Presson v. Industrial Commission

558 N.E.2d 127, 200 Ill. App. 3d 876, 146 Ill. Dec. 164, 1990 Ill. App. LEXIS 770
CourtAppellate Court of Illinois
DecidedMay 18, 1990
Docket5-89-0503WC
StatusPublished
Cited by21 cases

This text of 558 N.E.2d 127 (Presson 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
Presson v. Industrial Commission, 558 N.E.2d 127, 200 Ill. App. 3d 876, 146 Ill. Dec. 164, 1990 Ill. App. LEXIS 770 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Margarette I. Presson, filed a petition for benefits under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). The arbitrator awarded her temporary total disability (TTD) benefits, permanent total disability (PTD) benefits, and medical expenses. On review, the Industrial Commission affirmed the medical expenses award, but reduced both disability awards. The circuit court confirmed the Commission’s decision. The petitioner appeals.

At the hearing before the arbitrator, the petitioner testified that on July 24, 1981, when she was 49 years old, she injured her lower back while working for the respondent K mart Corporation. As she was lifting a box, she felt a pulling in the bottom part of her back. She continued working for several days, but the pain worsened, and on August 3, 1981, she sought medical attention from Dr. Otto Kremer. Dr. Kremer examined her, took X rays, and administered heat treatments. He eventually referred her to Dr. Robert E. Schultz, a neurosurgeon.

Dr. Schultz testified by deposition that the results of a myelogram performed on the petitioner on January 26, 1982, were normal. He diagnosed her as having a chronic low back strain secondary to sacroiliac joint dysfunction. He opined that she was incapable of returning to work during the period from when he first saw her until his last examination on October 30, 1985. However, on cross-examination Dr. Schultz admitted that his opinion regarding the petitioner’s ability to return to work was based on his belief that her employment duties involved lifting boxes and stocking merchandise. When told the duties of a customer greeter, Schultz stated that that type of employment could certainly have been tried by the petitioner for the past 18 months. Moreover, Schultz agreed that a total lack of physical activity could be detrimental to her.

Dr. Walter Heidke, a chiropractor, testified by deposition that he had examined the petitioner several times from July 15, 1983, through October 31, 1983. He diagnosed that she was suffering from a soft tissue injury of the lumbar spine, and treated her with hot packs and sine wave therapy. Heidke opined that he could not envision the petitioner gainfully employed. However, he admitted that in the event she could tolerate employment, it would be in her best interest to become more mobile.

At the request of the respondent, chiropractor Theirld Sarver examined the petitioner on March 6, 1985. He concluded that the petitioner did not suffer from any abnormalities and that she could return to work without any restrictions. He further opined that she was a malingerer and that her condition required no further treatment.

Orthopedic surgeon Marshall Conrad examined the petitioner at the respondent’s request on January 8, 1982, on October 18, 1982, and on January 27, 1984. Conrad noted that at the time of his last examination she was still complaining of low back pain. On that occasion, X rays revealed a moderate narrowing of the lumbosacral disc space, which the petitioner had not had before. He noted that this type of change was typical of degenerative disc disease and that it could occur in the normal process of aging. Conrad stated, however, that there was no abnormality involving the spine or any of the inter-vertebral discs. He diagnosed the petitioner as having a “sprain type injury to the low back.” In each of his three reports based on his three examinations of the petitioner, he indicated that she could have returned to work at any time provided she was not required to stand for a full eight hours or sit for a full eight hours. Moreover, Conrad noted that the petitioner should not lift more than 15 pounds and that she should use a lumbosacral corset.

Lee Ann Ray, the personnel and training manager for the Cahokia K mart store, testified that on November 1, 1982, she offered the petitioner, by letter and telephone, a job meeting the restrictions placed upon her by Dr. Conrad. Ray also testified that the job was that of customer greeter. She explained that as a customer greeter the petitioner would be able to sit or stand whenever she wanted and that a stool would be provided for her. Furthermore, she would not be required to do any lifting. The petitioner never responded to Ray’s offer. On cross-examination, Ray explained that she personally had not made the decision that the petitioner could handle the offered job. Rather, the decision was made by others at the company’s international headquarters after they reviewed Dr. Conrad’s report.

