Gallentine v. Industrial Commission

559 N.E.2d 526, 201 Ill. App. 3d 880, 147 Ill. Dec. 353, 1990 Ill. App. LEXIS 1262
CourtAppellate Court of Illinois
DecidedAugust 22, 1990
Docket2-89-1229WC
StatusPublished
Cited by17 cases

This text of 559 N.E.2d 526 (Gallentine 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
Gallentine v. Industrial Commission, 559 N.E.2d 526, 201 Ill. App. 3d 880, 147 Ill. Dec. 353, 1990 Ill. App. LEXIS 1262 (Ill. Ct. App. 1990).

Opinion

JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Kathleen Gallentine, filed a petition for an emergency hearing pursuant to section 19(b — 1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) against the respondent, K mart Corporation, following the respondent’s discontinuance of her temporary total disability benefits (TTD) and her medical expenses. In addition, the claimant filed a petition for penalties under sections 19(k) and 19(7) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(k), 138.19(i)) and for attorney fees under section 16 (Ill. Rev. Stat. 1987, ch. 48, par. 138.16) of the Act. Following a hearing on these petitions, the arbitrator found that the claimant continued to be temporarily totally disabled and awarded her 1556/7 weeks of TTD; that the claimant was entitled to medical expenses totalling $2,644.07; and that she was entitled to penalties under section 19(1) in the amount of $2,380 and to attorney fees under section 16 in the amount of $1,500. On review, the Industrial Commission (Commission) modified the arbitrator’s decision and reduced her TTD to 134 weeks; disallowed the $1,500 awarded by the arbitrator for the chiropractor’s bill as an unreasonable and unnecessary medical expense; and disallowed the arbitrator’s award of penalties and attorney fees. Additionally, the Commission held that the arbitrator erroneously admitted a report of Dr. R.L. Anderson over the respondent’s objection, and the Commission refused to consider that evidence in its decision. The Commission’s decision was subsequently confirmed by the circuit court, and the claimant appeals.

On appeal, the claimant raises the following issues: (1) whether the Commission erroneously denied the admittance of Dr. R.L. Anderson’s report; and (2) whether the Commission’s decision was against the manifest weight of the evidence with regard to (a) the reduction of the claimant’s TTD, (b) the Commission’s finding that the chiropractor’s bill was unreasonable and unnecessary and the denial of the payment of the bill, and (c) the reversal of the arbitrator’s award of penalties and of attorney fees. To consider these issues, a statement of the facts is necessary.

At the hearing before the arbitrator, the claimant testified that she was employed by the respondent in January 1985 and that her duties included taking freight from upstairs, hanging up merchandise, and doing displays of merchandise in the lingerie department. Her work shift was from 8 a.m. or 8:30 a.m. until noon, although she sometimes worked past this time if another employee was unable to work. On January 23, 1985, the claimant lifted a clothes rack to place it on a caster, and when she did so, she felt something “pop” in her back. The claimant reported her injury to the floor supervisor and continued to work until the end of her shift. At the time of the accident, the claimant had immediate pain in her back, and as the morning progressed, she developed pain down her hips and both of her legs. By the end of her shift, the claimant was in considerable pain.

At the end of her work day, the claimant went home. Shortly thereafter, she went to the emergency room of the hospital, where she was examined, given pain medication and told to see her personal physician. The claimant called her doctor, Dr. Neiweem, immediately, but she was unable to obtain an appointment until a week later. When the claimant saw Dr. Neiweem, he examined her, prescribed physical therapy for her, and .told the claimant not to return to work. Dr. Neiweem admitted the claimant to the hospital in March 1985 for a myelogram and a CAT scan.

Also in March 1985, while the claimant was still receiving physical therapy, the claimant started chiropractic treatments with Dr. Meyers. The claimant stated that Dr. Meyers’ treatments did not help her condition; however, the chiropractic treatments temporarily relieved her pain for approximately two hours after the treatment. The claimant saw Dr. Meyers on a regular basis until April 1987, and she still occasionally went to him for treatment. It was Dr. Meyers who referred her to Dr. R.L. Anderson. On cross-examination, the claimant admitted that Dr. Neiweem did not refer her to Dr. Meyers, and that it was Dr. Neiweem’s opinion that chiropractic treatment would not help her condition.

