Hebeler v. Industrial Commission

565 N.E.2d 1035, 207 Ill. App. 3d 391, 152 Ill. Dec. 353, 1991 Ill. App. LEXIS 43
CourtAppellate Court of Illinois
DecidedJanuary 15, 1991
Docket2-89-0615 WC
StatusPublished
Cited by4 cases

This text of 565 N.E.2d 1035 (Hebeler 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
Hebeler v. Industrial Commission, 565 N.E.2d 1035, 207 Ill. App. 3d 391, 152 Ill. Dec. 353, 1991 Ill. App. LEXIS 43 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, John Hebeler, filed a petition for emergency hearing under section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)). He claimed that his back condition of herniated nucleus pulposus with sciatica had resulted from an injury he suffered on August 7, 1987, while working for the respondent, Holland Company. The arbitrator found that the petitioner’s back condition was causally connected with his work. On review, the Industrial Commission (Commission) found that while the August 7 injury had resulted in acute lumbar strain, the petitioner’s subsequent activities had broken the causal chain between his injury and the November 3, 1987, diagnosis of herniated nucleus pulposus. The circuit court confirmed the Commission’s decision. The petitioner appeals.

The petitioner testified that on August 7, 1987, he was changing the 45- to 50-pound bars on a stripper as part of his employment with the respondent. While he was removing the bars and carrying them into the shop, he hurt his back. He finished working, then went home. That night, his back started bothering him. On August 11, 1987, he went to see Dr. Jay Ginther. The petitioner did not work thereafter.

Pursuant to Dr. Ginther’s instructions, the petitioner began a physical therapy program. While he claimed that he missed the physical therapy sessions three times at most, the physical therapist’s records indicated that he was frequently absent. Further, the therapist stated that the petitioner appeared unmotivated and that it was unlikely he could only perform at the low level he demonstrated in therapy.

The petitioner admitted that between August 7 and November 3, 1987, he played pool 15 times for about 2xk hours each time and went duck hunting on a dozen occasions. The duck hunting consisted mainly of sitting in a blind he had helped construct after the injury. He also acknowledged that he tried chopping wood with an 8-pound maul, but after splitting a couple of logs quit because of the pain in his back.

He further testified that he had previously injured his back at work in 1978 and had undergone surgery. For his injury, he received a $52,500 worker’s compensation award.

Dr. Ginther noted in his deposition that the petitioner’s 1978 surgery involved a laminectomy exploration at the L-5,' S-l disc level and the removal of a disc at the L-4, L-5 level on the left side due to a herniated nucleus pulposus. When he first saw the petitioner on August 11, 1987, he diagnosed that he was suffering from acute lumbar strain. X rays taken at the time showed old disc disease and arthritic changes, but nothing further. Dr. Ginther prescribed physical therapy and limited him to light-duty work involving no more than 10 to 12 pounds of lifting. When the petitioner’s pain did not subside in the following weeks, Dr. Ginther sent him to Dr. Oliver Ancheta for neurological studies.

Dr. Ancheta examined the petitioner on October 9, 1987, and was unable to detect any objective evidence of involvement of the nerve root. He noted, however, that the subjective symptoms were referable to the L-5, S-l nerve root on the right.

On November 3, 1987, Dr. Ginther hospitalized the petitioner for a myelogram and CT scan. They showed at the L-4, L-5 level a herniated nucleus pulposus on the right side. Based upon the petitioner’s description of the lifting episode preceding his injury and on the petitioner’s claim that he had had no back problems since 1978, Dr. Ginther attributed the petitioner’s condition of ill-being to his work.

The petitioner’s attorney posited a hypothetical question to Dr. Ginther, in effect asking whether certain activities between the August 7 injury and the November 3 diagnosis could have broken the causal chain. The hypothetical involved an individual who in October 1987 hunted ducks, chopped wood, played pool, pulled the tires off of a pickup truck, welded on a car, and moved a 600- to 700-pound safe using a dolly. Dr. Ginther stated that those activities would make it impossible to differentiate between the August and the October activities as the cause of the herniated nucleus pulposus found in November. However, he further stated that the number and duration of the activities listed in the hypothetical would be a factor in determining whether they broke the causal chain. He noted that one would have to assume, for instance, that “cutting and loading wood” meant one pickup truck load of wood.

A private investigator reported that in October 1987, he had observed a man welding beside a garage he believed was the petitioner’s, though because of the mask the man wore he could not be sure it was the petitioner. He further reported that he saw the petitioner load shotguns and a cooler into a pickup and go duck hunting in a blind. He also watched the petitioner play pool, which included repeated bending at the waist. The petitioner did not appear to experience any pain or difficulty when bending over.

At the respondent’s request, Dr. Norm Hagman examined the petitioner on April 11, 1988. Dr. Hagman did not offer any opinion regarding whether the activities in October would have broken the causal connection between the petitioner’s work injury and his subsequent condition of ill-being.

The arbitrator found that the petitioner’s August 7, 1987, work injury had caused his temporary total disability from August 7, 1987, through June 7, 1988, the date of the hearing. He therefore awarded him $208 per week for 434/7 weeks, plus medical expenses of $3,481.50.

On review, the Industrial Commission found that the petitioner was temporarily totally disabled for nine weeks and was entitled to $1,905 for medical expenses. The Commission further found, however, that the petitioner had failed to prove a causal relationship between his accidental injuries of August 7 and his condition of ill-being after October 9, 1987. The circuit court found that the Commission’s decision was not against the manifest weight of the evidence.

On appeal, the petitioner first argues that the Commission’s conclusion that his October activities broke the causal chain between his August injury and the November diagnosis of herniated nucleus pulposus was against the manifest weight of the evidence. In particular, he contends that the evidence of causality was unrefuted since, because of the inaccuracies in the hypothetical, no weight can be given to Dr. Ginther’s response to the hypothetical question.

Whether a causal connection exists between an accident and a condition of ill-being may be determined from medical and nonmedical evidence. (International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908.) In presenting evidence by a hypothetical question, counsel propounding the question has a right to ask it, assuming only the facts as he perceives them to be shown by the evidence; opposing counsel may then challenge the controverted facts by presenting his own hypothetical question on cross-examination. (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
565 N.E.2d 1035, 207 Ill. App. 3d 391, 152 Ill. Dec. 353, 1991 Ill. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebeler-v-industrial-commission-illappct-1991.