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Mason & Dixon Lines, Inc. v. Industrial Com.

OPINION FILED DECEMBER 16, 1983.

MASON & DIXON LINES, INC., APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (EDWARD CLASBY, APPELLEE).



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

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Claimant, Edward Clasby, filed a claim under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained while in the employ of respondent, Mason & Dixon Lines, Inc. An arbitrator awarded claimant permanent total disability benefits and medical expenses. The award was affirmed by the Industrial Commission and subsequently confirmed by the circuit court of Cook County. Respondent appealed directly to this court. 87 Ill.2d R. 302(a).

Petitioner, an obese, 56-year-old truck-loading-dock worker, had been diagnosed in January 1978 as suffering from "uncontrolled diabetes," a related gangrenous ulcer on his right foot, and arteriosclerosis in both feet. Following hospitalization and treatment which included a strict diabetic diet, insulin and two surgical procedures, petitioner returned to work in February 1979. Except for a four-month leave of absence to care for an injured sister, he continued working until March 1980.

Claimant testified that on March 19, 1980, a wheeled, hand-propelled cart about six feet long, four feet wide, weighing approximately 185 pounds, called a "flat," and carrying 600 pounds of cargo rolled over his right foot and "just barely creased the left one." He further testified that on March 17 a similar cart carrying approximately 500 pounds of cargo had rolled over his right foot and "leaned" onto his left foot. Claimant asserts that he "mentioned" the matter to his supervisor at the time of the occurrence, but it is clear that he did not fully report any accident to his supervisor until March 27.

Claimant's supervisor, Robert Sopiarz, testified that he did not hear of any injury until March 27. On that date, however, he witnessed a cart fall on one of claimant's feet. The supervisor could not recall which foot was involved but testified that claimant exhibited and complained only of his right foot on that date, although claimant testified that he told his supervisor that the right foot was "the worse one." The supervisor testified that claimant's right great toe was black on the 27th and that the flesh on the next two toes was eaten away. It is agreed by both parties that several other workers were present when claimant injured and exhibited his foot, but none of those persons was called to testify. It is apparently claimant's position that supervisor Sopiarz was mistaken, and that the episode he recalled as happening on the 27th actually occurred on the 19th.

Claimant completed an accident report on March 27 in which he stated the date of the accident as March 20. However, respondent's records indicated that claimant did not work on March 20, and claimant testified that he mistakenly stated that date in the report and that he had called in sick on the 20th because his feet were bothering him from the previous day's accident. Claimant referred only to the singular "foot" and "toe" in the accident report.

Claimant was sent to the company physician, Dr. Edgar Jose Vargas, at the Sunnyside Medical Clinic for an examination on March 27. There, claimant complained of injury to his right foot and told Dr. Vargas that the accident occurred seven days earlier. Dr. Vargas diagnosed claimant's condition as diabetic gangrene. The following day Dr. Patel, who was also associated with the clinic, saw claimant, and claimant testified he told Dr. Patel he had injured both feet, and that Dr. Patel examined both. On March 29 claimant was admitted to Cabrini Hospital.

On April 3 claimant was transferred to Columbus Hospital, where he apparently reported to the hospital that both feet were injured in an employment accident on March 15, and that his right foot was "slightly dark prior to the accident but soon became totally black." Claimant later testified that there was no discoloration prior to the accident. The condition of both of claimant's feet continued to deteriorate, and on May 5 both legs were amputated six inches below the knees.

Dr. Paul D. Belich, who performed the amputation, testified in a deposition that there was a causal relation between the alleged accident and the gangrenous condition of claimant's feet. He stated that the condition of claimant's right foot on March 27 could have developed within eight or nine days after any trauma. Although Dr. Belich's opinion was based on the assumption that no discoloration existed prior to the accident, he testified that any trauma to claimant's feet could have aggravated a pre-existing gangrenous condition and led to the eventual amputation. Although respondent's medical expert, Dr. William Daniel Barnhart, indicated in his deposition that he believed the amputations were the natural result of the diseased conditions, he conceded that any trauma could have aggravated claimant's condition.

The arbitrator concluded that claimant sustained injuries to both feet on March 17 and March 19, and that such injuries resulted in the amputation of claimant's feet. Claimant was awarded $40,279.75 for necessary medical expenses pursuant to section 8(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)) and $266.67 per week for life pursuant to section 8(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)).

The Industrial Commission majority affirmed the amount of the award but concluded that claimant sustained injuries to both feet on March 19, and that no accident occurred on March 17. The dissenting commissioner believed that claimant failed to establish that the March 19 accident also involved his left foot.

Respondent argues here that the Industrial Commission's conclusion that claimant sustained an injury arising out of and in the course of his employment on March 19 is contrary to the manifest weight of the evidence. Respondent asserts that an accident did not occur on March 19 and that claimant fabricated his story in order to recover for amputations his pre-existing diabetic condition made inevitable. Particular emphasis is placed on the fact that claimant stated four separate dates upon which the accident allegedly occurred and that claimant's supervisor suggested yet a fifth date.

Respondent suggests that claimant initially selected March 20 as the date because he was aware that the blackened condition of his right great toe on March 27 would have taken at least a week to develop if it was the result of trauma. As earlier noted, after it was revealed that claimant did not work on March 20, he stated that March 19 was the date of the injury and in a hospital report that March 15 was the date the accident ...


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