The claimant first saw Dr. Anderson in May 1985. At that time, Dr. Anderson examined her, prescribed more physical therapy, told her to walk and advised the claimant not to return to work. Dr. Anderson also had electrodiagnostic tests, an epidural block, and a CAT scan performed on the claimant. Dr. Anderson told the claimant that she had a herniated disc at L5-S1 and that she had two disc protrusions. Dr. Anderson had scheduled the claimant for surgery in October 1986, but because of the claimant’s other physical problems at that time, the surgery was not performed, and the surgery had never been rescheduled. Dr. Anderson had referred her to “back school” in March 1987 and to Mayo Clinic in April 1987.

The claimant testified that she was still under Dr. Anderson’s care and that her last appointment with Dr. Anderson was on January 15, 1988. Before returning to work in August 1987, Dr. Anderson had placed work restrictions on her. Dr. Anderson had advised her not to do any strenuous or heavy lifting or to stay in one position, i.e., either bending, sitting, or standing, for long periods of time. According to the claimant, she has never been released for full-duty work.

The claimant attempted to return to work on August 24, 1987, and upon her return to work, the claimant was assigned to run a cash register. To run the cash register, the claimant had to operate the cash register, pull merchandise through, and package the merchandise for the customer. The merchandise involved could weigh up to 20 pounds.

On her first day back to work, the claimant was scheduled to work for three hours. The claimant did not operate the cash register that day, but she observed another employee. After standing and watching the other employee for about an hour and a half, the claimant began to have excruciating pain in her left leg. The respondent had provided the claimant with a stool so that she could sit down when necessary; however, this did not help her as the claimant could only alleviate her pain by walking around or by lying down and propping up her leg. The claimant told the floor supervisor that she was in pain, and the claimant was sent home. The following day, the claimant continued to have pain, so she called the respondent and said that she was not coming in to work that day. After calling the respondent, the claimant called Dr. Anderson, and he told her not to go into work. The claimant had not returned to work since that time, although the claimant stated she had sought other work within her restrictions. It was the claimant’s testimony that the respondent had not offered her a position within her work restrictions.

The claimant testified that she was not currently receiving TTD payments because the respondent had discontinued her TTD as of May 1987. The claimant stated that she cannot lift heavy items and that, while she can twist and turn, she cannot do these activities for any extended period of time. The claimant further stated that she always has pain in her left leg, as well as tingling and numbness in three of her toes.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Holocker v. Illinois Workers' Compensation Comm'n
2017 IL App (3d) 160363WC (Appellate Court of Illinois, 2017)
Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Commission
896 N.E.2d 1132 (Appellate Court of Illinois, 2008)
Land & Lakes Co. v. Industrial Commission
834 N.E.2d 583 (Appellate Court of Illinois, 2005)
Homebrite Ace Hardware v. Industrial Commission
814 N.E.2d 126 (Appellate Court of Illinois, 2004)
F&B Manufacturing Co. v. Industrial Commission
758 N.E.2d 18 (Appellate Court of Illinois, 2001)
Anderson v. Industrial Commission
748 N.E.2d 339 (Appellate Court of Illinois, 2001)
Beuse v. Industrial Comm'n
Appellate Court of Illinois, 1998
Beuse v. INDUSTRIAL COM'N OF ILLINOIS
701 N.E.2d 96 (Appellate Court of Illinois, 1998)
City of Granite City v. Industrial Commission
666 N.E.2d 827 (Appellate Court of Illinois, 1996)
Ingalls Memorial Hospital v. Industrial Commission
609 N.E.2d 775 (Appellate Court of Illinois, 1993)
University of Illinois v. Industrial Commission
596 N.E.2d 823 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
559 N.E.2d 526, 201 Ill. App. 3d 880, 147 Ill. Dec. 353, 1990 Ill. App. LEXIS 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallentine-v-industrial-commission-illappct-1990.