{ "id": 4284640, "name": "AMERITECH SERVICES, INC., Appellant, v. ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Brian Dolk, Appellee)", "name_abbreviation": "Ameritech Services, Inc. v. Illinois Workers' Compensation Commission", "decision_date": "2009-03-17", "docket_number": "No. 1-08-1412WC", "first_page": "191", "last_page": "209", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 191" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "807 N.E.2d 1019", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948476 ], "year": 2004, "pin_cites": [ { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0808-01" ] }, { "cite": "865 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "372 Ill. App. 3d 60", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269636 ], "year": 2007, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0060-01" ] }, { "cite": "670 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182777 ], "year": 1996, "pin_cites": [ { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0785-01" ] }, { "cite": "454 N.E.2d 672", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 424", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515481 ], "year": 1983, "pin_cites": [ { "page": "432-33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0424-01" ] }, { "cite": "403 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "79 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3071050 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0249-01" ] }, { "cite": "865 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "372 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268735 ], "year": 2007, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0527-01" ] }, { "cite": "397 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "77 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490089 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "490" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0482-01" ] }, { "cite": "419 N.E.2d 1159", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "84 Ill. 2d 538", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045304 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "546-47" }, { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0538-01" ] }, { "cite": "440 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "91 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091655 ], "year": 1982, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0445-01" ] }, { "cite": "591 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5220058 ], "year": 1992, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0288-01" ] }, { "cite": "447 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "95 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111678 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "288-89" }, { "page": "286-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0278-01" ] } ], "analysis": { "cardinality": 1414, "char_count": 46274, "ocr_confidence": 0.763, "pagerank": { "raw": 4.400479698708787e-08, "percentile": 0.2761296121897454 }, "sha256": "9b71a9e4ba454a72d14abeaa2c4337c77b60e012b526b1b3d00e2efd086832e6", "simhash": "1:b67da4831f356edd", "word_count": 7424 }, "last_updated": "2023-07-14T20:37:38.013620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERITECH SERVICES, INC., Appellant, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al. (Brian Dolk, Appellee)." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nAmeritech Services, Inc. (Ameritech), appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Workers\u2019 Compensation Commission (Commission) awarding the claimant, Brian Dolk, benefits pursuant to the Workers\u2019 Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). For the reasons that follow, we affirm the judgment of the circuit court.\nThe following factual recitation is taken from the evidence presented at the arbitration hearing.\nThe claimant was employed by Ameriteeh as a \u201cUniversal Account Executive\u201d on June 12, 2000. According to Ameritech\u2019s letter of May 25, 2000, offering the claimant a job as a Universal Account Executive, his annual base salary was $34,000 plus commissions. He was also to receive a one-time draw of $2,167 for his first month of employment and a one-time draw of $1,083 for his second month of employment. These draws were not recoverable against any commissions to which the claimant might be entitled.\nThe claimant\u2019s duties as a Universal Account Executive included selling telephone equipment and services to business customers northwest of Chicago in the O\u2019Hare region. At all relevant times, the claimant was working from home and communicating with Ameriteeh by computer, telephone, and fax machine pursuant to Ameritech\u2019s \u201cTelework\u201d policy. The claimant used his personal automobile while working. He made up to five sales calls to customers each day. When visiting a customer, the claimant would bring demonstration equipment weighing about 50 pounds along with a laptop computer, printer, peripherals, and supplies which together weighed about 25 pounds. Although not required to do so, the claimant visited Ameritech\u2019s offices in Chicago on a weekly basis to pick up supplies.\nOn August 7, 2000, the claimant intended to drive to Ameritech\u2019s Chicago office for a conference call and to pick up sales literature. In preparation for the journey, the claimant carried his demonstration equipment, computer, and printer on his right shoulder as he walked down the stairs from his apartment to his car. The claimant testified that the equipment he was carrying weighed 75 to 80 pounds. According to the claimant, he experienced a sharp pain in his lower back as he walked down the stairs. He dropped the equipment that he was carrying and went back to his apartment to lie down, hoping the pain would pass.\nWhen the pain in his back failed to subside, the claimant went to the emergency room at Northwestern Memorial Hospital (Northwestern). The claimant testified that X-rays of his back were taken while he was in the emergency room. Northwestern\u2019s record of that visit states that the attending physician diagnosed a back strain and prescribed Vicodin. According to the claimant, the doctor in the emergency room took him off of work and referred him to Dr. Giri T. Gireesan, an orthopaedic surgeon.