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NO. 1-00-2931WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Industrial Commission Division

_______________________________________________________________________________________________

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Respondent F & B Manufacturing Company appeals from anorder of the circuit court of Cook County confirming a decision ofthe Illinois Industrial Commission (Commission) entered following an earlier remand by the circuit court. The claimant in this caseis Martha Quintero.

On August 23, 1990, claimant filed an application foradjustment of claim alleging a back injury on July 23, 1990. Following a hearing conducted on March 26, April 23, and May 24,1996, the arbitrator entered a decision on June 22, 1996, awardingclaimant $158.67 per week for 31 weeks for temporary totaldisability (TTD) and $142.81 per week for 25 weeks for permanentpartial disability (PPD) to the extent of 5% of the person as awhole. 820 ILCS 305/8(b), (d)(2) (West 1996). The arbitratorspecifically found that (1) claimant was entitled to TTD from July24 to August 20, 1990, and from August 22, 1990, to February 26,1991; (2) claimant was not entitled to receive payment for medicalexpenses relating to care provided by medical service providersbeyond the two chains of referral from claimant's two chosenmedical service providers, being Treister Orthopaedic Services,Ltd. (Treister Orthopaedic) and Cragin Health Center (Cragin) (820ILCS 305/8(a)(2), (a)(3) (West 1996)); and (3) the chiropracticcare provided by Cragin and the neurological examination by Dr.Aleksandra Stobnicki, to whom claimant was referred by one of thechiropractors at Cragin, were not reasonable and necessary becausethe services were duplicative of the treatment provided by TreisterOrthopaedic. The Commission affirmed and adopted the arbitrator'sfindings in a decision entered April 18, 1997.

On judicial review (Cook County case No. 97-L-50541), thecircuit court affirmed the PPD award, but set aside the findings ofduration of TTD and the denial of medical expenses, and remanded tothe Commission "for further proceedings" in an order entered byJudge Quinn on March 18, 1998.

On remand, without any additional evidence, and with onecommissioner dissenting, the Commission adopted the earlier PPDaward and awarded claimant TTD for 61 1/7 weeks from July 24through August 20, 1990, and from August 22, 1990, throughSeptember 30, 1991, and $6,864 in medical expenses, including$2,295 for services rendered by Cragin and $275 for the services ofStobnicki. The dissenting commissioner strongly protested that thecircuit court had done nothing more than substitute its judgmentfor that of the Commission. The Commission decision on remand wasentered on July 13, 1999.

Thereafter, respondent sought judicial review in thecircuit court (Cook County case No. 99-L-50809, consolidated with97-L-50541). Claimant appeared pro se in the circuit court. Inthe second judicial review, Judge White presided. On July 25,2000, the circuit court determined that the March 18, 1998, orderentered by the circuit court in case No. 97-L-50541 was a finalorder for purposes of appeal and confirmed the July 13, 1999,decision of the Commission following remand. The appeal to thiscourt followed.

The issues raised by respondent all relate to thepropriety of the Commission's original decision of April 18, 1997. The respondent asks this court to determine whether the followingCommission findings were against the manifest weight of theevidence: (1) that claimant was not entitled to TTD benefits beyondFebruary 26, 1991; (2) that Cragin was the second medical providerchosen by claimant; and (3) the charges for services rendered byCragin and Stobnicki were not proved to be reasonable and necessary.

Claimant has not filed an appellee's brief. Because therecord in this case is simple and the claimed errors are such thatthe court can easily decide them without the aid of an appellee'sbrief, we decline to summarily reverse the circuit court decision. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). We now reverse inpart and affirm in part the order of the circuit court entered July25, 2000; reverse the order of the circuit court entered March 18,1998; vacate the decision of the Commission entered July 13, 1999;and reinstate the April 18, 1997, Commission decision as modified. We first address whether the March 18, 1998, order of the circuitcourt was a final order for purposes of appeal. The standard fordetermining finality set forth in Wilkey v. Illinois Racing Board,96 Ill. 2d 245, 249-50, 449 N.E.2d 843, 844-45 (1983), applies inadministrative review contexts.

