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Neal v. Industrial Com.

OPINION FILED FEBRUARY 26, 1986.

ROMIE NEAL, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (IML FREIGHT, INC., APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The petitioner, Romie Neal, filed a claim under the Workmen's Compensation Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for an injury he sustained while an employee of the respondent, IML Freight, Inc. (the company). The petitioner appeals from a judgment of the circuit court confirming the Industrial Commission's denial of benefits.

On August 15, 1975, the petitioner was injured in an accident unrelated to the instant claim. The petitioner consulted Dr. Meany, an orthopedist, who treated the soreness and pain in the petitioner's neck and shoulders as well as the pain in his right arm to the elbow and his left arm to the fingertips. Dr. Meany released the petitioner to work on August 20, 1976. From that date to September 28, 1976, the petitioner loaded, drove and unloaded his delivery truck and took no medication for the left arm numbness or for the pain he experienced in his neck, shoulders and arms. In August of 1976, Dr. Robert Busch attributed impaired motility of the petitioner's neck and arms to muscular myositis, cervical contusion and strain injury. At that time, Dr. John Gleason related the petitioner's symptoms to minimal degenerative hypetrophic osteoarthritis of the cervical spine. Ultimately, the petitioner was awarded permanent 15% left arm disability.

As to the injury in the instant case, the 39-year-old petitioner testified that on September 28, 1976, he was a truck driver for the company. Enroute to a delivery that day, the left side of the petitioner's trailer struck a viaduct and the vehicle stopped suddenly. The petitioner was thrown against the windshield and jerked back against the cab. He noticed dizziness and head pain but managed to survey the damage to the truck; unload boxes to complete the delivery; and drive back to the company's terminal. Then the petitioner experienced loss of left eye vision, severe headaches, left side numbness and pain in his neck, shoulders and arms. He went to the Clearing House Clinic for treatment. The following day, the petitioner consulted Dr. Simon, after the company denied his request for treatment.

The petitioner next consulted Dr. Ichandra, who treated his neck. In October of 1976, the petitioner began to see Dr. Frank DeVincenzo, a neurologist, who administered tests, prescribed therapy for the petitioner's neck, shoulders and lower back, and performed a cervical fusion. In September of 1977, Dr. Matias Castro prescribed a neck brace which the petitioner wore continuously for two months and then once or twice weekly. The petitioner routinely consulted Dr. DeVincenzo and Dr. Castro for his pain and symptoms. In October of 1978, the petitioner began to wear reading glasses.

At the arbitration hearing, the petitioner introduced a November 1978 report of Dr. Busch. Busch's report reiterated his prior diagnosis; noted the results of the cervical fusion; and attributed the petitioner's condition to concussion, muscular myositis and strain injury to both shoulders, left upper arm and left forearm.

The petitioner further testified that he had neither earned wages nor applied for nor returned to work since the accident because his pain prevents him from performing either the physical or mental aspects of his job.

The company presented the testimony of Bruce Barclay, an investigator, who by stipulation in the presence of both parties' counsel, showed motion pictures of the petitioner loading and unloading a vehicle in April of 1978. The company introduced the March 1978 report of Dr. Edir Siqueira, who noted the petitioner's post anterior cervical fusion symptoms but found no organic neurological disease warranting further treatment.

After proofs were closed, the arbitrator reopened the case to admit a January 1980 report from the Rehabilitation Institute of Chicago. That report highlighted the petitioner's lack of college education and lack of interest in pain management, and recited Dr. Robert Addison's finding that the petitioner's cognitive ability was limited and Dr. Yoon Hahn's opinion that the petitioner was experiencing chronic neurological pain which did not warrant further neurological evaluation.

The company also introduced the April 1980 deposition of Wallace Yerty, a Western Michigan educational supervisor who employed the petitioner, commencing September of 1979, to transport books and audio-visual equipment as a work-study program participant. The petitioner then admitted that since 1979 he had been an above-average student at Western Michigan University; that he had participated in work-study; and that he dropped the program because of his pain.

Arbitrator Thomas Dillon found that the petitioner sustained accidental injuries arising out of and in the course of his employment and awarded the petitioner temporary total benefits for 79 weeks of incapacity, medical expenses and 200 further weeks of compensation for his 40% partial disability. Both parties appealed to the Commission.

At the review hearing, the petitioner testified that subsequent to arbitration, Dr. Castro examined him bimonthly and prescribed medication. The petitioner stated that he was continuing his education and would refuse gainful employment. Later, the petitioner testified that he would accept employment within his limitations.

The Commission reversed Arbitrator Dillon's decision. Based on the petitioner's conflicting testimony about the accident, Dr. Meany's August 1976 findings, and the petitioner's failure to present medical evidence from his treating doctor, Dr. DeVincenzo, of either disability or aggravation of a pre-existing condition, the Commission found that the petitioner failed to prove either disability from the accident or that his cervical condition was causally connected to the accident. The petitioner appealed.

The circuit court found that the Commission's decision was not contrary to the manifest weight of the evidence. The petitioner appeals, pro se, ...


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