\nThe claimant first saw Dr. Gireesan on August 9, 2000. The doctor\u2019s notes of that visit state that the claimant complained of pain in his neck and back and that he reported having experienced a sharp pain in his back as he \u201cwent to pack up his demo kit and the laptop bag weighing around 75 pounds.\u201d When deposed, Dr. Gireesan testified that his physical examination of the claimant revealed that he had 50% reduction in his lumbosacral flexion. Dr. Gireesan recommended that the claimant have an MRI scan of his lumbosacral spinal area. The doctor\u2019s notes reflect that he gave the claimant a prescription for Norco and authorized him to remain off of work.\nThe claimant underwent the recommended MRI scan on August 10, 2000. The radiologist\u2019s report states that the scan revealed diffuse degeneration at L4-L5 and a small central disc herniation at that level along with a slightly eccentric right-sided disc herniation at L5-S1 which was \u201cprobably chronic.\u201d\nThe claimant returned to see Dr. Gireesan on September 19, 2000, again complaining of severe pain. Dr. Gireesan\u2019s notes of that visit state that he examined the claimant and reviewed his MRI scan. As of that date, Dr. Gireesan diagnosed the claimant as suffering from lower back pain arising from bulging discs at L4-L5 and L5-S1, \u201caggravated as result of a work related injury.\u201d The doctor again authorized the claimant to remain off of work and told him to return in two weeks for a follow-up visit.\nWhen the claimant next saw Dr. Gireesan on October 11, 2000, he reported some improvement after physical therapy. However, he was still bothered by back pain and continued to take Norco on a daily basis. Dr. Gireesan\u2019s notes of that visit reflect that his diagnosis remained unchanged and that he prescribed anti-inflammatory medication. At his deposition, Dr. Gireesan testified that he advised the claimant to contact Ameritech and request light-duty work.\nAt Ameritech\u2019s request, the claimant was examined by Dr. Prem Pahwa, an orthopaedic surgeon, on October 25, 2000. In his report of that visit, Dr. Pahwa noted that the claimant gave a history of having been injured on August 7, 2000, which was consistent with the history that he gave to Dr. Gireesan. The report states that the claimant complained of constant low-back pain and intermittent spasms and weakness of the right leg. Following his examination of the claimant, Dr. Pahwa diagnosed lumbosacral strain with \u201csignificant limitation of back motion due to pain.\u201d In his report, Dr. Pahwa recommended that the claimant receive three to four weeks of physical therapy and found that the claimant could return to light-duty work that does not require any lifting or repeated bending.\nThe claimant next saw Dr. Gireesan on October 11, 2000. At that time, the claimant continued to complain of pain. The doctor\u2019s note states that the claimant was attending physical therapy and taking medication for pain. Dr. Gireesan authorized the claimant to work on a light-duty basis with no lifting of more than 10 to 15 pounds, no frequent bending or twisting, and no long distance driving.\nWhen the claimant saw Dr. Gireesan on November 6, 2000, he reported that the pain medication he had been taking and the physical therapy he received had not relieved his pain. Dr. Gireesan again authorized the claimant to return to light-duty work with the restrictions he had previously imposed.\nThe claimant testified that he met with his supervisor, Juliette Fiy, at Ameritech\u2019s Chicago office on November 6, 2000. According to the claimant, Fry wanted him to return to work in the same territory selling a service known as Complete Link. He stated that the position would require him to carry 50 pounds of demonstration equipment along with a laptop computer and printer. According to the claimant, Fry told him he would be required to report to work at Ameritech\u2019s Chicago office before going to his territory to see customers. The claimant testified that he informed Fry he could not accept the position that she offered because it did not comply with the restrictions which Dr. Gireesan had imposed.\nFry testified that the claimant was offered a position as a \u201cRetention Account Executive.\u201d She stated that the position consisted of selling discounted services. According to Fry, the job was to be performed at Ameritech\u2019s Chicago office and could be done by phone or e-mail. She testified that the position did not require any driving to see customers. Fry stated that the claimant did not accept the position and left the office.\nThe claimant returned to see Dr. Gireesan on December 6, 2000. The claimant reported that he was attending physical therapy but his condition had not improved and he was still experiencing pain. Dr. Gireesan\u2019s note of that visit states that the claimant told him that Ameritech had not made any accommodations to facilitate his return to work. The note also reflects that the doctor\u2019s diagnosis remained unchanged, that he continued to recommend a course of conservative treatment, and that he concluded that the claimant could not perform his previous job. Dr. Gireesan again authorized the claimant to engage in light-duty work with no lifting of more than 10 to 15 pounds and no frequent bending or twisting.\nThe claimant was examined on December 11, 2000, by Dr. Venu Akuthota at the Rehabilitation Institute of Chicago (RIC). In his report of that examination the doctor recorded an impression of a lumbar annular tear at L4-L5 and L5-S1. Dr. Akuthota recommended that the claimant participate in an active exercise program. He noted a belief that the claimant was \u201cprobably\u201d a good candidate for an epidural injection.\nThe claimant testified that he was involved in an automobile accident on December 24, 2000, which exacerbated his low-back pain for several weeks. He went to see Dr. Gireesan on January 2, 2001. The doctor testified that he recommended that the claimant not work due to the increased pain in his back which was caused by the auto accident, and he ordered a new MRI of the claimant\u2019s lumbar spine.