In Stockton v. Industrial Comm'n, 69 Ill. 2d 120, 124-25,370 N.E.2d 548, 550 (1977), the Supreme Court of Illinois held thata circuit court order reversing and remanding a Commission decisionis nonfinal if it allows the Commission to find the claimantentitled to additional TTD for time not yet considered. Thecircuit court order in Stockton did not limit the Commission'sconsideration of additional TTD, medical expenses, and the extentof permanent disability. Here, the circuit court's order reversingand remanding the original decision of the Commission found thatclaimant was entitled to TTD "at least" through September 30, 1991. The Commission could find claimant entitled to TTD beyond thatdate. In addition, the Commission had not yet determined thereasonableness and necessity of medical expenses incurred byclaimant as a result of services rendered by medical serviceproviders that were not within the chain of referrals from Treisterand Cragin. The Commission's task was more than simply ministerial. The March 18, 1998, order was nonfinal, and this court isauthorized to review the entire record and determine the proprietyof the Commission's original decision and the circuit court'sreversal thereof. Stockton, 69 Ill. 2d at 126, 370 N.E.2d at 550-51.

When a Commission decision is reversed because it iscontrary to law and on remand the Commission properly applies thelaw, the Commission decision following remand is given deferenceover the initial Commission decision. Freeman United Coal MiningCo. v. Industrial Comm'n, 188 Ill. 2d 243, 248, 720 N.E.2d 1063,1067 (1999). However, the Commission decision may also be reversedbecause the factual findings are against the manifest weight of theevidence. Freeman United Coal Mining, 188 Ill. 2d at 245, 720N.E.2d at 1065. In this case, the circuit court did not find thatthe original decision of the Commission was contrary to law. Instead, the reversal was based on the determination that theCommission's factual findings were against the manifest weight ofthe evidence. When the original Commission decision is reversedbecause it is against the manifest weight of the evidence, thiscourt initially considers the propriety of the original Commissiondecision before reviewing the Commission decision entered followingremand.

On the merits, we initially address the issue relating tothe duration of TTD. The time during which a claimant is temporarily totally disabled is a question of fact for the Commission;the duration of TTD is controlled by claimant's ability to work andher continuation in the healing process; and to be entitled to TTD,claimant must prove not only that she did not work, but that shewas unable to work. City of Granite City v. Industrial Comm'n, 279Ill. App. 3d 1087, 1090, 666 N.E.2d 827, 828-29 (1996). Thedispositive test is whether the condition has stabilized, becausea claimant is entitled to TTD when a disabling condition istemporary and has not reached a permanent condition. Manis v.Industrial Comm'n, 230 Ill. App. 3d 657, 660, 595 N.E.2d 158, 160-61 (1992), quoting Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b)(now 820 ILCS 305/19(b) (West 2000)). In determining whether afactual finding of the Commission is against the manifest weight ofthe evidence, the test is whether the record contains sufficientfactual evidence to support the Commission's determination. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450, 657 N.E.2d1196, 1199 (1995).

On November 27, 1990, Dr. Chang Sun Kim, a physician withTreister Orthopaedic, found nothing objectively wrong with claimantand recommended that she see a psychiatrist. Dr. Michael Treisterdischarged claimant on February 26, 1991. When claimant was seenby Dr. Charles Mercier, respondent's examining physician, on April25, 1991, claimant was not then treating with any physician. Mercier found claimant able to return to unrestricted work. Dr.Marc Levin, a treating neurologist, was of the opinion thatclaimant was not able to work when he saw her on September 30,1991.

