Industrial Commission Division
2-96-0926WC
KRAFT GENERAL FOODS, formerly known as ) Appeal from the
NABISCO BRAND FOODS, INC., ) Circuit Court of
) Kendall County.
Appellant, )
)
v. )
THE INDUSTRIAL COMMISSION et al. ) Honorable
) Grant S. Wegner,
(Rocco Gianvecchio, Appellee). ) Judge Presiding.
JUSTICE RAKOWSKI delivered the opinion of the court:
Claimant, Rocco Gianvecchio, filed two applications for
adjustment of claim pursuant to the Workers' Compensation Act
(the Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries he
sustained on February 1, 1992, and June 6, 1992, while working
for Kraft General Foods (employer). The cases were consolidated
for hearing.
As to the February 1, 1992, incident, the arbitrator found
claimant suffered an injury to his right shoulder but awarded no
permanency. This decision was not appealed.
As to the June 6, 1992, incident, the arbitrator found
claimant suffered an accident on that date and his condition of
ill-being was causally connected to it. He awarded claimant 5%
loss of use of the left arm and 25% loss of use of the right arm.
The Industrial Commission (the Commission) adopted and affirmed.
On administrative review, the circuit court of Kendall County
confirmed. Employer appeals only the right arm award, contending
that the Commission's decision is against the manifest weight of
the evidence. Employer also argues that the Commission erred
with respect to the opinion of claimant's expert, Dr. Coe.
Although employer presents three separate issues in this regard,
the issues are interrelated. According to employer, Dr. Coe's
opinion is not inconsistent, and is the sole medical opinion on
causation. Therefore, because Dr. Coe is claimant's doctor, the
opinion is binding on claimant. We disagree and affirm.
STATEMENT OF FACTS
Claimant was a mechanic for employer. At the time of his
accidents, he had worked for employer for 25 years and was 56
years old.
He testified that on February 1, 1992, while changing lines,
he lifted a tube and strained his right shoulder. He received
conservative treatment at the Copley Urgent Care Center. After
this incident, he continued to work full-time and overtime.
On June 6, 1992, claimant was working on a ladder. He
slipped and fell backwards onto the line. He stated that the
landing jarred his whole body and his shoulders began to hurt.
The following Monday he received treatment at Copley. He was
referred to Dr. Reilly, an orthopedic specialist. After
receiving treatment from Dr. Reilly, he underwent surgery on his
right shoulder. Claimant lost little, if any, time from work
following the second accident up to the time of his surgery.
The records of Dr. Reilly were admitted into evidence. He
first saw claimant on July 20, 1992. At this time, the only
complaints and diagnosis in the record concerned claimant's left
shoulder. He again saw claimant on August 17, 1992, at which
time claimant complained of problems with both shoulders. Dr.
Reilly's notes of October 27, 1992, stated that claimant again
complained of pain in his right shoulder. Dr. Reilly recommended
a MRI of the right shoulder based on claimant's "persistent
complaints being this long a period of time." Although claimant
received treatment subsequent to the second accident, Dr.
Reilly's records are not clear as to what treatment was rendered
to the left shoulder and what to the right shoulder.
On November 13, 1992, a MRI showed a small tear in the right
rotator cuff. Dr. Reilly recommended surgical intervention. On
January 26, 1993, due to persistent complaints of pain, claimant
elected to proceed with surgery. The surgery was performed on
March 31, 1993, at which time, Dr. Reilly repaired the rotator
cuff and performed a Mumford procedure. Claimant continued to
see Dr. Reilly for follow-up care. On July 1, 1993, Dr. Reilly
released claimant to return to light duty work. Claimant
returned to work on July 23, 1992, when light duty was available.
On October 5, 1993, Dr. Reilly released claimant to full duties.
At claimant's attorney's request, Dr. Coe examined claimant.
In a letter dated May 12, 1994, he outlined both of claimant's
accidents and treatment subsequent thereto. He noted that in the
second accident, claimant felt pain in both shoulders, although
more in his left than his right. He further noted that Dr.
Reilly's records indicated that on August 17, 1992, claimant
complained of pain in both shoulders and that on October 27,
1992, he complained of marked pain in his right shoulder. In the
"Case Summary" section of his letter, Dr. Coe attributed the
right shoulder injury to the February 1, 1992, accident. He
attributed the left shoulder injury to the June 6, 1992,
accident. In the "Conclusion" section, he simply stated that
claimant's conditions of ill-being were causally related to
injuries he sustained on February 1, and June 6, 1992.
At employer's request, Dr. Freedberg examined claimant on
September 27, 1993. Dr. Freedberg was not provided with most of
claimant's medical records and he did not render an opinion on
causation.
The arbitrator found claimant suffered an accident on June
6, 1992, and that his current condition of ill-being to both
shoulders was causally connected to that accident. In rendering
his decision, he stated that plaintiff's testimony and the
exhibits offered were unrebutted. The Commission adopted and
affirmed the arbitrator's decision.
The circuit court first determined that expert medical
opinion was required to establish causal connection. The trial
judge then found that Dr. Coe's opinion was suspect for two
reasons. First, he based his opinion on the fact claimant
apparently told him he had experienced persistent pain in his
right shoulder since the first accident and claimant did not
testify to this at trial. Second, Dr. Coe's basis for his
opinion did not support the opinion set out in his summary,
particularly since he failed to distinguish the causes and
accidents separately. Based on this, the circuit court
determined that the Commission could find a conflict within Dr.
Coe's opinion and therefore, a need to resolve the conflict.
