Workers' Compensation Commission Division Opinion Filed: July 28, 2014

No. 1-13-0410WC ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

DIG RIGHT IN LANDSCAPING, ) Appeal from the Circuit Court ) of Cook County, Illinois. ) Appellee, ) ) v. ) Appeal No. 1-13-0410WC ) Circuit No. 12-L-50882 ILLINOIS WORKERS' COMPENSATION ) COMMISSION et al. (Jose Nunez, ) Honorable Appellant). ) Margaret Brennan, ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Hoffman, Hudson, Harris, and Stewart concurred in the judgment and opinion. ______________________________________________________________________________

OPINION

¶1 The claimant, Jose Nunez, filed an application for adjustment of claim under the

Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)), seeking benefits for

right shoulder injuries which he allegedly sustained while working for Dig Right In Landscaping

(employer). After a section 19(b) hearing, the arbitrator found that the claimant's current

condition of ill-being of his right shoulder was not causally related to his employment. The

arbitrator denied the claim for benefits. The claimant sought review before the Illinois Workers'

Compensation Commission (Commission), which reversed the decision of the arbitrator and

awarded the claimant temporary total disability (TTD) benefits, reasonable and necessary

medical expenses, and prospective medical care. The employer then sought judicial review of

the Commission's decision in the circuit court of Cook County. The circuit court found that the

Commission's decision was against the manifest weight of the evidence and reinstated the

arbitrator's award. The claimant then filed a timely appeal with this court.

¶2 On appeal, the claimant maintains that the Commission's finding that his current

condition of ill-being was causally related to his employment was not against the manifest

weight of the evidence. He asks this court to reverse the order of the circuit court and reinstate

the Commission's decision.

¶3 FACTS

¶4 The following factual recitation is taken from the evidence presented at the arbitration

hearing conducted on May 13, 2011. The evidence included the testimony of the claimant and

the claimant's written medical records.

¶5 On July 14, 2008, the claimant was working as a laborer/driver for the employer. It was

the claimant's testimony that he sustained an injury to his right shoulder while loading a piece of

equipment onto a truck.

¶6 The following day the claimant sought treatment from Dr. Manish Pandya, a

chiropractor. According to Dr. Pandya's treatment records, the claimant gave a history of injury

to the right shoulder while lifting an object weighing approximately 20 to 40 pounds. The

claimant complained of right shoulder pain rated as 8 on a scale of 1 to 10, with 10 being

extreme pain. The records recorded no history of the claimant reporting a "pop" or popping

sensation in his shoulder. Dr. Pandya diagnosed subluxation of the thoracic spine and rotator

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cuff syndrome. The claimant treated with Dr. Pandya again on July 16 and July 18, 2008, at

which time he complained of both right shoulder pain and neck stiffness. Dr. Pandya diagnosed

mild discomfort upon palpitation of the spine in the thoracic region and moderate spasm in the

neck. Dr. Pandya recommended trigger point therapy and an ultrasound of the right shoulder.

The claimant did not treat with Dr. Pandya after July 18, 2008.

¶7 On July 22, 2008, the claimant sought treatment from Dr. Ehteshan Ghani, a general

practitioner. Dr. Ghani's treatment notes report that the claimant gave a history of injuring

himself while loading a cultivator onto a truck. Dr. Ghani diagnosed shoulder pain, prescribed

Celebrex and entered a notation in his treatment records to "consider MRI." He released the

claimant to return to work with a restriction of no lifting of more than five pounds with the right

arm, and no repetitive pushing or pulling with the right hand.

¶8 The record established that the employer was able to accommodate the work restrictions

imposed by Dr. Ghani. The claimant did not lose any time from work as a result of the July 14,

2008, accident.

¶9 The claimant was examined again by Dr. Ghani on July 28, 2008, and August 5, 2008.

The claimant reported some improvement in shoulder pain at the July 28 examination and a 75%

improvement at the August 5 examination. Dr. Ghani reiterated the previous restrictions. The

August 5th examination was the last time the claimant treated with Dr. Ghani.

¶ 10 On August 12, 2008, the claimant sustained several laceration injuries to his left hand in a

work-related accident. He was treated by Dr. Hasan Kahn at LaGrange Medical Center. Dr.

Kahn's treatment records indicated that the claimant gave a medical history of diabetes, but made

no mention of right shoulder pain or the July 14, 2008, accident. Dr. Kahn released the claimant

with a restriction of no lifting of greater than 20 pounds with the left hand. The claimant

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testified that he was able to work thereafter within the restrictions for both his left hand and his

right shoulder.

¶ 11 The claimant continued to treat for his left hand injury at LaGrange Medical Center from

August 12, 2008, through October 6, 2008, at which time he was released to return to work

without any restrictions. The LaGrange Medical Center records list no complaints of right

shoulder pain or any restrictions related to the right shoulder during the time the claimant treated

there.

