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08/08/88 Larry W. Reynolds, v. Warren E. Danz

August 8, 1988

LARRY W. REYNOLDS, PLAINTIFF-APPELLEE

v.

WARREN E. DANZ, INDIV. AND D/B/A WARREN E. DANZ, P.C., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 169, 172 Ill. App. 3d 907, 122 Ill. Dec. 797 1988.IL.1236

Appeal from the Circuit Court of Peoria County; the Hon. Joe B. McDade, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

On January 20, 1986, plaintiff, Larry Reynolds, brought this action in the circuit court of Peoria County for damages allegedly resulting from the malpractice of defendant attorney Warren Danz. Plaintiff claims that he suffered a back injury at work for which he has not been fully compensated because defendant failed to pursue timely remedies on his behalf under the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (count I), the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) (count II), and the Social Security Act (count III). With respect to count I, both parties moved for summary judgment. On January 26, 1987, the trial court denied defendant's motion and granted judgment in favor of plaintiff on the issue of liability. The trial court found as a matter of law that defendant "committed acts of negligence and professional malpractice by failing to perfect a timely appeal" of an adverse decision in plaintiff's workers' compensation claim and that the adverse decision by the Industrial Commission was against the manifest weight of the evidence and it would have been reversed on appeal to the circuit court had an appeal been timely perfected.

The court's findings were affirmed on defendant's motion for reconsideration. The parties then agreed that the court's decision involves questions of law as to which "there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." The court, accordingly, certified these questions for review:

"(1) Was the decision of the Industrial Commission against the manifest weight of the evidence or contrary to Illinois law when the Commission found as follows:

'The Commission further notes that the evidence presented on review basically addressed the question of Petitioner's condition of ill-being subsequent to the February 4, 1982 surgery, but not the threshold issue of whether or not that surgery was reasonable and necessary as the result of the accident of May 7, 1980, and also references Zick v. Industrial Commission, 93 Ill. 2d 353 (1983)'?"

and

"(2) Even assuming, arguendo, that the Commission was correct in its finding that the surgery was not 'reasonable and necessary as the result of the accident of May 7, 1980,' is an employer liable under the Workers' Compensation Act for a condition of ill-being or disability resulting from such surgery where the surgery was performed by a physician of the employee's choice?"

The appeal was perfected to this court pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Because the first question concerns the manifest weight of the evidence, it is necessary to set forth in some detail a history of plaintiff's injury as it appears from the Industrial Commission record. On May 7, 1980, plaintiff was employed as an electrician-welder. Plaintiff sprained or strained his back while lifting a steel I-beam overhead. Plaintiff promptly reported the injury and received conservative medical treatment for lumbar strain, including Dynawave, moist heat, exercises and instructions to avoid heavy lifting and to rest in bed when at home.

Plaintiff was subsequently hospitalized and treated conservatively by Dr. Saleh Obaisi, M.D., who initially diagnosed plaintiff's condition as "severe sprain of lumbosacral region of the spine." Obaisi referred plaintiff to Dr. M. Stephen Huss, an orthopedist, who described plaintiff's condition as "an acute lumbosacral strain which has become chronic." Plaintiff was also referred to Dr. Jerome Kaufman, head of the department of neurosurgery at Carle Clinic, Urbana. Dr. Kaufman reported that plaintiff had been seen by Drs. Menguy and Tobin of the orthopedics and neurology departments, respectively. A myelogram was done which disclosed "no significant root defect, either cervical or in the lumbosacral area." Electromyography and nerve conduction studies were performed as well, ...


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