Appeal from the Circuit Court of Sangamon County; the Hon.
William H. Chamberlain, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Claimant, John Fry, sought an adjustment of his claim for workmen's compensation on January 23, 1967. He alleged that he sustained an injury arising out of and in the course of his employment on November 3, 1966, at Allis-Chalmers Manufacturing Company, his employer. The issues presented before the arbitrator were the extent of injury and the amount due. An award was granted to claimant for 16 5/7 weeks at $76 per week for intermittent periods of temporary total incapacity. The arbitrator further found that claimant's disabling condition had not yet reached a permanent condition. (Ill. Rev. Stat. 1965, ch. 48, par. 138.19(b).) The Industrial Commission confirmed the award, and on certiorari to the circuit court of Sangamon County the award was sustained. The employer has appealed to this court contending that the award was improper for claimant did not prove he was unable to work, and that there was insufficient medical evidence to entitle claimant to the award.
Claimant testified before the arbitrator in July, 1968. He said that on the date of the injury he was bending over to obtain an item for use on a machine he was operating when he experienced a dull pain in his back just below waist level. He found that it was difficult to straighten himself, and he went to his employer's dispensary where a nurse gave him medication and applied a heat lamp. The following day claimant sought medical aid. Claimant was hospitalized where he was placed in traction for five days. He also received physical therapy and continued seeing this physician for heat treatment and medication.
Claimant did not work for 26 days after the accident. When he returned he was assigned lighter duties but was subsequently transferred to heavier work for two weeks. Eventually he was reassigned to lighter responsibilities in the trucking department until his layoff in March, 1967.
He said that he had pains in his legs, arms and shoulders and experienced great difficulty in manipulating his right arm. This condition did not exist prior to the date of injury. He went to several physicians, one of whom recommended a lumbrosacral brace, which he still wore.
After leaving Allis-Chalmers, claimant worked for six weeks for a local farmer helping to plant crops. During this time pain and weakness in his right arm persisted, requiring him to drive the tractor primarily with his left arm. He testified that if he tried to bend or lift anything, his legs began to tremble and became weak. There was also pain, particularly in the right leg. He said that he could not sleep on his back or right shoulder because of pain.
From September to December 1967, claimant assisted the farmer in harvesting his crops when the weather permitted. While he was driving a combine he still experienced pain. The following spring he worked for three days at the farm but could not continue due to intense pain in his right shoulder.
On cross-examination claimant stated that he had unsuccessfully sought other factory employment since leaving Allis-Chalmers. He had exhausted his unemployment-compensation benefits and some monetary remittances due from Allis-Chalmers because of his layoff. He was presently receiving welfare assistance under the Aid to Dependent Children program after a medical examination conducted pursuant thereto found him to be "incapacitated."
Claimant's wife testified that since the accident he had become irritable and nervous. She described a recent incident when claimant had carried water from a well due to the malfunctioning of a water pump. As a result of this activity he was incapacitated for several days.
By agreement of the parties, various medical reports from physicians were introduced pertaining to claimant's condition. Dr. Albert Siegel examined claimant in February, 1968, and noted considerable chronic strain in the lumbrosacral area, particularly on the right side during hyperflexion and re-extension with muscle spasm in this region. Dr. Mario Gospodinoff examined claimant in March, 1967, and prescribed medication. He concluded that claimant was suffering from "Endogenous Depression," which he did not attribute to a "compensation neurosis." Two reports from Dr. Lyle Wacaser, a neurological surgeon, were submitted. He could find nothing objectively wrong after certain tests were conducted, although he noted that claimant's ability to bend was limited. This physician had claimant obtain a back brace and concluded that no further action would be profitable. He suggested that psychiatric reasons aggravated claimant's complaints. Dr. John Meyer, who previously treated claimant, conducted a series of tests in March, 1968; and, in part, he concluded that there were no present objective findings related to the injuries. Dr. Chauncey Maher treated claimant for hyperthyroidism. In addition to this condition, Dr. Maher, who was not a psychiatrist, was of the opinion that claimant was suffering from a "compensation neurosis." He doubted that claimant's "somatic complaints will improve until his claims for injury are settled."
On review before the Commission in December, 1968, claimant testified that the condition was worsening. He said that he had recently worked for several weeks at Winchester Packaging but was forced to quit because he was unable to continue due to the condition of his right arm. His duties at that factory consisted of running a machine which made plastic bags. Payroll receipts indicated that claimant had worked for two weeks and had received a net total of about $140 for his services. He also related his unsuccessful efforts to obtain other employment and his recent hospitalization.
Ervin Shorz, who was associated with Allis-Chalmers as an X-ray technician, testified as to certain inquiries concerning claimant which had been directed to personnel at factories where claimant had applied for work. At one business it was determined that claimant was not hired because of his limited formal education and his unsatisfactory aptitude-test score. On his employment application at this factory, claimant indicated that he had a sore back at times.
Allis-Chalmers principally contends that the record is totally devoid of any evidence to sustain an award for temporary total incapacity. It relies upon language in Arbuckle v. Industrial Com., 32 Ill.2d 581, 586, where it was said: "In proving such period of [temporary total] incapacity, it is not enough for the employee to show that he did not work he must also show that he was unable to work." Allis-Chalmers argues that claimant worked at its factory until March, 1967, several months after the accident, and thereafter worked briefly at different times for a farmer. Moreover, it relies on claimant's numerous attempts to obtain work at other factories and his application for unemployment compensation, which it interprets as his representation that he was available for employment. There is no contention raised that claimant did not sustain an accidental injury on November 3, 1966, nor is the amount of the award contested if the Commission's determination of claimant's condition is upheld.
Factual disputes related to the extent of disability are primarily within the purview of the Commission (Bell and Gossett Co. v. Industrial Com., 53 Ill.2d 144, 149), and its determination will not be set aside unless contrary to the manifest weight of the evidence (Board of Trustees of the U. of I. v. Industrial Com., 55 Ill.2d 293, 300; see also Wade v. Industrial Com., 55 Ill.2d 587, 590-91). We do not believe that claimant's continued employment at Allis-Chalmers after November 3, 1966, is controlling. In Grey v. Industrial Com., 35 Ill.2d 462, 466, and Peabody Coal Co. v. Industrial Com., ...