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01/27/88 Fritz Electric Company, v. the Industrial Commission

January 27, 1988





518 N.E.2d 1289, 165 Ill. App. 3d 550, 116 Ill. Dec. 309 1988.IL.92

Appeal from the Circuit Court of Jackson County; the Hon. William F. Green, Judge, presiding.


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


Claimant, Alvin Cox, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained in the course of his employment with his employer, Fritz Electric Company. After determining that claimant had sustained an accidental injury which arose out of and in the course of his employment and resulted in a back strain which left the claimant with a permanent partial disability of 10% under section 8(d)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)), the arbitrator awarded the claimant 80 3/7 weeks temporary total disability.

Both parties filed appeals from the arbitrator's decision. Following a hearing, the Industrial Commission reversed the arbitrator's decision in part, entering an award under section 8(d)(1) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(1)) for partial disability from pursuing his usual and customary employment. Claimant was awarded $264.40 per week for 9 weeks; $75.84 per week for 31 weeks; $78.28 per week for 18 weeks; $282.25 per week for 8 weeks; and $282.25 per week for 42 weeks. The employer was also ordered to pay to the claimant 66 2/3% of the difference between the average amount he is earning or able to earn, and what he would earn in the full performance of his trade for the duration of his disability. The Commission affirmed the arbitrator's award of temporary total disability.

The employer appealed to the circuit court of Jackson County. The circuit court confirmed the decision of the Industrial Commission in all respects. The employer appeals.

On appeal, the employer contends that the decision of the Industrial Commission awarding wage loss benefits under section 8(d)(1) to claimant is against the manifest weight of the evidence, or in the alternative, if the wage loss award was proper, then the Commission erred in its calculation and assessment of those benefits. The employer also contends that the Commission erred in finding that a subsequent accident only temporarily aggravated the claimant's condition.

The claimant testified at the hearing before the arbitrator as follows. Claimant had been employed by Fritz Electric Company (Fritz) since 1980. Prior to May 1982, his health was excellent, although he had injured his back in 1960 and again in 1970. On neither of those occasions was he hospitalized, nor did he lose any time from work. While employed by Fritz, he was an electrical foreman, which required him to supervise the electrical personnel in the installation of all electrical systems in coordinating work with other crafts on the job. He was also required to do the work of a journeyman wireman in addition to supervising if there were less than six men on the job. While he worked for Fritz, he worked 50% as a supervisor and 50% as a journeyman. Physically, the job required him to lift up to 150 pounds, dig ditches, climb and scaffold work, and install electrical conduit, where the weight sometimes exceeded 150 pounds.

On May 13, 1982, while on a construction site at Southern Illinois University, claimant slipped on a metal stairway and fell on his low mid-back section. He felt extreme pain and numbness in his legs and arms but finished the day's work. The next morning he felt no improvement but reported for work. He worked for about an hour, although he was in much pain, and it was very difficult to bend, twist, or lift. He went home and contacted Dr. Carl Hauptmann, his family physician. Dr. Hauptmann examined him thoroughly, took X rays, and prescribed diatherm treatments. The X rays showed some degenerative disc disease at L1-L2 with marginal osteophyte formations, but no compression, spondylosis, or spondylolisthesis.

Claimant was treated with therapy, an exercise program, and medication until July 1982, when he was referred to Dr. John Sterne of Evansville, an orthopedist, who placed him in the hospital for two weeks. Claimant was treated with traction and physical therapy. When he was discharged, he was fitted with an orthopedic back brace. He remained under Dr. Sterne's care and was treated with medication and cortizone injected into the spinal area; however, there was very little improvement. On January 2, 1983, the claimant was hospitalized again and underwent a bone scan and a CAT scan, both of which were normal. Dr. Sterne referred the claimant back to Dr. Hauptmann on January 13, 1983. Claimant saw Dr. Hauptmann about once a month from January 13 through November 30, 1983. Claimant also underwent physical therapy at Harrisburg Hospital for six weeks. At Fritz' request, he was examined by Dr. Marshall Conrad on March 7, 1983, and August 4, 1983.

On November 30, 1983, claimant began a job with Sullivan Electric Company. He obtained this job through the contacts he had made in the construction industry, as well as information that had been provided to him by Michaleen Maher, a rehabilitation specialist assigned to him by Fritz. He was employed by Sullivan as an assistant electrical superintendent and eventually was promoted to superintendent on February 1, 1984. His starting salary was $385 per week. It was increased to $660 per week as of February 1, 1984, and remained at that figure until he was laid off on January 4, 1985. His duties were nonphysical and included coordination of installation of electrical work and supervising of all personnel, purchasing materials, attending meetings, record keeping, and management.

Claimant continued to suffer back pain and leg pain while performing his duties for Sullivan. Then, on March 29, 1984, he slipped in some mud and "reinjured or aggravated the existing back injury." Dr. Hauptmann took him off work for six weeks. Claimant noted that he had slightly more pain in his legs than he had had previously but that he had had pain before in his legs. When he returned to work, he had a little more trouble bending or twisting. His back eventually returned to what it was prior to the second accident and his leg pain continued intermittently up to the present time. Claimant believed that his original back injury was aggravated by the March 29, 1984, accident. When he returned to work for Sullivan, he performed the same duties as prior to the second accident.

At the request of Fritz' insurance carrier, claimant was examined on May 5, 1984, by Dr. Otakar Machek, and on September 17, 1984, by Dr. Conrad, again at Fritz' request.

When his employment with Sullivan ended on January 4, 1985, claimant began drawing unemployment compensation at the rate of $180 per week. He also placed his name on the out-of-work list at the union. He was available for work within the limitations placed upon him by the doctors, i.e ., the maximum weight he could lift was 20 pounds. When his name came to the top of the list, there was an opening of a temporary maintenanceman at Southern Illinois University, but he was not accepted for the job.

At the time of the hearing, claimant still felt back pain and had a problem bending and twisting. He needed ...

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