APPEAL from the Circuit Court of Winnebago County; the Hon.
FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the employer from a judgment of the circuit court of Winnebago County which affirmed the Industrial Commission's award of total and permanent disability compensation to the claimant, Walter Zabawa.
On February 14, 1961 the claimant suffered an injury when a stack of round iron plates on which he was working fell over on him. His back was injured as he attempted to hold them up. The record shows that for some time prior to his injury the claimant suffered from what is described in the record as "a cardiac condition," and because of that condition had been assigned to light work. The company doctor took X rays of Zabawa, prescribed a corset for his back, and told him to go to bed. After several weeks of examination and treatment, the doctor recommended that Zabawa undergo a laminectomy and possibly a spinal fusion to correct his disability. The employer offered to pay all medical and surgical costs of the operation, but Zabawa refused.
In the fall of 1961, the doctor advised both the employer and Zabawa that he could go back to work if he was assigned light duties. On January 8, 1962, Zabawa appeared for work, but shortly after arriving he announced that he was not going to work and he left. He has never returned to work since the day he sustained his injuries.
On January 9, 1962, Zabawa filed an application for adjustment of claim with the Industrial commission. The arbitrator made an award based on total permanent disability in November 1962, and the commission confirmed the award on June 5, 1963. The circuit court of Winnebago County set the award aside on February 14, 1964, and remanded the case to the commission with instructions to consider and receive evidence on certain questions of fact.
It is undisputed that the doctor to whom the employer referred the claimant found that an operation on his back was necessary. The claimant's witness, Dr. Parker C. Hardin, testified that claimant suffers from a ruptured lumbar and lumbosacro spine intervertebral disc and that he has small bilateral, indirect inguinal herniae which also resulted from the injury. Dr. Hardin testified that the standard treatment for the claimant's back condition is a laminectomy and, if necessary, a spinal fusion. He also testified that there was no guaranty that surgery would improve the condition but that in his experience 80 to 95 per cent of those who undergo disc surgery are sufficiently improved that they are very pleased they had the operation. Three to five per cent are not improved or are made worse by the operation. He testified that a laminectomy is a serious major operation, that he had never heard of anyone dying from the operation, but that this man had a heart condition which would increase the risk. He did not examine the claimant's heart because he did not consider himself a cardiologist or a person qualified to express an opinion about the heart.
On review before the commission, the employer offered in evidence two letters signed by Dr. R. Gregory Green, which stated that he had examined the claimant in March, April, and May of 1961. The first letter stated that when the patient was re-examined on April 17, 1961, his left achilles tendon reflex was still absent. "It was felt that the patient's condition was becoming worse and it was decided to refer the patient to Dr. Courtney Hamlin, specialist in internal medicine, for a complete cardiac evaluation to see if the patient would be able to tolerate surgery. For that reason I authorized Dr. Hamlin to carry out this examination at company expense. I am sure you are aware that this patient was treated for several months by Dr. Hamlin for a cardiac condition." The second letter stated that shortly after May 2, "we received a letter dated April 25, 1961, from Dr. Hamlin in which he stated that he thought that the patient could tolerate surgery if necessary."
The order of the circuit judge who heard the case upon review remanded it to the commission "for the purpose of receiving evidence upon and considering the following questions:
(a) Is petitioner presently suffering from the effects of an injury to his back arising out of and in the course of his employment?
(b) Are the effects of such injury, if any, sufficient to bring about a condition of total permanent disability?
(c) May petitioner's condition of ill-being be reasonably expected to be substantially improved and the nature and extent of his disability be reasonably expected to be substantially lessened by a surgical procedure commonly known as a laminectomy and spinal fusion?
(d) Is petitioner physically able to undergo surgery of the type reasonably required and ordinarily contemplated for the purpose of improving and, perhaps, overcoming the physical limitations and disabilities of which petitioner now complains?
(e) Having due regard for petitioner's alleged cardiac involvement, should he be required to submit to an operation of the type and kind ordinarily calculated to improve the impairments of which petitioner complains?
(f) Is it reasonably possible to lessen petitioner's existing disability by the performance of an operation through the use of local anesthetic if, from the testimony of medical experts, it appears that petitioner is not ...