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06/25/87 the Industrial Commission v. the Industrial Commission

June 25, 1987

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION ILLINOIS PIPING COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (HANS HAGEN, APPELLEE)



Before the arbitrator, Hagen offered exhibits 1 through 12, which were stipulated to by the attorney from St. Paul. The attorney from Bituminous objected to exhibit 11, a letter from Dr. Weinger, on the grounds that the letter was hearsay. The arbitrator admitted the exhibit.

509 N.E.2d 1107, 156 Ill. App. 3d 955, 109 Ill. Dec. 268 1987.IL.885

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

The employer, Illinois Piping Company, appeals from an order of the circuit court of Peoria County confirming the finding of the Industrial Commission that the injured claimant, Hans Hagen, was entitled to payment for temporary total disability for an injury arising out of and in the course of his employment. Illinois Piping claims that the Commission improperly admitted a treating physician's report over an objection that the report was hearsay. It also argues that the finding of the Commission that Hagen's condition was causally related to previous work-related accidents is against the manifest weight of the evidence.

Hagen was employed as a steamfitter for Illinois Piping. On March 1, 1983, Hagen injured his low back and right hip while pushing a heavy pump. Hagen received chiropractic treatment and was hospitalized from April 22 to April 28, 1983. Hagen returned to work on May 16, 1983. Hagen stated he could do his job perfectly well at this time although he continued to suffer some pain in the lower back.

On August 19, 1983, Hagen's back went out while lifting a 240-pound pipe with another steamfitter. Hagen was unable to work. In September 1983, Dr. Jesse Weinger diagnosed Hagen's condition as an L4-L5 disc herniation resulting from one of his two back injuries at work. During this time the pain would radiate from Hagen's back down through both legs to his knees. In April 1984, Dr. Weinger admitted Hagen into the hospital to perform chemonucleolysis.

Dr. Weinger released Hagen to work in July 1984. Hagen only worked three weeks in the remainder of 1984 because he continued to suffer from intermittent back pain. After an examination in February 1985, Dr. Weinger noted in an evaluation record that although Hagen had not suffered an episode in six weeks, he had several previous episodes of back spasms which lasted anywhere from a few days to a week. Dr. Weinger noted that although Hagen appeared to be completely recovered at that time, he was having recurrent lumbosacral strain due to a degenerative disc disease.

On May 13, 1985, Hagen was lifting a pipe at work when the load shifted towards him and he injured his back again. Hagen did not lose any time from work as a result of this incident. Dr. Weinger prescribed medication.

On August 19, 1985, Hagen injured his back again while working a rotary hammer into concrete at work. The hammer hit a rod, forcing it to twist up and sending pain into Hagen's lower back and down to his right hip, leg and heel. Dr. Weinger hospitalized Hagen and on October 16, 1985, performed a lumbar fusion at L5-S1.

Hagen filed four separate claims for workers' compensation as a result of the four episodes in which he injured his back. Illinois Piping's interest in the two claims arising in 1983 was represented by Bituminous Insurance Company, while its interest in the 1985 claims was represented by St. Paul Insurance Company. All parties agreed to consolidate the four claims for a hearing before the arbitrator.

The arbitrator found that Hagen suffered a herniated disc at L4-L5 after the August 19, 1983, accident. The arbitrator also found that this 1983 accident initiated Hagen's symptoms and was the primary cause for the fusion surgery in 1985, after the August 1985 accident aggravated his condition. The arbitrator awarded Hagen temporary total disability for time off work and medical expenses.

On review, the Commission affirmed the decision of the arbitrator in terms of the award. The Commission, however, found that the May 13, 1985, incident was not an accident within the meaning of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) but simply was a manifestation of Hagen's underlying condition. The Commission found Hagen's condition and the need for fusion surgery to be causally related to the 1983 accidents arising out of and in the course of his employment. Thus, the Commission awarded compensation based upon claimant's injuries in 1983 and found that claimant failed to prove he sustained injuries which arose out of and in the course of his employment on May 13 and August 19, 1985. The Commission also admitted Dr. Weinger's letter over Bituminous' continued objection on behalf of Illinois Piping. The ...


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