\nThe claimant next saw Dr. Gireesan on January 10, 2001. Dr. Gireesan testified that he reviewed the MRI which was taken after the claimant\u2019s last visit. According to the doctor, the scan revealed no new changes in the claimant\u2019s spine. The doctor\u2019s notes of that visit state that the claimant\u2019s low-back pain had returned to its \u201cbaseline\u201d and that he could perform light-duty work. Dr. Gireesan testified that he imposed the same work restrictions that he had recommended prior to the claimant\u2019s auto accident.\nThe claimant testified that he contacted Fry and requested light-duty work which complied with his restrictions. As an alternative, the claimant requested a transfer to a different department which could accommodate his restrictions. He also requested that he be allowed to telecommunicate. Subsequently, the claimant was contacted by Kelly Mace, Ameritech\u2019s human resource manager, and told to report to work on January 29, 2001, to begin a three-week training course for the Retention Account Executive position.\nThe claimant saw Dr. Gireesan on February 7, 2001. The doctor testified that the claimant continued to complain of back pain. Dr. Gireesan also stated that the claimant reported taking pain medication, using a TENS unit, and attending physical therapy.\nOn February 15, 2001, the claimant attended Ameritech\u2019s annual sales meeting at the Rosemont convention center. According to the claimant, he was experiencing significant pain when he arrived at the meeting after having driven 45 minutes. During the meeting, the pain increased in intensity, requiring the claimant to leave the auditorium and lie down. The claimant testified that he saw Fry at the meeting and told her of the pain he was experiencing and attempted to discuss his job responsibilities and his medical restrictions. The claimant stated that Fry did not have time to discuss the matters at that time. Following the lunch break, the claimant returned to the meeting. According to his testimony, however, he was in so much pain that he could not concentrate and, as a consequence, he went home, took pain medication, went to bed, and did not wake up until the following day in the afternoon.\nThe claimant did not return to the sales meeting on February 16, 2001. When he awoke on February 16, 2001, the claimant received a voice-mail message from Fry expressing disappointment that he had not attended the sales meeting. The claimant testified that he sent an e-mail to Fry explaining that the pain in his back prevented his attendance.\nThe claimant worked at Ameritech\u2019s Chicago office on February 19, 2001. He took time off of work from February 20, 2001, through February 25, 2001. The claimant returned to work at Ameritech\u2019s Chicago office on February 26, 2001. He testified that he had a scheduled meeting with Fry on that date, but she failed to show up.\nOn February 28, 2001, the claimant went to see Dr. Gireesan. Following his doctor\u2019s appointment, the claimant returned to Ameritech\u2019s Chicago office and met with Fry. He testified that Mace also participated in the meeting via conference call. According to the claimant, Fry and Mace did not offer him any position that complied with the work restrictions imposed by Dr. Gireesan. He testified that Mace took the position that his physical condition was the result of his motor vehicle accident and was no longer a workers\u2019 compensation issue. The claimant stated that he did not return to work because he was not offered a position within his restrictions.\nAt Ameritech\u2019s request, the claimant was again examined by Dr. Pahwa on March 7, 2001. In his report of that examination, Dr. Pahwa wrote that the claimant complained of constant low-back pain and some weakness in his right leg. According to Dr. Pahwa, the claimant\u2019s low-back pain persists and he has limited back motion. However, his neurovascular examination of the claimant was essentially normal and did not show evidence of any disc herniation or radiculitis. Dr. Pahwa opined that the claimant\u2019s motor vehicle accident temporarily aggravated his back condition, but concluded that his main problem goes back to the incident on August 7, 2000. Dr. Pahwa recommended that the claimant continue physical therapy, and he was of the opinion that the claimant could do light-duty work subject to the following restrictions: no lifting over 15 pounds, no repeated bending, and his driving should be limited to driving to and from work.\nThe claimant continued under the conservative care of Dr. Gireesan. The doctor\u2019s notes from a May 1, 2001, visit reflect that, in addition to the restrictions which he had previously imposed, Dr. Gireesan restricted the claimant from driving more than 15 minutes at a time. In his notes of the claimant\u2019s visit on July 2, 2001, Dr. Gireesan wrote that the claimant continued to complain of severe lower back pain. Dr. Gireesan found that the claimant was unable to work and recommended that he attend the pain management program at RIG.\nThe claimant was again examined by Dr. Akuthota at RIC on July 10, 2001. In his report of that visit, Dr. Akuthota recorded an impression that the claimant suffered from chronic low-back pain syndrome and degenerative disc disease at L4-L5 and L5-S1. He recommended that the claimant undergo a multidisciplinary program for chronic pain, use a TENS unit, and take pain medication. The claimant testified that it was Dr. Akuthota\u2019s suggestion that he attend the chronic pain program at RIC, but Ameritech would not approve of the treatment. Dr. Akuthota also recommended that the claimant receive injection therapy.\nThe claimant was again examined by Dr. Pahwa, Ameritech\u2019s medical expert, on August 1, 2001. In his report of that examination, the doctor noted that the claimant complained of constant low-back pain, radiating at times to his right buttock; soreness in his neck; and weakness in his right leg. However, Dr. Pahwa wrote that his physical examination of the claimant revealed no objective findings to account for his ongoing back pain. Dr. Pahwa was of the belief that the claimant had reached maximum medical improvement (MMI), that he had exhausted the value of conservative treatment, and that he was not a candidate for surgery. Dr. Pahwa opined that the claimant could return to work with a restriction against lifting more than 15 pounds.