Beuse v. Industrial Comm'n

September 22, 1998
Industrial Commission

NO. 1-97-3702WC
IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
Industrial Commission Division

ROBERT F. BEUSE, SR., ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Cook County
INDUSTRIAL COMMISSION OF ILLINOIS ) No. 97L50119
(Village of Franklin Park, Appellee). )
) Honorable
) Lester A. Bonaguro,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant Robert F. Beuse, Sr., appeals from an order of
the circuit court of Cook County confirming the decision of the
Illinois Industrial Commission (Commission). Respondent employer
is the Village of Franklin Park, for which claimant worked as a
fireman. The arbitrator awarded claimant $371.36 per week for 94
weeks for 40% loss of use of the right arm, and $453.95 per week
for 79 6/7 weeks for temporary total disability (TTD). 820 ILCS
305/8(b), (e) (West 1996). Finding the claimant was released for
light-duty work and failed to look for work, the Commission vacated
the award for TTD from April 27, 1994, through April 25, 1995 (51
6/7 weeks), but affirmed in all other respects. The issue on
appeal is whether the Commission decision vacating a portion of the
TTD awarded by the arbitrator was against the manifest weight of
the evidence because claimant did not seek employment when he was
on light-duty disability, no light duty job existed with respon-

dent, an independent medical expert had released him to full duty,
and respondent would not allow him to return to full duty until he
was released from duty disability status. We affirm. Only those
facts necessary to an understanding of this court's disposition
will be discussed.
We first note that the record shows the parties stipulat-

ed that claimant was given his regular wage benefits from October
14, 1992, the day after the injury, to October 13, 1993. It was
also stipulated that claimant was paid TTD from the date of October
14, 1993, through April 27, 1994. The union contract between the
firemen and the respondent did not allow firemen to work light
duty.
"The time during which a worker is tempo-

rarily totally disabled is a question of fact.
The Commission's decision will not be dis-

turbed unless it is against the manifest
weight of the evidence. Archer Daniels Mid-

land Co. v. Industrial Comm'n, 138 Ill. 2d 107, 118-19, 561 N.E.2d 623, 627-28 (1990).
***.
The duration of TTD is controlled by the
claimant's ability to work and his continua-

tion in the healing process. To show entitle-

ment to TTD benefits, claimant must prove not
only that he did not work, but that he was
unable to work. Gallentine v. Industrial
Comm'n, 201 Ill. App. 3d 880, 887, 559 N.E.2d 526, 531 (1990)." City of Granite City v.
Industrial Comm'n, 279 Ill. App. 3d 1087,
1090, 666 N.E.2d 827, 828-29 (1996).
In Manis v. Industrial Comm'n, 230 Ill. App. 3d 657, 660, 595 N.E.2d 158, 160 (1992), we found that the claimant and respondent
"focus[ed] on the issue of whether claimant was able to work in
another capacity during the time of her treatment after her
injury," and that "neither party focuse[d] on *** what we [felt] to
be dispositive of the issue, *** the fact that claimant's condition
*** had stabilized."
"In Archer Daniels Midland, our supreme
court restated the settled law that 'an em-

ployee is temporarily totally incapacitated
from the time an injury incapacitates him for
work until such time as he is as far recovered
or restored as the permanent character of his
injury will permit.' (138 Ill. 2d at 118.)
The court further observed that '[o]nce an
injured employee's physical condition stabi-

lizes, he is no longer eligible for [temporary
total disability] benefits, although he may be
entitled to [permanent disability compensation
under the Act].' (138 Ill. 2d at 118.) In
fact, the Illinois Workers' Compensation Act
provides for awards of temporary total dis-

ability in cases where 'the disabling condi-

tion is temporary and has not reached a perma-

nent condition.' Ill. Rev. Stat. 1987, ch.
48, par. 138.19(b)." Manis, 230 Ill. App. 3d
at 660, 595 N.E.2d at 160-61.
In this case, the significance of April 27, 1994, is that
is when Dr. James Ryan said claimant could return to full duty
without restrictions. Claimant's treating physician, Dr. Jeffrey
Meisles, said he could return to light duty on November 11, 1993.
Respondent does not raise an issue that TTD should have been
stopped on November 11, 1993, but utilizes the date of April 27,
1994. It is undisputed that no light-duty work with respondent was
available to claimant. Respondent relies on the fact that claimant
did not look for a light-duty job someplace else. Claimant
responds that he was effectively prevented from doing so by
respondent attempting to have his disability pension revoked and
return him to full-duty employment. Respondent also relies on the
fact that claimant testified that no one from respondent ever told
him he could not continue to receive his pension and perform light-
duty work on another job.
The release to light duty must be put in perspective as
but one factor to be considered in determining whether a claimant
has reached maximum medical improvement. Equally important is the
medical testimony concerning the claimant's injury, the extent
thereof, the prognosis, and most importantly, whether the injury
has stabilized.
National Lock Co. v. Industrial Comm'n, 166 Ill. App. 3d
160, 519 N.E.2d 1172 (1988); Ford Motor Co. v. Industrial Comm'n,
126 Ill. App. 3d 739, 467 N.E.2d 1018 (1984); and Zenith Co. v.
Industrial Comm'n, 91 Ill. 2d 278, 437 N.E.2d 628 (1982) involved
Commission decisions with respect to "release to light duty" in TTD
awards. It is important to note that in all of these cases, the
Commission decision was affirmed.
As we stated in Sorenson v. Industrial Comm'n, 281 Ill.
App. 3d 373, 666 N.E.2d 713 (1996), "whether an employee is
temporarily totally disabled is a question of fact and we will not
disturb that decision unless it is against the manifest weight of
the evidence," unless a contrary result is clearly apparent.
Sorenson, 281 Ill. App. 3d at 385, 666 N.E.2d at 721.
Here, Meisles said claimant could do light-duty work, and
stated his expectation "that he will reach his level of maximum
medical improvement within about six to nine months." In December
1993, Ryan said the condition was temporary and sent him to get a
Cybex test and prescribed physical therapy. In April 1994, Ryan
stated that claimant could return to full duty as a fireman.
A reviewing court will not substitute its judgment for
that of the Commission merely because different reasonable
inferences might have been drawn from the evidence. Boatman v.
Industrial Comm'n, 256 Ill. App. 3d 1070, 1072, 628 N.E.2d 829, 831
(1993). The finding of the Commission with regard to the duration
of claimant's TTD is not against the manifest weight of the
evidence.
The judgment of the circuit court of Cook County,
confirming the decision of the Commission, is affirmed.
Affirmed.
McCULLOUGH, P.J., with RAKOWSKI, HUTCHINSON, HOLDRIDGE,
and RARICK, JJ., concurring.