Daniels v. IC, No. 1-98-4573WC

1st District, June 19, 2000

Industrial Commmission Division

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Pervis Daniels, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)), alleging that while in the employ of respondent, Archibald Candy Company, he injured his back while lifting a kiln. An arbitrator awarded claimant $593.11 per week in temporary total disability (TTD) benefits for a period of 57 6/7 weeks (see 820 ILCS 305/(b) (West 1992)), $7,828.25 in medical expenses (see 820 ILCS 305/8(a) (West 1992), and additional compensation pursuant to sections 16, 19(k), and 19(l) of the Act (see 820 ILCS 305/16, 19(k), 19(l) (West 1992)). On review, the Industrial Commission (Commission) determined that claimant was entitled to TTD benefits for a period of only 14 5/7 weeks. The Commission also vacated the awards of additional compensation and medical expenses. The circuit court of Cook County confirmed.

On appeal, claimant contends the Commission's decision is void because the panel that rendered it was illegally constituted. Alternatively, claimant argues that the Commission's findings as to causal connection, TTD benefits, medical expenses and additional compensation are against the manifest weight of the evidence. We affirm.

I. FACTS

The following summary of facts is taken from the record on appeal. Claimant worked for respondent, a candy manufacturer, for 27 years. Prior to the accident at issue, claimant sustained a work-related injury in 1981, when he fell off a ladder. As a result of the fall, claimant sustained a herniated disc at the L4-L5 level, for which he underwent surgery in January 1982. This surgery was performed by Dr. James Dupre. Dr. Dupre continued to treat claimant for approximately seven months. Following the surgery, claimant ceased working for about one year. Claimant testified that from the time he returned to work after the surgery until June 23, 1994, he continued to have problems with his back. Most notably, every few months claimant's back would stiffen up for a period of several days. However, claimant did not miss any work due to these problems.

The accident at issue occurred on June 23, 1994. At that time, claimant worked as a supervisor-cook. Claimant's duties included running a "sand vac" machine. According to claimant, the "sand vac" machine consists of a large conveyor belt. Candy emerges from the "sand vac" machine on the belt and is deposited into a large kiln which sits on a scale. When the scale registers between 220 and 222 pounds, it is lifted onto a horse by two employees. Claimant stated that he felt a "pop" in the lower part of his back while helping lift a kiln. Following the accident, claimant experienced pain in his lower back and he could barely move. Medical personnel employed by respondent advised claimant to take aspirin for the pain.

Claimant continued working for a week after the accident. However, he noticed that his back was not improving. On June 30, 1994, defendant saw Dr. Eduardo Israel at Rush-Presbyterian-St. Luke's Occupational Health Center (Rush). Dr. Israel diagnosed claimant with back strain and gave him medication and a back brace. Dr. Israel also referred claimant to physical therapy. Claimant was returned to restricted work duties. However, no such work was available at that time.

On July 6, 1994, claimant saw Dr. Leonard Smith, an orthopedic surgeon at Rush. Dr. Smith advised claimant to remain off work and to continue physical therapy. Dr. Smith also recommended an MRI. The MRI showed post-discectomy changes at L4-L5 with moderate to severe bilateral neuroforaminal stenosis, mild bilateral neuroforaminal stenosis at L2-L3 and L3-L4 with congenital narrowing of the spinal canal to the entire lumbar region.

Dr. Smith examined claimant next on August 15, 1994. At that time, claimant was complaining of pain and burning involving his leg. After reviewing claimant's X rays, Dr. Smith opined that there was no adequate explanation for this pain. Dr. Smith also concluded that the MRI findings were not consistent with the June 23, 1994, date of injury. Dr. Smith ordered an EMG of claimant's back and leg to determine the physiologic status of the nerves. He also started claimant on a temporary program of TENs unit and pelvic traction. The EMG study did not show any abnormalities. However, the neurologist that performed the EMG noted that the exam was difficult because of claimant's inability to relax.

On September 7, 1994, Dr. Smith prescribed epidural blocks for claimant. During this treatment, claimant remained off work and continued to receive physical therapy. Dr. Smith noted that during the course of this treatment, claimant's condition was gradually improving. On October 7, 1994, Dr. Smith found that claimant had substantially improved and was able to resume regular work activities.

Claimant returned to work on October 10, 1994. However, claimant testified that he was still experiencing pain in the lower part of his back. On October 18, 1994, claimant was examined by Dr. Chang Sun Kim, a physician with Treister Orthopaedic Services, Ltd. Dr. Kim prescribed medication and physical therapy. Dr. Kim also recommended that claimant refrain from working.