\nWhen the claimant saw Dr. Gireesan on September 5, 2001, he reported that his condition had not improved although he had been receiving spinal rehabilitation therapy at RIC. The claimant also reported that he had been seeing a psychiatrist and a psychologist to assist him in dealing with his pain. Dr. Gireesan recommended that the claimant receive lumbar epidural steroid injections. The doctor\u2019s notes of the visit state that the claimant was unable to work.\nOn referral from Dr. Gireesan, the claimant was seen by Dr. Hono-rio Benzon, an anesthesiologist, at Northwestern on October 5, 2001, who administered an epidural steroid injection. Thereafter, the claimant received a series of spinal injections from Dr. Benzon through June of 2002.\nThe claimant saw Dr. Gireesan on December 5, 2001, and reported that the epidural steroid injections which he received helped him somewhat, but that he experienced some muscle spasms. Dr. Gireesan recommended that the claimant attend the pain management program at RIC after Dr. Benzon completed his treatments. Dr. Gireesan again found that the claimant was unable to work.\nOn January 15, 2002, the claimant came under the care of Dr. Michael Haak, an orthopaedic surgeon, at Northwestern. In his report of that visit, Dr. Haak opined that the claimant suffered from \u201cprimarily strain type injuries\u201d and degenerative disc disease. He recommended that the claimant continue to take pain medication and referred the claimant for therapy and facet injections.\nThe claimant returned to see Dr. Haak on March 13, 2002. The doctor increased the dosage of the claimant\u2019s pain medication, gave him a prescription for a TENS unit, and advised him to continue physical therapy.\nAs of the claimant\u2019s visit on April 18, 2002, Dr. Haak was of the opinion that the claimant\u2019s \u201cmain problem\u201d was his underlying degenerative disc. After reviewing the alternative treatments, Dr. Haak and the claimant agreed to a conservative course of treatment with medication.\nOn May 8, 2002, the claimant again saw Dr. Gireesan. The doctor\u2019s notes of that visit reflect that the claimant still complained of back pain, and he was attending a pain management program at Northwestern. Dr. Gireesan also noted that the claimant continued to take pain medication and was seeing a psychiatrist. Dr. Gireesan found that the claimant was still unable to work.\nWhen the claimant saw Dr. Gireesan on October 7, 2002, he continued to complain of back pain. The claimant reported that he had rejected Dr. Haak\u2019s recommendation that he undergo a lumbar spinal fusion, electing instead to continue a course of conservative treatment. Dr. Gireesan prescribed pain medication and recommended a conditioning program. Dr. Gireesan\u2019s notes of the visit reflect that he informed the claimant that he had a labrum tear in his right shoulder and that he referred the claimant to Dr. Jason Ko for an ar-throscopy and possible surgery.\nIn his notes of the claimant\u2019s visit on January 20, 2003, Dr. Gireesan recorded that the claimant had undergone shoulder surgery. He wrote that the claimant continued to have back pain and that he recommended that the claimant have a spinal fusion. The claimant rejected a surgical option. Dr. Gireesan\u2019s notes state that he prescribed pain medication and ordered a new MRI of the claimant\u2019s lumbosacral spine.\nThe claimant next saw Dr. Gireesan on March 3, 2003. Dr. Gireesan reviewed the claimant\u2019s current MRI and concluded that the claimant required a two-level discectomy and interbody fusion at the L4 and L5 levels to relieve his pain. However, the claimant continued to reject a surgical option. Dr. Gireesan was still of the belief that the claimant was unable to work.\nDr. Gireesan continued a course of conservative treatment of the claimant\u2019s condition with prescriptions for pain medication.\nOn March 5, 2003, the claimant was examined at Northwestern by Dr. Joshua Rittenberg, an orthopaedic surgeon. In his report of that examination, Dr. Rittenberg recorded an impression that the claimant suffered from chronic low-back pain, degenerative disc disease, and \u201cpossibly\u201d some facet mediated pain. Understanding that the claimant had rejected surgical options, Dr. Rittenberg referred the claimant for evaluation to determine whether he should undergo additional epidural injections and recommended that he enroll in a multidisciplinary pain program such as the chronic pain care center at RIC.\nOn March 17, 2004, the claimant was examined and evaluated by Dr. David Schneider, an orthopaedic surgeon. In his report of that visit, Dr. Schneider wrote that the claimant has diffuse disc bulges at L4-L5 and L5-S1 with protrusions at both levels. He opined that the claimant would need a spinal fusion.\nIn March 2004, the claimant had another MRI which, according to Dr. Gireesan\u2019s note of July 14, 2004, revealed bulging discs at L4-L5 and L5-S1 with evidence of an annular tear. The doctor again recommended a spinal fusion.\nThe claimant participated in a pain management program at RIC. However, he reported to Dr. Gireesan that, due to extreme back pain, he was only able to attend the program for three weeks. Dr. Gireesan continued to find the claimant unable to work.\nThe claimant underwent CT discography at Northwestern on January 3, 2005. Dr. Gireesan reviewed the results of the procedure on January 19, 2005, and his diagnosis remained unchanged. He recommended that the claimant continue with cardiovascular conditioning.\nWhen the claimant saw Dr. Gireesan on July 26, 2005, he reported that he was still experiencing sharp back pain. Dr. Gireesan again prescribed pain medication and discussed various treatment options with the claimant.\nAt the arbitration hearing, the claimant testified that he continues to experience very sharp low-back pain that has not changed \u201cmuch\u201d since the date of his original injury. He stated that the pain is constant and that it gets worse when he is sitting or driving for more than 15 minutes or is jarred. Other activities which the claimant stated increased his pain include bending, twisting, trunk rotation, sneezing, coughing, and bowel movements. The claimant testified that he uses ice packs, heat, and massage therapy to relieve the pain. He also wears a TENS unit every day and a back brace packed with ice if he is going to be away from home for an extended period of time. According to the claimant, he also experiences weakness and numbness in his right leg and numbness in his foot.