¶ 12 On September 10, 2008, while he was still treating at LaGrange Medical Center for his

left hand injury, the claimant was terminated for cause. Unrebutted testimony from the employer

established that the claimant was terminated for performing unauthorized "side jobs" using

company equipment. The employer's representative further testified that the employer was not

aware of any right shoulder complaints at the time of the claimant's termination. The record also

established that, at the time he was terminated, the claimant made no requests for medical

treatment or TTD benefits related to his right shoulder. The claimant claimed to have contacted

the employer's workers' compensation insurance adjuster but he could not recall when he made

this contact or what he said to the adjuster.

¶ 13 On March 26, 2009, the claimant sought treatment for right shoulder pain at St.

Anthony's hospital. He gave a history of a backward fall six months previously (i.e.,

approximately September of 2008). He reported intermittent right shoulder pain, rating his pain

level as 8 out of 10. Treatment notes from the hospital indicated no observable deformity,

bruising, swelling, hematoma, or tenderness to palpitation in the right shoulder. The claimant

was given ibuprofen and referred to Dr. Mitchell Goldfleis, an orthopedic surgeon. The claimant

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never consulted with Dr. Goldflies. He testified that he was unable to follow up with Dr.

Goldflies due to a lack of money or insurance.

¶ 14 On July 1, 2009, the claimant filed an application for adjustment of claim regarding the

July 14, 2008, accident. On the recommendation of his attorney, the claimant sought treatment

from Dr. William Vitello, a board-certified orthopedic surgeon. Dr. Vitello first examined the

claimant on July 6, 2009. According to Dr. Vitello's treatment notes, the claimant gave a history

of injuring his right shoulder while falling backwards after putting away a shovel on July 22,

2008. The claimant denied giving a history of falling while putting away a shovel and

maintained that he gave of history of injury while loading a cultivator onto a truck. The claimant

reported a pain level of 10 on the 1-to-10 scale and an inability to sleep at night due to the pain.

Dr. Vitello ordered an X-ray of the right shoulder. The X-ray appeared normal to Dr. Vitello.

Dr. Vitello diagnosed a possible rotator cuff tear and placed the claimant on a restriction of

lifting no more than 10 pounds with his right arm.

¶ 15 On August 12, 2009, Dr. Vitello ordered an MR arthrogram of the right shoulder, which

revealed no acute pathology and no evidence of a rotator cuff tear. The test did reveal a

degenerative impingement of the right clavicle joint. Dr. Vitello administered a pain injection in

the right shoulder and prescribed a course of physical therapy.

¶ 16 On November 11, 2009, Dr. Vitello reexamined the claimant's right shoulder. The

claimant reported that the pain injection provided only temporary relief. Dr. Vitello observed

that the claimant had participated in physical therapy from August 19, 2009, to October 9, 2009,

with no reduction in shoulder pain. Based on the claimant's lack of improvement following

physical therapy, Dr. Vitello recommended arthroscopic surgery on the right shoulder.

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¶ 17 On November 23, 20009, the claimant was examined at the request of the employer by

Dr. Jay Levin, a board-certified orthopedic surgeon. The claimant gave a history of injuring his

right shoulder in a fall. He reported feeling a "pop" in his shoulder at the time he fell. He further

complained of constant pain in his right shoulder with a pain rating of 10 out of 10. Dr. Levin

observed no objective signs of acute distress. He noted from the claimant's medical records that

he continued to work from the July 14, 2008, until August 5, 2008, at which time he reported

75% improvement. After reviewing the claimant's medical records, Dr. Levin diagnosed mild

right shoulder subacromial bursitis. He opined that the claimant's current condition of ill-being

was not causally related to an employment related accident on July 14, 2008. Dr. Levin further

opined that the claimant's condition had resolved by August 2008, and he was able work without

restriction after that date.

¶ 18 On December 23, 2009, the claimant was again examined by Dr. Vitello, who continued

to recommend surgery.

¶ 19 On June 14, 2010, Dr. Vitello issued a written report in which he diagnosed right

shoulder impingement. He recommended right shoulder arthroscopy, subacromial

decompression and debridement. He opined that the claimant's current condition of ill-being of

the right shoulder was causally related to the July 2008 industrial accident.

¶ 20 Following the hearing, the arbitrator found that the claimant had failed to establish that

his current condition of ill-being was causally related to the industrial accident on July 14, 2008.

