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09/18/87 the Industrial Commission v. the Industrial Commission

September 18, 1987




515 N.E.2d 202, 161 Ill. App. 3d 704, 113 Ill. Dec. 393

Appeal from the Circuit Court of Cook County; the Hon. Irwin Cohen, Judge, presiding. 1987.IL.1371


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


On August 11, 1982, 42-year-old Ambrose Resa (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 27, 1982, during the course of his employment with Interlake, Inc. (Interlake). On September 14, 1983, pursuant to a section 19(b) petition, an arbitrator awarded claimant temporary total disability compensation of $327.04 per week for 26 weeks (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(b)(1), 138.19(b)), and medical expenses of $10,176.37 (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)). The Industrial Commission affirmed the award, and the circuit court confirmed the Industrial Commission's decision. Interlake has perfected this appeal, raising a single issue: whether the act of bending over can be a compensable accident under the Workers' Compensation Act. We affirm.

The following evidence was presented at the arbitration hearing on April 27, 1983, and June 13, 1983: Claimant testified that he was employed by Interlake as a motor inspector and that he initially injured his back at work on April 19, 1982. On that occasion, claimant was working on an overhead crane and, as he descended a ladder, he fell six or seven feet, striking his lower back against a railing. He went to the company nurse and company doctor, Dr. Kramer, and eventually was sent to St. Francis Hospital for X rays. A radiology report states: "[No] evidence of a fracture. There is a slight deviation of the upper lumbar spine toward the right which may be due to muscle spasm. The vertebral bodies are otherwise in satisfactory alignment. Mild degenerative lipping is seen on the margins of the lower thoracic vertebral bodies. No other bone or joint pathology is demonstrated." Claimant was treated conservatively with heat treatments and an elastic brace and was restricted to light duty for two to three weeks and was advised not to climb or perform excessive bending during this period. However, claimant testified that the back pain persisted. This incident was the subject of a separate application for adjustment of claim, the Disposition of which is not an issue in this appeal.

On July 27, 1982, claimant was working with John Villaruel, Interlake's general electric maintenance foreman. Villaruel directed claimant to get a screwdriver. Claimant testified that his tool pouch was lying on the floor and that when he reached down to get a screwdriver from it, his back "snapped." Villaruel testified that he observed that claimant was in pain because of claimant's facial expression and stated that he, Villaruel, picked up the screwdriver himself.

Dr. Kramer, the company doctor, noted on July 29, 1982, that claimant had acute back pain. His notes for that day state: "See X Rays 20 April 82 -- Osteo Arthritis Dorsal Spine -- Unfit for any work -- No history of trauma -- Recommend referral to personal physician for treatment."

Claimant was examined by Dr. Charles W. Mercier on August 3, 1982. Dr. Mercier's report of that date states, inter alia, that his examination revealed pain over the lower lumbo-sacral spine, muscle spasms and a right list. X rays revealed "an ununited accessory ossification center or fracture of the left transverse process of the 3rd lumbar vertebra." Dr. Mercier's diagnosis was a herniated disc. Doctor and patient agreed to a course of conservative treatment and if there was no improvement, then admission to the hospital.

On August 6, 1982, claimant was admitted to Columbus Hospital for conservative treatment: bed rest, traction, heat, physical therapy, and medication. Claimant was discharged on August 13, 1982, and released for work on September 20, 1982. Claimant returned to his regular duties on September 22, 1982, but the pain returned and increased.

Dr. Mercier saw claimant again on December 23, 1982, and on December 27, 1982, claimant was admitted to Columbus Hospital once again. On December 29, 1982, claimant underwent a hemilaminectomy and disc excision. He was released for work on May 9, 1983. Dr. Mercier testified at his deposition that claimant's disc problem could be directly related to the accident of July 27, 1982. Dr. Mercier explained that "[herniated] disc can come from any number of stresses or strains even to the point of bending over to pick up a feather."

On September 14, 1983, the arbitrator awarded claimant temporary total compensation of $327.04 for 26 weeks plus $10,176.37 for medical expenses. The arbitrator found that "the injuries to the low back on April 19, 1982, predisposed the [claimant] to further injuries which manifested itself after the occurrence of July 22, 1982." The arbitrator relied on the testimony of Dr. Mercier and claimant and the case of Memorial Medical Center v. Industrial Com. (1978), 72 Ill. 2d 275, 381 N.E.2d 289.

On February 7, 1985, the Industrial Commission issued a notice of its decision affirming the arbitrator's decision. The Commission issued its decision and opinion on review on December 5, 1985, with one commissioner Dissenting.

Interlake does not dispute that claimant injured his back when he bent over to pick up the screwdriver; however, it contends that claimant's act of bending over was a routine personal activity and that therefore claimant has not shown that his injury arose out of and in the course of his employment. The arbitrator and a majority of ...

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