NELSON CENTENO, Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION COMMISSION et al. (Minute Men of Illinois, Appellee).
No. 2-18-0815WC
Appellate Court of Illinois, Second District, Workers’ Compensation Commission Division
March 30, 2020
2020 IL App (2d) 180815WC
JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Cavanagh, and Barberis concurred in the judgment and opinion.
Appeal from the Circuit Court of Kane County, No. 18-MR-15; the Hon. Kevin T. Busch, Judge, presiding. Michael Lulay, of Lulay Law Offices, of Naperville, for appellant. Victor P. Shane, of Scopelitis, Garvin, Light, Hanson & Feary, of Chicago, for appellee.
¶ 1 Claimant, Nelson Centeno, filed an application for adjustment of claim pursuant to the
¶ 2 While Centeno I was pending in this court, claimant filed a “Petition for an Immediate Hearing” pursuant to
I. BACKGROUND
¶ 4 The evidence adduced at claimant’s initial arbitration hearing is set forth fully in this court’s decision in Centeno I, 2016 IL App (2d) 150575WC-U. We repeat that evidence here only to the extent necessary to provide an understanding of the events leading to this appeal and to place into context the issues raised by claimant.
¶ 5 On November 15, 2010, claimant filed an application for adjustment of claim pursuant to the Act, seeking benefits for injuries he allegedly sustained to his left foot, left leg, and back on October 7, 2010, while working for respondent. Claimant subsequently filed a petition for
¶ 6 The matter proceeded to a hearing pursuant to
¶ 7 At respondent’s request, claimant underwent an independent medical examination by Dr. G. Claud Miller, an orthopedic surgeon. Dr. Miller diagnosed low-back pain, most likely secondary to degenerative disc disease. Dr. Miller opined that while claimant may have suffered a lumbar sprain as a result of the work accident, the sprain should have resolved within two or three weeks and there was insufficient evidence to substantiate a causal relationship between claimant’s current condition of ill-being of his back and the work accident. Based on Dr. Miller’s evaluation, respondent disputed whether claimant’s low-back injury was causally related to the work accident. Respondent subsequently notified claimant by letter that because he had been released from treatment for his left ankle injury and the back injury was disputed, it would cease paying TTD benefits after November 3, 2011. Respondent also submitted claimant’s chiropractic treatment to a clinical peer report and utilization review by Dr. Reese Polesky, an orthopedic surgeon. Dr. Polesky opined that only six sessions of chiropractic treatment were appropriate.
¶ 8 Based on the foregoing evidence, the arbitrator found that claimant sustained accidental injuries arising out of and in the course of his employment and that his conditions of ill-being (including his back) were causally related to the accident. The arbitrator awarded claimant TTD benefits of $319 per week for 1001/7 weeks, from October 8, 2010, through September 7, 2012. The arbitrator also awarded claimant $97,243.01 as reasonable and necessary medical expenses and found that claimant was entitled to prospective medical care prescribed by Dr. McNally, “including the discogram and the fusion surgery should Dr. McNally still deem it recommended after the discogram, and any treatment that is reasonable and necessary to recover from the surgery.” The arbitrator denied claimant’s request for attorney fees and penalties, concluding that a legitimate dispute existed with respect to the severity of claimant’s low-back condition of ill-being and any treatment associated therewith.
¶ 9 Both parties sought review of the arbitrator’s decision before the Commission. The Commission modified the arbitrator’s decision by reducing claimant’s award of medical expenses to $66,781.33, based upon its finding that only his six initial visits to the chiropractor for low-back treatment were reasonable and necessary. The Commission otherwise affirmed and adopted the arbitrator’s decision and remanded the matter for further proceedings pursuant
¶ 10 While Centeno I was pending in this court, claimant filed a “Petition for an Immediate Hearing” pursuant to
¶ 11 At the hearing, claimant testified that he suffers back pain “all of the time” and rated the discomfort at 8 on a 10-point scale. Claimant denied sustaining any new accidents or injuries to his body since the incident in October 2010 and testified that he has not worked since the first arbitration hearing. Claimant testified that his last treatment with Dr. McNally prior to the first
¶ 12 On cross-examination, claimant denied applying for work with any employer in the last five years. Claimant explained that he has been incapable of work since his accident date of October 7, 2010, due to the injuries to his back, ankle, and leg. Claimant noted that while Dr. Freedberg released him to return to light duty with regard to his ankle injury, he remained off work due to his back problems.
