2014 IL App (3d) 130028WC NO. 3-13-0028WC Opinion filed June 26, 2014

___________________________________________________ _________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

___________________________________________________ _________________________ SUNNY HILL OF WILL COUNTY d/b/a SUNNY HILL NURSING HOME, Appellant,

v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Dalia Mahoney-Tapella, Appellee). ) ) ) ) ) ) ) ) ) Appeal from

Circuit Court of Will County No. 12MR328

Honorable Barbara Petrungaro, Judge Presiding.

___________________________________________________ _________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion. OPINION ¶ 1 On July 31, 2009, claimant, Dalia Mahoney-Tapella, filed an application for adjustment of claim pursuant to the Illinois Worker s' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the emplo yer, Sunny Hill of Will County d/b/a Sunny Hill Nursing Home (Sunny Hill). She alleged a work -related injury that occurred while she was assisting a patient on December 5, 2008, causing in jury to her right shoulder and lower back. Following a hearing, the arbitrator determined clai mant's condition of ill-being was causally related to the accident that arose out of and in th e course of her employment, and claimant's presence at a flower shop she co-owned did not cons titute a "return to work" or absolve Sunny- 2 -

Hill of its liability to pay temporary total disabi lity (TTD) benefits. The arbitrator awarded claimant TTD benefits of $596.00 per week for the p eriods of December 6, 2008, through June 9, 2009; July 23, 2009, through August 27, 2009; and S eptember 22, 2009, through June 15, 2011. ¶ 2 On review, the Illinois Workers' Compensation Commi ssion (Commission) affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Will County confirmed the Commission's decision. ¶ 3 Sunny Hill appeals, arguing (1) the Commission erre d in awarding claimant TTD benefits and (2) the Commission's finding that clai mant's present condition of ill-being is causally related to the December 5, 2008, work acci dent is against the manifest weight of the evidence. We affirm. ¶ 4 I. BACKGROUND ¶ 5 The following factual recitation is taken from th e evidence presented at the arbitration hearing on June 15, 2011. ¶ 6 Claimant testified she first began working for Sunn y Hill in November 2004 as a licensed practical nurse. Her duties included taki ng care of 25 to 50 patients, including lifting them as necessary. In 1996, prior to working at Su nny Hill, claimant suffered an injury to her neck and underwent a cervical fusion procedure. In September 2007, while working at Sunny Hill, claimant suffered an injury to her right shou lder. On February 15, 2008, Dr. Paul Trksak performed an arthroscopic debridement of claimant's right rotator cuff and subacromial decompression. On October 31, 2008, Dr. Trksak not ed claimant had reached maximum medical improvement (MMI). Dr. Trksak released her to retu rn to full-duty work at Sunny Hill effective November 2, 2008. ¶ 7 On December 5, 2008, claimant was working at Sunny Hill, assisting two- 3 -

certified nurse assistants who were manually loweri ng an obese patient from a hoyer lift that was stuck "a good 10 feet up in the air." As they brou ght the patient down, claimant felt "something just like snap and pain down my shoulder and arm." She also felt pain in her neck and lower back. Claimant immediately sought treatment from A dvanced Physicians, complaining of "pain in [her] right shoulder, neck, mid back and low bac k." An MR arthrogram of claimant's right shoulder was performed on December 22, 2008. It re vealed a full thickness perforation of the rotator cuff. On January 6, 2009, an MRI of claima nt's lower back was performed. It revealed severe facet arthritis with lateral stenosis in the lower lumbar area. Advanced Physicians referred claimant to Dr. Gregory Markarian, an orth opedic surgeon. ¶ 8 Claimant first saw Dr. Markarian on January 15, 20 09, at which time he diagnosed a recurrent tear of the right rotator cuf f (he was unsure whether the MR arthrogram demonstrated a partial tear or a full thickness tea r), AC joint arthritis and bicipital tendonitis. Based on her presentation and the fact she was asym ptomatic prior to the accident at issue, Dr. Markarian opined claimant's injuries were causally connected to the December 5, 2008, work accident. ¶ 9 On January 28, 2009, Dr. Markarian performed an ar throscopic debridement of the partially torn rotator cuff and subpectoral bic eps tenodesis. On February 5, 2009, claimant underwent an EMG of her lower back which revealed a n acute S1 radiculopathy. She underwent an EMG of her neck on March 12, 2009, which reveale d an acute C7 radiculopathy. On March 24, 2009, claimant received a lumbar epidural stero id injection by Advanced Physicians. On April 14, 2009, claimant received a cortisone injec tion in her right shoulder by Dr. Markarian. On April 16, 2009, Dr. Markarian released claimant to return to light-duty work. ¶ 10 On June 9, 2009, Dr. Kevin F. Walsh, performed an independent medical- 4 -

