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10/13/88 Robert E. Cook, v. the Industrial Commission

October 13, 1988

ROBERT E. COOK, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (CATERPILLAR TRACTOR COMPANY, APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

531 N.E.2d 379, 176 Ill. App. 3d 545, 126 Ill. Dec. 84 1988.IL.1525

Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The petitioner, Robert E. Cook, filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), for a knee injury suffered while he was employed by the respondent, Caterpillar Tractor Company. An arbitrator awarded the petitioner temporary total and permanent partial disability. The Industrial Commission (the Commission) reversed the arbitrator's award, finding that the petitioner failed to prove that he sustained an accidental injury arising out of and in the course of his employment. The circuit court found the Commission's decision to be clearly against the manifest weight of the evidence, vacated the Commission's decision and reinstated the award of the arbitrator. The respondent has perfected this appeal.

At a hearing before the arbitrator, the petitioner gave the following testimony on direct examination. He began working for the respondent in November of 1977. For three months prior to March 25, 1978, the alleged date of injury, the petitioner had been working on the assembly line, hand-tightening engine bolts with a five-foot-long torque wrench. To tighten each of the 30 to 40 bolts per engine, the petitioner would have to brace himself to pull on the wrench. The process involved considerable use of his legs, including bending and twisting of the knees.

Approximately one month before March 25, the defendant began to notice that when he was using the torque wrench, his knees were stiff and in pain. During the ensuing month, the petitioner soaked his legs in a hot bath after work and applied a heating pad to his knees. In the morning, the petitioner had to work the stiffness out of his knees, especially the right knee. On Friday, March 25, 1978, the petitioner noticed that his right knee was more painful than usual. He did not stop working that day. The next morning, as the petitioner was getting out of the bathtub, his right knee locked in a bent position. He and his wife were eventually able to work the knee into a straight position. The following Monday, March 28, the petitioner testified that he called the respondent about his knee. He then saw Dr. Font, his family doctor. Dr. Font instructed the petitioner to stay off his leg for one week and to see Dr. Jay Alameda, an orthopedic surgeon. The petitioner saw Dr. Alameda sometime during that week and returned to work on the following Monday, April 4.

While at work on April 4, the petitioner's knee again locked up. He went to see the company nurse, who informed him that the injury was not work-related and that the company could do nothing about it. The petitioner did not return to work that day.

The petitioner again went to see Dr. Alameda. The doctor advised the petitioner that his knee required surgery. Surgery was performed on or about April 24, 1978. Thereafter, the petitioner returned to work but was restricted to light duty. The petitioner continued to see Dr. Alameda as his knee did not improve. On January 19, 1979, Dr. Alameda operated for a second time on the petitioner's knee.

The petitioner testified that at no time prior to March 25, 1978, had he experienced any knee or leg problems. Prior to March 25, he had not been engaged in any other strenuous physical activities. At the time of the arbitration hearing, the petitioner testified his knee would swell and cause him pain. He could only walk short distances. His knee clicked and popped when he bent it.

On cross-examination, the petitioner stated that he told Dr. Alameda that he had been getting around well until his knee locked up. He denied telling the doctor that his injury was caused by a fall when he was getting out of the bathtub.

The respondent presented into evidence a company claim form for weekly disability benefits. On the form, the defendant answered "no" to the question: "Was an accidental injury involved?" The petitioner explained that he thought that the term "accident" meant "something happening, . . . like a car accident is an accident."

Debra Cook, the petitioner's wife, testified that on March 26, 1978, she had to help the petitioner get out of the bathtub because he could not straighten his knee. Debra said that the petitioner was in pain. She knew that the petitioner had been taking hot baths for his knees. According to Debra, the petitioner had not participated in any sports activities prior to the day in question and did not have knee difficulties before working for the respondent.

The deposition of Dr. Gordon Shultz was admitted into evidence. Dr. Shultz, a board-certified orthopedic surgeon, testified that he examined the petitioner in May of 1982. His diagnosis was that the petitioner was suffering from traumatic arthritis of the right knee. In the doctor's opinion, the petitioner's condition was progressive and permanent. Dr. Shultz was asked a hypothetical question by the petitioner about the cause and source of a person's injury in a situation similar to that of the petitioner. The doctor replied that the cause of the injury would be torn cartilage in the knee and that the source of the injury was work-related. On cross-examination, when asked a hypothetical question by the respondent in which the knee of a person with no prior knee complaints locked up while he was stepping out of a bathtub, the doctor was still of the opinion that the injury was work-related. However, according to the doctor, if the petitioner fell first and then his knee locked, then the fall could have caused the injury. Dr. Shultz opined that the petitioner's work activity was the type of activity that could have caused his knee problems.

Lastly, the deposition of Dr. Alameda was admitted into evidence. Dr. Alameda testified that he took a history from the petitioner following his admission into Proctor Hospital on April 21, 1978. According to the history, the petitioner stated that he had been doing well until two weeks earlier when he started to get out of the bathtub and fell from his knee being locked. The petitioner was in Dr. Alameda's office the following Monday, at which time the doctor believed that the petitioner had a sprained knee. The petitioner returned two weeks later on a Friday. Dr. Alameda examined the knee, ...


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