NO. 5-96-0124WC
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
INDUSTRIAL COMMISSION DIVISION
_________________________________________________________________
JACQUELINE L. McRAE, ) Appeal from the
) Circuit Court of
Appellee, ) Madison County.
)
v. ) No. 95-MR-212
THE INDUSTRIAL COMMISSION et seq. ) Hon. David R. Herndon,
(Venture Stores, Inc., Appellant). ) Judge, presiding.
_________________________________________________________________
JUSTICE RAKOWSKI delivered the opinion of the court:
Claimant Jacqueline L. McRae filed an application for
adjustment of claim pursuant to the Workers' Compensation Act (the
Act) (820 ILCS 305/1 et seq. (West 1994)) for low back injuries
allegedly sustained on March 21, 1991, while working for Venture
Stores, Inc. (Venture). The arbitrator awarded claimant eight
weeks' temporary total disability (TTD) and 25% permanent partial
disability (PPD), upon finding a causal connection between
claimant's condition of ill-being and a work-related accident. The
Industrial Commission (Commission) reversed and vacated the
arbitrator's award. The circuit court reversed the decision of the
Commission and reinstated the decision of the arbitrator. The
issues presented are whether the decision of the Commission is
against the manifest weight of the evidence and whether the
arbitrator abused his discretion in admitting uncertified medical
records into evidence. For the reasons that follow, we reverse the
judgment of the circuit court and reinstate the Commission's
decision.
FACTS
Claimant worked for Venture as a scanner, which required
claimant to scan UPC bar codes and repeatedly lift heavy boxes of
merchandise. On March 21, 1991, claimant stopped working for
Venture because of severe low back pain. On March 25, 1991,
claimant went to the hospital emergency room, where she was seen by
Dr. R. Anthony Marrese. Dr. Marrese's report states in pertinent
part: "Patient claims she has pain in her low back shooting into
both hips, going down her left leg far worse than her right. She
denies any accident that may have brought this on. The patient
states she has had problems with her back intermittently for six
years but has been severe the last six weeks." Claimant testified
that she did not tell Dr. Marrese about any specific incident at
work, but she did tell him that repetitive lifting and bending at
work seemed to bother her.
On March 26, 1991, claimant underwent surgery for excision of
a herniated disc. On April 5, 1991, claimant returned to the
hospital for the removal of stitches. She reported no pain and
said she was "feeling great." The hospital records from May 17,
1991, show an improvement in back pain and occasional numbness of
the feet. On July 9, 1991, claimant returned to the hospital with
complaints of back pain. Dr. Lin performed lumbar epidural blocks
and prescribed medication to ease the pain.
On June 5, 1992, approximately 14 months after the alleged
work accident, claimant returned to the hospital to see Dr. Marrese
for back pain. Dr. Marrese's report states: "Patient was injured
at Venture. States she had to do lifting on a daily basis and she
felt this was what resulted in her having to have back surgery.
*** Repeated bending at Venture may well have caused her condition
of ill being, that is[,] the ruptured disc." This is the first and
only reference in any of the medical records that suggests claimant
sustained an injury at work or that her condition is causally
related to a work accident.
At arbitration, claimant admitted she had preexisting low back
pain prior to her employment with Venture. Between January 1987
and 1989, claimant received treatment for her back and neck from
chiropractor Dr. Stewart Smith. Dr. Smith's records reveal that
claimant was involved in two car accidents; one in 1972, the other
in 1987. Claimant also was treated for back problems by Dr. Norman
Taylor approximately six months prior to beginning work for
Venture. On March 5, 1990, Dr. Taylor diagnosed claimant with a
chronic low back syndrome, noting that she has had back problems
"off and on for many years." The arbitrator admitted the records
of Dr. Smith and Dr. Taylor over claimant's objections.
Claimant also testified that on March 26, 1991, she called Jan
Stamper, Venture's assistant human resource manager, to inform her
that she could no longer work at Venture because of the bending and
lifting requirements of the job. However, claimant did not tell
Stamper that she had been injured at work. Moreover, Stamper
testified that claimant did not report a back injury to her, and
that Stamper had no notice of the claim until March 1992.
Claimant's supervisor, Joyce Haun, testified that claimant did
not inform her of a work-related back injury or fill out an
accident report. Claimant testified she understood the procedures
for reporting work-related accidents to be that if she is doing a
job and then gets hurt, she must report it as an incident or
accident. To be sure, claimant filed incident reports in the past
for two previous, unrelated injuries.