As stated heretofore, the arbitrator's award extended for31 weeks to February 26, 1991. The circuit court, in its remandorder, found that TTD should extend at least to September 30, 1991,basing its decision upon the testimony of Levin. The contestedperiod of TTD, 31 1/7 weeks, is February 26, 1991, to September 30,1994.

The Commission was not obligated to place greater weighton the opinion of Levin than on the opinions of Treister orMercier. See Prairie Farms Dairy v. Industrial Comm'n, 279 Ill.App. 3d 546, 550-51, 664 N.E.2d 1150, 1152-53 (1996). TheCommission found that the claimant's current condition of ill-beingwas not causally connected to the accidental injury and thatfinding of the Commission has never been contested or overturned. In addition, Levin's original diagnosis of a herniated disc at L-5was changed after the results of a myelogram, computerizedtomography (CT) scan, and a bone scan were all nominal. Levinchanged the diagnosis to radiculopathy or sciatica. Treister, whohad treated claimant earlier and for a longer period of time,released her to return to work on February 26, 1991. The Commission's finding that claimant was entitled to TTD only untilFebruary 26, 1991, was not against the manifest weight of theevidence.

As to the medical expenses, section 8(a) of the Act makesan employer liable for necessary and reasonable medical, surgical,and hospital expenses required to cure or relieve the effects ofthe accidental injury. The employer is liable for servicesprovided by the physician, surgeon, or hospital initially chosen byclaimant, or those to whom she was referred by the initialprovider, and all such services provided by a second physician,surgeon, or hospital subsequently chosen by the claimant, or anyprovider to whom she was referred by the second service provider. 820 ILCS 305/8(a)(2), (a)(3) (West 2000).

Claimant was initially treated at St. Therese Hospital onan emergency basis on July 23, 1990. She followed up at St.Therese on July 26, July 30, August 3, and August 8, 1990. Thepatient instruction sheet she received on August 8, 1990, instructed her to "Follow up with Dr. Rowley by Friday or Dr. ofchoice." The "treatment" section of the August 8, 1990, medicalreport in the records for St. Therese Medical Center indicatedclaimant was to see "neurologist of choice or Dr. Rowley ***." Claimant testified she chose to see her family physician Dr. Rojas,who referred her to Treister. This was her first choice within themeaning of section 8(a) of the Act. There was no evidence thatrespondent designated what physician claimant was allowed to see. At Treister Orthopaedic, claimant was seen by Treister and Kim. Kim referred her to Dr. Rafael Carreira, a psychiatrist. Thosewere within the chain of referrals of the initial provider chosenby claimant. 820 ILCS 305/8(a)(2) (West 2000); see also Pluto v.Industrial Comm'n, 272 Ill. App. 3d 722, 724, 729, 650 N.E.2d 631,633, 636 (1995). As a result, Cragin was the second providerchosen by claimant, and subject to the requirement that theexpenses be reasonable and necessary, respondent would be requiredto compensate claimant for the fees incurred as a result of thecare provided by Cragin and Stobnicki, to whom claimant wasreferred by Dr. Coral Beth Youker, a chiropractor at Cragin. 820ILCS 305/8(a)(3) (West 2000).

On May 30, 1991, claimant saw Dr. Robert Garcia at thesuggestion of a friend of her husband. In July 1991, Garciaordered an electromyography and a magnetic resonance imaging scanto be performed at the Norwegian American Hospital. Garciareferred claimant to Levin, who ordered the myelogram, CT scan, andbone scan at St. Margaret's Hospital and later referred claimantback to Garcia. In January 1992, on the recommendation of herhusband, claimant saw Dr. Carlos Boileve, a chiropractor. Boilevereferred claimant to Drs. Jacob Michael Morganstern, Ralph V.Cabin, and Edward Goldberg. Boileve also referred claimant toanother chiropractor identified in the record as Dr. Guzman. As aresult of the referrals to these doctors, claimant also receivedfurther treatment at Our Lady of Resurrection Hospital. These twochains of providers beginning with Garcia and Boileve are beyondthe two-choice chains of referral allowed under section 8(a) of theAct, as are the medical services provided to claimant thereafter.