Dr. Michael Roy Treister examined claimant on November 10, 1994. According to Dr. Treister, X rays showed a fusion at L3-L4 and L4-L5 in the interbody area between the vertebral bodies. The X rays also revealed that the disc space at L5-S1 was intact. However, Dr. Treister noted that while there were not many secondary changes in L5-S1, the canal looked very tiny on lateral films. Dr. Treister opined that claimant had what appeared to be an acute disc herniation at the L5-S1 level on the right, which was probably related to lifting the kiln on June 23, 1994.

Dr. Treister prescribed a lumbar myelogram and postmyelogram CT scan, which claimant underwent on November 30, 1994. According to Dr. Treister, the postmyelogram CT scan showed significant and severe lumbar spinal canal stenosis, particularly at the L4-L5 level but also at the L5-S1 level. Moreover, there was considerable hypertrophy of the posterior elements at L5-S1. Claimant continued to complain of pain and Dr. Treister recommended surgical decompression of the lower two lumbar levels. However, this surgical procedure was never performed.

Based on this history, Dr. Treister opined that claimant's condition of ill-being was caused in part by the accident which occurred on June 23, 1994. Dr. Treister acknowledged that claimant suffered from a spinal canal stenosis long before the June 23, 1994, accident. However, Dr. Treister attributed the spinal canal stenosis to three causes: (1) claimant's 1981 work-related accident; (2) degenerative disc disease; and (3) a congenitally small spinal canal. It was Dr. Treister's opinion that claimant's June 23, 1994, accident aggravated a preexisting condition.

On March 8, 1995, Dr. Smith reexamined claimant. In his notes pertaining to that visit, Dr. Smith noted claimant's prior history of back injury. Dr. Smith also concluded that claimant's symptoms, which included evidence of a congenitally narrow spinal canal with post-discectomy changes of epidural scarring, neural foraminal occlusion and spinal stenosis, were not-related to the June 23, 1994, accident. Dr. Smith recommended a work-hardening program and opined that claimant would be able to return to a medium-work-level program with restriction for heavy lifting. Dr. Smith did not believe that surgery would significantly help claimant. Moreover, Dr. Smith commented that any surgery would be for a condition not causally connected to the June 23, 1994, incident.

At the time of the arbitration hearing, claimant testified that he suffered from incontinence and had trouble walking even short distances. In addition, claimant stated that he could not perform any household chores and he could drive only short distances.

The arbitrator rendered her decision on October 25, 1995. The arbitrator determined that claimant's present condition of ill-being was causally related to his injury. In so concluding, the arbitrator deemed Dr. Smith's opinion "virtually worthless" because it provided no elaboration. Relying on medical records and the testimony of claimant and Dr. Treister, the arbitrator awarded claimant TTD benefits of $593.11 per week for a period of 57 6/7 weeks and medical expenses of $7,828.25.

The arbitrator also found that while it was undisputed that claimant was unable to work from June 30, 1994 through October 9, 1994, a period of 14 4/7 weeks, respondent paid claimant for only 12 weeks. Moreover, despite Dr. Treister's notes and letters that claimant was unable to work after October 19, 1994, respondent did not compensate claimant. Thus, the arbitrator concluded that claimant was entitled to $2,500 in penalties under section 19(l) of the Act. The arbitrator also determined that respondent unreasonably or vexatiously delayed payment of compensation to claimant, entitling him to penalties of $13,599.05 under section 19(k) of the Act. Finally, the arbitrator found that respondent had unreasonably and vexatiously delayed payment of benefits due claimant, entitling him to attorney's fees of $10,225.08 pursuant to section 16 of the Act.

The Commission issued its decision on June 12, 1997. The Commission modified the arbitrator's decision, finding that claimant was entitled to TTD benefits for only 14 5/7 weeks. The Commission based its decision on the fact that claimant had a prior fusion of the L3-L4 and L4-L5 level in 1982. The Commission relied on Dr. Smith's records and his opinion that claimant was able to return to work on October 7, 1994. Since the panel determined that termination of the TTD benefit payments by respondent on October 7, 1994, was not unreasonable, it vacated the additional compensation awarded pursuant to sections 16, 19(k), and 19(l) of the Act. Finally, the Commission vacated the award of medical expenses because they represented expenses for treatment incurred after October 7, 1994. On administrative review, the circuit court of Cook County confirmed the Commission's decision.

II. ANALYSISA. Composition of the Commission

Claimant first contends that the Commission's decision is void because the panel which considered and decided this case was illegally constituted.

