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05/25/88 Samuel Burrell, v. the Industrial Commission

May 25, 1988





525 N.E.2d 935, 171 Ill. App. 3d 723, 121 Ill. Dec. 628 1988.IL.817

Appeal from the Circuit Court of Cook County; the Hon. Alexander White, Judge, presiding.


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


The petitioner, Samuel Burrell, filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). The petitioner alleged that he injured his right knee while employed by the respondent, General Motors Corporation. The arbitrator found that the petitioner sustained injuries arising out of and in the course of his employment with the respondent and awarded the petitioner medical expenses, temporary total disability and permanent partial disability for the 40% loss of the use of his right leg. The Commission reversed the findings of the arbitrator, denying an award. The circuit court confirmed the Commission's decision. The petitioner appeals.

At a hearing before the arbitrator, the petitioner testified to the following. On Friday, October 5, 1979, the petitioner was employed by the respondent at its Electro-Motive Division plant (the plant). The petitioner's duties included the tightening of locomotive engine bolts with a six-foot-long torque wrench. At 10 p.m. on that day, the petitioner was pulling on the wrench when he slipped, fell and hit the floor. The petitioner landed first on his knee, then his back, then his whole body. He was lying on his knee after the fall; and he felt pain there.

About 30 minutes later, the petitioner's supervisor, Harvey Blanden, approached the petitioner. Blanden had heard that the petitioner had fallen. He asked if the petitioner wanted to go to the plant medical department. The petitioner replied that he felt all right and that he was going to go home and "see what happened."

The following Monday, October 8, 1979, the petitioner called his family physician, Dr. G. J. Mouzon. Dr. Mouzon instructed the petitioner to go back to the plant for X rays. The petitioner returned to the plant the following Wednesday. When he went to the medical department for X rays, the company doctor informed the petitioner that he believed the petitioner's condition was a private matter and that they would not X ray him. The petitioner then returned to work.

The petitioner began missing work intermittently starting in November of 1979. He was experiencing pain when squatting all the way down and was having difficulty walking up and down stairs. The petitioner discontinued working in April of 1980.

In May of 1980, the petitioner began seeing Dr. Michael Treister. The doctor began the petitioner on a course of treatment which included physical therapy. The petitioner underwent surgery for his knee on August 1, 1980, and continued therapy through October of 1980. He returned to work in late October of 1980 and was released from Dr. Treister's care in January of 1981.

The petitioner stated that he had not had any knee injuries prior to or since October 5, 1979. He continued to experience frequent pain on the job and problems walking up and down stairs.

On cross-examination, the petitioner stated that the instant fall dazed him. The petitioner recollected that his knee hit the floor first. He could not remember if he hit his back. He said he reported the accident by phone on Monday following the accident, returned to work on Wednesday and went to see the plant doctor on Thursday. The petitioner stated that he first saw Dr. Mouzon about one month later. He denied that he first saw Dr. Mouzon on April 8, 1980. The petitioner further denied that the first time he visited the medical department for his knee injury was March 11, 1980.

The petitioner called Ismael Nodarse to testify. Nodarse testified that he was working with the petitioner on October 5, 1979. Nodarse stated that he was watching the dial on the petitioner's torque wrench when he saw the petitioner suddenly fall to the ground. Nodarse could not recall which part of the petitioner's body struck the floor first. Nodarse also could not remember if he saw the petitioner talk to Blanden afterwards. On cross-examination, Nodarse stated that the accident occurred close to quitting time, "in the neighborhood of ...

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