¶ 13 On further cross-examination, claimant was asked if he ever applied for a position with Countywide Landscaping (Countywide). Claimant responded that he worked for Countywide before he sustained the work injury at issue. However, he denied working for Countywide after October 2010. Respondent showed claimant a job application for Countywide dated May 13, 2013. Claimant admitted that the social security number on the application was his, but he could not recall if he lived at the address listed on the application. In addition, he denied that the signature on the application was his. Respondent also showed claimant a W-2 wage statement for 2013 from Countywide with the name “Nelson Centeno” and claimant’s social security number. Claimant denied seeing or receiving the W-2. Claimant also denied using any name other than “Nelson Centeno.” He testified that “Nelson Centeno” has been his “real name” since he has been in Illinois. He denied identifying as an individual named “Roberto Morales” or knowing an individual with that name. Claimant stated that he did not remember
¶ 14 Claimant testified that his current address is “425 Harrison” and that he was living at that address on September 3, 2014. Respondent showed claimant an application for adjustment of claim filed on September 3, 2014, for an accident on August 7, 2014, under the name “Roberto Morales.” Claimant denied filing the application for adjustment of claim. Claimant acknowledged that the address on the application was his but stated that the building is a duplex and he did not know if someone named “Roberto Morales” lived in the building’s other unit.
¶ 15 Claimant denied living at other addresses mentioned by respondent, including an address on South Kings Court in West Chicago, Illinois, or on Pricilla Street in Bridgeport, Connecticut. Respondent showed claimant an IRS notice from 2007 sent to an address in Connecticut. Claimant acknowledged that the notice listed his name and Social Security number. However, he denied ever being in Connecticut. Claimant did admit to securing a Michigan driver’s license with a picture of himself under the name of “Nelson Centeno,” which was issued on November 9, 2012, and had an expiration date of November 10, 2016. After being shown a United States Resident Card issued on November 24, 2011, with the name of “Roberto Morales,” claimant denied the photo on the document was him.
¶ 16 Following claimant’s testimony, his attorney, Michael Lulay, stated he had no additional witnesses but reserved the right to recall claimant in rebuttal. Respondent’s attorney informed the arbitrator that he had two witnesses to call, including Detective John Zurick of the West Chicago Police Department. Before respondent’s attorney could call Zurick, Lulay made the following statement:
“[T]here’s been a breakdown in my relationship with my client in that there’s a [failure] to continue to represent this gentlemen, he may be going to discharge me and, therefore, I would like an opportunity to resolve that difference and come back before we put on anything.”
Respondent’s attorney objected, noting that the parties were “halfway” through the case and he wanted to present witnesses to challenge claimant’s credibility. The arbitrator asked Lulay if he was asking to withdraw. Lulay responded:
“I am not. It’s not my intention myself to withdraw although that might become a necessity. At this juncture, it’s been expressed to me that there is—well, I can’t actually say what’s been expressed to me about the reasons that he might not want me to continue. But it is in fact a case that ethically I am precluded and this is not the kind of ethical dilemma that I’m allowed to waive and while I certainly understand sometime these ethical dilemmas can cause a lack of courtesies and convenience, it’s not something that can be helped in this situation.
And I am only asking for another date to finish this if at all while I’m in the case if I remain in the case. Obviously if I don’t, then whatever other counselor comes in and takes the position, you’ll rule on at that time.
But at this juncture I’m not ethically in a position to continue to represent someone who has expressed to me what they have.”
After further discussion, the arbitrator granted Lulay’s motion and continued the matter.
