Gust K. Newberg Construction v. Industrial Commission

594 N.E.2d 758, 230 Ill. App. 3d 96, 171 Ill. Dec. 614, 1992 Ill. App. LEXIS 946
CourtAppellate Court of Illinois
DecidedJune 11, 1992
Docket3-91-0774WC
StatusPublished
Cited by4 cases

This text of 594 N.E.2d 758 (Gust K. Newberg Construction 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
Gust K. Newberg Construction v. Industrial Commission, 594 N.E.2d 758, 230 Ill. App. 3d 96, 171 Ill. Dec. 614, 1992 Ill. App. LEXIS 946 (Ill. Ct. App. 1992).

Opinion

JUSTICE HENRY LEWIS

delivered the opinion of the court:

Claimant, James McDonald, filed two applications for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), for two injuries incurred while employed by two separate employers. The first injury was incurred on April 8, 1987, while the claimant was employed by the respondent, Gust K. Newberg Construction (Newberg). The second injury was incurred on January 5, 1988, while he was employed by Midway Industrial Contractors, Inc. (Midway). The claimant filed section 19(b — 1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) petitions in both of these cases, and the petitions were consolidated for hearing. Following the hearing on the petitions, the arbitrator found that the claimant was entitled to 1093/? weeks of temporary total disability (TTD) and to medical expenses in the amount of $31,793.50, and that the claimant’s condition of ill-being resulting from his left knee and cervical injuries was causally connected to his accident of April 8, 1987. Newberg, the only employer involved in this appeal, appealed the arbitrator’s decision to the Industrial Commission (Commission). The Commission modified the arbitrator’s decision by reducing the claimant’s TTD to 1033/? weeks but otherwise affirmed the arbitrator’s decision. On appeal to the circuit court, the court determined that the Commission’s decision was not against the manifest weight of the evidence and confirmed the Commission’s decision. Newberg appeals.

On appeal, Newberg contends that the Commission’s determination that the claimant’s condition of ill-being was causally connected to his work accident of April 8, 1987, was against the manifest weight of the evidence. Specifically, Newberg asserts that the intervening accident of January 5, 1988, broke the causal connection between his accident of April 8, 1987, and his condition of ill-being regarding his cervical and left-knee injuries. Newberg further asserts that, since the claimant stopped working only after the second accident, his benefits and medical expenses incurred after the second accident should be paid by Midway. Newberg also argues that the subsequent intervening accident in which the claimant sustained a herniated disc in his lumbar spine and two hernias was the major contributing cause of the claimant’s inability to return to work, and the Commission failed to consider this factor in its determination. The second issue raised by Newberg is that the Commission erred in relying on Dr. Mash’s medical report in its decision, since that report was not admitted into evidence in the case at bar.

At the hearing on his section 19(b — 1) petitions, the claimant testified that he is 50 years of age, and that he has worked as a carpenter and as a painter for over 30 years. Prior to April 8, 1987, the claimant had not sustained any injury to his neck, upper extremities, low back or his lower extremities. On April 8, 1987, the claimant was employed by Newberg as a carpenter at the Braidwood Nuclear Power Plant and was helping to construct a scaffold that was 40 feet from the ground. His work on this scaffold required him to stand on a conveyor system three or four feet off of the ground and to hand lumber measuring 4 inches by 6 inches by 24 feet up to another worker on a ledge 20 feet off of the ground. The claimant estimated that the 4-inch by 6-inch by 24-foot piece of lumber weighed approximately 180 to 220 pounds. While performing this work on that date, a 4-inch by 6-inch by 24-foot piece of lumber was dropped by the person working on the ledge above the claimant and struck the claimant across the neck and the shoulder. When the lumber struck the claimant, it caused his left leg to go “through” the conveyor system upon which he was standing while his right leg swung into the side of the conveyor. Immediately after his accident, he noticed swelling in his knee and his ankle, and his neck and shoulder hurt.

Following this accident, the claimant reported his accident to his foreman and continued to work, but he did not seek medical treatment until approximately two weeks later. According to the claimant, he was able to keep working because “my partners were taking care of me.” Although he continued to work, the claimant stated his condition became worse, and he could not lift anything. The claimant stated that his left arm was starting to go numb, his right arm was almost useless, and he was having trouble with both of his knees and the ankle on his left leg.

The claimant was sent to Dr. Adelmann by Newberg’s company nurse. Dr. Adelmann examined him, took X rays, and prescribed Butazolidin for the claimant, but he discontinued this medication when the claimant developed an allergic reaction. Subsequently, the claimant went to Dr. Michael Greenwald. Dr. Greenwald also examined him and took X rays, and he treated the claimant conservatively with prescribed medication, cortisone injections and physical therapy.

The claimant continued to work for Newberg for almost a month after his accident, until he was laid off work. After a month’s layoff from Newberg, the claimant went to work for Midway as a painter at the Braidwood Nuclear Power Plant. The claimant worked for Midway until January 5, 1988. On that date, while carrying a bag of glass beads or sand, the claimant stepped over a drainage hose and slipped in grease from a nearby motor. When the claimant fell, he struck his lower back and felt a “real sharp pain in the groin.” Later that day, the claimant developed lumps on both sides of his groin, and his lower back was injured. The claimant denied that he struck his head in this fall.

The claimant testified that he had been having progressive difficulties with his neck, shoulders, arms, left knee and left ankle, and that following his accident of January 5, 1988, he noticed no change in these areas. After his second accident, the claimant sought treatment from Dr. Rubino, his family physician, for the hernias in his groin area. Dr. Rubino performed surgery on his hernias, but the claimant treated with Dr. Greenwald for his lower back. The claimant had been seeing Dr. Greenwald prior to his accident of January 5, 1988, and he continued to see the doctor after his second accident. Dr. Greenwald had the claimant undergo an MRI (magnetic resonance imaging), a dye-injected CAT scan, and an arthrogram on his left knee. Dr. Greenwald wanted to perform surgery on the claimant’s knee and then operate on his neck at a later time. However, the claimant went to Dr. Nuber, who performed surgery on his left knee in August 1988, and he went to Dr. Butler for a second opinion on his neck. Subsequently, Dr. Butler performed surgery on his neck on June 19,1989.

The claimant testified that his current complaints consist of his arms going numb, his fingers “locking,” and severe pains in his shoulder and right arm. Also, his knee wants to give out on him. The claimant stated he has numbness over his whole body, especially his lower extremities, and that he has problems with “losing my bowels on many occasions.” Recently, Dr. Butler had the claimant undergo another MRI for his low-back pain.

The claimant had not worked since his accident of January 5, 1988. He had seen Dr. James Duffy on two occasions at his lawyer’s request, but Dr. Duffy did not treat him. He also saw Dr. Steven Mash at the request of Hartford Insurance, Midway’s insurance carrier.

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Bluebook (online)
594 N.E.2d 758, 230 Ill. App. 3d 96, 171 Ill. Dec. 614, 1992 Ill. App. LEXIS 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gust-k-newberg-construction-v-industrial-commission-illappct-1992.