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07/29/88 Phillips Getschow Company, v. the Industrial Commission

July 29, 1988

PHILLIPS GETSCHOW COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (DONALD BLOCKMAN, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

527 N.E.2d 114, 172 Ill. App. 3d 769, 122 Ill. Dec. 742 1988.IL.1175

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, 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

The Industrial Commission found that claimant, Donald Bockman, was temporarily totally disabled as the result of a low back injury sustained while employed by respondent, Phillips Getschow Company, and awarded him compensation and benefits and all necessary medical expenses. Respondent appealed to the circuit court of Will County and the court confirmed the award of the Commission but modified the decision to allow for vocational rehabilitation and additional medical care. On appeal, respondent contends that the trial court exceeded its authority by including rehabilitation and additional medical care, and further contends that the decision on the question of temporary total disability was against the manifest weight of the evidence. Respondent also contends that it was denied its statutory right to present additional testimony before the Commission due to a conflict between the rules of the Commission and section 19(e) of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(e)).

Claimant was employed by respondent as a pipe fitter since 1970. On April 26, 1984, he fell and injured his back at work. There is no dispute that the accident arose out of and in the course of claimant's employment. Claimant was treated by Dr. Schmitz. On July 31, 1984, and again on September 4, 1985, Dr. Schmitz performed surgery for bilateral L4-L5 laminotomies, and a laminectomy and foraminotomy. Claimant was instructed to wear a lumbosacral corset whenever he was not resting. In June 1985, claimant was still disabled and was referred to Dr. Michael Kornblatt.

Respondent paid weekly disability compensation to claimant from the time of the injury until July 6, 1986. On August 6, 1986, claimant filed an application for adjustment of claim, pursuant to section 19(b-1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b-1)), alleging that he remained disabled. The arbitrator received the following evidence.

Claimant introduced extensive medical records documenting his treatment since the time of the injury. In a report of June 24, 1986, Dr. Kornblatt stated that claimant was suffering from persistent and disabling left radicular leg and low back pain. Dr. Kornblatt hospitalized claimant in June 1986 for a myelogram and CT scan. These revealed mild L4-5 foraminal narrowing, post-operative changes at the L4-5 level and L4-5 spinal stenosis on the left side. Claimant was advised to walk as much as tolerated, but to do no heavy lifting, bending, pushing or climbing. In another report in August, Dr. Kornblatt stated that claimant responded temporarily to an epidural steroid injection. However, his incapacitating back pain persisted. Dr. Kornblatt instructed claimant to wear a brace and stated that if the brace relieved the back pain by 25% to 40%, claimant would be a good candidate for a posterior spine fusion and a wide lumbar decompression at L4-5 and L5-S1. As of the time of arbitration in September 1986, claimant was still being treated by Drs. Schmitz and Kornblatt and had not been released to return to his former job.

Claimant had extensive improvements made on his house in 1985. Gordon Kingman, the brother of claimant's neighbor Peggy Johnson, testified for respondent that he saw claimant physically performing some of the work around his house. Kingman observed claimant leveling cement, applying siding from a scaffold, and sawing wood. Kingman further testified that when the Johnsons moved into a new house, claimant helped out with various cleaning and remodeling jobs. Kingman observed claimant tearing down wooden doors, patching holes in walls, replacing light fixtures, painting, and laying carpet.

In February 1986, Kingman contacted a claims adjuster for respondent for the purpose of informing him that claimant was working on his house while simultaneously drawing compensation benefits. Kingman testified that he was motivated by his concern that Commonwealth Edison customers like himself were ultimately paying for claimant's disability. Kingman later had an altercation with claimant where Kingman threatened to contact respondent again and claimant threatened to kill Kingman if he followed through. The following week, Kingman volunteered to respondent to testify against claimant. Kingman testified that he received further threats from claimant and received telephone threats the night before the arbitrator's hearing.

Respondent also called Mary Jane Anderson, Kingman's niece. She testified that she observed claimant at the Johnsons' new house, where he carried boxes, did painting and patching of walls.

Claimant testified that he did not do any of the renovation work at his house himself. The work was done by various friends and neighbors, and he had not performed any physical labor since the date of the accident. Claimant admitted he was present when the Johnsons moved into their new house. He testified, however, that he stood around and watched the others do the work.

Claimant further testified that in an attempt to get his neighbor, Jay Johnson, a job, claimant accompanied him to the Coachlight Apartments, where they were both hired to perform odd jobs. Claimant testified that his job entailed nothing more than supervising and instructing Johnson on how to repair faucets and washing machines. Checks from Coachlight issued to claimant were in error. He ...


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