The final issue is whether the Commission's originaldetermination that the $2,295 fee incurred for services at Craginand the $275 fee for the services of Stobnicki were not recoverablebecause the services were not reasonable and necessary. Claimantwas first seen at Cragin on August 23, 1990, for chiropractic care. She simultaneously received physical therapy and orthopedicservices from Treister Orthopaedic. Youker, one of the chiropractors at Cragin, referred claimant to Stobnicki for a neurologicalconsultation. Stobnicki reported the results of the examination toYouker, did not refer claimant for any other services or make anyother recommendations, and claimant continued to receivechiropractic care from Cragin until January 15, 1991.

Under section 8(a) of the Act, the claimant is entitledto recover reasonable medical expenses that are causally related tothe accident and that are determined to be required to diagnose,relieve, or cure the effects of claimant's injury. University ofIllinois v. Industrial Comm'n, 232 Ill. App. 3d 154, 164, 596N.E.2d 823, 830 (1992). Claimant has the burden of proving thatthe medical services were necessary and the expenses were reasonable. See Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880,888, 559 N.E.2d 526, 532 (1990). What is reasonable and necessaryis a question of fact for the Commission, and the Commission'sdetermination will not be overturned unless it is against themanifest weight of the evidence. Cole v. Byrd, 167 Ill. 2d 128,136-37, 656 N.E.2d 1068, 1072 (1995); University of Illinois, 232Ill. App. 3d at 164, 596 N.E.2d at 830.

In its original decision in this case, the Commissionfound that the claimant failed to prove that the chiropractic careprovided by Cragin and the referral to Stobnicki were not duplicative of the treatment provided to her by Treister and his staff. This finding is against the manifest weight of the evidence.

Stobnicki was a neurologist who performed a neurologicalexamination on referral from one of the chiropractors at Cragin. In light of the recommendation of the emergency room staff at St.Therese Hospital and Medical Center that claimant see a neurologist, the Commission finding that Stobnicki's examination ofclaimant was unnecessary is against the manifest weight of theevidence. In addition, there is no evidence in this record thatthe chiropractic treatment at Cragin is duplicative of the physicaltherapy provided at Treister. If a claimant is dissatisfied withthe results of the treatment by one provider, the claimant may seeka second treatment option that claimant believes may providegreater relief. Claimant could certainly obtain a second opinionabout the appropriateness of the treatment she was receiving. There were no doctors that told claimant that chiropractictreatment would not likely help her condition.

In its first decision, the Commission, in adopting thearbitrator's award, found that Cragin and Stobnicki were claimant'ssecond choice of doctors, and found the subsequent medical serviceswere beyond the two choices allowed but then denied the expenses ofCragin and Stobnicki as unreasonable and unnecessary. We declineto use the reasonable and necessary rationale to eliminate aclaimant's statutorily authorized second choice of serviceprovider. When a claimant incurs unnecessary and unreasonablemedical services, that is not a "choice" under the statute, and theclaimant retains any unused statutory options.

As a result, the order of the circuit court of CookCounty entered on March 18, 1998, is reversed in part and affirmedin part; the order of the circuit court entered July 25, 2000, isreversed; the Commission decision entered following remand on July13, 1999, is vacated; and the original Commission decision enteredApril 18, 1997, is reinstated as modified to allow claimant torecover the medical expenses incurred for the services of Craginand Stobnicki.

Circuit court order of March 18, 1998, reversed in partand affirmed in part; circuit court order of July 25, 2000,reversed; Commission decision on remand vacated; original Commission decision reinstated as modified.

Affirmed in part, reversed in part, and vacated in part;original Commission decision reinstated as modified.

HOFFMAN, O'MALLEY, HOLDRIDGE, and RARICK, JJ., concur.