Petrie v. Industrial Commission

513 N.E.2d 104, 160 Ill. App. 3d 165, 111 Ill. Dec. 858, 1987 Ill. App. LEXIS 3085
CourtAppellate Court of Illinois
DecidedAugust 24, 1987
Docket3-86-0823WC
StatusPublished
Cited by9 cases

This text of 513 N.E.2d 104 (Petrie 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
Petrie v. Industrial Commission, 513 N.E.2d 104, 160 Ill. App. 3d 165, 111 Ill. Dec. 858, 1987 Ill. App. LEXIS 3085 (Ill. Ct. App. 1987).

Opinion

JUSTICE KASSERMAN

delivered the opinion of the court:

On November 22, 1982, Loyd Petrie (claimant) filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.), for injuries allegedly sustained as a result of an accident on July 2, 1981, during the course of his employment with Klaus Radio. On May 20, 1983, the arbitrator awarded claimant temporary total disability compensation of $234.61 per week for 5.43 weeks (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)(1)), medical expenses of $1,272.29 (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(a)), and permanent partial disability compensation of $234.61 per week for 62.5 weeks under the “man-as-a-whole” provisions of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)). Neither party sought review of the arbitrator’s ruling.

On June 1, 1984, claimant filed a petition for review of the award pursuant to section 19(h) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(h)), alleging that his disability had increased. After a hearing, the Industrial Commission denied the petition. On review, the circuit court confirmed the Industrial Commission’s decision, and claimant has perfected this appeal.

Three issues are presented on appeal: (1) whether the employee’s claim for additional compensation for impairment of earning capacity under section 19(h) of the Act either has been waived or is not subject to consideration because the original award is res judicata; (2) whether a change in economic disability alone, as distinguished from physical disability, is a proper basis for modification of an award pursuant to section 19(h) of the Act; and (3) whether the decision of the Industrial Commission was against the manifest weight of the evidence. We affirm.

The following evidence was presented at the arbitration hearing: Claimant had been employed by Klaus Radio for approximately 19 years on the date of the accident, July 2, 1981. Claimant was employed as a service representative, and his duties included servicing “white goods,” i.e., ranges, refrigerators, and other appliances. That work entailed handling small parts, such as screws and electrical wire, in limited spaces. Claimant testified that he also made a habit of mowing the lawn at Klaus Radio. On July 2, 1981, claimant was mowing the lawn when the mower became stuck in a ditch. Claimant grabbed the deck of the mower to free it and the blades caught the tips of his fingers.

Medical records indicate that claimant suffered partial amputation of the fingertips of the right index and middle fingers. He had soft tissue loss over the volar surface of the distal phalanges, each approximately 2 to 3 cm. in size. X rays revealed fractures of the tips of the distal phalanges. A skin graft was taken from the volar surface of the right forearm. Claimant was discharged on July 4, 1981; and after post-operative care, he returned to work on August 9,1981.

In a letter report dated November 13, 1981, claimant’s treating physician stated that claimant had limitations of flexion of the two injured fingers and noted complaints of an inability “to grasp objects that cause direct pressure on the fingertips, such as twisting wires.” In January of 1982 claimant was laid off when Klaus Radio closed the department in which he worked.

Claimant did some “odds and ends work” until January of 1983, when he started his own business repairing white goods. Claimant testified that as a result of his injury, the same job takes two to three times longer to perform. Claimant further testified that his fingernails grew over the tips of the two injured fingers, causing him to lose a portion of the dexterity he previously had in those fingers. Claimant also testified that he tried to work on four or five units in an average day. Between January 1983, when claimant started his business, and March 10, 1983, the date of the arbitration hearing, claimant worked on approximately 25 or 30 washing machines, 18 or 20 dryers, 7 or 8 dishwashers, 10 to 20 refrigerators, and 15 to 20 ranges.

In a letter report dated March 7, 1983, Dr. Daniel R. Hoffman states that he “evaluated” claimant that same day. The report relates claimant’s complaint that the tips of the two injured fingers were extremely sensitive, causing pain when pressure was applied. The report states that claimant was unable to use those fingers to pick up a coin, fasten screws or nuts, or bend wire properly.

The stipulated request for arbitration hearing indicates that claimant’s earnings for the year preceding the injury were $18,299.84 and that the disputed questions were the nature and extent of the injury, causal connection, and entitlement to an award for impaired earning capacity under section 8(d)(1). The record indicates, however, that the arbitrator awarded claimant $234.61 per week for 62.5 weeks for 12.5% partial disability under the “man-as-a-whole” provision of the Act (HI. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)), in addition to temporary total disability and medical expenses.

At the hearing on January 24, 1985, on claimant’s section 19(h) petition, claimant testified that it took three to four times longer to accomplish the same job. The only evidence of a change in his physical condition was his testimony that the fingernail and bed of the nail on each of the injured fingers “comes over the tips of the finger,” causing him difficulty in doing his work and requiring him to trim the nails quite often.

Claimant also testified as to his gross income for each month in 1984. The total of such gross earnings for 1984 was $17,375.38. He stated that his expenses were approximately $700 per month, that he was reinvesting profits in the business, that he was drawing approximately $200 per month, and that his monthly net income was at most $500 to $600.

In denying claimant’s section 19(h) petition, the Industrial Commission found that “no medical evidence of change in his physical condition or evidence of change of circumstances since Arbitration was introduced,” and that claimant “failed to prove his permanent disability increased since the time of Arbitration.”

Klaus Radio first urges on appeal that claimant’s section 19(h) petition is an impermissible collateral attack on the arbitrator’s original ruling, that claimant has waived the right to an award under section 8(d)(1) of the Act, and that the prior award of the arbitrator is res judicata on the issue of an award under section 8(d)(1). Claimant responds that at the time of the arbitration hearing he had just started his own business and did not have the necessary information available to show loss in earnings.

Claimant’s original application for adjustment of claim was filed on November 22, 1982, after he had been laid off in January 1982. Claimant started his own business in January 1983, and the arbitration hearing was held on March 10, 1983. In the stipulated request for hearing, the parties indicated that a question in dispute was claimant’s “entitlement to 8(d)(1) disability allowance.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Murff v. Illinois Workers' Compensation Comm'n
2017 IL App (1st) 160005WC (Appellate Court of Illinois, 2017)
United Airlines v. Illinois Workers' Compensation Commission
942 N.E.2d 711 (Appellate Court of Illinois, 2011)
Cassens Transport Co. v. Illinois Industrial Commission
844 N.E.2d 414 (Illinois Supreme Court, 2006)
Cassens Transport Co. v. Industrial Comm'n
Illinois Supreme Court, 2006
Cassens Transport Co. v. Industrial Commission
821 N.E.2d 1274 (Appellate Court of Illinois, 2005)
Forest City Erectors v. Industrial Commission
636 N.E.2d 969 (Appellate Court of Illinois, 1994)
Smith v. City of Evanston
631 N.E.2d 1269 (Appellate Court of Illinois, 1994)
Whitney v. AGSCO DAKOTA
453 N.W.2d 847 (South Dakota Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
513 N.E.2d 104, 160 Ill. App. 3d 165, 111 Ill. Dec. 858, 1987 Ill. App. LEXIS 3085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrie-v-industrial-commission-illappct-1987.