Gallianetti v. INDUSTRIAL COM'N OF ILL.

734 N.E.2d 482, 315 Ill. App. 3d 721, 248 Ill. Dec. 554, 2000 Ill. App. LEXIS 635
CourtAppellate Court of Illinois
DecidedJuly 28, 2000
Docket3-99-0741 WC
StatusPublished
Cited by26 cases

This text of 734 N.E.2d 482 (Gallianetti v. INDUSTRIAL COM'N OF ILL.) 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
Gallianetti v. INDUSTRIAL COM'N OF ILL., 734 N.E.2d 482, 315 Ill. App. 3d 721, 248 Ill. Dec. 554, 2000 Ill. App. LEXIS 635 (Ill. Ct. App. 2000).

Opinion

JUSTICE COLWELL

delivered the opinion of the court:

Claimant, Ricky J. Oallianetti, appeals the decision of the circuit court of Bureau County confirming the decision of the Industrial Commission (Commission). On appeal, claimant argues that the Commission erred in awarding him permanent partial disability (PPD) benefits under section 8(d)(2) of the Workers’ Compensation Act (Act) (820 ILCS 305/8(d)(2) (West 1992)) in lieu of a wage-differential award under section 8(d)(1) of the Act (820 ILCS 305/8(d)(l) (West 1992)). Alternatively, claimant contends that the Commission (1) erred in modifying the arbitrator’s award of temporary total disability (TTD) benefits and (2) improperly granted respondent a credit against his PPD award. For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

I. FACTS

On July 11, 1994, claimant filed an application for adjustment of claim. Claimant alleged that he sustained injuries to his left elbow while working as a tree trimmer for respondent, Asplundh Tree Expert Company. According to the application, on July 3, 1992, claimant was hit in the left elbow with shotgun pellets while working for respondent in the Peoria area. An arbitration hearing on claimant’s application was held on October 7, 1996. The record from that hearing reveals the following relevant facts.

Claimant is a resident of Tiskilwa, Illinois. Tiskilwa is located approximately 55 miles north of Peoria, 30 miles west of LaSalle-Peru/ Ottawa, and 7 miles south of Princeton. Although he quit high school before completing his sophomore year, claimant eventually completed an apprenticeship with the International Brotherhood of Electrical Workers (IBEW), Local 51, in Springfield. While affiliated with Local 51, claimant held jobs as part of the spray crew and the tree-trimming crew. At the time of his injury, claimant was 41 years old and working as a tree-trimming crew foreman. Claimant’s duties included climbing trees, cutting them with a chainsaw, and running a chipper. Working as a tree trimmer involved lifting equipment in excess of 40 pounds.

The day after he sustained his injuries, claimant treated at the emergency room at Perry Memorial Hospital (Perry) in Princeton. The following day claimant returned to Perry for X rays. The X rays revealed two foreign bodies consistent with pellets. One of the pellets was lodged in soft tissue, while the other was intra-articular. Claimant was treated with intravenous antibiotics.

On July 7, 1992, claimant sought treatment with Dr. Martin Faber. Dr. Faber referred claimant to Dr. Mark Phillips, an orthopaedic specialist. On July 24, 1992, Dr. Phillips performed an arthroscopy of the left elbow with a partial synovectomy and a debridement of the elbow joint. Despite the surgery, claimant’s complaints persisted, and Dr. Phillips referred claimant to Dr. Ronald Palmer.

On December 8, 1992, Dr. Palmer performed an arthrotomy of the left elbow with pellet removal. To assist claimant’s recovery, Dr. Palmer prescribed physical therapy. On July 6, 1993, Dr. Palmer released claimant to work without restrictions. Although claimant returned to work, any vibration, lifting, or heavy pulling would aggravate his condition. He would also experience swelling and burning and needle-like sensations in his arm. Because of these symptoms, claimant was unable to climb trees or use a chainsaw. On July 26, 1993, Dr. Palmer diagnosed claimant with cubital tunnel syndrome and recommended surgery if his symptoms intensified. On September 1, 1993, Dr. Palmer authorized claimant to be off work and scheduled surgery. On December 28, 1993, claimant underwent an anterior transposition of the left ulnar nerve at the elbow. After the operation, claimant was placed in a work-hardening program.

Eventually, claimant returned to Dr. Faber, who referred him to Dr. Daniel Nagle. Claimant first treated with Dr. Nagle on February 10, 1994, with complaints of pain in the elbow, particularly when extended. Dr. Nagle indicated the presence of a foreign object in claimant’s left elbow. Dr. Nagle also noted possible nerve compressions. Dr. Nagle eventually ordered a magnetic resonance imaging (MRI) and electrodiagnostic studies. These tests revealed a pinched ulnar nerve.

Claimant testified that in July 1994 respondent contacted him regarding a flagging job. According to claimant, .although he expressed interest in the position, respondent never followed through with an offer.

On August 16, 1994, Dr. Nagle prescribed steroid shots in the elbow and ordered a functional capacity evaluation. On September 27, 1994, claimant underwent the functional capacity evaluation. On October 18, 1994, Dr. Nagle reviewed the results of the evaluation with claimant. The evaluation showed that claimant would be unable to return to his normal job duties as a tree trimmer. The evaluation indicated" a sedentary-type job that would not place resistive demands on claimant’s left upper extremity and that would require only light intermittent use as an assist to the right hand. Following claimant’s October 1994 appointment, Dr. Nagle discharged claimant to return on an as-needed basis.

Claimant continued to experience pain and swelling in his arm. Although claimant attempted to contact Dr. Nagle by telephone in January 1995, he never spoke with the doctor.

Claimant testified that he telephoned Local 51 approximately four times between September 1994 and September 1995 in an attempt to find work. Claimant spoke with a Dominic Rivero. Around the same time, claimant also contacted several employers in the Tiskilwa and Princeton areas. All of these efforts were fruitless.

Around October 1995, claimant began experiencing pains in his left thumb, forearm, hand, neck, and shoulder. He also noted “popping” and locking in his left elbow. On October 17, 1995, claimant visited Dr. Nagle, who prescribed pain medication and vitamin B6 and ordered additional electrodiagnostic studies. Claimant last treated with Dr. Nagle on January 9, 1996. At that time, Dr. Nagle advised claimant to continue taking his pain medication and authorized him to return on an as-needed basis.

As of the date of the arbitration hearing, claimant testified that he is unable to lift anything weighing more than four or five pounds. Claimant, who is right-hand dominant, also indicated that he is unable to use his left arm for support or to climb or grip. Claimant further testified that respondent has not offered claimant vocational rehabilitation. Following his January 1996 visit with Dr. Nagle, claimant conducted another job search. Specifically, claimant applied to several factories in the Princeton area. Claimant testified that the starting wage at the factories was $5.50 per hour. Claimant also regularly returned to the places he applied to beginning in October 1994. Most of those employers paid minimum wage. Claimant admitted that although Dr. Nagle did not place any restrictions on his driving, he limited his employment search to the area near his home because he experiences discomfort in his arm when driving more than 10 or 15 miles.

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Bluebook (online)
734 N.E.2d 482, 315 Ill. App. 3d 721, 248 Ill. Dec. 554, 2000 Ill. App. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallianetti-v-industrial-comn-of-ill-illappct-2000.