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Zenith v. Industrial Com.

OPINION FILED JUNE 1, 1982.

ZENITH COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (JOSEPH SUWANSKI, APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. James Murray, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Joseph Suwanski filed an application for adjustment of claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injury to his back. After a hearing, an arbitrator found that the claimant had sustained accidental injuries arising out of and in the course of his employment by the respondent, Zenith Company. The arbitrator awarded him compensation for both temporary total incapacity and permanent partial disability. That decision was reviewed and modified by the Industrial Commission. The Commission found that the claimant's disability condition had not reached a state of permanency, and therefore it did not award permanent partial disability compensation. The Commission, however, increased the award of temporary total disability. The circuit court of Cook County, following the granting of Zenith's petition for certiorari, confirmed the decision of the Commission. The respondent has appealed directly to this court under Rule 302(a) (73 Ill.2d R. 302(a)).

The hearing before the arbitrator began on January 24, 1978. The claimant testified that on June 11, 1976, he was employed by the respondent as a general maintenance worker. He had an eighth-grade education and had worked for the respondent as a maintenance worker for the previous nine years. He was 52 years old at the time of the accident. In 1960, 1961 and 1965 he had injured his back while working for two other employers: the city of Chicago's Bureau of Sanitation in 1960 and 1961, and the Permaline Rubber Company in 1965. After the 1961 injury, he underwent surgery for the removal of a disc and was operated upon after the 1965 injury as well. As a result of those injuries, he received workmen's compensation awards for the permanent loss of use of his left leg to the extent of 22 1/2%, and his right leg to the extent of 7 1/2%. He re-injured his back in 1975 while employed by Zenith, but that injury did not require surgery.

He testified that he reported for work at 7 a.m. on Friday, June 11, 1976. Earlier that morning he awoke with a slight pain in his back, but said that he was able to "walk it off" before going to work. He had been experiencing back pain upon awaking since 1965.

On June 11, the claimant testified, his foreman instructed him to line a stainless-steel housing with fiberglass. The housing weighed 250 to 500 pounds, and it was about 46 inches in circumference and 12 to 16 inches deep. To enable him to reach the bottom of the housing, he and his supervisor, Dean Whitehead, tipped the tank and straightened it to a standing position. After they tipped the tank, the claimant felt a pain in his lower back. He told Whitehead, "Dean, I think I done something to my back. I don't know what it is. I feel pain in my back and legs." The accident occurred about 2 p.m., and the claimant rested the remainder of the day. That night he felt a "pinch in the back" and he noticed his legs were growing numb.

He did not work around the house that weekend, he testified. On Sunday, June 13, he did carry a two- or three-pound bag of garbage to a trash can about 25 feet from his house. He felt the same "pinch" in his back as he walked to the trash can. His wife had handed him the bag, and he tossed it into the trash can without bending over. As he walked back to the house, he felt a sharp pain in the back and fell to the ground. In a few minutes, he was able to stand up, and he returned to the house.

He stated that when he reported for work on Monday, June 14, he went directly to the company physician. The claimant told the doctor what had occurred while working on Friday and taking out the garbage on Sunday. The doctor told him that he had injured himself at home and that he would have to consult his own physician.

He then went to Hines Veterans Administration Hospital. There he was given medication and was directed to lie under a heat lamp and to bathe in hot water. He has since done that twice a day as he was instructed. He returned to the hospital three or four times after June 11 because of back complaints. It appears that those visits ended by August 2. Also since June 11, 1976, he has visited another physician, Dr. Manancho, about five times for examination and medication regarding the back. The only medication he was taking at the time of the hearing, however, was over-the-counter pain tablets four times a day.

The claimant said that now he awakes with pain in his back and numbness in his legs. He had experienced occasional numbness since 1961, but the numbness has been growing worse since June 11, 1976, the date of injury in the present claim.

The claimant stated that he went back to the respondent's plant on July 2 or August 2, 1976, because his doctor had told him that he was able to do only light work until he regained his strength. He spoke with the head of the personnel office, who asked the plant foreman whether any light duty was available. The claimant was not given work. He returned to the personnel office on August 7 or 8, 1976, again seeking light work. Again, he was told that there was no work for him and was also advised that he had been laid off as of August 2.

He testified that he had not worked since June 11, 1976. However, he did own a hot dog vending truck that, for approximately six months, he operated for about an hour and half a day. He would drive to a location near a ballpark, and his wife and daughter would prepare and sell hot dogs while he sat in the front seat of the truck. He would put stacks of soft drink cans into the truck cooler, and was able to move single cases of soda. He collected unemployment compensation for a year.

Dr. Irwin T. Barnett, an orthopedic surgeon whom the claimant consulted at his attorney's request, testified that he examined the claimant twice. The first examination was on June 25, 1976, and the second on February 3, 1977.

In the first examination the doctor found atrophy in the left leg, diminished sensation in two left toes, and weakness of dorsiflexion of the left big toe. From the examination the doctor's diagnosis was: (1) "residuals of a low back injury, with bilateral sciatic nerve irritations"; (2) "post-laminectomy syndrome"; and (3) "flattening of the fourth and fifth lumbar disc spaces."

In the second examination Dr. Barnett discovered increased atrophy in the left leg, increased disc involvement, and further nerve-root involvement in the left lower extremity. Sensory loss in the left toes, however, had subsided, and the weakness of dorsiflexion of the big toe was only "slight." In addition, the doctor found that since the first examination the claimant had developed a scoliosis, or curvature of the lumbar spine. Dr. Barnett stated that the scoliosis brings pressure to bear upon the various musculature and ligamentous portions of the spine, causing ...


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