1. Section 13 of the Act

Section 13 of the Act (820 ILCS 305/13 (West 1992)), governs the composition of the Commission. It provides that the Commission is to consist of 7 members to be appointed by the Governor, by and with the consent of the Senate. Of those seven, two are to be representative citizens of the employing class operating under the Act (management members), two are to be representative citizens of the class of employees operating under the Act (labor members), and 3 are to be representative citizens not identified with either the employing or employee class (public members). Moreover, no more than 4 members of the Commission shall be of the same political party and one of the 3 public members must be designated by the Governor as Chairman. Section 13 further provides:

"Notwithstanding any other provision of this Act, in the event the Chairman shall make a finding that a member is or will be unavailable to fulfill the responsibilities of his or her office, the Chairman shall advise the Governor and the member in writing and shall designate a certified arbitrator to serve as acting Commissioner. The certified arbitrator shall act as a Commissioner until the member resumes the duties of his or her office or until a new member is appointed by the Governor, by and with the consent of the Senate, if a vacancy occurs in the office of the Commissioner, but in no event shall a certified arbitrator serve in the capacity of Commissioner for more than 6 months from the date of appointment by the Chairman." 820 ILCS 305/13 (West 1992).

2. Claimant's Panel

Claimant's case was heard and decided by the Commission's panel "B". According to both parties, at the beginning of 1996, when claimant's case was assigned, panel "B" consisted of the following three members: (1) John W. Hallock, Jr., (2) Barry Ketter, and (3) Linzey Jones.

However, on June 17, 1996, Commissioner Hallock was appointed as Acting Chairman. He became Chairman on July 16, 1996. As a result, arbitrator Kathleen Hagan was designated Acting Commissioner and served from June 17, 1996 until December 16, 1996. Following the expiration of Hagan's six-month term, Arbitrator David Kane was designated to serve as Acting Commissioner from December 17, 1996 until June 17, 1997.

Commissioner Jones received a medical leave of absence in August 1996, and he resigned from his post on October 21, 1996. In his stead, Arbitrator Calvin Tensor was appointed as Acting Commissioner from September 1, 1996 until February 28, 1997. Subsequently, Arbitrator Joseph Reichart served as Acting Commissioner from March 1, 1997 until August 31, 1997.

Thus, the panel that heard and decided this case was composed of Commissioners Ketter, Kane, and Reichart.

3. Discussion

Claimant argues that the panel which decided this matter was illegally constituted. Specifically, defendant complains that pursuant to section 13 of the Act: (1) the Chairman may only fill a seat vacated by a Commissioner in those cases where the vacancy is temporary in nature; and (2) the Chairman may not appoint successive Acting Commissioners after the first appointed Acting Commissioner's six-month term has expired. In this case, claimant argues that both Hallock's appointment as Chairman and Jones' resignation as Commissioner resulted in permanent vacancies on the Commission requiring the Governor to appoint new Commissioners to replace them. In addition, claimant notes that successive Acting Commissioners heard and decided his case. Because of these alleged deficiencies, claimant contends that the Commission's decision is void. We disagree.

Statutory construction is a question of law. King v. Industrial Comm'n, 301 Ill. App. 3d 958, 962 (1998). The primary rule of statutory interpretation is to ascertain and give effect to the intention of the legislature. Divittorio v. Industrial Comm'n, 299 Ill. App. 3d 662, 669 (1998). The best evidence of the legislature's intent is the clear and unambiguous language of the statute. King, 301 Ill. App. 3d at 962, citing Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). The court must also read the statute as a whole and consider all its parts together. Polsky v. BDO Seidman, 293 Ill. App. 3d 414, 424 (1997). A court may not alter the plain meaning of a statute by reading into it any limitations that do not exist. People v. Cochran, 167 Ill. App. 3d 830, 832 (1988). Where the statutory language is clear and unambiguous, it is given effect without resort to other aids of construction. King, 301 Ill. App. 3d at 962. With these principles in mind, we discuss claimant's arguments.

i. Permanent Vacancies

We first address whether the Chairman is entitled to appoint an Acting Commissioner only when there is a temporary absence on the Commission. As indicated earlier in this disposition, the first sentence of the paragraph of section 13 at issue allows the Chairman to designate a certified arbitrator to serve as Acting Commissioner when the Chairman makes a finding that a member of the Commission is "unavailable to fulfill the responsibilities of his or her office." This language does not qualify or limit the situations in which the Chairman may designate an Acting Commissioner. See Cochran, 167 Ill. App. 3d at 862. Thus, the plain language of the statute dictates that the Chairman may designate an Acting Commissioner in the case of a temporary absence or a permanent vacancy.

