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05/18/88 Reliance Elevator Company, v. the Industrial Commission

May 18, 1988

RELIANCE ELEVATOR COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (BOGHOS TORIAN, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

524 N.E.2d 1022, 171 Ill. App. 3d 18, 120 Ill. Dec. 840 1988.IL.778

Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Claimant Boghos Torian sought worker's compensation benefits following an alleged accidental back injury sustained while working for Reliance Elevator Company. An arbitrator awarded no benefits. The Industrial Commission reversed that decision and awarded $202.67 per week for 276 weeks as temporary total disability, plus medical expenses. The circuit court of Cook County confirmed the Commission's decision.

Reliance appeals, contending that the Commission violated its right to due process of law when it allowed claimant to amend the date of the accident and when it permitted counsel for claimant's former employer, who is not a party to this appeal, to participate in the deposition of Reliance's medical expert. Reliance contends further that it was against the manifest weight of the evidence to find an accident occurred on December 30, 1978; to find the injury arose out of and in the course of employment; to find a causal connection; and to find claimant gave notice of the alleged accident.

On April 13, 1978, claimant worked as a machinist for Crane Packing Company when he fell off a table and injured his back. He was released for work on June 26, 1978, by his treating physician, Dr. Edward Feil. Claimant then worked for A & B Machine Works until August 24, 1978, with no incidents involving his back. He received no medical care and missed no work during this period. On August 25, 1978, claimant began working for Reliance. During December 1978, claimant's duties periodically included working with "babbitt," which is like molten metal melted and carried in half-filled cast-iron pots. The pots weighed 40 pounds when empty, and 100 pounds when half filled. They were usually moved with a crane. However, claimant was sometimes required to help another worker carry the babbitt a distance of four or five feet when the crane would not reach.

During December 1978, claimant began experiencing pain in his back. On Saturday December 30, 1978, he was unable to stand up straight. Claimant has not worked since that time.

On December 30, 1978, claimant saw Dr. Feil, who admitted him to the hospital on Tuesday, January 2, 1979, with a diagnosis of lumbar disc syndrome. The hospital discharge summary indicates claimant injured his back at work. During the period of 1979 through 1984, claimant had back surgery several times.

Dr. Feil testified for claimant that by June 1978 claimant had fully recovered from the lumbar disc protrusion caused by the April 1978 accident. He was completely asymptomatic. Dr. Feil did not see claimant again until December 30, 1978, when claimant reported experiencing severe low back pain. Dr. Feil testified that lifting usually aggravates lumbar disc protrusion. While the condition could have reoccurred even absent any lifting, there was "a greater chance of injuring his back if he is doing heavy lifting. The probabilities of having a reoccurrence are greater if he is doing heavy lifting versus spontaneously reoccurring."

Dr. Michael Schafer, an orthopedist, testified for claimant that he began treating him in September 1981. He opined that with no symptoms between June and December 1978, the lifting of heavy metal pots was the most likely cause of the present low back condition. If the April 1978 accident did result in a herniated disc, the December 1978 lifting aggravated that condition.

Dr. Donald Miller testified that he found no direct connection between the April 1978 fall and the present condition. The probable cause of this condition is the continuous lifting of the molten metal pots.

Andy Gumushian testified for claimant that he was an assistant foreman for Reliance. He was also claimant's nephew. Gumushian helped claimant, who spoke very little English, in filling out the job application. Gumushian testified that in mid-December 1978 claimant began commenting to his boss, Carl, that the back pain he experienced in April 1978 at Crane had returned. Gumushian had observed claimant ...


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