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Continental Distributing Co. v. Ind. Com.





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


Petitioner, Bruce Kazonovitz, sought workmen's compensation benefits and penalties from Continental Distributing Company, respondent, for an injury to his left thumb. The arbitrator awarded petitioner his medical expenses, 8 3/7 weeks of temporary total disability compensation, and 23 1/3 weeks of permanent partial disability compensation. On review, the Industrial Commission agreed with the arbitrator's findings; however, it modified his decision by also awarding penalties of $3,731.47 as additional compensation pursuant to sections 19(k) and 19(l) of the Workmen's Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l)) and $746.29 in attorney fees as provided in section 16 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.16). The circuit court of Cook County confirmed the medical expenses and benefits but reversed the penalty awards. The only issue is the propriety of the penalty awards.

Petitioner worked for respondent as a truck driver delivering cases of liquor. On July 27, 1979, he was handling a case of liquor when it suddenly dropped on his left hand. He promptly notified his supervisor of the accident. The supervisor sent him to a hospital where the hand was X-rayed and his left thumb was placed in a splint. Subsequently, his hand began to swell and turned purple at the thumb.

On the next day, petitioner showed his hand to his supervisor, who then sent him to a company clinic. His left hand was X-rayed, his thumb was again placed in a splint, and he was sent home. Over the next 10 days, he was off work but returned to the clinic on three occasions for physiotherapy and exercise of his left thumb. On August 6, 1979, the clinic physician, Dr. Harold Herron, examined his thumb and told him to report for work the next day. Petitioner complained his thumb was still painful and he could not bend it. He also informed the physician he had an appointment to see another doctor. Nevertheless, the physician released him for work. He did instruct him, however, to return to the clinic in two days for a follow-up examination.

That afternoon petitioner went to an orthopedic specialist, Dr. Ho Min Lim, who examined and X-rayed his left hand. Dr. Lim placed a hard cast on his hand covering his thumb and palm and extending up his arm half way between the wrist and elbow. Afterward, petitioner returned to respondent's office and told his supervisor and respondent's owner he was willing to work. The owner, however, refused to allow him to work with a cast on his hand. The supervisor suggested to the owner that petitioner see another doctor. The owner responded there was no need for that since he already had the cast on. He then instructed petitioner to go home.

Subsequently, petitioner contacted both respondent and its workmen's compensation carrier concerning temporary disability benefits. Both told him they could not comply with his request for benefits at that time, because there was a discrepancy between the two doctors regarding his treatment. He was paid no compensation.

On August 22, 1979, petitioner filed his application for adjustment of claim which also requested penalties. He then filed a petition seeking an immediate hearing. On September 10, 1979, respondent's workmen's compensation carrier issued a check for $195.25 to petitioner. Four days later his cast was removed and he returned to work on September 24, 1979.

Before the arbitrator, both parties stipulated petitioner's injury arose out of and in the course of his employment and that timely notice was given to the employer. Only petitioner and Dr. Herron testified at the hearing.

Petitioner described the occurrence of the accident and the treatment he received from the two physicians. He stated his requests for temporary disability benefits were ignored by both respondent and its workmen's compensation carrier. After filing his claim for compensation and penalties, and after waiting 49 days from the date of the accident, he said he finally received a single check for $195.25 but received no other compensation for his injury.

Petitioner then offered into evidence Dr. Herron's records as an admission against interest under Nollau Nurseries, Inc. v. Industrial Com. (1965), 32 Ill.2d 190. These records contained a letter and a report from Dr. Lim detailing his treatment of petitioner. Dr. Lim apparently had sent these documents, along with X rays of petitioner's hand, to Dr. Herron pursuant to Dr. Herron's request to view the X rays. Over respondent's objection, Dr. Lim's documents were allowed into evidence with Dr. Herron's records.

Dr. Herron testified the normal treatment for a thumb fracture is to splint the thumb and have the patient exercise it as soon as possible. He said that such injured employees were often returned to their jobs, even though they complained of pain, because work is considered a form of therapy; and that it was his practice to return employees to work when they had full range of motion of their hand, i.e., when they could make a fist. He stated that on July 28, 1979, he first treated petitioner for his injured thumb and that on August 6, 1979, he found petitioner had full range of motion of his left hand. After reviewing the X rays taken by Dr. Lim, he still opined petitioner was capable of returning to work on August 7.

During cross-examination, he indicated Dr. Lim did not render improper treatment. He said it was a matter of opinion between doctors whether a fractured member of the hand should be placed in a cast. He admitted a cast is the proper treatment for a stretched ligament. However, he disagreed with Dr. Lim's finding that there was evidence petitioner had stretched a ligament, requiring the cast.

Petitioner did not call Dr. Lim to testify but instead indicated he would rely on his own testimony, Dr. Herron's testimony, the records and exhibits in evidence, and the petitions previously filed. The record is unclear as to the disposition of the case after this initial hearing. However, at a subsequent hearing before the arbitrator in January 1980, both parties agreed to reopen the proofs in the case. Each offered a report of separate examining physicians detailing the history and diagnosis of petitioner's injury. The physician's report submitted by petitioner indicated, in essence, that he sustained a fracture, had his left hand placed in a cast, and suffered some permanent loss of motion in his left thumb. The report of respondent's physician noted petitioner's hand was placed in a cast but stated he sustained no permanent injury. Both parties then rested. On appeal to the Commission, the case was submitted on the record.

The Commission found that respondent, without just and good cause, refused payment of weekly compensation benefits in accordance with the arbitrator's decision for the period of temporary total disability and awarded petitioner the additional sum of $2,500, the statutory maximum, pursuant to section 19(l) (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(l)). It also found respondent unreasonably vexatiously delayed payment of compensation for the period of temporary total disability and, as provided in section 19(k) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(k)), assessed a penalty in the amount of 50% of the compensation award payable during that period. Pursuant to section 16 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.16), the Commission ...

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