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06/17/88 Orkin Exterminating v. the Industrial Commission

June 17, 1988

ORKIN EXTERMINATING COMPANY, INC., APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (PETER J. APPONEY, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

526 N.E.2d 861, 172 Ill. App. 3d 753, 122 Ill. Dec. 468 1988.IL.947

Appeal from the Circuit Court of Knox County; the Hon. Stephen Mathers, 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

For each of two consolidated claims, the arbitrator denied an award, but the Industrial Commission (the Commission) awarded the petitioner, Peter J. Apponey, temporary total benefits and necessary medical expenses under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). The Commission remanded to the arbitrator for proceedings on the issue of permanent disability. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b).) The circuit court confirmed. The respondent Orkin Exterminating Company, Inc., brought the instant appeal.

On appeal, the respondent argues that the Commission's decision was based upon conjecture and speculation. The respondent further argues specifically that the Commission's findings of accidental injury and adequate notice are against the manifest weight of the evidence. We reverse.

In 1985, the petitioner was 37 years old and approximately six feet tall; he weighed about 218 pounds. He was employed by the respondent to inspect and treat residential and commercial property. The petitioner testified before the arbitrator that while he was working for the respondent on July 17, 1985, checking rodent infestation at the Carnet Grain Company in Beardstown, he leaned over the edge of a walkway to pry with a screwdriver. When he pulled himself up from that position, he noticed a pain down his left leg. According to the petitioner, at first the pain did not bother him much and he continued to work. That day Mr. Joseph Henderson, the respondent's branch manager and the petitioner's direct supervisor, had accompanied the petitioner to the work site. The two men, using one car, rode together back to their office in Galesburg. The petitioner did not mention any injury to Mr. Henderson.

According to the petitioner, the following afternoon the pain started bothering him. He continued to work and within the next few days complained about his leg to fellow employees. His co-workers denied that the petitioner had stated he had been hurt at work.

On August 2, 1985, the petitioner had his first medical treatment following the July 17, 1985, incident. He saw chiropractor Dale Glendenning. In his admission form to Dr. Glendenning, the petitioner stated that his condition of leg pain first started two months earlier. He also wrote "?" in the blank labeled "If Known State Cause of Pain." Glendenning took pretreatment X rays, which showed no herniated lumbar disc, performed chiropractic manipulations, and scheduled additional appointments which the petitioner did not keep.

On August 6, 1985, the petitioner was inspecting the Louis Keeling residence for termites. He testified that while he was inspecting in a crawl space, he moved a two-by-four board and a piece of concrete block. He felt a pulsating pain followed by great pain in his left leg and hip. The next day or so thereafter, as manager Henderson acknowledged, the petitioner told Henderson that he could no longer work crawl spaces as they were "tearing [his] leg up."

According to the petitioner, on August 7 he sought medical attention from orthopedic surgeon Edward G. Law. The petitioner continued to work for the respondent until he was first able to see Dr. Law on August 20. Dr. Law prescribed 10 days of bed rest. However, despite his stiffness and leg pain, the petitioner continued to work until August 28, in order not to lose pay.

The petitioner again saw Dr. Law on August 30, 1985. Dr. Law had the petitioner admitted to the hospital. The doctor then arranged supervised bed rest, a myelogram, and a CT scan. He diagnosed the petitioner as having a ruptured disc at L4 -- L5 and he surgically removed a large extruded fragment of ruptured disc material on September 9. Manager Henderson visited the petitioner in the hospital following the surgery. There, according to Mr. Henderson, the petitioner first told Henderson that he had injured his back or legs at the Carnet Grain Company and at the Keeling residence. The petitioner did not, however, according to Mr. Henderson, describe the Carnet accident.

On cross-examination at the arbitration hearing, the petitioner initially stated that he was not currently working. Upon further questioning, however, he stated that in December of 1985 he had begun "paper work" for A-car, a now-defunct used car dealership; he continued occasional A-car work at least up to the day before the arbitration hearing. The petitioner gave sketchy answers to questions about the circumstances of his work at A-car and ultimately testified that he had been doing undercover police work for the Secretary of State. Also on cross-examination, the petitioner admitted that his application with the respondent omitted ...


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