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Rambert v. Industrial Com.

OPINION FILED MAY 1, 1985.

EDWARD RAMBERT, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (PROFESSIONAL CONSTRUCTION COMPANY, APPELLEE).



Appeal from the Circuit Court of Du Page County; the Hon. Robert McLaren, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Petitioner, Edward Rambert, appeals from a judgment of the circuit court of Du Page County which confirmed the award of the Illinois Industrial Commission (Commission). The Commission had reduced the arbitrator's award with respect to the period of temporary total disability, the amount of reimbursement for medical expenses, and petitioner's average weekly wage. In addition, the Commission concluded that the arbitrator had erred in awarding petitioner additional compensation under sections 19(k) and 19(l) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l)).

The evidence before the Industrial Commission established that petitioner went to work for respondent, Professional Construction Company, on Tuesday, March 20, 1979. He was employed as an ironworker and worked for his employer for five days before sustaining injuries on March 26 that arose out of and in the course of his employment. On that day, he stepped into an open 55-gallon drum that was sunk in the ground. He stepped into the drum with his left foot. As a result of the accident, he twisted his left and right ankles, jammed his lower back, and injured his shoulder and the top of his hip. He hurt a lot after he fell into the drum.

The following day petitioner visited Hinsdale Sanitarium and Hospital, where he was X-rayed. The X-ray report revealed that petitioner's right ankle, lumbosacral spine, and skull area were all normal. However, a physician at the hospital found an abrasion on the left anterior leg, moderate tenderness of the paraspinous muscles in the back, mild tenderness of the posterior scalp, and tenderness in the right ankle. A physician prescribed a muscle relaxant, which petitioner was still taking occasionally, heat to the lower back, and bed rest for two or three days. The physician released petitioner on March 27 for follow-up care with Dr. Walter Thompson.

Dr. Thompson, a medical doctor, examined petitioner the same day. According to petitioner, the doctor did not prescribe any medication and told him to take it easy and to stay in bed. Dr. Thompson diagnosed petitioner as having multiple contusions, superficial abrasions, and muscle spasms. The doctor's medical report stated that petitioner would be "totally disabled" or "unable to work" from March 27 to March 29, 1979. Petitioner admitted that it was possible Dr. Thompson recommended that he return to work on March 29. In a subsequent letter relating to this examination, the doctor remarked that petitioner had some tenderness over the lumbar spine muscular areas and some residual tenderness in the ankles. The doctor did not discover any evidence of serious musculoskeletal injuries. Although X rays were taken at the emergency room, Dr. Thompson did not have reports of them on March 27; also, he did not order additional X rays.

On April 2 or 3, 1979, petitioner visited Dr. Gialio Bruni, who examined him regarding pain associated with petitioner's lower back and ankles. Dr. Bruni prescribed heat treatments and some medications. Petitioner saw Dr. Bruni three to five times per week for heat treatments for his lower back and ankles. When petitioner began to experience shooting pain in his legs and severe headaches, the doctor placed him in Northwest Hospital from April 23 to 27, 1979. An electromyogram (EMG) of petitioner's lower extremities and paraspinal muscle was normal, as were X rays of the lumbar spine, right shoulder and ankles. Dr. Bruni discharged petitioner from his care on May 4, 1979.

On May 1, 1979, petitioner was examined at Hines Veteran's Administration (VA) Hospital regarding, among other things, complaints of pain in his back and legs, a fatty tumor behind the right ear, rectal bleeding, weight gain, and a possible tumor in the lung. He received heat treatments and a mild massage of his lower back, treatment he continued for about a month.

At the employer's request, Dr. W. Patrick Smyth conducted an orthopedic examination of petitioner on May 29, 1979. In a letter dated approximately one week later, the doctor stated that petitioner had a fairly high subjective overlay. He walked with an exaggerated camptocormia which suggested an hysterical back syndrome. X rays of his lumbosacral spine were all within normal limits. Petitioner "appeared to have a high subjective complaint of problems with no objective findings whatsoever." After opining that petitioner was quite litigious, the doctor wrote that he could not find anything of significance wrong with petitioner and felt that there was nothing the matter with him. In the doctor's opinion petitioner did not require orthopedic care. In addition, he felt that petitioner could return to work without any restrictions.

In a deposition that was admitted into evidence before the Commission on behalf of the petitioner's employer, Dr. Smyth acknowledged that he did not perform a myelogram or an EMG on petitioner. He stated, in addition, that a myelogram is not necessarily an accurate indicator of the existence of a herniated disc. His deposition testimony also confirmed a number of findings he articulated in his earlier letter. Petitioner's employer terminated temporary total disability payments to petitioner on May 27, 1979, after having paid petitioner compensation in the total amount of $2,235 for a period of 8 6/7 weeks.

On June 11, 1979, petitioner visited Dr. Martin Shobris because he was still experiencing shooting pains in his legs; petitioner noticed that he was limping. Dr. Shobris admitted petitioner to Christ Hospital on June 14 and discharged him on June 25. An examination of medical records from Christ Hospital covering this period reveals that the admission diagnosis was slipped-disc syndrome, whereas the discharge diagnosis was acute and chronic lumbosacral muscle strain. X rays demonstrated that the lumbosacral spine was normal. In addition, an EMG of and nerve-conduction findings in the lower extremities and back were normal; there was no evidence of radiculopathy.

Petitioner testified that, while at Christ Hospital, he was placed in traction and given ultrasound therapy twice a day for his lower back. He stated that later he commenced physical therapy at the hospital on an outpatient basis.

After the termination of his outpatient care, petitioner returned to the VA Hospital in July for medical care and treatment. Among other things, the hospital fitted him with bilateral braces for his legs, prescribed a corset for his back, and required that he perform swimming and pelvic-tilt exercises. He continues to wear the braces daily and sometimes uses a cane and the corset. A commissioner of the Industrial Commission personally observed that petitioner used a cane, walked with a limp, and wore braces on both legs.

On July 19, 1979, petitioner underwent an anal fistulectomy at the VA Hospital. On July 27 he again visited Dr. Shobris. In his physician's report of that day, the doctor stated that petitioner would be able to return to work on August 13, 1979; he noted that petitioner had recently undergone an anal fistulectomy. Petitioner did not believe that Dr. Shobris recommended in August 1979 that petitioner return to work.

On February 19, 1980, Dr. Henry Kawanaga examined petitioner. Dr. Kawanaga admitted petitioner to Hinsdale Sanitarium and Hospital from March 10 to 30, 1980. A series of tests was performed in the hospital, including a lumbar myelogram. This was the first myelogram that was performed on petitioner since the ...


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