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06/24/87 Lillian Nunn, v. the Industrial Commission

June 24, 1987





510 N.E.2d 502, 157 Ill. App. 3d 470, 109 Ill. Dec. 634 1987.IL.879

Appeal from the Circuit Court of Vermilion County; the Hon. Matthew A. Jurczak, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. BARRY, P.J., and WOODWARD, McCULLOUGH, and KASSERMAN, JJ., concur.


Claimant Lillian Nunn sought benefits for a back injury allegedly sustained while working for respondent General Electric Company. An arbitrator awarded benefits. On review, the Industrial Commission reversed the arbitrator's decision, finding that claimant failed to prove she sustained accidental injuries arising out of and in the course of her employment. The circuit court of Vermilion County confirmed the Commission's decision, and claimant appeals.

Claimant was the only witness to testify at a hearing before the arbitrator. In 1974, claimant injured her back while working for respondent. Dr. Carl Belber performed back surgery on claimant twice that year. She returned to work with a weight restriction which claimant believed was 20 pounds. Claimant testified that she gave a note to respondent's nurse from the doctor reflecting that restriction. After the 1974 surgeries, claimant continued to experience back pain and pain in the right leg. Her compensation claim for the 1974 back injury was resolved by settlement contract and was paid.

Between 1976 and 1981, claimant had some back pain which was relieved by aspirin. She received no medical treatment for her back during that time. At work, claimant was assigned duties within her weight restriction "for a while."

In February 1981, respondent assigned claimant to "racking" duties. This job required claimant to lift five ballasts at a time. Each ballast weighed 2 1/2 to 4 pounds for a total of 12 1/2 to 20 pounds. She also pushed racks of ballasts down a conveyor belt. Claimant estimated that each rack weighed close to 30 pounds. She testified that she told her supervisor the lifting exceeded the weight limit, but that her duties were not changed. Seven months later, in September 1981, claimant began experiencing discomfort in her low back. The company doctor taped her back, and claimant saw no other doctor that month.

On October 1, 1981, claimant noticed numbness down her right leg to her foot, a tingling sensation from her right knee to her foot, and continued low back pain. The supervisor agreed to allow claimant and another employee, who was clipping leads, to switch jobs every two hours during the day. Claimant testified that she still had pain when she was clipping leads, but that it was less painful. On October 9, 1981, during a two-hour racking shift, claimant noticed that the pain was worse. She worked the rest of the day, and the supervisor refused to take her off racking duties completely. Claimant has not returned to work since that day.

On October 10, 1981, claimant telephoned Dr. Belber. Dr. Belber's records were admitted into evidence. Claimant had surgery for a herniated disc in June 1974 and again in October 1974. On January 20, 1975, she had some complaints but was recovering well. On October 9, 1975, she reported having "more and more back pain and pain in her right calf, just as before our first operation, but the intensity of the pain is much less . . .. She tires easily and at times has severe enough pain that she takes a lot of medication and feels like crying." An examination revealed positive straight leg raising tests on the right side with fairly significant pain in the right calf and thigh, along with mild tenderness of the sciatic nerve. Dr. Belber suspected a recurrence of her prior problems, but claimant declined further myelograms or other operations. Dr. Belber concluded, "I feel Mrs. Nunn will seek us out at a point where she really is disabled and needs something done . . .."

On October 12, 1981, claimant returned to Dr. Belber, who noted that claimant had pain and was having difficulty getting around. She had been experiencing low back pain and numbness in her right leg for one month. Dr. Belber noted that claimant previously "underwent removal of a herniated disc at L4-S1 on the right side for symptoms somewhat similar to that." Dr. Belber concluded that claimant had "recurrent low-back syndrome, originally incurred at work." He told claimant not to work for three weeks and to begin physical therapy. Dr. Belber referred claimant to her personal physician, Dr. Peter Heatherington, who referred her to Dr. Peter Hall, a neurosurgeon.

Claimant introduced Dr. Hall's records into evidence. Dr. Hall wrote that claimant's complaint of back pain and right sciatica began in 1975. After two operations, she did fairly well, though she had back pain and was unable to lift. Claimant complained of a two-month history of low back pain radiating down both of her legs. She could perform straight leg raises up to 10 degrees and had hypalgesia at L-5 bilaterally. Dr. Hall agreed with Dr. Heatherington's diagnosis of probable recurrent lumbar disc problems. On December 22, 1981, Dr. Hall performed a bilateral L3-L4 discectomy. Twice during 1981, Dr. Hall wrote that claimant continued to complain of recurrent back pain, although examinations were normal. On November 22, 1982, Dr. Hall wrote that symptoms of lumbar disc pain recurred after claimant lifted a laundry hamper bag at home.

In February 1983, Dr. Hall wrote to Dr. Heatherington that claimant moved around in a totally pain-free fashion, but complained of continual back pain. "I am suspecting that Lillian is at this point attempting to avoid returning to work at General Electric. I feel that she is medically fit to resume employment at this time" with some restrictions, and within six months could work with no restrictions. On June 3, 1983, Dr. Hall wrote that he intended to release claimant for work as of September 1, 1983, with a restriction of no repetitious stooping or lifting over 20 pounds. He observed that claimant was "rather reluctant to consider working." On June 24, 1983, Dr. Hall stated that claimant could return to work at any time. When claimant brought Dr. Hall's notes to work in September 1983, ...

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