lacks a "sufficient foundation" because (1) the opinion is "based upon [petitioner's] subjective complaints of low back pain worsening and not returning to baseline" and (2) "the Commission specifically found that the histories [that petitioner] gave to the doctors 'tainted' the doctors' conclusions."
¶ 53 Respondent seems to assume that, in forming his causation opinion, Dr. Gornet relied solely on petitioner's subjective history. To be sure, Dr. Gornet testified that he relied on petitioner's account of how "his pain continue[d] to affect *** his quality of life." Dr. Gornet went on to testify, however, that he also relied on diagnostic testing from before and after the accident:
"Obviously, though, in seeing him both before and after, I'm looking at specifically his MRI scan of his lumbar spine, which indicates disc injuries, and his CT scan, which clearly shows facet arthropathy. And those were not present in any level for quite some time in the same fashion. Our last imaging prior to that was approximately three years earlier."
¶ 54 Thus, the implied premise of respondent's challenge to Dr. Gornet's causation opinion-that the opinion rested solely on petitioner's account of his own symptoms-appears to be contradicted by the record. Dr. Gornet testified he relied not only on petitioner's subjective description of his symptoms, but also on before-and-after MRIs. In her decision, the arbitrator recounted Dr. Gornet's testimony that "testing from before and after the 2018 accident showed differences in the Petitioner's lumbar spine consisting of more of a disc protrusion and annular tear at the level above L4-5 and more fluid in the joint" (to quote from the arbitration decision). Given Dr. Gornet's reliance on these observable changes in petitioner's lumbar spine, the Commission did not make a finding that was against the weight of the evidence by finding that the accident had aggravated petitioner's low-back condition. See id.
¶ 55 D. TTD Benefits
¶ 56 TTD is the condition that "exists from the time an injury incapacitates an employee for work until such time as he [or she] is as far recovered or restored as the character of the injury will permit." (Internal quotation marks omitted.) Brinkmann v. Industrial Comm'n, 82 Ill.2d 462, 467 (1980). The employee is entitled to TTD benefits "during the period between the injury and the recovery or stabilization of his [or her] condition, during which there is typically a total loss of wages." Id. "The duration of TTD," the appellate court has explained, "is controlled by the claimant's ability to work and [the claimant's] continuation in the healing process. To show entitlement to TTD benefits, claimant must prove not only that he [or she] did not work, but that he [or she] was unable to work." City of Granite City v. Industrial Comm 'n, 279 Ill.App.3d 1087, 1090 (1996). When the claimant is offered employment within his or her light-duty restrictions, the claimant then has the ability and the opportunity to work, and the claimant's refusal of the offer terminates the claimant's entitlement to TTD benefits. See Presson v. Industrial Comm 'n, 200 Ill.App.3d 876, 881 (1990); Gallentine v. Industrial Comm 'n, 201 Ill.App.3d 880, 887 (1990).
¶ 57 Respondent argues that petitioner's refusal of respondent's offer of light-duty employment makes him ineligible for TTD benefits and requires reversal of the Commission's award of such benefits. For two reasons, respondent maintains that petitioner was capable of light-duty work. First, in his testimony, he admitted he was capable of doing light-duty work. Second, his admitted level of physical activity showed he was able to do office work.
¶ 58 Granted, this evidence tends to go against an award of TTD benefits. On the other hand, however, a nontrivial item of evidence tends to support an award of such benefits. As respondent acknowledges, Dr. Paletta took petitioner off work in August and September 2018. It does not appear that Dr. Paletta ever lifted this restriction. The Commission decided that because "[petitioner was being held off work by Dr. George Paletta during [the] period [of August 7, 2018, through the hearing date of February 9, 2021,] for his causally related back and knee conditions," he was entitled to TTD benefits for that period. "The issues of whether an employee is temporarily totally disabled, as well as the period of such disability, are questions of fact for the Commission, and its decision will not be disturbed on review unless it is against the manifest weight of the evidence." (Internal quotation marks omitted.) RG Construction Services v. Illinois Workers' Compensation Comm'n, 2014 IL App (1st) 132137WC, ¶ 50. It is for the Commission to weigh conflicting evidence "and to choose among conflicting inferences therefrom." Dexheimer v. Industrial Comm 'n, 202 Ill.App.3d 437, 442 (1990). "It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside." Id. at 442-43. The Commission's finding that petitioner was physically incapable of working has a substantial foundation in the evidence, namely, the opinion of his treating physician, Dr. Paletta. Therefore, the Commission's award of TTD benefits through the date of the arbitration hearing is not against the manifest weight of the evidence. See RG Construction, 2014 IL App (1st) 132137WC, ¶ 50.
¶ 59 E. Credit for Payment of Medical Expenses
¶ 60 Section 8(j) of the Act (820 ILCS 305/8(j) (West 2018)) gives the employer the right to a credit if the employee receives a "double recovery through compensation awards and private benefit plans." Board of Education of City of Chicago v. Chicago Teachers Union, Local No. 1, 86 Ill.2d 469, 476 (1981). Respondent argues that "[t]he Commission's] decision denying [respondent] credit for payment of medical expenses pursuant to [s]ection 8(j) of the Act is contrary to law and against the manifest weight of the evidence."
¶ 61 Actually, the Commission never denied section 8(j) credit. Instead, the Commission ordered "that Respondent shall have credit for all amounts paid, if any[,] to or on behalf of said accidental injury." If the Commission erred by not determining the "amounts paid," it was an error that respondent invited by the way that respondent filled out the request-for-hearing form. Respondent admits that "[t]he amount paid is not reflected on the request for hearing form."
¶ 62 In fact, the form appears to affirmatively disclaim any intention to seek credit for any previous medical payments. On the first page, the form reads, "Respondent claims it paid $_______in medical bills in group medical plan for which credit may be allowed under Section 8(j) of the Act." The dollar amount has been left blank. On the second page, the form further reads, "Respondent claims it paid $4,002.00 in TTD, $0 in TPD, $0 in maintenance, $0 in nonoccupational indemnity disability benefits, and $0 in other benefits, for which credit may be allowed under §8(j) of the Act." (Emphasis added.)
¶ 63 In its brief, respondent points out that "the amounts paid are reflected in the medical bills in Employee's Exhibits 1 and 2." Nevertheless, the request-for-hearing form seems to indicate that respondent seeks no credit for these amounts. Evidently, when writing its decision, the Commission relied on this form, as the Commission surely had a right to do. This form suggested there was no need to determine the amount of credit under section 8(j). A party cannot justifiably complain of an error that the party invited. Gaffney v. Board of Trustees of Orland Fire Protection District, 2012 IL 110012, ¶ 33.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, we vacate the portion of the Commission's decision ordering the payment of medical expenses for treatment of the left hip. Also, we reverse the circuit court's judgment insomuch as it affirms that portion of the Commission's decision. Otherwise, we affirm the circuit court's judgment confirming the Commission's decision.
¶ 66 Circuit court judgment affirmed in part and reversed in part.
¶ 67 Commission decision vacated in part.