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Ford Motor Co. v. Industrial Com.





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


The sole issue on appeal is the propriety of the Industrial Commission's award to claimant, Elizabeth Bacon, of $1,130 as penalties (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(l)), and $1,135 as attorney fees (Ill. Rev. Stat. 1981, ch. 48, par. 138.16) against Ford Motor Company for failing to pay claimant's benefits without good cause.

Claimant filed an application for adjustment of her claim under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries she sustained to her back while employed by Ford. An arbitrator awarded claimant 20 6/7 weeks of temporary total disability, but denied her request for penalties. On review, the Commission upheld the arbitrator's award of benefits and also imposed the aforesaid penalties and attorney fees. Ford sought review of the Commission's decision in the circuit court of Cook County. Sometime thereafter, Ford voluntarily paid the temporary disability award, and the circuit court confirmed the Commission's award of penalties. Ford appeals.

Claimant's duties at Ford consisted of applying sealer to cars by using air guns attached to overhead hoses. On April 8, 1981, Bacon reached over her head for the air gun and felt a pull and sharp pain in her back. She promptly told a co-worker and then notified a supervisor. Bacon was sent to the company nurse who, after applying ice packs, returned claimant to work. The nurse also arranged to have claimant see the company doctor in a few days.

On April 13, 1981, claimant saw the company doctor, Dr. Walter McFarland, about the back pain which began on April 8. (Claimant had injured her back at work in 1979 and at home in 1980.) Dr. McFarland found petechia, small pin-point type hemorrhages, extending from the mid-thoracic region down to the upper sacrum in the mid-line. He gave her muscle relaxers and referred her to Dr. Kishan Chand, an orthopedic surgeon. On April 16, Dr. Chand examined claimant and, without taking X rays, diagnosed a thoracic lumbar strain. Claimant returned to Dr. McFarland on the same day and based on Dr. Chand's diagnosis, Dr. McFarland released claimant for work with some activity restrictions. Claimant's pain continued and she was placed on conditional medical leave from April 20 to May 4, 1981.

On April 27, 1981, claimant saw her personal physician, Dr. Luis P. de Melo, who arranged to hospitalize her for physical therapy and tests. On May 6, 1981, Ford mailed claimant a notice requiring her to return to work or provide a medical report within five working days, or risk termination.

On May 8, 1981, claimant was admitted to the hospital by Dr. de Melo. On May 19, she underwent a lumbar myelogram which revealed a small centrally herniated disc. Claimant remained in traction in the hospital until May 22. The final diagnosis was incipient disc disease at the 4th lumbar space. She was told to rest in bed at home and curtail her activities.

Claimant's deadline for responding to Ford's five-day notice was May 13. She testified that about three days after entering the hospital she talked to John Hanford, Ford's workers' compensation representative. She asked what she needed to do in order to receive her disability pay and he told her to send in a letter from her doctor. She spoke to Hanford "many times" while in the hospital and after she returned home. Hanford testified that he had telephone conversations with claimant and she said she was in the hospital. At the time of the hearing, two months later, he could not recall how many conversations he had with claimant or the content of the conversations.

Gary Miller, Ford's labor relations representative, testified that on May 6, before sending the five-day notice, he went to the medical department and reviewed claimant's file to determine if it contained medical documentation establishing that she was still disabled and unable to work. Finding nothing, Miller sent out a five-day notice. He did not find or request any information about the April 8 occurrence, the examinations and treatment from Drs. McFarland and Chand, or the reason for the medical leave. When he received no reply on May 13, Miller terminated claimant as of that date. On May 14 he received Dr. de Melo's report dated May 7. The report stated that Dr. de Melo first saw claimant on April 27, that she suffered from a disability, and that she was scheduled to undergo a lumbar myelogram. A few days later claimant telephoned personnel and was told of her termination. Miller informed her that she would have to take up her problem with the union. Ford stipulated that it knew claimant was under a doctor's care.

On May 19, 1981, Dr. de Melo sent a letter to Hanford at Ford, stating that claimant had been admitted to the hospital, and that a myelogram revealed a herniated disc. The letter also stated that treatment was not completed and that the doctor did not know when she could return to work. The letter to Hanford was found in claimant's personnel file at Ford, but Hanford stated that he had never seen the letter.

Dr. McFarland testified that he had never seen the report and letter from Dr. de Melo. Dr. McFarland was asked whether stretching up about three inches to pull down a hose at the end of which was a six-pound air gun could cause a herniated disc. Dr. McFarland answered, "I wouldn't expect that, no." In response to a hypothetical question, Dr. McFarland testified that if he had seen the myelogram report, he would not have released claimant for work. Instead, he would have asked for the opinion of another orthopedic surgeon, and he would have wanted to see the radiology reports. He would not have returned her to work status with a herniated disc. After stating that the letter and report from Dr de Melo were not in claimant's medical file at Ford, Dr. McFarland said, "I don't see any reason why this would have been in personnel. This should have been in the medical file."

Karen Flowers, the personnel administrator who maintains Ford's personnel records, testified that an attending physician's report should be reviewed by personnel, then sent to the medical department to be kept in the employee's medical file. She did not know who placed the report from Dr. de Melo in the personnel file instead of in the medical file.

On June 25, 1981, claimant was examined by Dr. Oliver V. Renaud at Ford's request. His clinical and X-ray findings were normal. He stated that reaching up to pull on a hose could not herniate a disc. Dr. Renaud stated that claimant's hospital findings would have required only a 10- to 14-day recovery period. He testified that a myelogram was the proper test for diagnosing a herniated disc, and that if the disc ligaments were weakened by initial trauma, further trauma would increase the weakening.

Dr. S.P. Kaushal, an orthopedic surgeon, also examined claimant. He found several abnormalities during the clinical examination and in the X rays. He testified for claimant that his findings were consistent with a herniated disc, and that the condition ...

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