evaluation of claimant. Dr. Walsh's report is not included in the record and was not admitted into evidence at arbitration. The only reference t o Dr. Walsh's findings are in Dr. Markarian's evidence deposition and Dr. Anthony Romeo's (who be gan treating claimant in 2010) initial report recounting claimant's medical history. Acco rding to Dr. Markarian's evidence deposition and Dr. Romeo's initial report, Dr. Walsh concluded claimant's injuries were not related to the December 5, 2008, work accident and returned her to full-duty work on June 10, 2009. ¶ 11 On July 23, 2009, claimant reported to Dr. Markaria n she aggravated her right shoulder (she felt swelling and pain) apparently as a result of returning to full-duty work too soon. Dr. Markarian restricted claimant from work again and ordered an MRI of her right shoulder, which was performed on August 18, 2009. The MRI revealed tendinosis, moderate bursitis and minimal subacromial encroachment due t o degenerative and inflammatory changes. Dr. Markarian testified these injuries were part of the "injury spectrum" and were related to the December 5, 2008, work accident. Claimant was rele ased to return to light-duty work effective August 28, 2009. ¶ 12 On September 22, 2009, Dr. Markarian gave claimant a cortisone injection in her right shoulder and took her off work. He ordered a n MR arthrogram which was performed on October 8, 2009. It revealed partial tearing of th e rotator cuff. Dr. Markarian explained the partial tear of the rotator cuff would not have bee n evident in the August 2009 MRI results. According to Dr. Markarian, an MRI would reveal "ob vious defects where [the tissue is] pulled away off the bone and it's retracted" but tears tha t are not retracted "can be difficult to interpret. " The MR arthrogram reveals more because a dye is inj ected into the joint. Dr. Markarian recommended claimant undergo another shoulder surge ry to revise the previous repair. Claimant last saw Dr. Markarian on October 15, 2009.- 5 -

¶ 13 On September 22, 2010, by agreement of the parties , Dr. Romeo, an orthopedic surgeon, evaluated claimant. Dr. Romeo diagnosed p ersistent tendinitis status post previous biceps tenodesis. He opined this condition was rel ated to the December 5, 2008, work accident. Dr. Romeo noted claimant could either live with her symptoms or undergo additional surgery. ¶ 14 On September 28, 2010, Sunny Hill terminated claim ant's employment because she had been off work for more than one year. ¶ 15 On February 24, 2011, Dr. Romeo performed a right shoulder arthroscopy with a revision subacromial decompression and a revision o pen biceps tenodesis. As of the date of arbitration, claimant remained in post-operative th erapy and continued to treat with Dr. Romeo. She had not yet been released to return to work. ¶ 16 In 2007, claimant opened a flower shop with her tw o daughters following the death of her husband and the suicide of her son. S he owns a 53% stake in the business, although her daughters run it full-time. Following the Dece mber 5, 2008, work accident, claimant has gone to the flower shop at least three days per wee k, but does not follow a regular schedule, she is not formally employed by the flower shop, she do es not draw a paycheck, and she does not keep track of her hours. The flower shop first mad e a profit in 2010 ($2,000), which claimant distributed to her daughters who actually work ther e. When asked what she does at the flower shop, claimant responded she answers the phone if i t rings (including taking orders over the phone), picks up fax sheets, or occasionally her da ughters will ask her to "grab *** another rose or a daisy or a gerber *** for them" while they are preparing arrangements. Claimant also stated she watches over her grandchildren in a babysitting role at the flower shop. She testified she does not do anything more physically taxing at the flower shop than she would do at her home during this time.- 6 -