ANALYSIS
A. DR. COE'S OPINION
Employer first argues that there is no conflict in Dr. Coe's
opinion. Rather, it asserts that Dr. Coe's letter clearly sets
out his opinion that the right shoulder condition was due to the
February 1, 1992, accident and then in conclusion combined the
two incidents and causation to form one succinct summary.
It is undisputed that the only opinion as to causation was
Dr. Coe's opinion. However, contrary to employer's argument, we
find that the Commission could have found Dr. Coe's opinion
inconsistent.
Dr. Coe wrote a seven page letter detailing claimant's
history, complaints, treatment, and the results of his
examination and testing. In the "Case Summary" section, Dr. Coe
wrote:
"[Claimant] suffered an injury to his right
shoulder while lifting at work on February 1,
1992. This injury aggravated pre-existent,
degenerative change at the acromioclavicular
joint and also resulted in a right shoulder
rotator cuff tear. On June 6, 1992 he
suffered a contusion of the left shoulder
that was associated with the development of a
left shoulder impingement syndrome.
Conservative therapy was undertaken with
limited symptomatic improvement. Operative
intervention was ultimately required with
open surgery to the right for subacromial
decompression and right rotator cuff repair."
In conclusion, Dr. Coe stated:
"Based on the findings of this examination,
it is my opinion that there is a causal
relationship between the injuries suffered by
[claimant] at work *** on February 1, 1992
and June 6, 1992 and his current symptoms and
state of impairment."
In the first-quoted section, Dr. Coe states that the right
shoulder injury occurred in February and that the left shoulder
injury occurred in June. He then discusses treatment but
attributed the treatment to neither shoulder. Finally, he
addresses the surgery that indisputably related to the right
shoulder. Taking this section in isolation, it would appear that
Dr. Coe initially attributed the right shoulder injury to the
February incident. However, Dr. Coe then presents his conclusion
in which he states that claimant's state of disablement, without
differentiation, were due to both accidents.
Viewing both sections in toto, it is unclear whether Dr.
Coe's attributed the right shoulder condition solely to the
February accident or whether he opined that both accidents
contributed to the condition. Thus, while Dr. Coe's opinion was
the only opinion on causation, it is ambiguous and an inference
could be drawn either way. It is the Commission's duty to
resolve conflicts. It did so in this case by finding that Dr.
Coe opined a causal connection between the right shoulder
condition and the accident in June. Based on Dr. Coe's letter
coupled with claimant's testimony, we cannot say that the
Commission erred in drawing this conclusion.
Employer next argues that Dr. Coe's opinion is binding on
claimant as an admission against interest. It cites to Nollau
Nurseries, Inc. v. Industrial Comm'n, 32 Ill. 2d 190 (1965), and
Clark v. Industrial Comm'n, 276 Ill. App. 3d 429 (1995).
While it is true that Nollau Nurseries, Inc. and its progeny
(see Keystone Steel & Wire Co. v. Industrial Comm'n, 42 Ill. 2d
273 (1969); Walden v. Industrial Comm'n, 93 Ill. 2d 527 (1983);
Tee-Pak, Inc. v. Industrial Comm'n, 141 Ill. App. 3d 520 (1986);
Kress Corp. v. Industrial Comm'n, 190 Ill. App. 3d 72 (1989);
Adams v. Industrial Comm'n, 245 Ill. App. 3d 459 (1993)) hold
that a doctor hired by a party was that party's agent and his or
her statements or opinions were admissions against interest of
that party, the issue in each of these cases was the
admissibility of the statements as exceptions to the hearsay
rule. None of these cases discuss any binding nature of the
statements. For this reason alone, the cases are inapplicable to
the instant situation where Dr. Coe's opinion was admitted
without objection.
We further note that in Taylor v. Kohli, 162 Ill. 2d 91
(1994), the Illinois Supreme Court held that, as a matter of law,
an expert witness is not per se an agent of the party who hired
him or her and therefore, the witness' statements are not
admissible as admissions against interest of that party. Taylor,
162 Ill. 2d at 96. In reaching this decision, the court noted
that the courts must look to the traditional indices of an agency
relationship in order to ascertain when one exists. Key to this
determination is the right to control the manner in which the
work is undertaken. Taylor, 162 Ill. 2d at 95-96. The court
expressed that in circumstances such as that before it, the
essential element of control is lacking and therefore, concluded
that no agency relationship existed between a party who hires an
expert and that expert: "the employer can influence but cannot
control the expert's thought processes. Thus, the control
element, so crucial to agency, is at all times missing." Taylor,
162 Ill. 2d at 96. Although Taylor involved a medical
malpractice action, the agency principles and reasoning would
apply to the workers' compensation setting as well.
Finally, we note that because we have found that Dr. Coe's
opinion is inconsistent, employer's contention must fail in any
event.
For all of these reasons, we reject employer's argument that
Dr. Coe's opinion is a binding statement against interest.
Employer's final argument concerning Dr. Coe is that the
Commission cannot discredit his testimony since it is the sole
medical opinion as to causation and must therefore be accepted.
It relies on Teska v. Industrial Comm'n, 266 Ill. App. 3d 740
(1994), Dean v. Industrial Comm'n, 143 Ill. App. 3d 339 (1986),
and Phillips v. Industrial Comm'n, 187 Ill. App. 3d 704 (1989).
In Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373, 383-
84 (1996), we directly addressed this argument and rejected it
disagreeing with statements made by the majority in Dean to the
contrary and agreeing with the dissent. In particular, we found
persuasive the statement that if the Commission was bound by the
sole medical testimony it "would be forced to find that the earth
is flat if such testimony were presented." Soren