\nThe claimant admitted that, while convalescing, he obtained a master\u2019s in business administration (MBA) degree from Northwestern University. The claimant, however, testified to the numerous accommodations that were provided for him by the university. According to the claimant, he was given a podium to allow him to stand through class, he was permitted to leave throughout the lectures and lie down on a couch in the lounge, and ice packs were stored for him in the university\u2019s freezer. Additionally, Northwestern University provided him with faculty parking next to the building and paid his classmates to take notes if he was unable to attend class. The claimant was also allowed additional time to complete his tests or was allowed to take the tests at home.\nJudith Sher, a certified vocational rehabilitation counselor, testified that the claimant is permanently and totally disabled from the labor market \u201cas he is today medically.\u201d She testified that she based her opinion on the limitations that the claimant\u2019s medical condition place on his activities. Of particular note is the claimant\u2019s restriction to lifting no more than 10 to 15 pounds and the increase in his pain level when he climbs, stoops, kneels, crouches, or drives for longer than 15 minutes. Sher also found significant the fact that the claimant needed to change positions frequently and lie down at times. Sher testified that she conducted a detailed interview of the claimant on May 28, 2004, and reviewed his medical records, Dr. Gireesan\u2019s deposition, Dr. Pahwa\u2019s reports, and the Social Security Administration decision awarding the claimant disability benefits. Thereafter, she performed a transferable skills analysis and a labor market survey. After identifying the claimant\u2019s transferable skills, Sher concluded that the labor market survey did not reveal any jobs which the claimant could perform. According to Sher, the jobs for which the claimant had transferable skills required extensive sitting, changes of position, travel, and social activities. Sher opined that the claimant would not be a candidate for the jobs within his transferable skills \u201cmainly based on his physical restrictions.\u201d Sher testified that it would be unlikely that an employer would hire the claimant over an able-bodied candidate and, if he were hired, it was her opinion that he would \u201cnot have the ability to continue.\u201d Sher noted that her findings were consistent with the Social Security Administration\u2019s conclusions that the claimant\u2019s impairment significantly limits his ability to perform basic work activities, that he is unable to perform any past relevant work, that his skills do not transfer to other occupations within his residual functional capacity, and that there are no other jobs existing in significant numbers in the national economy that the claimant can perform. On cross-examination, Sher admitted that she was aware that the claimant had earned an MBA degree during his period of disability. She stated that she understood that it took the claimant longer than customary to obtain the degree and that the university made accommodations for his physical requirements. Sher also admitted that she had not explored jobs in fields other than those for which the claimant possessed transferable skills. However, she testified that she would have the same opinions of anyone with the claimant\u2019s restrictions, regardless of skill level. On this point the following questions were asked of Sher, and she gave the following answers:\n\u201cQ. Now, did you have occasion to explore jobs in fields other than those you identified in your direct testimony?\nA. No.\nQ. So you didn\u2019t explore non-skilled jobs?\nA. No.\nQ. Did you feel that he could perform any lesser skilled jobs?\nA. As far as any structural type jobs, construction jobs, labor type jobs, they certainly wouldn\u2019t be considered because the weight lifting is generally heavier.\nQ. How about jobs that don\u2019t involve weight lifting, I mean, certainly you place people with far lesser employment and educational background with similar restrictions, do you not?\nA. Do I place people with similar restrictions who\u2014\nQ. Who have like an [szc] high school education?\nA. Depending on the restrictions, right, depending on what the restrictions are. If I worked with anyone with these restrictions, I would have the same results, it wouldn\u2019t matter.\u201d\nAt the hearing, pay stubs were received in evidence reflecting that the claimant received $1,931.82 in salary for the pay period ending June 30, 2000, $2,167 representing his first month\u2019s nonrecoverable draw, and $2,833.33 in salary for the pay period ending July 31, 2000. A pay stub for the period ending July 31, 2000, reflecting an additional payment of $1,625 was also admitted into evidence. The stub labeled the payment as being for \u201ccommission.\u201d However, Mace testified that the claimant received the second month\u2019s nonrecoverable draw plus a commission for net new monthly revenue although he had made no sales during the period.\nFollowing the arbitration hearing, the arbitrator issued a decision in which he found that the claimant sustained injuries which arose out of and in the scope of his employment with Ameritech and that he gave timely notice of his accident. The arbitrator awarded the claimant temporary total disability (TTD) benefits under the Act for a period of 2151/i weeks, covering the periods from August 8, 2000, through December 28, 2001, and March 1, 2001, through October 22, 2004. The arbitrator also found that the injuries which claimant sustained rendered him permanently and totally disabled and, as a consequence, awarded him permanent total disability (PTD) benefits for life pursuant to section 8(f) of the Act (820 ILCS 305/8(f) (West 2004)), commencing on October 23, 2004. Finding that the claimant\u2019s average weekly wage (AWW) at the time of his injury was $1,190.81, the arbitrator fixed the claimant\u2019s TTD and PTD benefits at $793.87 per week. The arbitrator also ordered Ameritech to pay $30,281.54 for necessary medical expenses incurred by the claimant.