¶ 17 Sunny Hill introduced evidence of surveillance ove r six days (April 10-11, 2009, August 10-11, 2010, April 2, 2011, and April 5, 201 1), approximately 53 hours in total, of claimant, including video of claimant at the flower shop while she was off work. Surveillance video, totaling approximately 35 minutes in length, was presented by the employer at the arbitration hearing. The video depicts claimant wa lking from her car to the back entrance of the flower shop, sometimes carrying bags and/or a lapto p case or briefcase, sitting on the back stoop of the business, standing and walking around outsid e of the flower shop, picking wildflowers with her granddaughter, holding a baby inside the f lower shop, and driving to a park. ¶ 18 The arbitrator found claimant sustained work-relat ed injuries to her right shoulder, neck, and lower back, on December 5, 2008 . He awarded claimant TTD benefits of $596.00 per week for the periods of December 6, 200 8, through June 9, 2009; July 23, 2009, through August 27, 2009; and September 22, 2009, th rough June 15, 2011. In reaching his decision, the arbitrator noted as follows:

"It is apparent that the [claimant's] partial owner ship interest in a local flower shop that is operated on a day-to-day basis by her daughters does not constitute a 'return to w ork' in the sense of disqualifying her from receipt of TTD benefits. The [claimant] is a licensed practical nurse by profession. This is her full[-]time occupation. Her trips to the flower shop to visit with, and occasionally assist, her daughters are sporadic and infrequent. As such, they do not serve to absolve [Sunny Hill] fro m liability for the payment of TTD benefits." ¶ 19 The Commission affirmed and adopted the arbitra tor's decision. It also remanded- 7 -

the matter pursuant to Thomas v. Industrial Comm'n , 78 Ill. 2d 327, 399 N.E.2d 1322 (1980). On December 14, 2012, the circuit court of Will County confirmed the Commission's decision. ¶ 20 II. ANALYSIS ¶ 21 On appeal, Sunny Hill argues the Commission erred in finding that: (1) claimant was entitled to TTD benefits due to its failure to apply what it refers to as the "stable labor market test"; and (2) claimant's current condition is causally related to the December 5, 2008, work injury. ¶ 22 "The time during which a worker is temporari ly totally disabled is a question of fact." City of Granite City v. Industrial Comm'n , 279 Ill. App. 3d 1087, 1090, 666 N.E.2d 827, 828 (1996). The Commission's decision to award TTD will not be disturbed unless it is against the manifest weight of the evidence. Archer Daniels Midland Co. v. Industrial Comm'n , 138 Ill.2d 107, 118-19, 561 N.E.2d 623, 627-28 (1990). A decision is against the manifest weight of the evidence only if the opposite conclusion is cle arly apparent. Dolce v. Industrial Comm'n , 286 Ill. App. 3d 117, 120, 675 N.E.2d 175, 178 (199 6). ¶ 23 "It is a well-settled principle that when a clai mant seeks TTD benefits, the dispositive inquiry is whether the claimant's condi tion has stabilized, i.e. , whether the claimant has reached maximum medical improvement." Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Comm'n , 236 Ill. 2d 132, 142, 923 N.E.2d 266, 271 (2010). "Once an injured employee's physical condition stabilizes, he is no longer eligible for TTD benefits." Archer Daniels , 138 Ill.2d at 118, 561 N.E.2d at 627. This court has held, "[t]he duration of TTD is controlled by the claimant's ability to work and hi s continuation in the healing process." City of Granite City v. Industrial Comm'n , 279 Ill. App. 3d 1087,1090, 666 N.E.2d 827, 829 ( 1996). ¶ 24 Sunny Hill argues the Commission's failure to apply what it terms the "stable- 8 -

labor market test," (ostensibly derived from langua ge in E.R. Moore Co. v. Industrial Comm'n , 71 Ill. 2d 353, 361-62, 376 N.E.2d 206 , 209 (1978) ), in determining whether claimant was entitled to TTD benefits was error and requires rev ersal. The issue in E.R. Moore was whether the claimant should have been awarded total permanent disability benefits because there was no "reasonably stable market in which claimant could b e employed." Id. at 359-60, 376 N.E.2d at 208-09. The claimant in E.R. Moore was 58 years old and her work injury (contact derma titis) prevented her from returning to domestic service wo rk—the only type of work she had ever performed. Id . at 364, 376 N.E.2d at 211. Based on the claimant 's work-related injury, age, work experience, training and capabilities, the cou rt found it was reasonable for the Commission to determine "there existed no reasonably stable ma rket in which claimant could be employed," and therefore its award for total permanent disabil ity was proper. Id. at 362, 64, 376 N.E. 2d at 210, 211. Sunny Hill cites a string of cases that reference the "stable labor market" language in
E.R. Moore , but which apply it to TTD benefits instead of per manent disability benefits. See

