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Simburger v. Industrial Com.





Appeal from the Circuit Court of Montgomery County; the Hon. David Slater, Judge, presiding.


Rehearing denied February 24, 1986.

Claimant Loren D. Simburger filed an application for adjustment of claim against respondent Consolidation Coal Company. An arbitrator concluded that claimant had failed to prove that he had sustained an accidental injury. On review the Industrial Commission affirmed the decision of the arbitrator, and on further review the circuit court of Montgomery County confirmed the Commission. Claimant has appealed that order. We reverse and remand to the Commission.

Claimant's problem involved his lower back. The evidence at arbitration showed that he became employed by respondent in September 1979. He was given a preemployment physical, at which time X rays were taken of his back. Dr. Rademacher, a radiologist, submitted a report showing a normal lumbosacral spine with no abnormalities. Claimant testified that he had experienced no back problems prior to going to work for respondent.

His job was that of a supply man and scoop operator. These duties included shoveling coal and concrete, loading bags of rock dust weighing 40 to 50 pounds, loading blocks, and carrying various items weighing 25 to 50 pounds.

On October 6, 1981, shortly after arriving at work, he began to experience lower back pain. He so informed his supervisor, Andy Pitner, but Pitner insisted that he load certain supplies. He continued to complain about back pain and was then given a ride out of the mine. That evening the pain became very intense.

The next day, October 7, 1981, he consulted with Dr. Frank Warner. Further X rays were taken, and Dr. Warner diagnosed the condition as that of unilateral spondylolysis at L5 on the left. After learning about the nature of claimant's work duties, Dr. Warner advised him not to return to work. He also opined that the condition resulted as a cumulative matter over a period of time beginning in October 1979. He referred claimant to Dr. William Schroeder, an orthopedic surgeon. Dr. Schroeder submitted a report to respondent stating that claimant suffered from an "illness" of spondylolysis.

Following the examination by Dr. Warner, claimant returned to respondent and requested light duty. He was informed that light duty was against company policy. He also attempted to complete an accident report but was refused by a secretary. Pitner testified that claimant did not report an accident to him; only that his back was in pain. Respondent's personnel director testified that he never received an accident report and because Dr. Schroeder's report mentioned an illness rather than an accident, claimant was denied temporary total disability. He did receive 13 weeks of sickness benefits rather than 52 weeks of accident benefits.

In June 1982 claimant was examined by Dr. Marshall Conrad. The history given at that time revealed that claimant's pain developed in October 1981 while claimant was bending over at work. His diagnosis was the same as the other doctors, that of unilateral spondylolysis. He noted that while Dr. Rademacher's report made no mention of this condition, he would "give odds" that it existed prior to employment. Dr. Conrad submitted a supplemental report which stated that he had examined Dr. Rademacher's X rays and concluded that those X rays showed the spondylolysis. In answer to a hypothetical question, Dr. Conrad stated that claimant's employment made his condition become symptomatic but that the employment did not worsen the condition since the pain and symptoms would have surfaced eventually. He agreed that claimant should find work less physically demanding than coal mining and recommended that he not lift heavy objects. He stated that he would have made the same recommendation had he examined claimant at the preemployment physical.

Claimant testified that prior to working for respondent he had been a typewriter technician. Since leaving respondent, he had been attending Southern Illinois University and St. John's School of Histology. He had also worked in the laboratory at St. John's. His other activities have been limited.

The arbitrator found that claimant was subject to the Workers' Compensation Act and that an employment relationship existed; also, that necessary medical and other services had been provided by respondent and that $2,144.05 had been paid by respondent's carrier on account of the injury. However, he also found that claimant had failed to prove that his injury arose out of and in the course of his employment and therefore denied compensation.

Some further evidence was taken on review before the Commission consisting principally of claimant's testimony about his educational expenses. The Commission affirmed the arbitrator. Claimant requested that the Commission set forth reasons for its decision. However, the Commission filed only a short order stating that the arbitrator had seen and heard the witnesses and had made findings supported by the evidence; that no new evidence relating to the accident had been presented on review; and that no reason existed to change the determination of the arbitrator. As had been indicated, the circuit court of Montgomery County confirmed that order.

Claimant presents two issues for our consideration: (1) whether the failure of the arbitrator to make specific findings of fact and conclusions of law renders affirmance by the Commission impossible; and (2) whether the finding that claimant failed to prove an injury in ...

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