¶ 17 The hearing resumed on January 25, 2016. Although claimant did not attend the hearing, Lulay did appear and informed the arbitrator that he had agreed to continue representing
¶ 18 Thereafter, respondent called two witnesses, Zurick and Rhonda Sitterly. Zurick, a detective with the West Chicago Police Department, testified that he was assigned to investigate a report of identity theft involving the name “Nelson Centeno.” To this end, in February 2014, Zurick learned that an individual with that name was employed at Countywide. Zurick personally spoke with the individual at a Countywide job site. Zurick testified that the individual admitted to purchasing the name “Nelson Centeno” and a Social Security card with a fraudulent number. During an interview at the police station, the individual admitted that his name was “Roberto Morales.” Zurick was present at the December 21, 2015, hearing and testified that the individual who appeared as claimant at that hearing was known to him as both “Roberto Morales” and “Nelson Centeno.”
¶ 19 Sitterly testified that she has been the office manager for Countywide since 2011. In her capacity as office manager, Sitterly is responsible for the company’s personnel records. Sitterly testified that, at any given time, Countywide employees 30 individuals. Sitterly testified that an individual by the name of “Nelson Centeno” worked for Countywide. Sitterly testified that in the normal course of business, Countywide keeps a wage ledger detailing payments made to each employee. Sitterly identified respondent’s exhibit No. 9 as the wage ledger for “Nelson Centeno.” Sitterly testified that the wage ledger reflects pay dates to “Nelson Centeno” in 2006, 2007, 2008, 2013, and 2014.
¶ 20 Sitterly testified that in February 2014, Centeno asked her to change the name on his payroll checks to “Roberto Morales.” Sitterly responded that she could not “do that legally unless [she] had something telling [her] that’s who he was.” About two weeks later, Centeno returned and handed Sitterly two documents, a “resident card” and a Social Security card, both with the name “Roberto Morales.” Sitterly identified respondent’s exhibit No. 6 as the documents Centeno brought to her. Sitterly testified that the wage ledger reflects pay dates to “Roberto Morales” for 2006, 2007, 2008, 2009, 2010, and 2014. Sitterly acknowledged that because she did not start working for Countywide until 2011, she is not sure what happened between the years 2010 and 2014 or whether the “Roberto Morales” who worked for Countywide in 2014 was the same “Roberto Morales” who worked for the business prior to 2014.
¶ 21 Sitterly also testified about a letter she wrote on May 27, 2015, informing the child support enforcement services division in Connecticut of a change in identity from “Nelson Centeno” to “Roberto Morales.” She further indicated in the letter, as well as her testimony, that after Centeno’s name change to Morales, he filed an application for adjustment of claim with the Commission against Countywide. The application for adjustment of claim alleged that Morales sustained injuries to his back and legs from a lifting accident on August 7, 2014. Following Sitterly’s testimony, the parties rested.
¶ 22 On March 23, 2016, the arbitrator issued a decision denying claimant all relief requested. The arbitrator first addressed whether claimant had established a causal connection between his employment with respondent and his condition of ill-being subsequent to the first
¶ 23 Claimant sought review of the arbitrator’s decision before the Commission. On December 15, 2017, the Commission issued a decision and opinion on review, affirming and adopting the decision of the arbitrator and remanding the matter for further proceedings pursuant to Thomas, 78 Ill. 2d 327. The Commission began its analysis with the following statement:
“After reviewing the record, the Commission is compelled to comment on the disingenuous actions of the Petitioner Nelson Centeno a/k/a Roberto Morales. Centeno filed a second claim under the name Roberto Morales (14 WC 29803). During the arbitration hearing on that claim, Petitioner Morales admitted that he used the stolen identity of Nelson Centeno. Because of this admission, these two cases are so inextricably intertwined that the transcript in Morales and the transcript in Centeno must be considered together. The Commission, therefore, amends the Application for Adjustment of Claim filed in the Nelson Centeno case and the Application for Adjustment of Claim filed in the Roberto Morales case, sua sponte, to reflect the name Nelson Centeno a/k/a Roberto Morales. The Commission further attaches to its Decision the Arbitrator’s Decision and considers the transcript from the Roberto Morales case (14 WC 29803) as Commission’s Exhibit 1, so that a reviewing court has a full understanding of the dishonest nature of the Petitioner, Nelson Centeno a/k/a Roberto Morales.”