e.g. , J.M. Jones Co. v. Industrial Comm'n , 71 Ill. 2d 368, 375 N.E.2d 1306 (1978) (working approximately 1 1/2 hours per day as a hot dog vend or did not preclude a TTD award); Zenith Co. v. Industrial Comm'n , 91 Ill. 2d 278, 437 N.E.2d 628 (1982) (driving a bus for a few hours per day did not preclude a TTD award); Mechanical Devices v. Industrial Comm'n , 344 Ill. App.3d 752, 761-62, 800 N.E.2d 819, 828 (2003) (dri ving a shuttle bus 10 to 15 hours per week did not preclude a TTD award); Dolce v. International Comm'n , 286 Ill. App. 3d 117, 675 N.E.2d 175 (1996) (consistent work selling real est ate precluded claimant from a TTD award). ¶ 25 Sunny Hill's argument notwithstanding, we doubt th e existence of a separate "stable labor market test" to determine TTD benefit s. While it is true cases such as J.M. Jones , Zenith , Mechanical Devices , and Dolce refer to the "stable labor market" language in E.R.- 9 -

Moore , the essence of the TTD determination is as set fo rth by our supreme court in Interstate Scaffolding —whether the claimant's condition has stabilized. The existence or nonexistence of a "stable labor market" for a particular job simply i s not germane to the determination of whether an individual's condition has stabilized. However, the fact a claimant has returned to work in some capacity may be relevant to whether and to what extent the claim ant's condition has stabilized. To this extent, it may well be appropr iate to consider the type of work being performed, hours worked, and any income earned, all in order to ascertain whether the claimant's condition has stabilized. See Freeman United Coal Mining Co. v. Industrial Comm'n , 318 Ill. App. 3d 170, 178, 741 N.E.2d 1144, 1150 (2000) ("Am ong the factors to be considered in determining whether a claimant has reached maximum medical improvement include a release to return to work, with restrictions or otherwise, and medical testimony or evidence concerning claimant's injury, the extent thereof, the prognosi s, and whether the injury has stabilized."). The courts in J.M. Jones , Zenith , Mechanical Devices , and Dolce considered the claimants' earnings and "work" as one factor—not necessarily the dispos itive factor—in determining whether they were entitled to TTD benefits. ¶ 26 Thus, in determining TTD benefits in this case, th e Commission's focus was properly directed to whether claimant's condition h ad stabilized and she had reached MMI, and not whether she was working in a "stable labor mark et." Claimant's presence at the flower shop, and whether it constituted a "return to work," was but one factor for the Commission to consider in its analysis. Sunny Hill argues the Commission erred in awarding TTD. We disagree. ¶ 27 Claimant's "work" at the flower shop did not estab lish her condition had stabilized. Claimant opened the flower shop with h er daughters as a way of grieving the loss of her husband and son. Although she is the majority owner, her daughters run the business.- 10 -

Claimant is present at the flower shop approximatel y three days per week. Her presence at the flower shop was the same both before and after the December 5, 2008, work injury. While at the flower shop, she primarily watches her grandchildre n in a babysitting role. On occasion, claimant answers the phone, retrieves faxes, and as sists customers if her daughters are occupied. At times, she may provide minor assistance to her d aughters when they are making flower arrangements and may make an occasional delivery if it is a "light one." Claimant does no more at the flower shop than she would do at home. She does not draw a pay check, have a regular schedule, or track her hours. She has received no income from the flower shop business. The surveillance records and video submitted by Sunny H ill do not contradict claimant's testimony about her activities at the flower shop. ¶ 28 We take this opportunity to address this court's st atement in Granite City , that "[t]o show entitlement to TTD benefits, claimant mu st prove not only that he did not work, but that he was unable to work." Granite City , 279 Ill. App. 3d at 1090, 666 N.E.2d at 829. Her e, claimant's activities at the flower shop could argu ably be characterized as "work." A literal application of the preceding language in Granite City might therefore dictate a denial of TTD benefits, a result we do not believe was intended b y Granite City . We believe the quoted language in Granite City should not be interpreted to mean a return to any work will result in the denial of TTD benefits, but rather evidence of such work may be probative of whether the employee's condition has stabilized which, accordin g to the supreme court in Interstate Scaffolding , is the proper focus of the TTD analysis. In the present case, we do not believe claimant's activities at the flower shop demonstrat ed her condition had stabilized. ¶ 29 Similarly, the medical evidence in this case doe s not demonstrate claimant's condition had stabilized. Claimant underwent surge ry on her right shoulder on January 28, 2009.- 11 -