The arbitrator found claimant sustained an aggravation of a
preexisting condition as the result of a work-related repetitive
trauma. He awarded claimant eight weeks' TTD and 25% PPD. The
Commission reversed and vacated the arbitrator's decision on the
basis that claimant did not sustain an injury causally related to
her employment. The Commission relied on the fact that claimant
had a long history of back problems and that the medical evidence
did not make any reference to a work-related injury until 14 months
after the alleged accident. The circuit court reversed the
Commission's decision and reinstated the decision of the arbitra-
tor. The court held, "The manifest weight of the evidence in this
case is embodied in the only expression of opinion relative to the
issue of causation wherein the treating surgeon said, `Repeated
bending at Venture may well have caused her condition of ill being,
that is[,] the ruptured disc.'"
ANALYSIS
A. Manifest Weight of the Evidence
Whether an injury arises out of employment and is causally
related to the present disability is a question of fact for the
Commission, whose decision will not be reversed unless it is
against the manifest weight of the evidence. General Refractories
v. Industrial Comm'n, 255 Ill. App. 3d 925, 929-30 (1994). "The
manifest weight of the evidence is that which is the clearly
evident, plain and indisputable weight of the evidence. In order
for a finding to be contrary to the manifest weight of the
evidence, an opposite conclusion must be clearly apparent."
Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291
(1992).
Employer maintains the Commission's decision is not against
the manifest weight of the evidence and should not have been
reversed by the circuit court. The law is clear. It is the
province of the Commission to judge the credibility of witnesses,
determine what weight to give testimony, and resolve conflicting
evidence, including medical testimony and evidence. Freeman United
Coal Mining Co. v. Industrial Comm'n, 263 Ill. App. 3d 478, 485
(1994). A reviewing court must not substitute its judgment for
that of the Commission where the Commission's decision is supported
by the evidence. Archer Daniels Midland Co. v. Industrial Comm'n,
138 Ill. 2d 107, 119 (1990); Wantroba v. Industrial Comm'n, 248
Ill. App. 3d 978, 984 (1993). In the instant case, the issue is
whether the evidence supports an inference that claimant did not
sustain an accidental injury causally related to her work that
aggravated or accelerated her preexisting condition. Aggravation
or acceleration of a preexisting condition is a question of fact
for the Commission. Cassens Transport Co. v. Industrial Comm'n,
262 Ill. App. 3d 324, 331 (1994).
After careful review of the record, we cannot say the
Commission's decision is against the manifest weight of the
evidence. The only medical evidence of causation is the report of
Dr. Marrese, which states: "Patient injured at Venture. States she
had to do lifting on a daily basis and she felt this was what
resulted in her having to have back surgery. *** Repeated bending
at Venture may well have caused her condition of ill being, that
is[,] the ruptured disc." (Emphasis added.) The Commission gave
little weight to this statement primarily because it was made 14
months after claimant's alleged accident. Prior to then, none of
claimant's medical records, including the initial reports by Dr.
Marrese, referred to a work-related injury or incident. Moreover,
Dr. Marrese was equivocal with regard to causation, stating only
that repeated bending at Venture "may well have caused" the
ruptured disc. He could not say repeated bending at work did in
fact cause the injury, nor was there other evidence, aside from
claimant's own testimony, that supported a causal connection.
At arbitration, claimant testified that her preexisting back
condition was aggravated by repeated bending and lifting at work.
She also testified that she originally told Dr. Marrese that
repetitive lifting at work bothered her. However, claimant
admitted she did not tell Dr. Marrese of a specific accident or
trauma at work. Moreover, claimant did not report the alleged
incident to her employer, even though she knew the procedure for
filling out an accident report. At best, she told the human
resource manager that she could no longer work at Venture because
of the bending and lifting requirements of her job.
Nonetheless, claimant contends that only one reasonable
inference could be drawn based on Dr. Marrese's report and
claimant's own testimony: that the repetitive physical stress at
work caused or aggravated claimant's herniated disc. Claimant
relies on the fact she was asymptomatic for one year and was not
diagnosed with a herniated disc until after the occurrence on March
21, 1991. She also claims that Dr. Marrese's statement made 14
months after her alleged injury is the only expression of opinion
relative to the issue of causation, and there is no other opinion
evidence to contradict this statement. We disagree.
Although there is no direct testimony in opposition to Dr.
Marrese's statement, the Commission was not required to accept this
equivocal and ambiguous opinion as undeniable truth that claimant's
condition was indeed caused by repeated bending and lifting at
work. Moreover, the Commission was at liberty to discount the
credibility of this statement because it was made 14 months after
claimant's alleged injury. This is not to say the Commission may
arbitrarily reject uncontradicted testimony of witnesses and
medical opinions. Sorenson v. Industrial Comm'n, 281 Ill. App. 3d
373, 384 (1996); see In re Glenville, 139 Ill. 2d 242, 251 (1990).