The Commission noted that during oral arguments before it in the case, an attorney with Lulay’s office sought enforcement of the first arbitrator’s decision, along with TTD benefits and penalties for nonpayment of medical expenses. The Commission, relying on Millennium Knickerbocker Hotel v. Illinois Workers’ Compensation Comm’n, 2017 IL App (1st) 161027WC, noted that the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to
¶ 24 In addition, the Commission declined to disturb the arbitrator’s decision not to award claimant additional TTD benefits or penalties, observing that during the period claimant
“Not since the Petitioner in Walker v. Illinois Medi-Car, Inc., *** 15 IWCC 629 Aff’d 2017 IL App (2d) 160368WC-U, has the Commission seen a more prolific liar. Nelson Centeno aka Roberto Morales under any nom de plume cannot be believed and has no credibility. His conduct in these matters cannot be countenanced.”
¶ 25 On judicial review, the circuit court of Kane County confirmed the decision of the Commission. This appeal by claimant ensued.
II. ANALYSIS
¶ 27 On appeal, claimant raises the following issues. First, he claims that the Commission’s decision is “null and void” because once he moved to withdraw his
A. Motion to Withdraw
¶ 29 Claimant first argues that the Commission decision is “null and void” because once he “withdrew” his
¶ 30 Referring to
“[T]he Commission had no power to force [him] to seek relief under
Section 19(b) nor to force him to pursue such a petition after he wishes to abandon it, because [section 7020.80] prescribes a procedure that only [claimant] can perform and one that requires
he use a special form, served in a special manner and that contains certain information. 50 Ill. Admin. Code [sic]. Once [claimant] withdrew that which is required by Rule 7020.80, no relief under
section 19(b) is allowed by the Commissions [sic] own rule.”
Initially, we note that section 7020.80 no longer exists. It was recodified as section 9020.80 effective June 29, 2015. 39 Ill. Reg. 9603 (eff. June 29, 2015). Like its predecessor, however, section 9020.80 governs petitions for immediate hearings.
¶ 31 Claimant also directs us to two cases in support of his position: Thomas, 78 Ill. 2d 327, and Millennium Knickerbocker Hotel, 2017 IL App (1st) 161027WC. In Thomas, the supreme court held that the arbitrator (whose decision was subsequently affirmed by the Commission) erred in entering a finding on permanent disability where the relief requested in the employee’s petition for immediate hearing was limited to the issue of temporary total compensation. Thomas, 78 Ill. 2d at 333-34. The court concluded that because the issue of permanent disability was not presented to the arbitrator, “the finding on this issue is *** null and void.” Id. at 334. In Millennium Knickerbocker Hotel, this court held that the Commission erred in granting the employee attorney fees under
¶ 32 Although not cited by either party, we note that
¶ 33 In Brewerton Coal Co. v. Industrial Comm’n, 324 Ill. 89 (1926), the supreme court dealt with an issue similar to the one presented here. In that case, the arbitrator awarded the employee benefits for injuries he sustained while at work. The employer filed a petition for review of the arbitrator’s decision, and the Commission scheduled a hearing on the petition for February 19, 1925. A month prior to the hearing date, the employer filed a written motion to dismiss its petition for review. On February 19, 1925, before any other proceedings were had, the employer renewed its motion to dismiss its petition for review. Upon the hearing of the motion, the parties stipulated that the employee did not file a petition for review of the arbitrator’s decision before the Commission and that his failure to seek review was not influenced by the employer’s decision to file a petition for review. The Commission denied the employer’s motion, proceeded to a hearing (without the employer’s participation), and entered an award
“had a legal right to dismiss its petition for review upon the filing of the written motion to dismiss prior to the hearing on review, and upon the renewal of the motion at the hearing before any other proceedings were had, where it appeared that its action in filing its petition for review did not in any way prejudice or influence [the employee], or cause him to not file a petition for review.” Brewerton, 324 Ill. at 90.