\nAmeritech sought a review of the arbitrator\u2019s decision before the Commission. In a unanimous decision, the Commission affirmed and adopted the arbitrator\u2019s decision in all relevant respects.\nAmeritech sought judicial review of the Commission\u2019s decision in the circuit court of Cook County. The circuit court issued a written memorandum decision and judgment order on April 24, 2008, confirming the Commission\u2019s decision in all respects. Thereafter, Ameritech filed the instant appeal.\nAmeritech does not contend that the claimant\u2019s condition of ill-being did not arise out of and in the course of his employment. Rather, it argues that the Commission erred in awarding the claimant PTD benefits. Ameritech asserts that the award is both against the manifest weight of the evidence and erroneous as a matter of law. We reject both contentions.\nThe question of whether a claimant is permanently and totally disabled is one of fact to be resolved by the Commission, and its resolution of the issue will not be disturbed on appeal unless it is against the manifest weight of the evidence. Ceco Corp. v. Industrial Comm\u2019n, 95 Ill. 2d 278, 288-89, 447 N.E.2d 842 (1983). 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\u2019n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992). Whether a reviewing court might reach the same conclusion is not the test of whether the Commission\u2019s determination of a question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission\u2019s determination. Benson v. Industrial Comm\u2019n, 91 Ill. 2d 445, 450, 440 N.E.2d 90 (1982).\nIn Ceco Corp. v. Industrial Comm\u2019n, 95 Ill. 2d 278, 286-87, 447 N.E.2d 842 (1983), the supreme court held:\n\u201c[A]n employee is totally and permanently disabled when he \u2018is unable to make some contribution to the work force sufficient to justify the payment of wages.\u2019 [Citations.] The claimant need not, however, be reduced to total physical incapacity before a permanent total disability award may be granted. [Citations.] Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable market. [Citation.]\u201d\nIf, as in this case, a claimant\u2019s disability is not so limited in nature that he his not obviously unemployable, or if there is no medical evidence to support a claim of total disability, to be entitled to PTD benefits under the Act, the claimant has the burden of establishing the unavailability of employment to a person in his circumstances; that is to say that he falls into the \u201codd-lot\u201d category. Valley Mould & Iron Co. v. Industrial Comm\u2019n, 84 Ill. 2d 538, 546-47, 419 N.E.2d 1159 (1981); A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Co. v. Industrial Comm\u2019n, 77 Ill. 2d 482, 490, 397 N.E.2d 804(1979). The claimant can satisfy his burden of proving that he falls into the \u201codd-lot\u201d category by showing diligent but unsuccessful attempts to find work or by showing that he will not be regularly employed in a well-known branch of the labor market. Westin Hotel v. Industrial Comm\u2019n, 372 Ill. App. 3d 527, 544, 865 N.E.2d 342 (2007).\nThe claimant admits that he did not perform a job search. Amer-itech asserts, and the claimant admits, that the Commission awarded PTD benefits based upon the premise that the claimant falls into the \u201codd-lot\u201d category.\nIn determining whether a claimant falls within an \u201codd-lot\u201d category for purposes of an award of PTD benefits, the Commission should consider the extent of the claimant\u2019s injury, the nature of his employment, his age, experience, training, and capabilities. A.M.T.C. of Illinois, Inc., 77 Ill. 2d at 489.\nAccording to Dr. Gireesan, the claimant could no longer perform his previous job. The doctor concluded that the low-back pain that the claimant experiences as a consequence of his work-related accident results in him being restricted from lifting more than 10 to 15 pounds, from frequent bending or twisting, and from driving for more than 15 minutes at a time. Dr. Pahwa, Ameritech\u2019s medical expert, also opined that the claimant should be restricted to lifting no more than 15 pounds. The claimant testified to the constant pain from which he suffers and that the pain increases when he sits or drives for more than 15 minutes, bends, twists, coughs, or has a bowel movement.\nSher, the claimant\u2019s vocational rehabilitation expert, opined that he was permanently and totally disabled. Her opinion in this regard was based largely upon the restrictions placed upon the claimant\u2019s work activities by Dr. Gireesan, the constant pain that the claimant experiences, and the increase in his pain level when he performs activities such as climbing, stooping, kneeling, crouching, and driving longer than 15 minutes. She also found significant the claimant\u2019s need to change positions frequently and his need to lie down to relieve pain. She rendered her opinion knowing that the claimant was approximately 30 years old at the time that she interviewed him and that he had earned an MBA degree from Northwestern University while off of work following his accident. According to Sher, she performed a transferable skills analysis which revealed that the claimant is a skilled worker with an above average level of abilities and capable of learning. Specifically, Sher found that the claimant has transferable skills in the areas of accounting, finance, marketing, and customer service. Sher testified that she also performed a labor market survey looking for jobs which would make use of the claimant\u2019s transferable skills. She concluded, however, that, due to his physical limitations and restrictions, the claimant would not be a candidate for any of the jobs which she identified. Sher opined that it is unlikely that an employer would hire the claimant over an able-bodied candidate and, if he was hired, the claimant would not be able to continue working. On cross-examination, Sher admitted that she did not explore the availability of any nonskilled jobs for the claimant. However, she testified that her opinion as to the availability of meaningful employment would be the same for anyone with the claimant\u2019s restrictions, regardless of their skill level.