Appeal from the Circuit Court of Cook County; the Hon. Edwin
B. Berman, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
The Treasurer of the State of Illinois as ex-officio custodian of the Second Injury Fund (Ill. Rev. Stat. 1979, ch. 48, par. 138.7(f)), appeals from an order of the circuit court of Cook County confirming a decision of the Industrial Commission which ordered the Second Fund to pay certain benefits to the claimant Alvie Edward Kemp. An arbitrator had found that the claimant sustained a work-related injury to his left leg and that he previously had sustained the permanent and complete loss of use of his right foot in a nonwork-related matter. The arbitrator found that as a result of the accident claimant sustained the permanent and complete loss of the use of his left leg, and that under section 8(e)(18) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(18)), claimant is totally and permanently disabled. In addition to payments for necessary medical expenses, penalties and claimant's temporary total disability, the arbitrator ordered claimant's employer, Zack Company, to pay $350 per week for 200 weeks. Thereafter, the Second Injury Fund was ordered to pay $350 per week for life.
On review sought by the employer, the Commission adopted the arbitrator's findings as to causation and the nature and extent of claimant's injuries, and it affirmed the payments for medical expenses, penalties and temporary total disability. The Commission, however, reduced the employer's payments for claimant's loss of the use of hs left leg to $269.21 per week for 200 weeks and ordered the Second Injury Fund to pay the difference of $80.79 for 200 weeks concurrent with the employer's payment. The Second Fund was also required to pay $350 per week pension at the end of the 200 weeks. Only the State Treasurer appeals.
Claimant was employed by Zack Company as a truck driver. On September 12, 1980, while unloading fans from a truck, he fell and injured his left knee. Claimant left work and that evening was treated in the emergency room of Mennonite Hospital. On September 22, 1980, claimant saw Dr. Bratberg, who recommended that he stay off his left knee. Claimant returned to work as a truck driver on November 2, and worked until December 7, 1980.
At the request of the employer's insurance company, claimant was examined on December 10, 1980, by Dr. Choon B. Choi, an orthopedic surgeon. Dr. Choi observed that claimant limped on both sides, with the right side more pronounced than the left. The calf and thigh muscles of both legs were underdeveloped, and there was swelling and tenderness. Claimant had a history of poliomyelitis in his right leg from infancy. He suffered from right foot drop, was unable to extend the right ankle joint and had to extend the right knee to place any weight on the right side. Claimant had worn a brace on his right foot until he was 12 years old, when he had surgery on his ankle to correct a valgus deformity. Dr. Choi recommended an arthogram of the left leg to confirm his diagnosis of chronic synovitis, an inflammation of the tissue lining the cavity of the knee joint. Claimant did not have the arthogram but on January 8, 1981, returned to Dr. Choi with the same complaint of pain and swelling of the left knee.
An arthogram, performed on January 12, 1981, confirmed Dr. Choi's diagnosis of chronic synovitis at the left knee joint, and he injected cortisone. Claimant was later admitted to the hospital and, on February 2, 1981, Dr. Choi performed a synovectomy, a lateral release and a shaving of the patella. After his release from the hospital on February 7, claimant continued to see Dr. Choi. His left knee was still swollen, and Dr. Choi aspirated it with fluid and injected it with cortisone. In July, Dr. Choi prescribed a brace for claimant's right foot. On September 9, Dr. Choi performed another synovectomy on the left leg. By October 1, 1981, claimant's left knee was still swollen but the knee motion was almost normal.
On October 25, 1981, claimant was treated by Dr. Judy Wright for a broken index finger caused by a fall when his left leg gave out. Claimant continued his visits to Dr. Choi, and in November his knee motion had increased to 120 degrees of flexation. After his visit on January 13, 1982, Dr. Choi told claimant he could try to return to work as a truck driver in March. On February 26, claimant's left knee was swollen because he had walked four blocks. Claimant was unable to drive a truck because of the cane he had to use. On March 3, 1982, Dr. Choi prescribed a brace for claimant's left leg. Claimant complained of back pain while wearing the brace. Shortly after he started using it, the brace locked, causing the claimant to fall and injure his elbow. The brace was changed, and he was able to wear it. On June 23, 1982, he made his last visit to Dr. Choi. Claimant complained of back pain and pain in his right leg, and Dr. Choi instructed him to use crutches. Dr. Choi diagnosed claimant's condition as permanent. In his opinion, claimant could not lift any heavy objects, could not operate a clutch, could not walk four blocks, and could work only in a sedentary job.
In May 1982, Kathy Hall, a rehabilitation counselor, arranged for claimant to work as a truck dispatcher with Wildwood Industries. The position, as described to her and Dr. Choi, was within claimant's capabilities. The position required more walking than expected and his left leg became swollen. He also developed a blister on his hand from the cane. Claimant worked eight hours on June 28, 1982, and three hours the following day. Claimant worked another full day at Wildwood on July 6 and for 90 minutes the following day. Claimant has not worked since then.
At the time of the hearing before the arbitrator, claimant was wearing orthopedic shoes. He had a brace on his right foot which extended up his calf and a brace on the left leg. Prior to driving a truck, he worked on a farm and in a factory. Claimant had 2 1/2 years of high school education.
The arbitrator found that claimant was temporarily totally disabled for 88 weeks, that prior to the work-related injury he had lost the use of his right foot, that as a result of this work-related injury he lost the use of his left leg, and that under the Act claimant was permanently and totally disabled. The arbitrator ordered the employer to pay claimant $350 per week for 200 weeks, the statutory award for complete loss of use of two members.
Only the employer sought review. The only issues it raised were a scrivener's error in the dates of claimant's temporary total disability and the rate of payment for 200 weeks for claimant's complete loss of use of his left leg. The Commission modified the arbitrator's decision and ordered the employer to pay $269.21 per week for 200 weeks, the statutory amount for loss of use of one member. The Commission ordered the Second Injury Fund to pay the difference of $80.79 for 200 weeks and thereafter to pay $350 per week for claimant's lifetime.
On appeal, the State Treasurer contends that claimant failed to sustain his burden of proof that he had a complete loss of use of his right leg prior to the accident of September 12, 1980, that he failed to establish that he was totally and permanently disabled under section 8(f) of the Act, and that the Commission erred in ordering the Special Fund to make payments concurrent with the employer's payments.
• 1 In order to recover benefits under the Act, the employee has the burden of proving all the elements of his case, including the extent and permanency of his injuries. (Gates Division, Harris-Inter-type Corp. v. Industrial Com. (1980), 78 Ill.2d 264, 399 N.E.2d 1308.) The Commission has the responsibility of assessing the credibility of the witnesses and determining the weight to be given to their testimony. (Caradco Window & Door v. Industrial Com. (1981), 86 Ill.2d 92, 427 N.E.2d 81.) Its findings will not be set aside on review unless they are against the manifest weight of the evidence. Martin v. Industrial Com. (1982), 91 Ill.2d 288, 437 N.E.2d 650.
Assuming that the Special Fund has not waived this issue by failing to seek review of the arbitrator's decision, we cannot say the Commission's decision that claimant sustained the complete loss of use of his right foot prior to the accident is against the manifest weight of the evidence. The only testimony offered was that of the claimant and Dr. Choi. Claimant stated that he contracted poliomyelitis during infancy and that his right ankle required surgery when he was 12 years old. Dr. Choi stated that claimant limped more noticeably on his right side, that claimant had to fully extend his knee before putting any weight on the right side and that the muscles of the right leg were underdeveloped. The right calf muscle was one inch smaller in circumference than the left, the right thigh muscle was 1 1/2 inches smaller ...