Pabst Brewing Co. v. Industrial Commission

521 N.E.2d 661, 167 Ill. App. 3d 753, 118 Ill. Dec. 379, 1988 Ill. App. LEXIS 479
CourtAppellate Court of Illinois
DecidedApril 8, 1988
DocketNos. 3-87-0462WC, 3-87-0501 cons.
StatusPublished

This text of 521 N.E.2d 661 (Pabst Brewing Co. 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
Pabst Brewing Co. v. Industrial Commission, 521 N.E.2d 661, 167 Ill. App. 3d 753, 118 Ill. Dec. 379, 1988 Ill. App. LEXIS 479 (Ill. Ct. App. 1988).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, James Randolph, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) for a work-related injury which occurred on March 31, 1978. On August 1, 1979, the arbitrator found claimant was permanently and totally disabled under the Act and was entitled to $728 for reasonable and necessary medical expenses. Respondent appealed the arbitrator’s decision and the Industrial Commission (Commission) found on July 9, 1980, that claimant was temporarily totally disabled to February 28, 1980, for a period of 99eh weeks and that he was entitled to $728 for necessary and reasonable medical costs and rehabilitation services.

Claimant then sought additional temporary total disability on May 31, 1983. The arbitrator found that claimant was temporarily totally disabled for a period of 159 weeks and was entitled to $1,668.74 for reasonable and necessary medical expenses. The Commission modified the arbitrator’s decision and found that claimant was temporarily totally disabled to November 19, 1980, and from March 10 to March 12, 1982, and was entitled to $1,668.74 for medical expenses.

The circuit court of Peoria County set aside the Commission’s decision and on remand directed the Commission to award claimant temporary total disability payments accruing from February 29, 1980, to March 12,1982. The Commission did so, and this appeal followed.

Respondent’s primary argument is that the circuit court’s decision to set aside the Commission’s finding is against the manifest weight of the evidence. Respondent also contends that the assessment of the extent of temporary total disability is within the Commission’s discretion and expertise and, also, that the Commission was in the best position to judge the witnesses' credibility. Discussion of these final two contentions will be subsumed in the discussion of the principal issue.

A recitation of the relevant facts is helpful at this point. On March 31, 1978, claimant, while working for the respondent, bent down to remove a can from a conveyor belt and, upon straightening up, felt a searing pain in his back. Claimant was subsequently hospitalized several times for lower back pain and underwent a laminectomy, performed by Dr. Jesse Weinger, in July 1978.

Claimant sought further care from Dr. Weinger on February 28, 1980, and on May 19, 1980. Claimant had previously been seen by Dr. Weinger on July 5, 1979, and at that time, it was the opinion of Dr. Weinger that claimant “should be on permanent disability.” On May 19, 1980, Dr. Weinger recommended that claimant obtain a Raney brace to see if it might relieve some of his symptoms and facilitate the evaluation of a possible spinal fusion. In his report to respondent dated June 2, 1982, Dr. Weinger stated that “he [claimant] did not know at that time [May 19, 1980] whether he wanted to wear a brace and I told him that if not, he should just see me in follow-up in six months.”

Claimant testified that he did not recall Dr. Weinger telling him to return in six months after the May 19, 1980, examination. There are no pertinent medical records that shed any light on the disputed instruction. Claimant stated that he submitted a requisition to respondent requesting money to buy the Raney brace, which costs between $600 and $700. The respondent evidently refused this request.

Claimant did not see Dr. Weinger again until February 18, 1982. Claimant testified that in the interim his condition steadily deteriorated and that he had not sought any medical treatment. Claimant stated that in 1981, he found it increasingly difficult to get up the three flights of stairs to his apartment and began having other people do his housekeeping.

At his doctor’s appointment on February 18, 1982, claimant told Dr. Weinger that his condition was getting worse. Claimant complained of pain in his lower back radiating into the left leg.

Dr. Weinger admitted claimant to the Methodist Medical Center on March 10, 1982, for a battery of tests. In the June 2, 1982, letter to respondent, Dr. Weinger stated, “the patient had a lumbar myelogram performed which was normal, and he also had a negative bone scan. It was felt that the patient’s complaints were of a functional nature, and there was [sic] no objective findings to substantiate any significant disability. I felt that further treatment or evaluation was not indicated, and the patient was reassured that there was no serious problem and was discharged to his prior activity with no specific limitations.”

On an X-ray report written by Dr. C. A. Fenton and dated March 11, 1982, Dr. Fenton’s diagnosis was a “possible herniated disc.” Under his analysis of the myelogram results, he wrote that his impression was a “[degenerative bulge between L4 — L5, unchanged since 6/22/78.” (Claimant underwent surgery for a laminectomy in July 1978.) Further, he stated:

“This study was compared to the study of 6/22/78 from which there is little interval change. Again is seen an anterior bulge on the Amipaque [sic] column between L4 — L5 representing a degenerative bulge.”

At his attorney’s request, claimant was seen by Dr. Gordon Schultz on October 28, 1982. In his evidence deposition, Dr. Schultz, a board-certified orthopedic surgeon, testified as to the following results and observations arising from the examination. Dr. Schultz noted that claimant had great difficulty undressing. Claimant had an L — 5 sensory loss on the right side and that the L — 5 nerve root on the medial side of his foot and demonstrated decreased sensation.

Dr. Schultz also noted that “[w]hen I asked him to lie down from a sitting position, he did this on his right side, then rolled over on his back, and only severely disabled people do that.” He then attempted to get some passive movement of claimant’s lumbar spine but was unable to do so because the muscle pain and spasm in the lower back. Dr. Schultz noted that claimant had the appearance of a reversed lumbar lordosis, i.e., the lower back was curved outward due to muscle spasm.

Dr. Schultz also detected a severe hamstring spasm. He noted that a malingerer would not be able to feign the symptoms of a hamstring spasm. Dr. Schultz diagnosed claimant’s condition as a “post laminectomy syndrome, which,” he explained, “was a set of complaints that follow a laminectomy that doesn’t improve as they [sic] should.” He characterized the degree of claimant’s post laminectomy syndrome as exceedingly severe.

Regarding whether claimant’s symptoms were functional rather than organic, Dr. Schultz stated, “His muscle spasm was the same with him standing, sitting, and lying down. The inability to bend when he was standing, the inability to carry out straight leg raising test, and the muscle spasm carried out with him sitting were all equal. And if it was a functional problem, they wouldn’t have been equal.” He opined that claimant’s physical problem were organically based and that claimant was not a malinger.

On cross-examination, Dr. Schultz stated that claimant’s subjective complaints of pain did not serve as the basis for his diagnosis, which was based on his objective findings.

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Related

Luckenbill v. Industrial Commission
507 N.E.2d 1185 (Appellate Court of Illinois, 1987)
Oros v. Industrial Commission
229 N.E.2d 481 (Illinois Supreme Court, 1967)

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521 N.E.2d 661, 167 Ill. App. 3d 753, 118 Ill. Dec. 379, 1988 Ill. App. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pabst-brewing-co-v-industrial-commission-illappct-1988.