\nAmeritech argues that the Commission\u2019s award of PTD benefits is against the manifest weight of the evidence because the claimant failed to meet his burden of establishing that he falls into the \u201codd-lot\u201d category. It asserts that Sher\u2019s testimony, although sufficient to establish that the claimant is unemployable in the fields of finance, marketing, and customer service, is insufficient to establish that he cannot obtain work in other skilled or nonskilled positions. We believe, however, that Sher\u2019s testimony on cross-examination to the effect that her opinions would be the same for anyone with the same restrictions as the claimant, regardless of skill level, belies Ameritech\u2019s assertion in this regard. Taken as a whole, the medical evidence coupled with Sher\u2019s opinion is sufficient to satisfy the claimant\u2019s burden of establishing that he falls into an \u201codd-lot\u201d category for purposes of determining his entitlement to PTD benefits. We arrive at this conclusion notwithstanding the fact Patricia Cole, Ph.D., a psychologist at RIC, opined that the claimant\u2019s vocational experience and education made his return to work realistic. Cole never performed a labor market study or commented upon the effect of the claimant\u2019s physical limitations and restrictions upon his ability to obtain and hold work in a well-known branch of the labor market. Rather, Cole\u2019s opinion was rendered as part of a psychological evaluation to ascertain the impact of the claimant\u2019s chronic pain upon his life.\nOnce the claimant initially established that he falls into the \u201codd-lot\u201d category, the burden shifted to Ameritech to show that some kind of suitable work is regularly and continuously available to the claimant. Valley Mould & Iron Co., 84 Ill. 2d at 547. This Ameritech failed to do. Ameritech did not introduce the testimony of any vocational rehabilitation expert to contradict Sher. As for Ameritech having offered the claimant employment within his restrictions, the claimant testified that no such offer was ever made. Although Fry testified that the Retention Account Executive position offered to the claimant complied with his doctor\u2019s restrictions, the Commission concluded that it did not. The Commission rested its conclusion in this regard upon a finding that the claimant\u2019s testimony was credible and Fry\u2019s was not. It was the Commission\u2019s function to judge the credibility of the witnesses and resolve their conflicting testimony. O\u2019Dette v. Industrial Comm\u2019n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980).\nBased upon the foregoing analysis, we find that the Commission\u2019s award of PTD benefits is not against the manifest weight of the evidence.\nAmeritech also argues that the award of PTD benefits is contrary to law; contending that the Commission applied an incorrect standard of proof. Ameritech asserts that the Commission held that evidence of an employer\u2019s failure to provide a claimant with vocational rehabilitation services or to offer employment within a claimant\u2019s postinjury restrictions is sufficient to satisfy the claimant\u2019s burden of proof to establish his right to PTD benefits under an \u201codd lot\u201d theory. However, our reading of the arbitrator\u2019s decision which the Commission adopted fails to support Ameritech\u2019s assertion in this regard.\nAmeritech points to a statement in the arbitrator\u2019s decision stating that the \u201ctipping point\u201d in his finding in favor of the claimant \u201cas more probably true than not being entitled to this Award\u201d is Amer-itech\u2019s failure to offer the claimant employment within his doctor\u2019s restrictions or, in the alternative, to provide the claimant with vocational rehabilitation services. The comment immediately follows the arbitrator\u2019s assertion that he had \u201ccarefully reviewed all of the evidence,\u201d and the comment precedes a 12-page recitation of facts supporting the ultimate conclusion that the claimant \u201chas been rendered wholly and permanently incapable of work as a result of his August 7, 2000 accident.\u201d\nThe claimant argues that the \u201ctipping point\u201d statement relied upon by Ameritech is nothing more than a statement of facts which persuaded the arbitrator to find that the evidence established that it was more probably true than not that the claimant was permanently and totally disabled. He contends that the arbitrator never found that either Ameritech\u2019s failure to provide him with vocational rehabilitation services or its failure to offer him employment within his doctor\u2019s restrictions standing alone justified an award of PTD benefits. We agree with the claimant.\nAmeritech also argues that the Commission\u2019s reliance upon its failure to comply with Rule 7110.10 of the Rules Governing Practice Before the Illinois Workers\u2019 Compensation Commission (50 Ill. Adm. Code \u00a77110.10 (2004)) in support of its decision is contrary to law. Ameritech points to three statements in the arbitrator\u2019s decision which the Commission adopted that refer to its failure to comply with the provisions of Rule 7110.10. The first is the \u201ctipping point\u201d comment referenced above. The second states that it is \u201cunfortunate\u201d Ameritech chose not to comply with Rule 7110.10 and develop and implement a program to facilitate the claimant\u2019s gradual reentry into the work force. The third comment referenced by Ameritech is the statement that \u201c[i]t appears that *** [Ameritech] was more interested in monitoring *** [the claimant] for production purposes than in facilitating his return to work.\u201d According to Ameritech, as it had no obligation to vocationally rehabilitate the claimant, it was under no obligation to comply with Rule 7110.10.\nRule 7110.10 of the Rules Governing Practice Before the Illinois Workers\u2019 Compensation Commission requires an employer, in consultation with an injured employee and his representative, to prepare a \u201cwritten assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment when it can be reasonably determined that the injured worker will, as a result of the injuries, be unable to resume the regular duties in which engaged at the time of injury.