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08/24/87 Loyd Petrie, v. the Industrial Commission

August 24, 1987

LOYD PETRIE, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (KLAUS RADIO, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

513 N.E.2d 104, 160 Ill. App. 3d 165, 111 Ill. Dec. 858 1987.IL.1223

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

On November 22, 1982, Loyd Petrie (claimant) 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 allegedly sustained as a result of an accident on July 2, 1981, during the course of his employment with Klaus Radio. On May 20, 1983, the arbitrator awarded claimant temporary total disability compensation of $234.61 per week for 5.43 weeks (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)(1)), medical expenses of $1,272.29 (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(a)), and permanent partial disability compensation of $234.61 per week for 62.5 weeks under the "man-as-a-whole" provisions of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)). Neither party sought review of the arbitrator's ruling.

On June 1, 1984, claimant filed a petition for review of the award pursuant to section 19(h) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(h)), alleging that his disability had increased. After a hearing, the Industrial Commission denied the petition. On review, the circuit court confirmed the Industrial Commission's decision, and claimant has perfected this appeal.

Three issues are presented on appeal: (1) whether the employee's claim for additional compensation for impairment of earning capacity under section 19(h) of the Act either has been waived or is not subject to consideration because the original award is res judicata ; (2) whether a change in economic disability alone, as distinguished from physical disability, is a proper basis for modification of an award pursuant to section 19(h) of the Act; and (3) whether the decision of the Industrial Commission was against the manifest weight of the evidence. We affirm.

The following evidence was presented at the arbitration hearing: Claimant had been employed by Klaus Radio for approximately 19 years on the date of the accident, July 2, 1981. Claimant was employed as a service representative, and his duties included servicing "white goods," i.e., ranges, refrigerators, and other appliances. That work entailed handling small parts, such as screws and electrical wire, in limited spaces. Claimant testified that he also made a habit of mowing the lawn at Klaus Radio. On July 2, 1981, claimant was mowing the lawn when the mower became stuck in a ditch. Claimant grabbed the deck of the mower to free it and the blades caught the tips of his fingers.

Medical records indicate that claimant suffered partial amputation of the fingertips of the right index and middle fingers. He had soft tissue loss over the volar surface of the distal phalanges, each approximately 2 to 3 cm. in size. X rays revealed fractures of the tips of the distal phalanges. A skin graft was taken from the volar surface of the right forearm. Claimant was discharged on July 4, 1981; and after post-operative care, he returned to work on August 9, 1981.

In a letter report dated November 13, 1981, claimant's treating physician stated that claimant had limitations of flexion of the two injured fingers and noted complaints of an inability "to grasp objects that cause direct pressure on the fingertips, such as twisting wires." In January of 1982 claimant was laid off when Klaus Radio closed the department in which he worked.

Claimant did some "odds and ends work" until January of 1983, when he started his own business repairing white goods. Claimant testified that as a result of his injury, the same job takes two to three times longer to perform. Claimant further testified that his fingernails grew over the tips of the two injured fingers, causing him to lose a portion of the dexterity he previously had in those fingers. Claimant also testified that he tried to work on four or five units in an average day. Between January 1983, when claimant started his business, and March 10, 1983, the date of the arbitration hearing, claimant worked on approximately 25 or 30 washing machines, 18 or 20 dryers, 7 or 8 dishwashers, 10 to 20 refrigerators, and 15 to 20 ranges.

In a letter report dated March 7, 1983, Dr. Daniel R. Hoffman states that he "evaluated" claimant that same day. The report relates claimant's complaint that the tips of the two injured fingers were extremely sensitive, causing pain when pressure was applied. The report states that claimant was unable to use those fingers to pick up a coin, fasten screws or nuts, or bend wire properly.

The stipulated request for arbitration hearing indicates that claimant's earnings for the year preceding the injury were $18,299.84 and that the disputed questions were the nature and extent of the injury, causal connection, and entitlement to an award for impaired earning capacity under section 8(d)(1). The record indicates, however, that the arbitrator awarded claimant $234.61 per week for 62.5 weeks for 12.5% partial disability under the "man-as-a-whole" provision of ...


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