However, the rule is not absolute where conflicting inferences may
reasonably be drawn from other evidence in the record.
As stated above, it is the province of the Commission to
assess claimant's credibility and to determine the weight to give
Dr. Marrese's report. It is also the task of the Commission to
judge all the evidence of causation and draw reasonable inferences
therefrom. Even if several medical experts had concurred with Dr.
Marrese's opinion that claimant's work may well have caused her
present condition, it is still within the domain of the Commission
to weigh the credibility of the evidence in deciding the issue of
causation. See Glenville, 139 Ill. 2d at 251.
In the instant case, Dr. Marrese opined that claimant's work
may well have caused claimant's condition of ill-being. Implicit
in this statement is that claimant's work may well not have caused
the condition. As a reviewing court, the circuit court was not
licensed to reject reasonable inferences of the Commission merely
because it could or would have drawn different inferences from the
facts. Archer Daniels Midland Co., 138 Ill. 2d at 119. The record
shows that the Commission's finding is not against the manifest
weight of the evidence. Accordingly, we reverse the judgment of
the circuit court and reinstate the decision of the Commission.
B. Admissibility of Medical Records
Claimant also argues the arbitrator abused his discretion in
admitting into evidence uncertified medical records of Dr. Smith
and Dr. Taylor.
Claimant did not raise this argument before the circuit court,
despite the fact she was appealing from the Commission's decision.
Thus, she has waived it on appeal. General Electric Co. v.
Industrial Comm'n, 144 Ill. App. 3d 1003, 1015 (1986). In
addition, we find that the uncertified records did not prejudice
claimant or affect the outcome of the case and, therefore, any
error was harmless. Presson v. Industrial Comm'n, 200 Ill. App. 3d
876, 879 (1990).
Claimant's testimony was substantially similar and cumulative
to the facts contained in the records of Dr. Smith and Dr. Taylor.
Claimant admitted she received treatment with Dr. Smith for back
and neck problems. She also acknowledged being involved in at
least one car accident. Further, claimant testified that she had
prior back problems for years, which was consistent with Dr.
Taylor's diagnosis of chronic low back syndrome. Accordingly, any
error in the admission of the uncertified records of Dr. Smith and
Dr. Taylor was harmless.
CONCLUSION
For the reasons stated, the judgment of the circuit court is
reversed, and the decision of the Commission, denying benefits, is
reinstated.
Judgment reversed; award vacated; Commission's decision of
April 6, 1995, reinstated.
McCULLOUGH, P.J., and HOLDRIDGE, J., concur.
JUSTICE RARICK, dissenting:
Because I do not find the statement of claimant's doctor to be
ambiguous or equivocal, I must dissent. We are faced here with a
case of aggravation of a preexisting condition. Clearly, the
repetitive heavy lifting and bending claimant performed in her job
aggravated her low back condition. Prior to working for employer,
claimant had experienced low back symptoms over the years and had
been diagnosed with chronic low back syndrome. There were,
however, no medical records or other probative evidence suggesting
a prior herniated disc. Claimant also testified she felt "okay"
before starting her new job. After several months on the job,
however, the low back pain became excruciating, radiating into her
lower legs. Upon admission to the hospital on March 25, 1991,
claimant gave a history of worsening low back pain. During this
same hospitalization, Dr. Marrese recommended that claimant change
occupations. How much more proof of causal connection is required?
Employer presented no medical evidence to the contrary, that
claimant's current condition was not causally related to her
employment, except what claimant already admitted--she experienced
some back problems prior to her employment with employer. Simply
because the Commission refuses to acknowledge Dr. Marrese's finding
of causal connection both at the time of claimant's hospitalization
in March 1991 and 14 months later does not justify reversal of the
award of benefits. I therefore would affirm the judgment of the
circuit court.
COLWELL, J., joins in this dissent.
___________________________________________________________________________
THE INDUSTRIAL COMMISSION et seq. ) Hon. David R. Herndon,
___________________________________________________________________________
Opinion Filed: December 30, 1996
___________________________________________________________________________
Justices: Honorable Thomas R. Rakowski, J.
Honorable John T. McCullough, P.J., and
Honorable William E. Holdridge, J.,
Concur
Honorable Philip J. Rarick, J., and
Honorable Michael J. Colwell, J.,
Dissent
___________________________________________________________________________
Attorneys William R. Gallagher, Law Offices of James W. Reeves, 7930
for Clayton Road, Suite 404, St. Louis, MO 63117
Appellant
___________________________________________________________________________
Attorney Timothy F. Campbell, 3017 Godfrey Road, P.O. Box 505,
for Godfrey, IL 62035
Appellee
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