Baldwin Associates v. Industrial Commission

598 N.E.2d 999, 232 Ill. App. 3d 928, 174 Ill. Dec. 367, 1992 Ill. App. LEXIS 1187
CourtAppellate Court of Illinois
DecidedJuly 24, 1992
DocketNo. 4—91—0280WC
StatusPublished

This text of 598 N.E.2d 999 (Baldwin Associates 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
Baldwin Associates v. Industrial Commission, 598 N.E.2d 999, 232 Ill. App. 3d 928, 174 Ill. Dec. 367, 1992 Ill. App. LEXIS 1187 (Ill. Ct. App. 1992).

Opinions

JUSTICE RAKOWSKI

delivered the opinion of the court:

Appellant Baldwin Associates (employer) appeals the judgment of the circuit court which confirmed a decision of the Industrial Commission (Commission) that claimant-appellee Paul Breymeier (claimant) was permanently and totally disabled for life under section 8(f) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f)). The Commission had increased the award of the arbitrator, which awarded claimant 40 weeks of total disability, in addition to 222/7 weeks of temporary total disability under section 8(b) of the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b).) We affirm.

The pertinent facts are as follows. Claimant was employed by Baldwin as a plumber-pipe fitter. At the time of the hearing on August 27, 1987, claimant was 64 years of age. He testified that he first noticed problems with his knee on December 11, 1984, and went to his physician, Dr, Werking, the next day. Claimant was referred to Dr. Watson, an orthopedic surgeon, who performed surgery. Claimant has not worked as a plumber-pipe fitter since December 11, 1984.

Claimant further testified that he was unaware of any light-duty work which could be procured from the union hall. His knee still swells, and the knee often bothers him when he walks up or down steps. Claimant has not engaged in heavy lifting, and the most he can lift is around 25 pounds. He denied any previous injury to his knee and has not reinjured his knee subsequent to December of 1984.

In May of 1986, claimant filled out a union form pertaining to work availability at the time. He indicated on this form that he was not seeking employment at this time and was not seeking retraining in a different occupation. In response to a question asking if there was any reason, other than medical, why he was not working, claimant indicated that he was “retired.” Claimant testified that he was not seeking employment and retraining because of his age, which was 64 years.

Other evidence in this case consists of medical reports, and the depositions of Drs. Werking and Watson, concerning the surgery performed on claimant on April 17, 1985. Dr. Watson testified that at the time of surgery, he diagnosed moderate to severe arthritis involving the medial femoral condyle, the lateral femoral condyle, and under the surface of the patella. Dr. Watson shaved down the arthritic surfaces. Following the surgery, Watson saw claimant on April 23, 1985, and at this time claimant was doing well. Claimant was discharged from Watson’s care at this time, and Watson has not seen claimant since this time. Watson’s diagnosis in April of 1985 was osteoarthritis of the knee.

Dr. Watson’s prognosis for the knee in April of 1985 was moderately poor. Watson testified that claimant could probably not return to his occupation. It was very probable that claimant would require future medical care for the knee, possibly further medication, arthroscopic procedures and joint replacement. Watson felt that claimant should avoid all physical activities which caused him discomfort. Dr. Watson also testified that the arthritis he saw in March of 1985 was the same that was present before claimant’s injury.

In the surgery Dr. Watson performed on claimant, he found no evidence of tears of ligaments or menisci. Watson felt that claimant would be maximally improved from the surgery about a month after surgery, and he did not instruct claimant to seek any further medical care. Watson described the arthroscopic procedure he performed as relatively innocuous.

Dr. Werking first saw claimant on December 13, 1984, and continued to treat claimant to the end of 1984. Werking provided claimant with a work release (with restrictions) on January 4, 1985. These restrictions included no heavy lifting or carrying over 25 pounds, no repetitive bending or walking up stairs or standing. Werking recommended rest periods for claimant as well. Dr. Werking again saw claimant on April 25, 1985, after Dr. Watson’s surgery. On June 24, 1985, Dr. Werking saw claimant again, and at this time changed claimant’s work restrictions to include lifting weights of up to 50 pounds. The other restrictions remained, with the additional restriction that claimant was to avoid uneven grades.

Claimant filed an application for adjustment of claim on July 8, 1985. The hearing before the arbitrator was held on August 27, 1987. On September 30, 1987, the arbitrator rendered her decision awarding claimant 222h weeks of temporary total disability at a rate of $474.71. The arbitrator further found that claimant was entitled to 40 weeks at $293.61 pursuant to section 8(e) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)), and that he had sustained 20% loss of use of his right leg. Claimant appealed the arbitrator’s decision, and the hearing before the Commission was held on June 30, 1988. On July 25, 1990, the Commission issued its decision, which increased claimant’s benefits to $474.71 per week for life, based on a finding of permanent total disability under section 8(f) of the Act.

The employer then appealed the Commission’s decision to the circuit court, which on March 14, 1991, rendered a decision confirming the Commission’s decision. The employer filed its notice of appeal on April 12, 1991.

The issue presented for appeal is whether the decision of the Commission finding claimant permanently and totally disabled is against the manifest weight of the evidence.

In the recent case of Marathon Oil Co. v. Industrial Comm’n (1990), 203 Ill. App. 3d 809, 815-16, 561 N.E.2d 141, the court observed:

“An employee is totally and permanently disabled under workers’ compensation law where he is unable to make some contribution to industry sufficient to justify payment of wages to him. [Citation.] He must show that he is, for practical purposes, unemployable. [Citation.] A person need not be reduced to a state of total physical helplessness, but is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. [Citation.]
The employee bears the burden of proving each element of his case, including the extent and permanency of the injury. [Citation.] It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. The Commission’s determination of these issues will not be set aside unless it is against the manifest weight of the evidence.”

In arguing that the determination of the Commission in the case sub judice was against the manifest weight of the evidence, the employer relies heavily on the cases of A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804, and Intercraft Industries Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 297, 447 N.E.2d 807. Specifically, the employer notes that the A.M.T.C.

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Valley Mould & Iron Co. v. Industrial Commission
419 N.E.2d 1159 (Illinois Supreme Court, 1981)
Esposito v. Industrial Commission
542 N.E.2d 843 (Appellate Court of Illinois, 1989)
Intercraft Industries Corp. v. Industrial Commission
447 N.E.2d 807 (Illinois Supreme Court, 1983)
Ceco Corp. v. Industrial Commission
447 N.E.2d 842 (Illinois Supreme Court, 1983)
A.M.T.C. of Illinois, Inc. v. Industrial Commission
397 N.E.2d 804 (Illinois Supreme Court, 1979)
Marathon Oil Co. v. Industrial Commission
561 N.E.2d 141 (Appellate Court of Illinois, 1990)

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Bluebook (online)
598 N.E.2d 999, 232 Ill. App. 3d 928, 174 Ill. Dec. 367, 1992 Ill. App. LEXIS 1187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-associates-v-industrial-commission-illappct-1992.