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Veritone Co. v. Industrial Com.

OPINION FILED MAY 22, 1980.

VERITONE COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (MILDRED MYSLEWIEC, APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding. MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The claimant, Mildred Myslewiec, was injured when she fell from a chair on which she was standing while stacking boxes on May 17, 1973. At a hearing before an arbitrator, the respondent, Veritone Company, stipulated that the injuries arose out of and in the course of the claimant's employment but disputed the nature and extent of the claimant's disability. The arbitrator found that as a result of the claimant's condition, which was diagnosed by one medical witness as "agitated depression," the claimant suffers from a total and permanent disability. The arbitrator awarded the claimant compensation of $75 per week for a period of 304 weeks and $48 for one week, and thereafter an annual pension for life of $2,760, pursuant to section 8(f) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)). The claimant was also awarded $11,818 for medical and hospital services under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). The Industrial Commission affirmed the decision of the arbitrator. On a writ of certiorari, the circuit court of Cook County confirmed the order of the Commission. The respondent appeals pursuant to Rule 302(a). 73 Ill.2d R. 302(a).

On May 17, 1973, the claimant was employed by respondent as an inspector and packer. She was stacking boxes to a level about nine feet high while standing upon a chair when she lost her balance and fell backwards. According to the claimant's testimony during a bedside arbitration hearing, as she fell she "twisted" her back and neck. While still unconscious, the claimant was carried to a car and driven to a clinic. Upon regaining consciousness, she received an injection for the pain she was suffering, and medication was prescribed for her. The claimant was then taken home and put to bed. For the next week the claimant traveled to the clinic daily for heat treatments and injections to ease the pain. The claimant testified that as the week progressed the pain worsened each day to the point where she felt she was unable to walk. She was taken to the Elmhurst hospital where she remained in traction for three weeks. After being released from the hospital, the claimant returned home. The pain had not abated, however, so the next day she returned to the hospital, where she stayed another three weeks. Upon returning home again, claimant was confined to a hospital bed which had been ordered by the physician treating her, Dr. Newman. From July 6, 1973, the day the claimant returned home, to August 31, 1973, Dr. Newman called upon the claimant in her home approximately once every other week. Throughout that time, the claimant testified, she was confined to bed except for unsuccessful attempts to use a walker. On September 12, 1973, Dr. Newman ordered the claimant to return to the Elmhurst hospital a third time. The claimant was again placed in traction. In addition, a laminectomy and disc excision were performed on September 21, 1973, to correct a herniated L-4 intervertebral disc. The claimant was released from the hospital on October 28, 1973.

From October 1973 to the arbitration hearing conducted in October and December 1975, the claimant continually received treatment, including traction and the use of a corset, while intermittently spending time in the hospital undergoing other treatment. Additional testimony taken of the claimant revealed that she has a long and varied history of illnesses and injuries. For purposes of this appeal, the most significant prior injury was an undescribed injury the claimant received to her left leg while employed elsewhere than for respondent. The injury occurred on September 24, 1970. On December 22, 1972, a settlement of $5,040 for the claim pertaining to that injury was approved by the Industrial Commission.

Medical testimony of three physicians was adduced at a subsequent, continued hearing before the arbitrator. Dr. Marshall Falk, a psychiatrist called by the claimant, testified that he examined the claimant in her home for approximately 45 minutes. His diagnosis of the claimant's illness was an "agitated depression," a psychological illness which, in his opinion, was directly related to the incident in 1973. Dr. Falk stated he thought the claimant's condition to be permanent and, since the emotional aspect of the claimant's illness had been untreated for nearly three years, it would be difficult to predict any significant improvement regardless of the treatment.

On cross-examination, counsel for the respondent asked Dr. Falk whether it would have made any difference in the doctor's diagnosis that the claimant had suffered an injury in 1970 for which she collected $5,000. The doctor replied, "It might have." Later, the doctor was asked by respondent's counsel, with regard to whether the claimant might have been malingering:

"Q. The fact that she failed to mention to you, Doctor, recovery of a large sum of money in 1970, for an injury to her back and leg, wouldn't that put some element of doubt in your mind, Doctor?

A. No."

Subsequently, on redirect examination, Dr. Falk had the following exchange with counsel for the claimant:

"Q. You indicated that were you aware of this disability of 40 per cent of a leg and her compensation of five thousand and some odd dollars in 1969 or 1970, that might have made a difference in your diagnosis, is that right —

A. I indicated that would make a difference?

Q. That might have made a difference in your diagnosis?

A. Possibly.

Q. In what way?

A. Well, if there was more of an extensive injury at that time and there was some credibility problem that I was having it would have been a difference. But I don't think it would ...


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