APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION
528 N.E.2d 18, 174 Ill. App. 3d 121, 123 Ill. Dec. 634 1988.IL.1328
Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.
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
Petitioner James Lusietto sought worker's compensation benefits for injuries sustained while working for respondent W. S. Bills & Sons. An arbitrator found that claimant's average weekly wage was $504. The arbitrator awarded temporary total disability benefits of 186 weeks at $329.81 per week and $247.36 per week for 130 weeks as permanent partial disability benefits for 60% of a man as a whole, and medical benefits. Both parties sought review.
The Industrial Commission found the average weekly wage was $416.92, and granted temporary total disability benefits at the rate of $277.95 for 78 1/7 weeks. The Commission also awarded permanent partial disability benefits, at the rate of $247.36 per week, for 130 weeks for the loss of use of 32 1/2% of each leg. The circuit court of La Salle County confirmed the Commission's decision. Petitioner appeals.
On appeal, petitioner contends that the Commission's reduction of the number of weeks of temporary total disability was against the manifest weight of the evidence; that the Commission's finding of the extent of permanent and partial disability was against the manifest weight of the evidence; that the Commission erred in using the back injury as the basis for finding the loss of the use of a leg, and in considering credit for prior injuries; and that the Commission erred in its determination of the applicable average weekly wage.
Petitioner testified that prior to the accident at issue here, he suffered a back injury in 1970 for which he received a worker's compensation settlement representing 50% loss of the use of a leg. In 1975 he suffered another back injury and received a worker's compensation settlement representing a 35% loss of the use of a leg.
On May 6, 1979, petitioner, an ironworker, twisted his body and fell while using a 70- to 80-pound wrench to tighten rods in a furnace at work. He sustained the injury for which he now makes claim. Petitioner has not worked for respondent since that day. The following day, petitioner sought medical treatment for his back, which ultimately required surgery in September 1979. Petitioner testified that he continued to suffer from a significant amount of pain. He could participate in no physical activities. It hurt to walk or stand, and he could not lift.
Petitioner testified that his wife owned a business, Portable Welding and Construction. She began the business seven years prior to his accident. Following the accident, petitioner earned no income from Portable Welding and did not work for it in any capacity. Petitioner testified that he went to the Portable Welding offices on a daily basis. He sometimes answered the telephone, and he occasionally visited worksites. He spoke with insurance representatives about Portable Welding's insurance coverage. Petitioner denied being manager of Portable Welding.
Bernadette Lusietto, petitioner's wife, testified on behalf of petitioner that she began Portable Welding in 1976. In regard to a newspaper article naming petitioner as manager, she denied having given anyone that information. Her husband did not work for Portable Welding. He merely answered the telephone on occasion, and she would "talk to him on occasion because he is an iron worker."
Larry Mussato, a representative of Illinois Valley Contractors Association, testified for petitioner that he had participated in negotiating construction contracts in the area with various building trades. The average hourly rate for ironworkers was $13.19 plus fringe benefits.
Patricia Gerrond, an insurance representative, testified for respondent that in September 1982 her company received a written request to quote insurance to Portable Welding. She made an appointment and met with petitioner to discuss the possible types of insurance the business needed.
An October 26, 1981, report written by Dr. James Wilson, an orthopedic surgeon, was introduced into evidence by petitioner. Dr. Wilson stated that he examined petitioner on that day. Petitioner had pain in his low back and in both legs. He complained of occasional numbness and tingling in his legs. Petitioner had recovered to the maximum extent possible. The restricted motion and neurological deficits were permanent. Dr. Wilson did not believe petitioner would ever be able to return to any type of gainful employment which involved manual labor.
Dr. Robert Fitzgerald, an orthopedic surgeon, testified on behalf of petitioner by means of an evidence deposition. Dr. Fitzgerald treated petitioner at Mayo Clinic beginning on June 5, 1979. Petitioner had tenderness over the scar on his low back from previous surgery, and the fusion mass was not solid. After more conservative treatment failed, Dr. Fitzgerald performed a surgical refusion of the fourth and fifth lumbar vertebrae on ...