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Hunter Corp. v. Industrial Com.

OPINION FILED OCTOBER 21, 1981.

HUNTER CORPORATION, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (ADOLPH AMELKIN, APPELLEE).



Appeal from the Circuit Court of Ogle County, the Hon. Alan W. Cargerman, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___

On December 1, 1977, Adolph Amelkin, who was employed as a pipefitter by the Hunter Corporation in the construction of a nuclear plant in Byron, Illinois, injured his back when walking to a company warehouse to pick up building materials. He received medical treatment and remained off work until February 22, 1978. On March 14 he reinjured his back while lifting a railroad tie at work. Amelkin was 58 years of age and earned $458 per week or $23,816 per year. He filed two separate claims under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), which were consolidated at the arbitration hearing. The arbitrator's decision was that the claimant had suffered an accidental injury on December 1, 1977, which arose out of and was in the course of his employment. He was awarded $304.21 per week for 52 4/7 weeks for temporary total incapacity as a result of a disabling injury whose permanency the arbitrator found could not yet be determined. The arbitrator's order provided that the award did not bar the recovery of future compensation for temporary total or permanent disability and stated further that Hunter Corporation must provide "all necessary medical expenses, treatment, instruction, and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto" citing section 8(a) of the Workmen's Compensation Act. (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The Industrial Commission modified and affirmed the arbitrator's decision. It extended the total period of temporary total disability to 82 4/7 weeks and also ordered that Hunter pay the "necessary tuition costs and expenses to attend Pace University" in New York City, where the claimant was a permanent resident, so that he may "return to approximately the same economic position as he was in prior to the accident * * *." Hunter was also directed to pay $304.21 for each week the claimant was "pursuing vocational rehabilitation * * *." The circuit court of Ogle County confirmed the decision of the Commission and Hunter appealed directly to this court under Rule 302(a)(2) (73 Ill. 2 d R. 302(a)(2)).

The claimant testified that his occupation demands substantial physical labor. As a pipefitter, he is called upon to carry, bury, install and hang pipes and other materials weighing up to 100 pounds. On December 1, 1977, the claimant's foreman requested that he pick up some materials from the company warehouse. While walking to the warehouse with another employee he slipped on ice and fell on his back. He continued to work that day but felt a sharp pain in his lower back which gradually increased and spread to his right leg. This incident took place on Thursday. On Friday evening he went to the emergency room at the Swedish American Hospital in Rockford, where he was given pain medication. When he reported for work the following Monday he told the circumstances of his injury to his foreman, who sent him to the company nurse. She in turn referred him to Dr. Gerald Bowman, a physician of the Lundholm Clinic in Rockford. Dr. Bowman prescribed pain medication and diathermy treatment for his lower back and recommended that he not return to work until his condition improved. During his period of rest, the claimant was placed under the care of Dr. Donald Lyddon, Jr., an orthopedic surgeon, who was associated with the Lundholm Clinic and who also prescribed diathermy treatment and pain medication. The claimant testified that after several weeks Dr. Lyddon advised him that he could go back to work but "to take it easy." Though he still felt some pain in his lower back and right leg he returned to work as a pipefitter on February 22, 1978.

He worked for about three weeks, but on March 14, 1978, while lifting a 200-pound railroad tie with another employee, he said he experienced "excruciating pain" in his lower back. He lowered the tie and reported the injury to his supervisor.

As on the previous occasion, he was referred to Dr. Lyddon, to whom he complained of back pain and also that his left leg had become painful, especially when he was trying to sleep. Between March and May of 1978, the claimant saw Dr. Lyddon regularly and received daily diathermy treatments. During this period the claimant told Dr. Lyddon of his wish to return to his home in New York City. He testified that the doctor told him to get a "nonphysical" job which would not require him to lift more than 35 pounds or require excessive bending or climbing. The claimant further stated that Dr. Lyddon would not sign a work release so that he could return to work at Hunter as a pipefitter.

He said that when it became apparent that Hunter was not going to place him in another position with the company, he returned in May 1978 to New York City, where he and his wife had an apartment. There he came under the care of Dr. William Jaffe, an orthopedic surgeon who prescribed pain medication and muscle relaxants as well as a program of exercise and weight reduction. Though the claimant lost 20 pounds, he testified that the pain in his lower back and both legs persisted. He remained under Dr. Jaffe's care until October of 1978. On October 18, the last time the claimant visited Dr. Jaffe, he was advised that, given his existing physical condition as well as the doctor's prohibition against lifting, climbing or excessive walking or standing, he should leave the occupation of pipefitter. Dr. Jaffe, however, did give the claimant a work release for light work.

The claimant testified that upon his return to New York he sent out 100 resumes in applying for a supervisory position in maintenance and other related areas. He had 12 interviews but no offers of employment. The claimant next applied to the New York Board of Education for a teacher's license. He successfully completed the oral and practical sections of the examination but failed the written academic portion.

Shortly thereafter, he applied for admission to Pace University, a private institution in Manhattan, for the purpose of completing studies for a college degree so that, he said, he could teach pipefitting and plumbing in vocational training courses. The record shows that the claimant earlier had attended Brooklyn College on the G.I. Bill, attained a B average and earned 98 credit hours, 70 of which Pace University was willing to accept toward a degree in education. A total of 130 credit hours would be required for his degree at Pace. The tuition is $93 per credit hour.

The record shows that the claimant, at one time, under a temporary teaching license, taught pipefitting in New York under the Federal Manpower Development Program. He is being supported, he testified, by his wife, who is employed at Pace University, which is located across the street from their apartment.

The claimant's testimony was that he does some limited buying and selling of small collectibles, including antiques. He said, however, that he considers this activity more as a hobby than a profession even though at times it has contributed to his income. Because of his physical limitations he testified that he was not able to deal in antique furniture and other heavier objects. He has no store and has set up an exhibit only once at an antique show. The claimant's estimated value of his collectibles is four to five thousand dollars. During the six months preceding the arbitration hearing he has spent only $200 on antiques, he said. He carves minature statuettes, but stated that he does not sell them but instead gives them away to friends.

At the time of the arbitration hearing he complained of constant pain in his lower back and in both legs, which he said made it difficult to sleep. He testified that he suffers from numbness and pain in his right thigh, which is aggravated by long walks. He still takes medication to relieve pain, he testified.

Medical reports of June 1, 1978, of Dr. Lyddon introduced into evidence were to the effect that the claimant has a "10 percent whole body physical impairment due to degenerative arthritis on the lumbar spine." A report prepared in March of 1979, however, by Dr. Gerald McDonald, which was introduced at the hearing, stated that the claimant has "acute injuries of the lower back and posterior pelvis, with spondylolisthesis involving the L5-S1 segment and with damage to the intervertebral disc at the L5-S1 segment, with bilateral sciatic nerve root involvement." The claimant still pays his union dues, but because of his condition he said that the union has not been able to place him in any job.

Section 8(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)) authorizes awards for vocational rehabilitation for employees who ...


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