Moreover, when we read the second sentence of the paragraph of section 13 that is in dispute, the impropriety of claimant's position becomes apparent. That sentence provides that a certified arbitrator designated by the Chairman "shall act as a Commissioner until the member resumes the duties of his or her office or until a new member is appointed by the Governor, by and with the consent of the Senate[.]" (Emphasis added.) In employing disjunctive language, it is clear that the legislature contemplated allowing the Chairman to designate an Acting Commissioner when either a temporary or a permanent vacancy occurs. Had the legislature intended this provision to apply only in situations in which the absence was temporary, it would not have included language pertaining to the Governor's duty to appoint replacement members to the Commission.

Nevertheless, claimant insists that only the Governor may fill permanent vacancies on the Commission. Claimant points to another paragraph in section 13 which provides, "[i]n the case of a vacancy in the office of a Commissioner during the recess of the Senate, the Governor shall make a temporary appointment until the next meeting of the Senate, when he shall nominate some person to fill such office." Claimant contends that allowing the Chairman to fill permanent vacancies would render the aforementioned language superfluous. Once again, we must disagree.

We have already determined that pursuant to the plain language of section 13, it is the Chairman of the Commission that fills both temporary absences and permanent vacancies. However, as discussed, the Chairman's selection of a certified arbitrator to fill a vacancy on the Commission only lasts until (a) the unavailable member resumes the duties of his or her office or (b) the Governor appoints a replacement member by and with the advice of the Senate. The portion of section 13 of the Act cited by claimant dictates the procedure to be employed when the Governor wishes to appoint a Commissioner and the Senate is not in session. In that case, the Governor makes a temporary appointment until the next meeting of the Senate. When the Senate reconvenes, the Governor must then make another nomination, upon which the Senate votes. We find nothing in the provision cited by claimant which would prohibit the Chairman from designating Acting Commissioners in the case of a permanent vacancy on the Commission.

ii. Successive six-month terms

Claimant also contends that the Chairman may only appoint one certified arbitrator as Acting Commissioner to one six-month term. According to claimant, once this initial six-month appointment expires, the seat remains vacant until the Governor acts to fill the seat. Claimant notes that the language of the statute provides, "The certified arbitrator shall act as a Commissioner until the member resumes the duties of his or her office or until a new member is appointed by the Governor ***, but in no event shall a certified arbitrator serve in the capacity of Commissioner for more than 6 months from the date of appointment by the Chairman." According to claimant, the legislature's use of the definite article "the" at the beginning of this passage and its later use of the indefinite article "a" in referring to "certified arbitrator" evinces the legislature's intent to limit the Chairman to a single six-month appointment. Claimant argues that had the legislature intended otherwise, it would have consistently used "the" before "certified arbitrator" in the aforementioned passage.

We find claimant's position without merit. A plain reading of the passage cited by claimant reveals that the term "a certified arbitrator" refers back to "the certified arbitrator" designated by the Chairman and mentioned earlier in the passage. Moreover, a plain reading of this provision reveals that there is but one limitation on the Chairman's power to designate Acting Commissioners. That is, Acting Commissioners may only serve for a maximum six-month term. Absent from the language of the statute is any limiting language that would prohibit the Chairman from appointing successive Acting Commissioners to successive six month terms.

iii. Acting Commissioner's Affiliation & Appointment of State Officers by Governor

Before we turn to the merit's of claimant's case, we must address two additional issues.

At oral argument, claimant suggests that appointment of an acting commissioner could upset the political and/or labor-management balance of the Commission. Claimant relies on the following language in support of her position:

"The designation of a certified arbitrator to act as a Commissioner shall be considered representative of citizens not identified with either the employing or employee classes and the arbitrator shall serve regardless of his or her political affiliation." 820 ILCS 305/13 (West 1992).

Although we share claimant's concern, we are powerless to act. The plain language of the Act provides that a certified arbitrator designated as an acting Commissioner shall serve regardless of his or her political affiliation and will be identified as a public member. Only the legislature can alter this provision.

In addition, we are aware of a provision in the Illinois Constitution of 1970 addresses the duty of the Governor to appoint certain State officers. That provision provides in pertinent part:

"The Governor shall nominate and, by and with the advice and consent of the Senate, a majority of the members elected concurring by record vote, shall appoint all officers whose election or appointment is not otherwise provided for." (Emphasis added.) Ill. Const. 1970, art. V,