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Swift & Co. v. Industrial Com.

OPINION FILED NOVEMBER 6, 1986.

SWIFT AND COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION (JAMES COLLEY, APPELLEE).



Appeal from the Circuit Court of Kane County; the Hon. Marvin Dunn, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 9, 1987.

Claimant, James Colley, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries he sustained to his lower back while employed by Swift and Company. An arbitrator made a preliminary award of $296.05 per week for 22 5/7 weeks of temporary total disability benefits and $5,596.50 for necessary medical services. The arbitrator also awarded claimant additional compensation in the amount of $1,580 under section 19(1) due to the employer's refusal to pay temporary total disability benefits. The Commission affirmed the decision of the arbitrator, and the circuit court of Kane County confirmed the decision of the Commission. On appeal the employer contends that the Commission failed to consider all of the evidence; that the Commission erred in finding the accident occurred on a date other than the date offered by claimant; and that the award of penalties is against the manifest weight of the evidence.

Claimant is a millright employed by Swift. He testified that in November 1981 he was working with employees from Griffith Laboratories, building a mincemaster machine. While two of the Griffith employees were underneath the machine on the opposite side, claimant and a third Griffith employee, Hans Niewalt, tried to loosen two nuts which held a large motor onto the machine. When claimant attempted to turn the wrench, he slipped and fell back against a platform located 5 or 6 feet behind the machine. Claimant immediately felt pain in his right hip, shoulder, and lower back. Claimant further testified that at some point Niewalt had cautioned him to be careful not to hurt himself, and claimant replied, "I think I already have." Later in the morning, Charles Staples, whom claimant testified was his supervisor at the time, asked claimant why he was limping. Claimant replied that he had been hurt while working on the mincemaster. Claimant continued to work for the rest of the day. When the pain persisted to the following Tuesday, he went to see the company nurse, who was present at the plant only on Tuesdays and Thursdays. Claimant also testified that he told the nurse that he fell while working on the mincemaster. She gave him a muscle relaxant, but the pain continued. Two weeks later, the nurse gave claimant more relaxants and suggested he see a family doctor if the pain persisted.

In regard to the exact date of the accident, claimant testified that he originally thought it occurred on November 7 or November 14, 1981. Claimant subsequently saw the employer's accident report on the doctor's desk. The report indicated that the accident occurred on November 20. "I told my attorney that must have been when it happened because I didn't know the date." The accident report had been filled out by Staples. Claimant repeatedly testified that he was "not very good on dates," "confused on dates because I work so many shifts and hours," and "I am not sure of the date."

On January 18, 1982, claimant saw Dr. D. Giedraitis, his family physician. He informed Dr. Giedraitis that he had fallen at work two months earlier while trying to use a large wrench on a machine. Claimant was admitted to the hospital on January 29, 1982, and a myelogram revealed a ruptured disc at L4-L5. He was scheduled for surgery on February 9, but surgery was postponed when the employer informed the doctor that more evidence was necessary to determine whether workers' compensation coverage existed. Dr. B. Chung performed a laminectomy on claimant on February 28, 1982.

Andrew Macey, a co-worker, testified for claimant that he saw claimant working with the Griffith employees. Macey observed claimant using a pipe and wrench to loosen a bolt, but did not see him fall or injure himself.

Charles Staples, a maintenance supervisor, testified for claimant that he had spoken to claimant on the day the Griffith employees were present. On that day, and again two weeks later, claimant complained to Staples of lower-back pain which was related to working on the mincemaster. Staples understood the injury occurred while claimant was lifting something. Staples stated that he has supervised claimant, but that he did not act as claimant's supervisor on that particular day.

Hans Niewalt testified for the employer that he worked with claimant at Swift in November 1981, although he was unsure of the exact date. "The date I am not really sure of but probably it was November 21st or something like that, whatever it is." Niewalt testified that he did not see claimant use any tools that day. Instead, claimant only washed machine parts to remove grease and did other odd jobs. Niewalt stated further that claimant never mentioned falling or injuring himself. Niewalt himself loosened the nuts on the mincemaster. Niewalt did not know if claimant saw Niewalt loosening the nuts or if claimant was even in the area at the time.

Marsha Taulbee, the company nurse, testified that she saw claimant sometime in late November or early December 1981 and again a few weeks later. He complained of lower-back pain, but never mentioned that the injury was work-related. In February 1982 claimant's attorney contacted the employer regarding the accident, and an accident form was then filled out. Taulbee did not ask claimant if the injury was work-related prior to that. Taulbee also stated that claimant missed only one day of work between November 20, 1981, and the time of his hospitalization in January 1982.

Michael McElhattan, the plant manager, testified that claimant continued to work overtime from November 1981 through the last week of January 1982. McElhattan did not observe anything unusual about claimant's appearance or performance during this time period.

After hearing all the evidence, an arbitrator found that the accident occurred while the employer's mincemaster machine was being overhauled by Griffith and that the accident therefore "had to occur on Saturday, November 21, 1981." The arbitrator also found that the accident arose out of and in the course of claimant's employment. The arbitrator stated that, "[e]xcept for the confusion about the date, petitioner's testimony is entirely credible and plausible." After finding that expenses for necessary medical care had not been provided by the employer and workers' compensation benefits had not been provided, the arbitrator awarded penalties under section 19(1) of the Act.

On review the Commission adopted the findings and decision of the arbitrator. The Commission's decision noted the arbitrator's reliance on claimant's testimony and medical evidence showing a causal connection between the injury and the present condition of ill-being, but did not detail the testimony given by the witnesses. The Commission affirmed the arbitrator's award for temporary total disability and for penalties and medical expenses.

• 1 The employer first contends that the Commission's decision should be set aside because the Commission failed to independently review all of the evidence before it. Employer argues that the absence of any express comment in the Commission's decision concerning the testimony of employer's witnesses or the conflicting evidence presented by each party proves that the Commission failed to consider the evidence. The arbitrator and the Commission are required to make findings of fact and law. (Wolfe v. Industrial Com. (1985), 138 Ill. App.3d 680, 486 N.E.2d 280.) The Commission is permitted to adopt the findings of the arbitrator. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(e).) There is no requirement, however, that the findings be stated in any particular language. (Wolfe v. Industrial Com. (1985), 138 Ill. App.3d 680, 486 N.E.2d 280.) Moreover, the commission's decision need not recite all of the underlying evidence. (See Hart Carter Co. v. Industrial Com. (1982), 89 Ill.2d 487, 433 N.E.2d 1307.) A presumption ...


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