On December 23, 1986, the arbitrator awarded the petitioner 2356/? weeks of TTD under section 8(b) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)) and found her permanently and totally disabled under section 8(f) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(f)). The arbitrator further awarded the petitioner $3,347.90 for medical expenses. On review, the Commission reduced the award of TTD to 676/? weeks and reduced the PTD award to 15% of the man as a whole under section 8(d)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)). The Commission affirmed the arbitrator’s award of medical expenses. The circuit court confirmed the Commission’s decision. This appeal followed.

The petitioner first argues on appeal that Dr. Kremer’s reports were never certified and therefore were not properly a part of the evidentiary record before the Commission. She further contends that the Commission erred in relying upon information from those reports in its decision.

After reviewing the Commission’s written decision in the instant case, we find that the Commission’s consideration of the questioned evidence did not prejudice the petitioner nor did it affect the outcome of the case. The Commission merely noted that Dr. Kremer treated the petitioner on August 3, 1981, and diagnosed her as having a severe sprain of the sacroiliac joint and a lumbosacral sprain. Moreover, Kremer’s diagnosis was similar to the diagnosis made by the petitioner’s own expert, Dr. Schultz. Accordingly, we find that no reversible error occurred. See Illinois Piping Co. v. Industrial Comm’n (1987), 156 Ill. App. 3d 955, 509 N.E.2d 1107; Reliance Elevator Co. v. Industrial Comm’n (1988), 171 Ill. App. 3d 18, 524 N.E.2d 1022.

The petitioner next argues that the Commission improperly admitted Ray’s testimony that the greeter job was within the restrictions placed upon the petitioner by Dr. Conrad. She contends that Ray had no firsthand knowledge of the restrictions placed upon her by Dr. Conrad and therefore Ray’s testimony that the customer greeter job fell within those restrictions was hearsay.

Hearsay evidence is an out-of-court statement offered to show the truth of the matter asserted therein, and thus its value rests upon the credibility of the out-of-court asserter. (Kress Corp. v. Industrial Comm’n (1989), 190 Ill. App. 3d 72, 545 N.E.2d 1046

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

Related

Layko Properties v. M-OK Distribution, Inc.
2026 IL App (3d) 220269-U (Appellate Court of Illinois, 2026)
Holocker v. Illinois Workers' Compensation Comm'n
2017 IL App (3d) 160363WC (Appellate Court of Illinois, 2017)
Flexible Staffing Services v. Illinois Workers' Compensation Comm'n
2016 IL App (1st) 150564WC (Appellate Court of Illinois, 2016)
Compass Group v. Illinois Workers' Compensation Comm'n
2014 IL App (2d) 121283WC (Appellate Court of Illinois, 2015)
Compass Group v. Illinois Wokers' Compensation Commission
2014 IL App (2d) 130078 (Appellate Court of Illinois, 2014)
Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Commission
896 N.E.2d 1132 (Appellate Court of Illinois, 2008)
Mechanical Devices v. Industrial Commission
800 N.E.2d 819 (Appellate Court of Illinois, 2003)
Kotvan v. Kirk
747 N.E.2d 1045 (Appellate Court of Illinois, 2001)
McRae v. Industrial Comm'n
Appellate Court of Illinois, 1996
McRae v. Industrial Commission
674 N.E.2d 512 (Appellate Court of Illinois, 1996)
City of Granite City v. Industrial Commission
666 N.E.2d 827 (Appellate Court of Illinois, 1996)
Prairie Farms Dairy v. Industrial Commission
664 N.E.2d 1150 (Appellate Court of Illinois, 1996)
Old Ben Coal Co. v. Industrial Commission
634 N.E.2d 285 (Appellate Court of Illinois, 1994)
Grischow v. Industrial Commission
593 N.E.2d 720 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
558 N.E.2d 127, 200 Ill. App. 3d 876, 146 Ill. Dec. 164, 1990 Ill. App. LEXIS 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/presson-v-industrial-commission-illappct-1990.