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07/19/88 Sohigro Service Company, v. the Industrial Commission

July 19, 1988

SOHIGRO SERVICE COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (ROGER BRASEL, APPELLEE.)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

526 N.E.2d 683, 172 Ill. App. 3d 47, 122 Ill. Dec. 424 1988.IL.1117

Appeal from the Circuit Court of Iroquois County; the Hon. Robert J. Dannehl, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Claimant, Roger Marvin Brasel, sought compensation under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) alleging that he sustained injuries arising out of and during the course of his employment with Sohigro Service Company (Sohigro). The arbitrator, Angelo Caliendo, found that claimant did not sustain injuries arising out of and during the course of his employment and thus denied compensation. The Industrial Commission (the Commission) reversed the arbitrator's decision and awarded claimant compensation for temporary total disability of 98 5/7 weeks, permanent disability to the extent of 25% of a person as a whole, and medical expenses. The trial court confirmed the Commission's award. Sohigro appeals the trial court's decision.

Sohigro presents two issues for review. First, whether the decision of the Commission that claimant's injuries arose out of and during the course of his employment was against the manifest weight of the evidence. Second, whether the Commission erred in ruling that certain testimony did not violate the Dead Man's Act (Ill. Rev. Stat. 1983, ch. 110, par. 8-201 et seq.), and thus finding that Sohigro received notice of the accident.

Claimant worked as a service operator for Sohigro for approximately 1 1/2 years prior to October 1979. One of his duties involved loading and unloading railroad cars. Claimant testified that on October 12, 1979, he slipped while opening a railroad car door, fell flat on his back, and sustained back injuries. His body went completely numb for a short time after the fall, and when he got up, he felt a sharp pain in his lower back. Claimant testified that Earl Thompson, a fellow employee, helped claimant get up and commented that he was surprised that claimant could stand. Claimant and Thompson went to the office and the secretary, Neena Christiansen, brushed off claimant's coat. Claimant also testified that he was in so much pain that his head hurt and he felt nauseous. Claimant thus returned home early and went to bed. Claimant lived with his parents at the time. Claimant testified that Joe Bury, the outlet manager, visited him at his home that evening. Bury was in charge of handling the workers' compensation claims for Sohigro. Claimant testified that he told Bury about the accident at work. Bury died June 15, 1980, prior to the arbitration hearing.

Claimant initially testified that he returned to work the day after the accident, but subsequently stated that he returned two days later. Claimant testified further that between the accident and the day before Thanksgiving, he only worked when Christiansen called him in, and he spent most of his time in bed. Claimant's time sheets for October and November showed that claimant was not absent from work until November 30, 1979, and in fact worked between 32 hours and 65 hours per week during that period. Claimant still experienced pain in his lower back and legs after he returned to work. Immediately before Thanksgiving, claimant's family doctor, J. E. Dailey, examined and X rayed claimant, and instructed him to stay home and rest for three months. Claimant followed this advice. Claimant went back to work from March through August of 1980. Claimant continued to have back pain, which limited the type of work he could perform during that period. Claimant testified that he did not have this type of pain and he did not have difficulty performing his job prior to the accident.

Claimant was subsequently referred to several doctors, including Dr. Menguay, an orthopedic specialist, and Dr. Robert H. Leak. In August 1980, claimant entered St. Elizabeth's Hospital in Lafayette, Indiana, for a myelogram. Dr. Lloyd William Lempke, an orthopedic surgeon, examined claimant at the hospital and performed the myelogram. Claimant testified that he was bedridden and his time sheets revealed that he did not return to work for the next two months; he returned to work on October 30, 1980. Upon his return to work, claimant presented the new manager with a note from Lempke limiting claimant to light duty. The manager instructed claimant to move some heavy metal. Claimant testified that he could not pick up the metal so he went home. Claimant did not return to work afterwards.

Between August 1980 and January 1981 claimant continued to receive treatment and physical therapy for his back at the hospital. In January 1981, Lempke performed a discectomy to repair claimant's herniated disc at the L-5 S-1 vertebrae. After the surgery, claimant continued to receive medication and physical therapy until January 1982. In January and April of 1982, the Mayo Clinic examined and performed tests on claimant related to his back injury. Claimant testified that he continued to have pain in his back when he walked, sat or stood, and that his legs occasionally collapsed underneath him, causing him to fall.

Claimant initially testified that the accident took place on October 12, 1979. Claimant also stated that he told his doctors that the accident occurred on October 12. On redirect examination, however, claimant testified that the accident took place on October 8 or October 9 or sometime in early October 1979. Claimant's time sheet reflected that claimant worked a full day on October 8, October 9 and October 12. Claimant also testified, however, that if the employees were scheduled to work for a full day, they would get paid for the full eight hours regardless of whether they actually worked the full day. Claimant subsequently amended his application for adjustment of claim to show an accident date of October 9, 1979, rather than October 12, 1979, the date reflected in the original claim. Claimant testified that on the day before Thanksgiving, after he was examined by the doctor, he went to the insurance office, but could not remember the exact date of the accident, so he chose October 12.

Claimant testified that he told Dr. Baird and Dr. Bryan, two of the doctors he sought treatment from after the accident, that he had not had any prior back problems. Claimant admitted, however, that he had a muscle spasm in 1978 and that he had his back X rayed in 1969 after an accident with his pickup truck. Claimant testified that he fully recovered from both incidents. Claimant also testified that during the summer of 1980 he was driving a sprayer for Bury, unrelated to his employment with Sohigro, which upset or rolled over. Steven Paul Mencschel, claimant's coemployee, testified that after the work incident, and outside the scope of their employment with Sohigro, he and claimant were moving bales of hay when claimant may have been struck by a 50- to 60-pound bale of hay that fell seven feet out of a haymow. Mencschel stated that he was doing most of the physical labor and claimant supervised. Mencschel stated further that prior to claimant's accident at Sohigro, claimant performed heavy work, but after the Sohigro accident claimant did very little physical labor because he would black out and experience pain.

Georgia P. Brasel, claimant's mother, testified that Bury visited her home on October 12, 1979. Georgia also used to work for Bury at Sohigro. Bury told Georgia that claimant was injured at work that day. Claimant also told Georgia about the work accident. Georgia told Bury that claimant was in bed. Bury returned the following day and inquired as to whether claimant was able to return to work. Georgia testified that prior to October 12, 1979, claimant appeared to be in a normal physical ...


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