Under these circumstances, the supreme court held that the employer “had a right to dismiss the petition without the consent of the opposite party.” Brewerton, 324 Ill. at 92.
¶ 34 Brewerton teaches that a party in a proceeding under the Act has the right to dismiss a petition, motion, or claim without the consent of the opposing party provided that the request to dismiss is made prior to the commencement of the underlying hearing and it does not prejudice the opposing party. The issue in this case is different as the motion to withdraw was filed after the
¶ 35 In this case, claimant filed a petition for immediate hearing pursuant to
B. Additional Evidence
¶ 37 Next, claimant argues that the Commission’s decision is “null and void” because it exceeded its power by sua sponte “expanding the record on review to include trial transcripts and evidence from another case to support its decision.” Specifically, claimant argues that the Commission was without authority to consider the transcripts and evidence in the Morales case. We find no merit to claimant’s argument.
¶ 38 In support of his position, claimant directs us to
¶ 39 Claimant also argues that any action taken by the Commission that is not specifically authorized by statute is beyond the scope of the agency’s jurisdiction. See Cassens Transport Co. v. Industrial Comm’n, 218 Ill. 2d 519, 525 (2006). Claimant asserts that there is no authority for the Commission to sua sponte “expand” the record to consider the transcripts and evidence presented in another case. Here, however, we find that the Commission properly took judicial notice of the Morales case. See City of Rockford v. Industrial Comm’n, 69 Ill. 2d 597, 604 (1978) (allowing Commission to take judicial notice of municipal ordinances); Setzekorn v. Industrial Comm’n, 353 Ill. App. 3d 1049, 1054 (2004) (noting that the Commission tacitly took judicial notice of the Federal Register). Illinois courts recognize that documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case. City of Centralia v. Garland, 2019 IL App (5th) 180439, ¶ 10; Travelers Insurance v. Precision Cabinets, Inc., 2012 IL App (2d) 110258WC, ¶ 36. Public documents that are included in the records of courts and administrative tribunals are subject to judicial notice. People v. Davis, 65 Ill. 2d 157, 164 (1976); Curtis v. Lofy, 394 Ill. App. 3d 170, 172 (2009); NBD Highland Park Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520 (1993); see also People v. Ernest, 141 Ill. 2d 412, 428 (1990) (observing that trial court was authorized to take judicial notice of transcripts in underlying
C. Stipulation
¶ 41 Third, claimant argues that the Commission’s decision is “null and void” because it exceeded its power by “decid[ing] issues that the parties explicitly excluded from the hearing by *** stipulation.” Specifically, claimant asserts that, at the arbitration hearing, respondent stipulated that it was contesting liability for medical care and TTD based only on causal connection. Yet, claimant contends, the Commission “violated” this stipulation and decided this case on a different basis, i.e., that claimant had reached maximum medical improvement from his work-related injury and was capable of working. Claimant misconstrues the Commission’s decision.
¶ 42 In denying claimant benefits, the arbitrator found that claimant failed to sustain his burden of proving causal connection between his October 2010 work injury and his condition of ill-being subsequent to the first
¶ 43 Claimant argues that he would have put on evidence of his inability to work and his need for further medical care but for the stipulation that such matters would not be used as a basis to determine his right to benefits. However, claimant does not indicate the nature of this additional evidence. More significantly, claimant did present evidence at the second
¶ 44 Respondent also directs us to Thomas, 78 Ill. 2d 327, in support of his position that the Commission went beyond its authority and decided the case on a basis not presented by the parties. However, Thomas is clearly distinguishable, as the arbitrator in that case decided an issue not raised by the parties. Thomas, 78 Ill. 2d at 333-34. Here, the issues of TTD benefits and medical expenses were squarely before the arbitrator and the Commission. And, as noted above, the Commission, in affirming and adopting the decision of the arbitrator to deny claimant’s application for benefits, weighed all the evidence and determined that claimant failed to sustain his burden on liability and causal connection.