The arbitrator pointed out that: (1) after August 5, 2008, the claimant made no reports of right

shoulder pain to his employer and received no treatment for right shoulder pain until March 26,

2009; (2) even when his employment was terminated on September 10, 2008, the claimant did

not report that he still had right shoulder pain; (3) no medical records from August 12, 2008,

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through October 6, 2008, had any notations regarding reported shoulder pain; and (4) from

August 5, 2008, to September 10, 2008, the claimant worked under a restriction against the use

of his left arm, relying entirely on the use of his right arm. The arbitrator noted that "[c]learly, if

the [claimant] was placed on restrictions of no use of the left hand, and he had continuing

complaints of the right arm and still had restrictions, he would have been taken off work

completely. He was not." (Emphasis added.)

¶ 21 The claimant sought review before the Commission, which rejected the arbitrator's

findings and issued an award of benefits to the claimant. The Commission noted that claimant

sought medical treatment for right shoulder pain immediately following the July 14, 2008,

accident. The Commission further noted that the claimant had consistently reported right

shoulder pain after the accident and had been given pain medication on several occasions

thereafter. It also noted that at the time of his termination for cause, the claimant was still under

a work restriction limiting the use of his right arm due to the reported shoulder pain. The

Commission found Dr. Vitello's causation opinion credible and persuasive. While the

Commission made no express determination regarding the claimant's credibility, it implicitly

found the claimant credible when it noted without negative comment his testimony that prior to

July 14, 2008, he had suffered no right shoulder pain, but had experienced continual pain since

that date. Finally, the Commission found it significant that the claimant was still on light duty

for his right shoulder injury when the employer terminated him for cause. The Commission

noted that termination of employment for cause does not terminate a claimant's eligibility for

TTD benefits. Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n,

(2010). The Commission awarded the claimant TTD benefits from September 11,

2008, through March 26, 2009, and from July 6, 2009, through May 13, 2011, which was the

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date of the arbitration hearing. It further ordered payment of all medical expenses related to the

claimant's right shoulder condition, and it awarded prospective medical expenses for the right

shoulder surgery and postsurgical treatment as recommended by Dr. Vitello.

¶ 22 The employer sought judicial review of the Commission's decision in the circuit court of

Cook County. On March 5, 2013, the circuit court set aside the Commission's decision and

reinstated the decision of the arbitrator. The circuit court explained that the Commission

improperly relied upon Dr. Vitello's opinion that the claimant's right shoulder pathology was

caused by the July 14, 2008, workplace accident. The court stated that the Commission failed to

state the basis for its credibility determinations regarding the claimant and his treating doctors

and failed to consider that the claimant reported 75% improvement in his shoulder condition

approximately two weeks after the accident. The court also found that Dr. Vitello's causation

opinion was based upon uncorroborated and unreliable medical history given to him by the

claimant. The court particularly noted that the claimant gave several versions of when and how

the shoulder injury occurred. Additionally, the court noted that the claimant went seven months

without any treatment, yet reported his pain level as 8 or 10 out of 10. The claimant now

appeals, arguing that the Commission's award of benefits was not against the manifest weight of

the evidence.

¶ 23 ANALYSIS

¶ 24 Neither party has questioned the court's jurisdiction to review the Commission's decision

in this case. It is our obligation, however, to consider, sua sponte, matters which related to the

subject matter jurisdiction over final decisions of the Commission. Consolidated Freightways v.

Illinois Workers' Compensation Comm'n,

(2007). Moreover, subject

matter jurisdiction cannot be waived, stipulated to, or consented to by the parties, and the failure

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of a party to object to the lack of subject matter jurisdiction cannot confer jurisdiction upon the

court. Supreme Catering v. Illinois Workers' Compensation Comm'n,

, ¶ 7.

¶ 25 The record in this matter contains a decision and award of benefits to the claimant signed

by only two commissioners. Section 19(e) of the Act provides in pertinent part: "In the event

either party requests oral argument, such argument shall be had before a panel of 3 members of

the Commission ***. *** A decision of the Commission shall be approved by a majority of

Commissioners present at such hearing ***." 820 ILCS 305/19(e) (West 2010). While it is a

jurisdictional requirement that three commissioners form a panel to hear oral arguments and a

majority of that panel approve the resulting order, the writing and filing of the Commission's

order is a ministerial act and does not impact the jurisdictional validity of the Commission's

ruling. Zeigler v. Industrial Comm'n,

(1972); Morton's of Chicago v.

Industrial Comm'n,

(2006). In this case, the record sufficiently

established that oral argument was requested and had before a panel of three commissioners.

However, at the time the Commission's decision was issued, the term of one of the

Commissioners had expired. Since the remaining two commissioners who heard the oral

argument were able to agree upon a disposition and signed the Commission's order, the record is

clear that majority of the panel hearing the argument approved the resulting order. Had the two

panel members not been in agreement, it would have been necessary for a replacement

commissioner to concur with one of the decision of one of the commissioners who was present at

the oral argument. Zeigler,

. That procedure was not necessary in this case. The

fact that the order herein is signed by only two commissioners, therefore, does not impact the

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validity of the order in this matter. We find that we have subject matter jurisdiction over this

appeal.

