Max Shepard, Inc. v. Industrial Commission

810 N.E.2d 54, 284 Ill. Dec. 401, 348 Ill. App. 3d 893, 2004 Ill. App. LEXIS 424
CourtAppellate Court of Illinois
DecidedApril 28, 2004
Docket1-03-0797 WC
StatusPublished
Cited by15 cases

This text of 810 N.E.2d 54 (Max Shepard, Inc. 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
Max Shepard, Inc. v. Industrial Commission, 810 N.E.2d 54, 284 Ill. Dec. 401, 348 Ill. App. 3d 893, 2004 Ill. App. LEXIS 424 (Ill. Ct. App. 2004).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

Max Shepard, Inc. (Shepard), appeals from an order of the circuit court confirming a decision of the Industrial Commission (Commission), awarding the claimant, Sam Creinin, benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)). For the reasons that follow, we affirm as hereinafter modified.

The claimant filed an application for adjustment of claim, seeking benefits under the Act for injuries he allegedly received out of and in the course of his employment on October 2, 1999. In that application, the claimant listed his employers as: Jerome S. Alport and Myra K. Al-port, individually and doing business as Max Shepard, Inc.; Mel-Park Village Mart; Mel-Park Drugs; Mel-Park Deli and Liquor; and Village Currency Exchange. The following facts were established by the testimony and exhibits presented at the arbitration hearings.

On October 2, 1999, the 83-year-old claimant was employed by Shepard as a delicatessen manager. His duties included preparing trays of food, slicing meat, and overall running the delicatessen. On the morning of October 2, 1999, the claimant arrived at work and deactivated the security alarm at 6:13 a.m., as evidenced by the records of Certified Security, Shepard’s alarm company. According to the claimant, after he spoke to a representative of Certified Security at 6:14 a.m., he brought newspapers and several food items into the store from a shed in the alley and began filling boxes which he obtained from a cooler with food. The claimant testified that, as he was filling the last box, he tripped on a box and fell against an ice cream cooler. Unable to walk and in pain, the claimant crawled to the phone located in the front of the store and called Jerome Alport, Shepard’s president, and told him that he had broken his leg. When Alport arrived about 15 minutes later, the claimant was sitting on a chair in the store. Because the claimant could not stand and put weight on his left foot, Alport called “911.”

Paramedics arrived at the scene and transported the claimant to Gottlieb Hospital, where Dr. Prinz, a board-certified orthopedic surgeon, diagnosed the claimant as suffering from a comminuted fracture of the left tibia and fibula. Dr. Prinz applied an external fixator to the claimant’s left tibial shaft fracture and performed an open reduction and internal fixation of the left distal fibular fracture.

The witnesses testified to conflicting accounts as to how the claimant came to be injured. As indicated earlier, the claimant testified that he tripped over a box while working and fell against an ice cream cooler. Alport testified that, when he arrived at the delicatessen, the claimant told him that he had fallen outside of the store. Alport also stated that he heard the claimant tell the paramedics that he had fallen outside of the store while getting out of his car.

A report dictated by Dr. Prinz on October 3, 1999, states, under the heading of “HISTORY OF PRESENT ILLNESS,” that the claimant “sustained an injury on his way to work.” However, in a progress note dated March 7, 2000, Dr. Prinz wrote that, although his records suggest that the claimant sustained an injury on his way to work, the claimant subsequently told him that he was actually injured at work when he fell over a box as he was filling orders.

Diego Palacios, one of the Melrose Park paramedics who transported the claimant to Gottlieb Hospital, testified that he and his partner picked up the claimant on October 2, 1999, at 7:57 a.m. According to Palacios, when he arrived, the claimant was lying on the floor, just inside of the door. Palacios acknowledged that he wrote a report of the incident which indicates that the claimant stated that he tripped on the sidewalk. However, Palacios testified that he did not know whether it was the claimant or some other individual at the scene who gave him that information. His testimony in this regard is consistent with a letter that he wrote on March 31, 2000, at the request of the claimant. The claimant denied telling Palacios that he tripped on the sidewalk, and Alport denied ever telling either the paramedics or the personnel at Gottlieb Hospital that the claimant had fallen in the parking lot.

Alport testified that he visited the claimant four or five times while he was hospitalized. According to Alport, the claimant told him that he had tripped over a box as he was getting out of his car and fell in the parking lot.

Anthony Aiadro, one of the claimant’s friends, testified that, when he arrived at the delicatessen on October 2, 1999, Alport told him that the claimant fell on some boxes, broke his leg, and was taken to the hospital.

Paul Nicoski, Shepard’s delicatessen manager until May 1999, testified that he visited the claimant in the hospital on October 4, 1999. According to Nicoski, the claimant told him that he tripped over a box as he was preparing lunches.

Subsequent to his admission to Gottlieb Hospital, the claimant continued under the care of Dr. Prinz. On January 5, 2000, Dr. Prinz operated to remove the claimant’s external fixator and applied a short leg cast. Thereafter, Dr. Prinz prescribed physical therapy for the claimant and ordered a bone stimulator to help his bone heal. He ordered the claimant to remain off work until further notice. As early as March 7, 2000, Dr. Prinz noted that the claimant would be unable to return to his old job as it was unlikely that he would be able to stand for eight hours a day or walk without a walker.

According to Dr. Prinz, the claimant had not reached maximum medical improvement (MMI) as of April 1, 2000. On May 15, 2000, Dr. Prinz noted that the claimant needed to wear a walker boot, was required to use a walker, and was still in significant pain. Dr. Prinz’s notes of June 19, 2000, state that the claimant was making slow progress, needed a walker, and could not return to work.

At the request of Shepard, the claimant was examined by Dr. Thomas G. Colmey on June 20, 2000. In a report dated that same day, Dr. Colmey noted that the claimant gave a history of having injured his ankle when he fell over a box at work. After examining the claimant and reviewing an X ray of his left lower leg and ankle, Dr. Colmey recorded a clinical impression of “residuals of fracture left tibia and ankle” and commented that the claimant appeared to be doing relatively well with regard to ambulation, although he was still maintained in a brace and had to use a walker to alleviate discomfort and provide stability.

When deposed on June 29, 2000, Dr. Prinz stated that the claimant had not yet reached MMI and he did not believe that the claimant would reach MMI before October 2000. Dr. Prinz opined that the claimant was permanently disabled and would never be able to return to his job. He testified that the claimant might be able to do some sedentary work in the future, but could not fix a date when the claimant might be able to return to work. Dr. Prinz stated that transportation to and from work might present a problem, as the claimant was at risk of injury even traveling to scheduled medical visits. Dr. Prinz thought it would be unusual to provide vocational rehabilitation for someone of the claimant’s age. Finally, Dr.

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Bluebook (online)
810 N.E.2d 54, 284 Ill. Dec. 401, 348 Ill. App. 3d 893, 2004 Ill. App. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/max-shepard-inc-v-industrial-commission-illappct-2004.