Levkovitz v. Industrial Commission

628 N.E.2d 824, 256 Ill. App. 3d 1075, 195 Ill. Dec. 360, 1993 Ill. App. LEXIS 1909
CourtAppellate Court of Illinois
DecidedDecember 23, 1993
DocketNo. 1-93-0926WC
StatusPublished
Cited by2 cases

This text of 628 N.E.2d 824 (Levkovitz 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
Levkovitz v. Industrial Commission, 628 N.E.2d 824, 256 Ill. App. 3d 1075, 195 Ill. Dec. 360, 1993 Ill. App. LEXIS 1909 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

The arbitrator awarded claimant Joseph Levkovitz temporary total disability (TTD) benefits for 32 weeks, medical expenses and permanent partial disability (PPD) to the extent of 8% of the man as a whole pursuant to section 8(d)(2) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2)). The Industrial Commission (Commission) affirmed the arbitrator’s award as to the TTD and medical expenses but modified the PPD award finding claimant was permanently disabled to the extent of 20% of the man as a whole. The circuit court of Cook County confirmed the Commission. Claimant appeals, arguing the Commission erred in (1) failing to include the value of his meals in computing his average weekly salary, (2) not awarding payment for services rendered at the Male Sexual Dysfunction Institute (MSD Institute) as a medical expense, and (3) failing to include compensation for his sexual dysfunction in the PPD award, which was, therefore, against the manifest weight of the evidence. We affirm.

The facts will be reviewed only as they relate to the issues raised on appeal.

Claimant had been manager of Fiddler’s Restaurant for approximately 15 years. He worked four days per week and spent 65 to 70 hours per week at the restaurant. Claimant earned $400 per week and ate his meals at the restaurant on the days he worked. He estimated the value of these meals was $15 per day.

On April 30, 1984, claimant was injured when he lifted a beer barrel, weighing approximately 100 pounds, intending to put it on the beer line. The symptoms were a pain in his neck, left shoulder, arm and hand.

Claimant testified that after the injury, he began to experience difficulty in sexual relations with his wife. He characterized his sex life as "excellent” prior to the accident and estimated he had relations with his wife three times a week prior to April 30, 1984. However, in approximately 1986, claimant began having trouble maintaining an erection. His sex life worsened and he and his wife engaged in sexual relations less than once a month. Claimant’s condition had become steadily worse in the last couple of years. In early November 1988, some 41/s years after the injury, claimant sought medical treatment from Dr. Sheldon Berman at the MSD Institute. Claimant’s business partner had read a newspaper article by Dr. Berman and suggested claimant go to the MSD Institute. Claimant was given a complete physical examination and various other tests were performed. The medical records from the MSD Institute indicate Dr. Berman recommended claimant have a prosthesis implanted in his penis.

Dr. Michael Treister, an orthopedic surgeon, examined claimant on February 27,1986. Dr. Treister opined that such a condition would be related to the patient’s diabetes and sexual dysfunction.

Dr. Treister explained that it is not unusual for diabetics to develop sexual dysfunction through the inability to maintain an erection. This dysfunction has either a neurological dysfunctional basis or a microvascular dysfunctional basis which would involve circulation complications.

On cross-examination, Dr. Treister admitted that a person who was prediabetic could eventually come to need oral medication or insulin to control his or her diabetes as a natural progression of the disease. He admitted he had never treated anybody for a condition of sexual dysfunction but would refer patients with this problem to another physician. He also explained that although he may have patients who are diabetics, he does not actually treat people for that condition and does not prescribe insulin or oral medication for diabetes.

Dr. Nathanial D. Greenberg reviewed claimant’s records from Dr. Doctor, the Skokie Valley Hospital, and the MSD Institute. He noted claimant had high blood-sugar levels prior to April 30, 1984, which would indicate a mild diabetic condition. Dr. Greenberg also noted claimant was substantially overweight, which increased his need for insulin, but that his pancreas was unable to meet this need.

Based on the records from the MSD Institute, Dr. Greenberg diagnosed claimant as having a moderately severe degree of organic impotency. When asked whether based on a reasonable degree of medical and surgical certainty there was any causative relationship between that condition of ill-being and claimant’s diabetes, Dr. Green-berg replied, "Diabetes is one of the commoner causes of impotence in middle-aged males who happen to be diabetic, of course.” Dr. Greenberg explained that impotence is caused either by impairing arterial circulation or degeneration in peripheral nerves.

On cross-examination, Dr. Greenberg admitted claimant was overweight and the fact that he did not lose weight between 1977 when he was first found to have high blood-sugar levels and the hospitalization in 1984 could have been a factor in the worsening of his diabetes.

Dr. William D. Barnhart, a physician specializing in internal medicine, examined claimant’s medical records which indicated claimant first showed signs of a diabetic condition in 1977.

Dr. Barnhart attributed the increase in claimant’s blood-sugar levels to the natural progression of his diabetes. He explained that diet and weight loss, which claimant had not followed, were no longer able to control his diabetes. The next logical step would be to prescribe oral medication to lower claimant’s blood-sugar level. This was the course of treatment in claimant’s case. Dr. Barnhart did not believe the use of Decadron could have caused the increase in claimant’s blood-sugar level subsequent to his release from the hospital.

Dr. Barnhart found the medical records from the MSD Institute contradictory because claimant was able to masturbate to ejaculation as well as occasionally achieving erection. He was unsure as to whether there was a demonstrated medical cause of impotence in claimant. Dr. Barnhart explained that diabetes causes impotency in two ways, blockage of the arteries that furnish blood flow to the penile tissue and nerve damage which prohibits an erection and the sustaining of an erection. Last, Dr. Barnhart opined that claimant’s present diabetic condition had no relationship to the administration of steroids in the hospital in May 1984. Likewise, Dr. Barnhart did not believe that claimant’s' impotency, if it existed at all, was caused by the steroid administration in 1984.

The arbitrator issued his decision on May 30, 1989. He awarded claimant TTD for a period of 32 weeks, medical expenses in the amount of $3,290.55, and PPD to the extent of 8% of the man as a whole, finding the injuries caused an aggravation of claimant’s preexisting cervical and diabetic condition.

Specifically, the arbitrator found claimant had a diabetic condition as early as 1977 and the fact that claimant was overweight and the natural complications from diabetes could have been a factor in its worsening condition. The arbitrator concluded claimant’s preexisting diabetic condition was aggravated by the April 30, 1984, incident.

As to claimant’s impotency, the arbitrator found claimant failed to establish he was impotent as a result of the April 30, 1984, injury.

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Bluebook (online)
628 N.E.2d 824, 256 Ill. App. 3d 1075, 195 Ill. Dec. 360, 1993 Ill. App. LEXIS 1909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levkovitz-v-industrial-commission-illappct-1993.