D. Prior Award
¶ 46 As his next assignment of error, claimant argues that the Commission violated the law-of-the-case doctrine by “erroneously conclud[ing] that it was without authority *** to award him the previously awarded medical bills, TTD and prospective medical.” We disagree.
¶ 47 Claimant asserts that “[a]s an integral part” of his
¶ 48 As we noted in Millennium Knickerbocker Hotel, the Commission, as an administrative body created by legislative enactment for the purpose of administering the Act, lacks the inherent powers of a court and can only make such orders as are within the powers granted to it by the legislature. Millennium Knickerbocker Hotel, 2017 IL App (1st) 161027WC, ¶ 18. The only method provided by the Act for enforcing a final award of the Commission is in the circuit court pursuant to
¶ 49 Despite the foregoing authority, claimant insists that the Commission “had the power to award the uncomplied with portions of the prior award *** and it was mandatory that it at least award those portions of the prior award, under the ‘law of the case doctrine.’ ” Claimant contends that Millennium Knickerbocker Hotel is distinguishable because it did not involve “a petitioner presenting a 2nd
¶ 50 The cases cited by claimant in support of his position do not persuade us otherwise. Claimant cites multiple decisions from the Commission in support of his claim that the Commission has the authority to “award[ ] un-complied with portions of [a] prior award.” However, the Commission decisions cited by claimant predate Millennium Knickerbocker Hotel. Moreover, decisions of the Commission in unrelated cases are not precedential authority in appeals before this court. Noonan v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 152300WC, ¶ 28; S&H Floor Covering, Inc. v. Illinois Workers’ Compensation Comm’n, 373 Ill. App. 3d 259, 266 (2007). Thus, we decline to consider these decisions.
¶ 51 Claimant also cites Irizarry v. Industrial Comm’n, 337 Ill. App. 3d 598 (2003). In that case, we determined that, pursuant to the law of the case doctrine, the Commission erred in finding that injuries to claimant’s neck, right shoulder, and back were not causally related to his work injury where the Commission had reached the opposite conclusion at earlier
¶ 52 Accordingly, we hold that the Commission did not err in directing claimant to the circuit court, pursuant to
E. Penalties and Attorney Fees
¶ 54 Claimant also argues that the Commission erred in denying his request for attorney fees and penalties under
¶ 55 The intent of sections 16, 19(k), and 19(l) is to implement the Act’s purpose to expedite the compensation of industrial workers and to penalize employers who unreasonably, or in bad faith, delay or withhold compensation due an employee. Avon Products, Inc. v. Industrial Comm’n, 82 Ill. 2d 297, 301 (1980). Awards under section 16 and 19(k) are proper only if the employer’s delay in making payment is unreasonable or vexatious. McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 504-05 (1998). That is, the refusal to pay must result from bad faith or improper purpose. Id. at 515. An award under section 19(l) is more in the nature of a late fee, so an award under that section is appropriate if an employer neglects to make payment without good and just cause. Id. at 515; Dye v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 110907WC, ¶ 15. The employer has the burden of showing that it had a reasonable belief that the delay was justified. Roodhouse
¶ 56 The record in this case establishes that at the beginning of the second
¶ 57 In its decision, the arbitrator found that respondent’s conduct with respect to the “delayed or failed payment of TTD ordered in the first 19(b) trial was neither so unreasonable or vexatious so as to justify the imposition of the requested penalties and fees.” With regard to claimant’s request for attorney fees and penalties relative to the award of medical expenses ordered by the Commission at the first
¶ 58 As noted, claimant contends that he is entitled to attorney fees and penalties for respondent’s failure to comply with the Commission’s award of TTD benefits, medical expenses, and prospective medical care at the first arbitration hearing. At the outset, we observe that claimant did not raise before the arbitrator the issue of his entitlement to attorney fees and penalties based on respondent’s failure to pay for the prospective medical care previously authorized by the Commission at the first
