Archer Daniels Midland Co. v. Industrial Commission

529 N.E.2d 237, 174 Ill. App. 3d 918, 124 Ill. Dec. 417, 1988 Ill. App. LEXIS 513
CourtAppellate Court of Illinois
DecidedApril 21, 1988
Docket3-87-0162WC
StatusPublished
Cited by14 cases

This text of 529 N.E.2d 237 (Archer Daniels Midland Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Archer Daniels Midland Co. v. Industrial Commission, 529 N.E.2d 237, 174 Ill. App. 3d 918, 124 Ill. Dec. 417, 1988 Ill. App. LEXIS 513 (Ill. Ct. App. 1988).

Opinion

PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Following an emergency hearing under section 19(b — 1) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b — 1)), the arbitrator found that the petitioner, Kenneth Brooks, was entitled to $307.94 per week for the 1456/? weeks he had been temporarily totally disabled as of the hearing date. Further, the arbitrator ordered the respondent, Archer Daniels Midland Company, to pay the petitioner $3,306.40 under section 19(k) of the Act and $948.86 in attorney fees under section 16 of the Act, as penalties for the respondent’s “capricious” refusal to pay compensation.

On review, the Industrial Commission affirmed the arbitrator’s award for temporary total disability. The Commission further awarded the petitioner $360 under section 19(Z) of the Act for delay of payment between November 14, 1985, and December 20, 1985, and $1,080 for delay of payment between December 21, 1985, and April 8, 1986. Additionally, the Commission awarded the petitioner interest under section 19(n) of the Act. The Commission found that the respondent’s conduct was not vexatious; thus, the petitioner was not entitled to additional compensation under section 19(k) or under section 16 of the Act.

The circuit court confirmed the Commission’s decision. The respondent appeals.

The record shows that on March 31, 1983, the 48-year-old petitioner injured his back while working as a turbine operator for the respondent. The respondent’s company doctor, Robert I. Martin, hospitalized the petitioner and referred the case to Dr. Jesse M. Weinger. Dr. Weinger injected the petitioner with chymopapain and performed a spinal fusion on him. By February of 1985, both doctors felt that the petitioner’s condition had improved.

The respondent then arranged for rehabilitation counselor Ron Nemiroff to work with the petitioner. At the petitioner’s request, and with Nemiroff’s concurrence, the respondent paid for a Belsaw Institute locksmith correspondence course for the petitioner.

The petitioner received his first 10 locksmith lessons during the second week of May 1985. He submitted his first five lessons for grading on June 12, 1985, and the next five on July 19, 1985. He then submitted another five on September 26, 1985; another five on October 26, 1985; and the remaining 10 by December 20, 1985. Since December 20, he had been taking an advanced locksmith course.

In the meantime, counselor Nemiroff contacted the Belsaw Institute at the respondent’s request. On August 5, 1985, Nemiroff received a letter from Belsaw stating that the average time for completion of the locksmith course was six months. The respondent subsequently asked Nemiroff to learn from Belsaw how long it would take an individual to complete the course if he worked on it 40 hours a week. On September 9, 1985, Nemiroff received a letter from Belsaw stating that the petitioner should be able to complete the remaining 20 courses in two weeks if he worked on them 40 hours per week.

Nemiroff testified before the arbitrator that he never told the petitioner about the letters from Belsaw. Further, Nemiroff testified that he thought the petitioner was making satisfactory progress on the course.

On October 11, 1985, the respondent notified the petitioner’s attorney by letter that it expected the petitioner to complete his locksmith training by October 31, 1985. The respondent’s letter further stated that since the petitioner should be able to complete the program by October 31, he would not need weekly rehabilitation payments beyond that time. The respondent included with its letter a copy of Belsaw’s September 9 letter.

On November 14, the respondent terminated temporary total disability benefits to the petitioner. The petitioner filed his section 19(b— 1) petition for an emergency hearing on November 27, 1985. On December 12, 1985, the respondent filed a motion to dismiss the section 19(b — 1) petition, contending primarily that the petitioner had not shown that he was unable to return to work. At the emergency hearing held on January 15 and 17, 1986, the arbitrator denied the respondent’s motion to dismiss the petition.

The medical evidence presented at the hearing tended to show that the petitioner’s condition was permanent. The doctors, including Dr. Marquardt, whom the respondent had hired to examine the petitioner in August 1985, agreed that the petitioner could perform only a limited amount of bending and stooping, could lift no more than 30 pounds and could not sit for extended periods. Dr. Martin felt that the petitioner could be employed as a locksmith. Drs. Martin and Weinger both testified that the petitioner was gainfully employable and that they were seeing him only to monitor his medication.

Other evidence regarding the petitioner’s employability showed that the petitioner had an eighth-grade education and few transferable job skills. He had owned two bars at different times in the past. However, he testified that he was forced to sell the second of these bars after he and his first wife divorced. She had handled all of the business aspects of the bar. Without her assistance, he began losing money.

On September 11, 1985, Nemiroff had completed a labor market study involving the 11 locksmith shops in the Peoria area. He found that none of them needed any additional help. On October 10, 1985, Nemiroff performed another survey of the locksmith businesses, finding that none of them were seeking additional employees, but that three of them had hired new employees since July 1985. It appears from the evidence that the respondent did not inform the petitioner of Nemiroff’s findings.

The petitioner testified that prior to the completion of his rehabilitation training he contacted locksmith businesses about employment. He did not provide any details regarding these contacts. He also admitted that after completing his locksmith course, he had not attempted to find any work as a locksmith or otherwise.

Mervin Mikkelson, a rehabilitation counselor with the Illinois Department of Occupational Rehabilitation Services, opined that the petitioner was potentially employable, but that he currently would have trouble finding a job as a locksmith or in any other field.

The respondent first argues on appeal that the petitioner’s failure to seek employment after finishing his locksmith course entitled the respondent to terminate his temporary total disability benefits.

Temporary total disability benefits (TTD) are available only from the time an employee is injured until he has recovered as much as the character of his injury will permit. (Brinkmann v. Industrial Comm’n (1980), 82 Ill. 2d 462, 413 N.E.2d 390.) Even where an employee’s physical condition has stabilized, he may still be entitled to “maintenance” while he is in a prescribed rehabilitation program. (National Tea Co. v. Industrial Comm’n (1983), 97 Ill. 2d 424, 454 N.E.2d 672.) Such maintenance is often merely a continuation of TTD benefits. (See Revere Copper & Brass, Inc. v. Industrial Comm’n (1983), 97 Ill.

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Bluebook (online)
529 N.E.2d 237, 174 Ill. App. 3d 918, 124 Ill. Dec. 417, 1988 Ill. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/archer-daniels-midland-co-v-industrial-commission-illappct-1988.