She remained off work until April 16, 2009, when sh e was released to light-duty work by Dr. Markarian. Effective June 10, 2009, Dr. Walsh retu rned claimant to full-duty work apparently after having determined claimant's injuries were no t related to the December 5, 2008, work accident. On July 23, 2009, claimant reported to D r. Markarian she had aggravated her right shoulder. Dr. Markarian restricted her from work a gain effective July 23, 2009. Following an August 2009 MRI and a cortisone injection, Dr. Mark arian returned her to light-duty work effective August 28, 2009. On September 22, 2009, claimant still had pain in her right shoulder and Dr. Markarian restricted her from work again. Following an October 2009 MR arthrogram, Dr. Markarian diagnosed a partial tearing of the ro tator cuff and recommended surgery. On February 24, 2011, Dr. Romeo performed surgery on c laimant's right shoulder. As of the June 15, 2011, arbitration hearing, claimant was still i n post-operative therapy and continued to treat with Dr. Romeo. He had not released her to return to work. This evidence does not necessarily indicate claimant's condition had stabilized. ¶ 30 The arbitrator found TTD benefits were appropri ate because (1) claimant's presence at the flower shop and occasional assistan ce to her daughters there did not constitute a "return to work" and (2) she had not yet reached MM I nor had she been released to return to work. The Commission adopted the arbitrator's deci sion. Based on this evidence, we find the Commission's award of TTD benefits is not against t he manifest weight of the evidence. (We note the record contains evidence claimant was work ing light-duty at Sunny Hill from approximately April 16, 2009, to June 9, 2009. The claimant was awarded TTD benefits during this time. However, Sunny Hill does not assert thi s as error and any such claim is therefore forfeited.) ¶ 31 Next, Sunny Hill asserts the Commission's d ecision that claimant's current- 12 -

condition (full thickness rotator cuff tear) is cau sally related to the December 5, 2008, accident is against the manifest weight of the evidence. Speci fically, Sunny Hill contends claimant failed to establish (1) the December 5, 2008, work accident c aused a change in her pre-existing rotatorcuff condition or (2) that an intervening, aggravat ing event occurring after her June 2009 surgery caused her current injury. ¶ 32 "To prevail on a claim for benefits under t he Act, the employee must establish, among other things, that his or her current conditi on of ill-being is causally connected to a workrelated injury." Elgin Board of Education School District U-46 v. Il linois Workers' Compensation Comm'n , 409 Ill. App. 3d 943, 948-49, 949 N.E.2d 198, 203 -04 (2011). Where the claimant suffers from a preexisting condition, she must "show that a work-related accidental injury aggravated or accelerated the preexisting di sease such that the employee's current condition of ill-being can be said to be causally c onnected to the work-related injury." Id . at 949, 949 N.E.2d at 204. "The accidental injury need nei ther be the sole causative factor nor the primary causative factor, as long as it was a causative factor in the resulting condition of ill

being." (Emphasis in original.) Id . Whether a work-related injury aggravated a preex isting condition such that the injury is compensable under the Act is a question of fact which we review under the manifest weight of the evidence standard. Id

