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Highway & City Transp., Inc. v. Ind. Com.

OPINION FILED APRIL 3, 1978.

HIGHWAY & CITY TRANSPORTATION, INC., APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (WILL PHILLIPS, JR., APPELLEE.)



Appeal from the Circuit Court of Cook County, the Hon. Raymond K. Berg, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

In this workmen's compensation case, the employee, Will Phillips, Jr., received an award from the arbitrator granting him compensation for 55 percent permanent disability of his left arm. His employer, Highway and City Transportation, Inc., sought review of the award. Upon consideration of additional evidence the Industrial Commission reduced the award to 45 percent permanent disability of the left arm. The employer sought review in the circuit court of Cook County, which confirmed the Commission's award. The employer has appealed to this court.

The essence of the employer's argument in this court is that the award of the Commission is against the manifest weight of the evidence since the claimant concealed that he had an injury to his left shoulder subsequent to the injury for which the award was made and prior to the hearing before the arbitrator. This second injury occurred in a non-work-related automobile accident. The employer did not learn of it until after the hearing before the arbitrator and now contends that because Phillips testified falsely concerning the subsequent injury his entire testimony should be disregarded. The employer further argues that the award was not based on competent medical evidence since a doctor's report introduced by the claimant did not consider the effect of the second injury.

Phillips was employed as a freight handler. The injury for which compensation is claimed occurred on the morning of August 19, 1974, when his car collided with another employee's car in a parking lot provided by the employer. Phillips was jolted, and his left shoulder struck the inside of the car. He then worked for four hours until noon, reported the accident to his supervisor, and sought treatment at Bethany-Garfield Hospital. X rays were taken at the hospital, and he was told to see his family doctor. He was subsequently treated on five separate occasions by Dr. Risher Watts, Jr. He was absent from work for three weeks.

On September 9, 1974, Phillips filed a claim with the Industrial Commission. At the employer's request, he was examined by Dr. H.C. Coblens in January 1975. On May 16, 1975, he had the second accident in which he reinjured his left shoulder. As a result of the reinjury, he was hospitalized for five days. On August 8, 1975, he was examined by Dr. Leonard Smith, who was apparently unaware of the second injury.

The hearing before the arbitrator was held on August 27, 1975. At this time, the employer had no knowledge that the claimant had reinjured the shoulder on May 16, 1975. During the hearing, Phillips testified as to how the first injury had occurred and his treatment by Dr. Watts and examinations by Dr. Coblens and Dr. Smith. He stated that he suffered pain from the shoulder and only had limited movement, affecting both his personal life and ability to work at his job. During direct examination, the following dialogue took place:

"Q: Did you ever hurt that shoulder since the date of this accident?

A: Not at the time. It hadn't been hurt, but it has been giving me pain since then.

Q: Have you injured that shoulder again since the accident?

A: No, sir."

The attorney for Phillips then introduced a medical report of Dr. Smith based on the August 8, 1975, examination. As noted above, it appears that Dr. Smith was then only aware of the initial accident of August 19, 1974. The report stated that Phillips complained of tenderness in the acromio-clavicular joint. It noted:

"The patient incurred a subluxation of the left acromio-clavicular joint, which has healed with residual evidence of intermittent synovitis of the left acromio-clavicular joint. This condition is productive of the discomfort, and the only effective treatment would be excision of the distal end of the clavicle. The patient, in any event, will have residual disability involving usage of the left upper extremity."

The employer introduced a medical report by Dr. Coblens dated January 10, 1975, based on X rays taken the previous day. Dr. Coblens noted the absence of soft tissue swelling, atrophy or bony pathology and concluded: "There are no objective abnormal findings to account for the subjective symptoms. There is no reason why this individual should not continue working." On September ...


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