¶ 26 Turning to the merits of the appeal, the claimant argues that the Commission correctly

found that he proved a causal connection between the July 14, 2008, and his current condition of

ill-being. He contends that the Commission correctly placed more weight on the opinion of Dr.

Vitello and that it sufficiently weighed his credibility in light of the medical evidence. The

employer counters that the Commission's decision was against the manifest weight of the

evidence because the medical evidence clearly established that his shoulder condition had

completely resolved by August 2008 as reported by Dr. Levin. Although this is a close case, we

agree with the claimant and find that the Commission's award of benefits was not against the

manifest weight of the evidence.

¶ 27 In a workers' compensation case, the claimant has the burden of proving, by a

preponderance of the evidence, all of the elements of his claim. O'Dette v. Industrial Comm'n,

(1980). Whether a causal relationship exists between a claimant's employment

and his injury is a question of fact to be resolved by the Commission, and its resolution of such a

matter will not be disturbed on appeal unless it is against the manifest weight of the evidence.

Certi-Serve, Inc. v. Industrial Comm'n,

(1984). In resolving such

issues, it is the function of the Commission to decide questions of fact, judge the credibility of

witnesses, and resolve conflicting medical evidence. O'Dette,

. For a finding of

fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly

apparent. Caterpillar, Inc. v. Industrial Comm'n,

(1992). Whether a

reviewing court might reach the same conclusion is not the test of whether the Commission's

determination of a question of fact is supported by the manifest weight of the evidence. Rather,

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the appropriate test is whether there is sufficient evidence in the record to support the

Commission's determination. Benson v. Industrial Comm'n,

(1982).

Although we are reluctant to set aside the Commission's decision on a factual question, we will

not hesitate to do so when the clearly evident, plain, and indisputable weight of the evidence

compels an opposite conclusion. Montgomery Elevator Co. v. Industrial Comm'n,

(1993).

¶ 28 In this case, the Commission's finding that the claimant's right shoulder pain and need for

surgery was causally connected to his workplace accident is not against the manifest weight of

the evidence. The Commission based its decision on: (1) Dr. Vitello's opinion that the claimant's

right shoulder impingement manifested itself only after the July 14, 2008, accident; (2) the fact

that the claimant's reports of right shoulder pain were consistent from the time of the accident

until the date of the hearing; and (3) despite the fact that the claimant reported a 75%

improvement within approximately two weeks after the accident he still was on a significant

work restriction regarding his right shoulder when he was terminated for cause on September 10,

2008.

¶ 29 The Commission's award of benefits in this matter is based primarily upon its

determination that the claimant's description of his symptoms to his treating physicians,

particularly Dr. Vitello, was credible. We note that the circuit court found that the claimant was

completely lacking in credibility, and that lack of credibility made Dr. Vitello's causation opinion

unreliable according to the circuit court. It is well settled, however, that while a reviewing court

may view the credibility of the claimant differently than did the Commission, it is the exclusive

function of Commission to judge credibility and assign weight to medical opinion testimony.

O'Dette,

. Here, while the claimant's testimony and descriptions of the accident

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appear to be less than precise, the fact remains that he gave the same history and pain

descriptions to both Dr. Vitello and Dr. Levin. Moreover, while it appears that there were no

recorded reports of right shoulder pain while the claimant was treating for his left hand injury,

the Commission correctly noted that on the last day of his employment, September 10, 208, the

claimant was working under a severe lifting restriction imposed by Dr. Ghani relative to the

claimant's right shoulder and there is no record that the restriction was ever lifted. Based on this

evidence, and the inferences reasonably drawn from the evidence, the Commission's finding that

the claimant's right shoulder impingement neuropathy was causally connected to his workplace

accident of July 14, 2008, was not against the manifest weight of the evidence.

¶ 30 Since the Commission's finding that the claimant was entitled to TTD and medical

benefits for injuries sustained in a work-related accident on July 14, 2008, was not against the

manifest weight of the evidence, we reverse the circuit court's judgment and affirm the

Commission's award. The matter is remanded to the Commission for further proceedings

consistent with this decision.

¶ 31 CONCLUSION

¶ 32 The Commission's finding that the claimant's current condition of ill-being is causally

related to his employment is not contrary to the manifest weight of the evidence. The

Commission found credible medical evidence supporting causation, and while it did not

expressly find the claimant credible, the Commission's description of his testimony makes it

clear that it found him credible. We therefore reverse the judgment of the circuit court, affirm

the decision of the Commission and remand the matter to the Commission for further

proceedings.

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¶ 33 Circuit court reversed and Commission decision reinstated; cause remanded to the

Commission for further proceedings.

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