. ¶ 33 Here, the record contains sufficient support fo r the Commission's causation finding. Although claimant suffered a previous sho ulder injury and underwent an arthroscopic debridement of the right rotator cuff and subacromi al decompression in February 2008, she reached MMI and was released to return to full-duty work on October 31, 2008. Claimant performed her job duties without difficulty or the need for further medical treatment until the second injury on December 5, 2008, when she felt "s omething just like snap and pain down my- 13 -

shoulder and arm," as well as pain in her neck and lower back. She immediately sought treatment and shortly thereafter underwent an arthr oscopic debridement of what turned out to be a partially torn rotator cuff and subpectoral bicep s tenodesis. Claimant received post-operative physical therapy for the shoulder injury. In March 2009, she received a lumbar epidural steroid injection as treatment for her back injury. In Apr il 2009, claimant was still experiencing pain in her right shoulder and was given a cortisone inject ion and released to light-duty work by her treating physician. Following a June 2009 independ ent examination by Dr. Walsh, he returned claimant to full-duty work after apparently conclud ing she was at MMI and her injuries were not related to the December 5, 2008, work accident. ¶ 34 In July 2009, Dr. Markarian again restricted cl aimant from work after she reported pain and swelling in her right shoulder. An August 2009 MRI on her right shoulder revealed tenidosis, moderate bursitis and minimal s ubacromial enchroachment due to degenerative and inflammatory changes. She was ret urned to light-duty work. In September 2009, claimant still had right shoulder pain, and i n October 2009 she underwent an MR arthrogram which revealed a partially torn rotator cuff. Dr. Markarian explained the tear would not have been visible on the August 2009 MRI. He r ecommended surgery. ¶ 35 In September 2010, Dr. Romeo evaluated claimant and diagnosed persistent tendinitis status post previous biceps tenodesis re lated to the December 5, 2008, work accident. Dr. Romeo performed a right shoulder arthroscopy wi th a revision subacromial decompression and a revision open biceps tenodesis. ¶ 36 The Commission noted, "[a]ll of the petitioner' s physicians—Advanced Physicians, Dr. Markarian and Dr. Romeo—have identi fied the accident of December 5, 2008[,] as the causal factor for the petitioner's ongoing r ight shoulder problems." In opposition, Sunny- 14 -

Hill suggests Dr. Walsh's opinions were somehow mor e persuasive. First, Sunny Hill did not even introduce Dr. Walsh's report into evidence, le t alone provide his testimony. Other than a brief mention in the initial report of Dr. Romeo an d in Dr. Markarian's deposition, Dr. Walsh's causation opinion appears nowhere else. Moreover, the record is barren of any basis or foundation supporting Dr. Walsh's opinion. See Gross v. Illinois Workers' Compensation
Comm'n , 2011 IL App (4th) 100615WC, 960 N.E.2d 587 (quoti ng In re Joseph S. , 339 Ill. App. 3d 599, 607, 791 N.E.2d 80, 87 (2003) (" 'Expert op inions must be supported by facts and are only as valid as the facts underlying them.' " Fur ther, "the proponent of expert testimony must lay a foundation sufficient to establish the reliab ility of the basis for the expert's opinion")). Second, it is the province of the Commission to det ermine the credibility of witnesses and the weight to be accorded their testimony. O'Dette v. Industrial Comm'n , 79 Ill. 2d 249, 253, 403 N.E.2d 221, 223-24 (1980). The record does not sup port Sunny Hill's contention that Dr. Walsh's opinion deserved to be given more weight th an it was apparently accorded by the Commission. ¶ 37 Sunny Hill also argues claimant's current in jury (full rotator cuff tear) could have been the result of an intervening, aggravating even t. Specifically, Sunny Hill notes that claimant reported she aggravated her shoulder in late July 2 009. However, according to Dr. Markarian, claimant aggravated her shoulder because she was fo rced back to full-duty work while still undergoing physical therapy and without Dr. Markari an's consent. Dr. Markarian testified the exact "mechanism" by which she aggravated her shoul der was not important because she should not have been working. Therefore, we agree with th e Commission that "[t]here is no evidence of any intervening accidents." ¶ 38 For the reasons stated, the Commission's findin g that claimant's present condition- 15 -

of ill-being is causally related to the December 5, 2008, work accident is not against the manifest weight of the evidence. ¶ 39 III. CONCLUSION ¶ 40 For the reasons stated, we affirm the circuit cou rt's judgment, confirming the Commission's decision, and remand the cause for fur ther proceedings pursuant to Thomas , 78 Ill. 2d 327, 399 N.E.2d 1322. ¶ 41 Affirmed and remanded.