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02/11/87 Charles Elliot, v. the Industrial Commission

February 11, 1987

CHARLES ELLIOT, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (THE COUNTY OF COOK, APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

505 N.E.2d 1062, 153 Ill. App. 3d 238, 106 Ill. Dec. 271 1987.IL.156

Appeal from the Circuit Court of Cook County; the Hon. Mary M. Conrad, Judge, presiding.

APPELLATE Judges:

Justice McNamara delivered the opinion of the court. Barry, P.J., and Woodward, McCullough, and Kasserman, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Claimant, Charles Elliot, sought benefits under the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) after allegedly injuring his back while working for respondent, Cook County. An arbitrator found claimant's injury arose out of and in the course of his employment with respondent. The arbitrator awarded $246.15 per week for 23 weeks for temporary total disability and found claimant's disability had not yet reached a permanent condition. On review, the Industrial Commission upheld that decision, and the trial court confirmed the Commission's decision.

On appeal, respondent contends that Commission's decision is against the manifest weight of the evidence because the fall was idiopathic, caused by pre-existing weakness in claimant's right leg; that at the time of the accident claimant was not performing his assigned duties; and that claimant failed to prove his present condition differed from his condition prior to December 24, 1984.

On December 24, 1984, claimant was a correctional officer at Cook County Department of Corrections when he fell while walking down a flight of stairs in the prison. On December 31, 1984, claimant filed an application for adjustment of claim. At the hearing before an arbitrator, claimant testified: "While going down the stairs into the lower deck [of the prison], I slipped on the bottom stair, my leg giving away. I twisted my back and fell on my buttocks causing pain." Claimant was not carrying anything when he fell. He immediately experienced pain going down his right leg to his foot. Claimant agreed that he was not bending or lifting and that he was just walking and his leg gave out. On the date of the accident, claimant submitted a written report stating: "My right leg gave way while going down the steps . . .."

Regarding his prior medical history, claimant testified that the pain in his back radiating down his right leg began prior to the injury at issue. His right leg had also given out before at home. On August 13, 1978, claimant injured his back in a work-related accident for which he subsequently received workers' compensation benefits. He underwent back surgery on March 23, 1979, and was placed on permanent light duty when he returned to work in December 1979. On January 30, 1984, claimant was involved in an automobile accident in which he injured his back. He was hospitalized and received steroid injections and other medical treatment. He returned to work on August 13, 1984. At that time he suffered from pain in his back and some numbness in his leg.

A report of the March 23, 1979, surgery performed by Dr. William B. Fischer indicated that claimant had a history of low back pain radiating down the right leg. The surgery revealed a bulging disc at L4-L5 and a lumbar laminectomy and discectomy were performed.

A hospital discharge summary report dated March 3, 1984, stated that claimant had been hospitalized since February 27 following an auto accident and that Dr. Fischer was the attending physician. The history noted the previous laminectomy and that claimant had "been asymptomatic since that time, until January 30,

A physical therapist's report dated March 14, 1984, indicated that following the January automobile accident, claimant had been experiencing pain in the lower back and right lower extremity. Claimant demonstrated decreased strength throughout the right lower extremity. He complained of numbness in the toes of the right foot and along the lateral aspect of the right thigh and hip. "He relates he has significant difficulty in bearing weight on the right lower extremity." On April 18, 1984, the therapist reported that claimant continued to complain of numbness along the right side and distally throughout into the toes.

On May 10, 1985, Dr. Sid John Shafer wrote that he had examined claimant. Claimant gave a history of the earlier laminectomy, following which he "made a very good recovery." Claimant "did have occasional backache but did not have pain in the right lower extremity and he was able to work." On the date of the report, claimant complained of constant pain in the back of the right thigh and right calf with numbness in the right toes and some tingling on the outside of the right foot. Dr. Shafer concluded that in all probability the accident of December 24, 1984, contributed to claimant's present complaints.

Dr. Prasit R. Sri, an orthopedic surgeon, testified at an evidence deposition that he began treating claimant on May 7, 1984. He had not reviewed any of claimant's medical records prior to that date. Claimant's condition was diagnosed as low back pain with right sciatica, with L5 nerve root involvement on the right side. Dr. Sri believed that the December 24, 1984, accident either aggravated "his underlying problem" or created a new problem. In regard to claimant's previous underlying problems, Dr. Sri referred to the 1979 laminectomy and the 1984 steroid treatments following the January 1984 automobile accident. Dr. Sri agreed that after the automobile accident, claimant had nerve root involvement and right sciatica and that he had the same problems following the accident at issue before us. Regardless of whether the medical ...


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