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C.r. Wikel, Inc. v. Industrial Com.





Appeal from the Circuit Court of Lake County, the Hon. John L. Hughes, Judge, presiding.


Based on the finding that the claimant, William May, had become totally and permanently disabled as a result of an injury which arose out of and in the course of his employment, an arbitrator awarded the claimant complete disability benefits pursuant to paragraph (f) of section 8 of the Workmen's Compensation Act, as amended (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)). The claimant was entitled to the sum of $61 per week for a period of 295 weeks and one week at $5, and, thereafter, to a pension for life in the sum of $2,160 per year payable in 12 equal monthly installments of $180 each.

After the submission of additional medical evidence, the Industrial Commission sustained the decision of the arbitrator. Upon review, the circuit court of Lake County confirmed. Subsequently, the circuit court denied the employer's motion to reconsider. The employer, C.R. Wikel, Inc. (Wikel), now appeals, claiming solely that the award for total and permanent disability is contrary to the manifest weight of the evidence.

In 1961, the claimant sustained an injury to his left eye in an industrial accident and was awarded disability compensation based on an 87% loss of the use of that eye. The claimant testified that the condition of his left eye had neither improved nor deteriorated since that time. In 1967, he began work for Wikel. On December 20, 1971, in the course of his work for that firm, the claimant slipped and fell while carrying a sheet of plywood. The following day, the claimant mentioned to his foreman that his back hurt, but he continued working. The pain persisted and, on December 29, the claimant consulted his doctor, who gave him an infrared-light treatment and pills for the relief of pain. The claimant remained off work for the next week and one half. He then consulted the workmen's compensation doctor, who referred him to Dr. Henry W. Apfelbach, an orthopedist. On January 27, 1972, the claimant entered the hospital where he underwent a laminectomy the following week.

A few months after the surgery, the claimant twisted his back, further aggravating the injury. After examining the claimant on July 11, 1972, Dr. Apfelbach estimated that his condition included 30% disability of his left leg. In his medical examination report, the orthopedist failed to respond to the request for his opinion as to whether or not the claimant was totally and permanently disabled, but noted:

"Patient would be able to work if his problem were only orthopaedic. He has a very serious eye problem, with apparent blindness in one eye and considerable restriction in the other. It is his eyesight which prevents him from returning to work. Please seek the opinion of his ophthalmologist regarding this disability and his ability to return to work."

The claimant returned to Wikel shortly thereafter seeking carpentry work which would not aggravate his back. He testified that he was informed that only "physical construction" work was available and that he would not "be useable." The claimant sought work at Wikel again approximately one month later, but, by then, the company had been dissolved. In September of 1973, the claimant developed considerable swelling and pain in his right knee and was admitted to another hospital for 11 days. The hospital's admitting report stated:

"This 55 year old patient had been noticing an aching pain in his right knee for at least three weeks. He stated that he thought it was due to the fact that he had back surgery and that he had been favoring the left leg following surgery and putting more strain on the right knee."

The hospital's discharge statement indicates that the claimant had sustained an internal derangement of the knee, possibly related to the back injury.

The claimant has not applied for employment since the two visits to Wikel, and he testified that, due to the pain in his legs and back, he is able to do only limited maintenance work around the house.

Based on these facts, the arbitrator found that the claimant was totally and permanently disabled. When the case came before the Industrial Commission, Wikel submitted two doctors' reports which volunteered the medical opinion that the claimant was gainfully employable. Dr. Apfelbach, the claimant's examining orthopedic surgeon, after reexamining the claimant's lower back and lower extremities on January 27, 1975, concluded:

"We feel that this patient has obtained a satisfactory result following his laminectomy of February 4, 1972. We feel that there are many types of work which this patient is capable of performing. His orthopaedic status is such that he could engage in any type of work which would not require prolonged standing or lifting greater than 20 pounds. This then would include all types of semisedentary occupations, for example, assembly work."

Dr. Burton A. Russman, an ophthalmologist, examined the claimant on May 26, 1975, and diagnosed that the condition of his left eye would not improve. He concluded:

"Regarding this individual's complete disability, I see no reason why he could not be gainfully employed in any field which does not require binocular vision. The acute binocular vision necessary for a fine carpenter would not be available to him, but ...

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