¶ 59 However, we conclude that the Commission erred in failing to award penalties and attorney fees for respondent’s failure to pay an additional $1101.57 in TTD benefits and its failure to pay the uncontested portion of medical bills. In this regard, we observe that claimant offered into evidence a letter from respondent’s attorney, dated July 7, 2015, in which he acknowledged an underpayment of TTD benefits in the amount of $1101.57 and stated that he would “direct my client’s [sic] to pay as we did not take a review of this lone Decision [sic].” Yet, without any explanation, the additional TTD had still not been paid when the second
¶ 60 As noted, awards under sections 16 and 19(k) are proper if the employer’s delay in making payment is unreasonable or vexatious. An award under section 19(l) of the Act is proper when the employer’s delay is without good and just cause, and penalties are mandatory. Given respondent’s failure to pay the $1105.57 in TTD benefits and $66,781.33 in medical expenses, its acknowledgement that these portions of the awards were uncontested, and its failure to offer a valid excuse for nonpayment, we find that the Commission’s decision not to award attorney fees and penalties was against the manifest weight of the evidence. We therefore reverse the Commission’s denial of attorney fees and penalties under sections 16, 19(k), and 19(l) and remand the matter to the Commission for a determination of the amount of penalties and attorney fees to be assessed against respondent for its intentional delay in paying the uncontested portions of TTD benefits and medical expenses awarded at the first
F. Benefits Subsequent to First Section 19(b) Hearing
¶ 62 Finally, claimant maintains that the Commission erred in denying his request for medical expenses and TTD benefits relative to his back condition subsequent to the date of the first
¶ 64 In this case, the arbitrator found that claimant failed to sustain his burden of showing a causal connection between his work-related injury in October 2010 and his condition of ill-being subsequent to September 7, 2012, the date of the first
¶ 65 Claimant insists that neither his employment at Countywide, nor his new injury in August 2014, “diminishe[d]” the causal connection between his original work injury and the medical care subsequent to the first
¶ 66 Claimant nevertheless faults respondent for (1) failing to call the foreman of Countywide “to identify Centeno, describe his work activities or speak first hand to the claimed new injury” or the doctors with whom claimant “may have treated” and (2) failing to introduce into evidence surveillance video or an independent medical examination from June 1, 2015, following the injury at Countywide. However, contrary to claimant’s implication, it was not respondent’s burden to prove that claimant was not entitled to additional TTD benefits or medical expenses following the first arbitration hearing. Rather, it was claimant’s burden to prove all elements of his case. O’Dette v. Industrial Comm’n, 79 Ill. 2d 249, 253 (1980). Based on the evidence before it, the Commission reasonably concluded that claimant failed to meet his burden in this case.
¶ 67 Claimant also argues that the Commission’s decision should be reversed based on the “unrebutted” medical records of Dr. McNally. Claimant notes that Dr. McNally’s treatment plan remained unchanged following the first
III. CONCLUSION
¶ 69 For the reasons set forth above, we reverse that portion of the judgment of the circuit court of Kane County confirming the decision of the Commission that denied claimant’s request for section 16 attorney fees and section 19(k) and 19(l) penalties for respondent’s failure to pay previously awarded and uncontested TTD benefits in the amount of $1101.57 and previously awarded and uncontested medical expenses in the amount of $66,781.33. The judgment of the circuit court is affirmed in all other respects. Further, this cause is remanded to the Commission for a calculation of attorney fees pursuant to section 16 and penalties pursuant to sections 19(k) and 19(l) and for further proceedings pursuant to Thomas, 78 Ill. 2d 327.
¶ 70 Affirmed in part and reversed in part.
¶ 71 Cause remanded.