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Boker v. Industrial Com.

OPINION FILED FEBRUARY 20, 1986.

LOREN BOKER, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (GEORGE HOFFMAN & SONS, APPELLEE).



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

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The claimant, Loren A. Boker, filed a claim under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for an injury to his back sustained in the course of his employment with the respondent, George Hoffman & Sons (Hoffman). The claimant was 47 years old and a member of the laborer's union. He had worked as a laborer since 1972. He was employed by Hoffman when, on December 16, 1980, he was injured while operating an asphalt packer. The packer, a machine which tamps down asphalt, went into a ditch, pulling the claimant in with it. The claimant suffered an injury to his lower back. The claimant saw his family physician the next day. He was unable to return to work. Prior to the accident, the claimant had no history of back pain.

In January 1981, the claimant was referred by his family physician to Dr. Collins. Collins performed a myelogram in February 1981, which showed a possible defect at the S1 root. Collins treated the claimant with physical therapy, medication for pain, and a back brace. On May 4, 1981, Collins released the claimant for return to light duty work. Collins sent the claimant a written release. The claimant contacted Hoffman, told them of his release, and was informed that no light work was available. At this time, Hoffman terminated payment of benefits for temporary total disability (TTD).

In June 1981, Collins referred the claimant to Dr. Weinger, an orthopedic surgeon. Weinger prescribed physical therapy in the form of back exercises and a back brace. Weinger recommended that the claimant return for another examination three months later.

In September 1981, following a report from Weinger, Hoffman resumed payment of benefits. No benefits were paid for the period from May to September. The claimant returned to Weinger on October 1, 1981. He reported that he had been bedridden for one week after installing face brick in his home.

Victor Kavachivica, a vice-president for Hoffman, testified that in October 1981, Hoffman's insurance carrier received a notice that the claimant had been released for work subject to a 40 pound lifting restriction. According to Kavachivica, on October 27, 1981, Hoffman offered the claimant employment as a flagperson. The claimant refused the job, stating that he was not aware he had been released for work. The supervisor who contacted the claimant testified that it was the first time in his experience at Hoffman that a worker released for light duty had been offered the job of flagperson.

The claimant testified that he received neither a written nor a verbal release from Dr. Weinger in October 1981. He further testified that Kavachivica never stated that the job was as a flagperson; that because he had not been released to his knowledge, the claimant refused the job. The claimant testified that he had previously worked as a flagperson. The claimant stated that had he known he was released, he would have accepted the job. Hoffman again terminated the defendant's TTD payments following the defendant's refusal to return to work.

The hearing before the arbitrator was held on December 17, 1981. At that time, the claimant was still experiencing pain in his back radiating down his left leg. Following the introduction of the above evidence, the arbitrator found that the claimant became ineligible for temporary total disability benefits when he refused the job of flagperson. The arbitrator awarded 45 weeks for TTD; ordered Hoffman to pay for all necessary medical treatment; and held that the award was not a bar to a further hearing on future TTD or permanent disability benefits.

The claimant consulted with Dr. Weinger for his three-month visit in January 1982. Prior to this consultation, the claimant had experienced an episode of severe pain after shoveling snow. The claimant needed several days of bed rest to recover from this episode. Weinger hospitalized the claimant in February 1982 and performed a lumbar discogram. Weinger thereafter imposed a 20-pound lifting restriction on the claimant's employment.

The claimant returned to work on July 26, 1982, on light duty as a carpenter's assistant for a utility company. The hearing before the Commission was held on September 29, 1982. The claimant testified regarding the conditions of his employment at the utility company. He further testified that he still experienced pain after prolonged standing or sitting. He did not see Dr. Weinger again after the discogram. The claimant introduced medical bills for the discogram into evidence.

The claimant additionally submitted the evidence deposition of Dr. Weinger. The deposition was taken in September 1982. During the deposition, Dr. Weinger discussed the claimant's problems resulting from snow shoveling and from installing face brick. Dr. Weinger stated that because the claimant was still having symptoms after these stressful activities, the 1982 discogram was necessary to determine whether a disc had herniated. The discogram revealed degenerative disc disease with a possible small herniation. In Weinger's opinion, the 1980 accident was "either a causative or contributing factor" of the claimant's back problem. Weinger further opined that the possible herniation could have been caused by the claimant's degenerative disc disease or by the strain of installing face brick. Weinger acknowledged that he recommended to the claimant that the claimant engage in any physical activity which the claimant could tolerate. The doctor termed the snow shoveling and face brick incidents "exacerbations" of the claimant's chronic condition, which condition was caused by the accident.

The Commission awarded the claimant 45 weeks of TTD for the period from the time of the claimant's injury until his refusal to work in October 1981, but denied recovery for an additional $725 of medical expenses incurred for the discogram in February 1982. The Commission refused to assess penalties and attorney fees against the respondent, finding that the claimant failed to show unreasonable conduct on the part of the respondent.

The Commission's decision was confirmed by the circuit court. The claimant raises three issues on appeal. He argues first that the Commission's decision denying recovery of TTD benefits after the date the claimant refused employment is contrary to the manifest weight of the evidence.

The claimant asserts that the Commission erred in deciding that his disability terminated on October 27, 1981. The claimant reasons that the Commission set the termination date based ...


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