\u201d 50 Ill. Adm. Code \u00a77110.10(a) (2004). The rule goes on to provide that every four months after the preparation of a written assessment concluding that no plan or program of vocational rehabilitation was then necessary, the employer, in consultation with an injured employee and his representative, shall prepare a written review of the appropriateness of that conclusion if the injured employee was and has remained totally incapacitated for work. 50 Ill. Adm. Code \u00a77110.10(c)(l) (2004). From a reading of the rule, it is clear that such written assessments are required even in circumstances where no plan or program of vocational rehabilitation is necessary.\nAmeritech\u2019s entire argument on this issue appears to be premised upon the assertion that, under the test outlined by the supreme court in National Tea Co. v. Industrial Comm\u2019n, 97 Ill. 2d 424, 432-33, 454 N.E.2d 672 (1983), the claimant never qualified for vocational rehabilitation. However, as noted earlier, Rule 7110.10 requires the preparation of a written assessment even in circumstances where no plan or program of vocational rehabilitation is necessary or appropriate. Consequently, the premise underlying Ameritech\u2019s objection to the arbitrator\u2019s comments concerning its failure to comply with Rule 7110.10 is faulty. More important to our disposition, however, is the fact that the three comments which Ameritech finds objectionable seem to have been made in passing. The arbitrator\u2019s decision which the Commission adopted contains a lengthy recitation of a substantial body of evidence supporting the ultimate conclusion that the claimant is permanently and totally disabled. We will affirm a decision of the Commission if there is any basis in the record to do so, regardless of whether the Commission\u2019s reasoning is correct or sound. Freeman United Coal Mining Co. v. Industrial Comm\u2019n, 283 Ill. App. 3d 785, 793, 670 N.E.2d 1122 (1996).\nNext, Ameritech argues that the Commission\u2019s award of TTD benefits for the period following November 6, 2000, is against the manifest weight of the evidence. Ameritech contends that the claimant was offered a position as a Retention Account Executive on November 6, 2000, that complied with his doctor\u2019s restrictions. The claimant testified, however, that the position required him to carry 50 pounds of demonstration equipment and to travel to his territory to see customers. As noted earlier, the Commission made a credibility finding in support of its conclusion that the position offered to the claimant did not comply with his restrictions. Credibility is a question reserved for the Commission\u2019s determination (O\u2019Dette, 79 Ill. 2d at 253), and we cannot say based upon the record before us that its resolution of the issue is against the manifest weight of the evidence. We conclude, therefore, based upon the Commission\u2019s finding that the claimant was not offered a position that complied with his doctor\u2019s restrictions, that the award of TTD benefits for the period following November 6, 2000, is not against the manifest weight of the evidence.\nFinally, Ameritech argues that the Commission\u2019s calculation of the claimant\u2019s AWW is contrary to law. It contends that the Commission improperly included the nonrecoverable draws which the claimant received as earnings for purposes of calculating his AWW However, Ameritech cites no authority for its contention in this regard. Supreme Court Rule 341(h)(7) requires a party to provide citations to relevant authority supporting arguments advanced on appeal. 210 Ill. 2d R. 341(h)(7). Because Ameritech failed to support this argument with citations to authority, the argument has been forfeited for purposes of this appeal. Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 64, 865 N.E.2d 221 (2007); Ruback v. Doss, 347 Ill. App. 3d 808, 816, 807 N.E.2d 1019 (2004).\nAlso contained within Ameritech\u2019s argument on AWW is the assertion that, even if the nonrefundable draw which the claimant received is included as earnings for purposes of calculating AWW, the Commission made a mathematical error in fixing the claimant\u2019s AWW at $1,190.81. According to Ameritech, the salary which the claimant received prior to his accident plus the two nonrefundable draws which he received divided by the l1h weeks which the claimant worked prior to his injury is $1,108.79. Absent from Ameritech\u2019s calculation, however, is the additional $542 that the claimant received for the period ending July 31, 2000, and which Mace testified was a commission for net new monthly revenue. Ameritech has failed to address the propriety of the inclusion of this additional sum as earnings for purposes of calculating the claimant\u2019s AWW Consequently, we are unable to address Ameritech\u2019s contention that the Commission made a mathematical error in computing the claimant\u2019s AWW even when his nonrefundable draws are included as earnings\nFor his part, the claimant, taking into account the entire $1,625 which he received for the period ending July 31, 2000, contends that his AWW should properly have been calculated at $1,197.98. However, he never filed a cross-appeal raising the issue.\nWe conclude, therefore, that the issues raised concerning the Commission\u2019s calculation of the claimant\u2019s AWW have been waived for purposes of this appeal.\nBased upon the foregoing analysis, we affirm the judgment of the circuit court which confirmed the Commission\u2019s decision.\nAffirmed.\nMcCullough, ej., and Hudson, holdridge, and dono-VAN, JJ., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Hennessy & Roach, of Chicago (James E Roach, of counsel), for appellant.", "Lewis, Davidson & Hetherington, of Chicago (Alan Karpel, of counsel), for appellee." ], "corrections": "", "head_matter": "AMERITECH SERVICES, INC., Appellant, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al. (Brian Dolk, Appellee).\nFirst District (Illinois Workers\u2019 Compensation Commission Division)\nNo. 1\u201408\u20141412WC\nOpinion filed March 17, 2009.\nHennessy & Roach, of Chicago (James E Roach, of counsel), for appellant.\nLewis, Davidson & Hetherington, of Chicago (Alan Karpel, of counsel), for appellee." }, "file_name": "0191-01", "first_page_order": 207, "last_page_order": 225 }