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International Paper Co. v. Ind Com.





Appeal from the Circuit Court of Peoria County, the Hon. Robert E. Manning, Judge, presiding.



Claimant, Michele L. Lulay, sought workmen's compensation benefits for an injury she sustained while in the employ of the respondent, International Paper Company. An arbitrator awarded claimant compensation for temporary total disability for a period of 45 4/7 weeks under section 8(b) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)) and permanent partial disability to the extent of 15% of the use of her right arm under section 8(e) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(e)). On review, the Industrial Commission, with one commissioner dissenting, found that petitioner's condition had not reached a state of permanency and, therefore, reversed the arbitrator's award for permanent partial disability and extended the award for temporary total disability to 90 weeks. The Commission also concluded that claimant was entitled to additional medical expenses and vocational rehabilitation under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)) and remanded the cause to the arbitrator for rehearing on the question of a vocational rehabilitation award. The circuit court of Peoria County confirmed the decision of the Commission. Respondent has appealed pursuant to Rule 302(a) (73 Ill.2d R. 302(a)).

The issues raised on review are whether the Commission's findings (1) that claimant's condition had not reached permanency and (2) that vocational rehabilitation was required, are against the manifest weight of the evidence.

At the hearing before the arbitrator, the claimant testified that on June 21, 1977 she was employed by the respondent as a shrink-film operator. In that capacity, she would take bundles of labels off a conveyor belt and then put them through a shrink-film machine which would seal the labels. On June 21, 1977, the labels on the belt were proceeding unusually fast because of a "big job that had to be out." As claimant was removing labels off the belt, another pile of labels was approaching. When the labels met, she felt a "pop" go through her right arm. The arm began to ache, feel heavy and her elbow began to swell.

Upon return to work the following day, she reported her condition to her foreman and thereafter, on her own, sought treatment from a chiropractor, Dr. Robert L. Downs. He diagnosed claimant's condition as epicondylitis of the right elbow and treated it with ultrasound, a transcutaneous nerve stimulative unit, and hot packs. He also advised claimant to wear a sling and refrain from using her arm. The following day, claimant returned to work, and her foreman assigned her to a desk job in the bindery. She was placed on disability on July 19, 1977, when the desk job was completed.

Claimant next consulted an orthopedic surgeon, Dr. Paul Consigny, on June 28, 1977. In a report prepared by Dr. Consigny for the respondent, which was entered into evidence, the doctor diagnosed claimant's condition as "tennis elbow." He treated her with medication, heat, and injections in the elbow. Because of her failure to respond to this treatment, Dr. Consigny recommended rest and heat although he noted that claimant could continue to do some work if it did not involve use of her right arm. On August 30, 1977, claimant consulted with Dr. Paul Palmer, another orthopedic surgeon, who was respondent's company doctor. Dr. Palmer diagnosed tendonitis of the right elbow, treated claimant with therapy, and advised that she not work during the four-month period he treated her. He released her from his care on January 1, 1978. Claimant received temporary total disability payments from respondent for the period beginning July 19, 1977, and ending January 1, 1978.

Claimant returned to her job as a shrink-film operator on January 2, 1978. Although she wore an elbow brace, which had been prescribed by Dr. Palmer, she testified that she experienced a throbbing pain and tension in her right elbow when at work. She continued at her job until October 6, 1978, at which time she took a six-month leave of absence for an unrelated condition.

Claimant returned to her job on March 13, 1979. She testified that in May of 1979, she began having difficulty lifting small bundles of labels without experiencing intense pain. Because of this, she consulted with a company doctor, Dr. C.J. Thomas, on May 29, 1979. Dr. Thomas' report, which was entered into evidence, indicated a possibility of minimal permanent disability of the right elbow. He treated the claimant with cortisone injections, prescribed an elastic elbow brace, and advised her to remain off work for the remainder of the week. Following the four-day rest, claimant returned to her regular job. At this time, however, the bundles of labels weighed from 30 to 40 pounds because of the unusually large size of the label involved. Claimant found the job much harder to perform and, therefore, during the following 3 1/2 months she worked at three other production jobs within the company which she thought would be less physically demanding. They all proved to be just as difficult to handle. Claimant left work early on September 20, 1979, when she found herself dropping labels and experiencing pain in her right arm.

During the second week of August, claimant went to her family doctor, Dr. Wilbert S. Newcomer. Dr. Newcomer referred her to an anesthesiologist, Dr. Mohammed Shariff, who was affiliated with a pain management clinic. An appointment was arranged for October 10, 1979. Dr. Shariff examined claimant and also referred her to a psychologist for evaluation. The psychologist's report, entered into evidence, indicated that claimant was anxious to be rid of her pain and would be likely to cooperate with any future treatment. Dr. Shariff treated claimant with several different modes of therapy which gave her varying degrees of relief but were unable to alleviate the pain for any significant amount of time.

On November 9, 1979, claimant was sent to an orthopedic surgeon, Dr. David Conner, at the request of respondent. In a report sent to respondent's attorney and entered into evidence, Dr. Conner diagnosed chronic right lateral humeral epicondylitis. He stated that claimant would probably have some permanent partial disability and recommended changing her type of work to adjust to the condition.

Claimant continued her treatment with Dr. Shariff who recommended that she try to return to work. On May 27, 1980, she returned to work for the first time since September 20, 1979. Dr. Shariff recommended sedentary work that did not involve lifting more than 2 to 4 pounds. Claimant was assigned to work as a die cutter, which involved repetitive movement of her body as well as lifting. She was only able to work for 2 1/2 hours because the burning sensation returned to her arm and the pain increased. At the hearing before the arbitrator, claimant testified that she was not working and had not worked since May 27, 1980. She stated that the only job at respondent's company which she felt was within her capabilities was the interoffice mail run, which was held by another employee.

Claimant testified, in the hearing before the Commission, that she had not worked since May 27, 1980. She also stated that she had contacted respondent in July of 1980 to inquire about the mail job and was told it was not open. No offer of employment had been made by respondent since the hearing on arbitration. Claimant further testified that she suffers from continuous pain and is greatly limited in carrying out routine household chores. She takes pain medication three times a day as well as applying heat to the elbow.

An evidence deposition of Dr. Shariff was also introduced into evidence on behalf of the claimant at the hearing before the Commission. Dr. Shariff stated that claimant had lateral epicondylitis, which is a self-limiting disease that normally follows its own course to heal. He further stated that he would ...

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