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05/11/88 James Connell, v. the Industrial Commission

May 11, 1988

JAMES CONNELL, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (HOEKSTRA HEATING COMPANY, APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

523 N.E.2d 1265, 170 Ill. App. 3d 49, 120 Ill. Dec. 354 1988.IL.730

Appeal from the Circuit Court of Cook County; the Hon. Mary M. Conrad, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Following an emergency hearing, the arbitrator found that the respondent, Hoekstra Heating Company, was not obligated to pay the petitioner, James A. Connell, temporary total disability benefits beyond the 188 3/7 weeks already paid. The arbitrator denied the petitioner's request for a rehabilitation plan and his petition for penalties.

The Industrial Commission, with a partial Dissent by one commissioner, found that the petitioner was entitled to TTD from August 18, 1981, through August 28, 1985, or 210 2/7 weeks. The Commission affirmed the remainder of the arbitrator's findings, though excluding certain evidence introduced by the respondent.

The circuit court held that the Commission's decisions on TTD, rehabilitation and penalties were against the manifest weight of the evidence. The court ordered the respondent to pay TTD through January 28, 1986, the last day of the arbitration hearing, and remanded the cause for determination of penalties and a rehabilitation plan. The respondent appeals.

The record shows that on August 17, 1981, while installing an air conditioner as part of his employment with the respondent, the petitioner tried to move the 2,500-pound unit using a board as a lever. The board snapped, resulting in back injuries to the petitioner. During the next four years, the petitioner saw a number of physicians and was operated on twice. In February of 1983, Dr. Sherman Gilreath and Dr. Arthur Connor performed on the petitioner a lumbar laminectomy with bone grafting and internal fixation. The petitioner reentered the hospital on May 2, 1984, for further surgery necessitated when four hooks on the Harrington rods in his back dislodged.

On July 15, 1985, Dr. Warren Clohisy examined the petitioner at the respondent's request. Dr. Clohisy concluded that the petitioner could perform a full-time sedentary job with sitting, standing and walking, but no repeated bending, kneeling, climbing or pushing. Dr. Clohisy further restricted the petitioner to a 10-pound weight lifting limit.

On July 25, 1985, the respondent terminated its TTD payments. The respondent later admitted in a brief that it did not provide the petitioner with the results of Dr. Clohisy's examination until December 10, 1985. On August 27, 1985, Dr. Connor released the petitioner to perform light-duty work requiring no more than 30 pounds lifting or two hours sitting, and no repeated bending, lifting or extended walking.

The petitioner sought work with the respondent on August 29, 1985, but was told none existed within his restrictions. He subsequently filed a section 19(b-1) petition for an emergency hearing under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b-1)).

The petitioner testified at the hearing that after graduating from high school he had spent three years in the Army, where he first repaired helicopters, then supervised incoming and outgoing shipments at a supply depot. After leaving the Army, he worked as a machine operator. He then got a job as an expediter, a position similar to a stock controller. The petitioner's next employment was with the respondent, where he was trained and employed as an installer and repairer of heating and air conditioning equipment. At the time of the accident he was 31 years old.

The petitioner further testified that after August 29, 1985, he contacted 71 employers. Many were not hiring. Others were seeking skills he did not have. He had filled out some job ...


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