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01/09/89 Betty Lou Gay, v. the Industrial Commission

January 9, 1989





532 N.E.2d 1149, 178 Ill. App. 3d 129, 127 Ill. Dec. 320 1989.IL.4

Appeal from the Circuit Court of Vermilion County; the Hon. David G. Bernthal, Judge, presiding.


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


Petitioner, Betty Lou Gay, filed a petition under section 19(h) of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(h)) on March 26, 1986, alleging that there was a material increase in her disability since an earlier decision of the Industrial Commission on November 2, 1984. The Industrial Commission, in its order of February 11, 1987, found that petitioner failed to prove a material increase in her disability and denied her section 19(h) petition. The circuit court of Vermilion County confirmed the Industrial Commission's decision in an order entered on January 21, 1988. The petitioner appeals this decision.

On appeal, petitioner contends that the Industrial Commission's denial of her section 19(h) petition was contrary to the manifest weight of the evidence. Specifically, petitioner argues that the replacement of her natural knee with a prosthesis constituted a material increase in her disability.

The evidence presented at the original hearing before the arbitrator was as follows: On November 7, 1979, petitioner was employed as a finisher by respondent, General Electric Company, and in the course of doing her work, she arose from a chair to obtain a wire stripper. A protruding iron bar caught the leg of her pants and caused petitioner to fall to her hands and knees onto the concrete floor. Her knees began to hurt after her fall so she went to her personal physician the next day; however, he referred her to Dr. Bharat Mehta. Dr. Mehta X-rayed her knees, placed her left knee in a leg brace, and prescribed physical therapy, pain pills and the use of a cane. Petitioner was unable to work for approximately 2 1/2 months. She returned to work on January 14, 1980, but she remained under Dr. Mehta's care.

Although she had pain in her left knee and walked with a cane, petitioner continued to work until April 22, 1980, whereupon Dr. Mehta advised her to undergo knee surgery. On April 24, 1980, Dr. Mehta did an arthroscope and performed a high valgus tibial osteotomy on petitioner's left knee. Dr. Mehta's diagnosis of petitioner's condition on April 23, 1980, was that she had "[degenerative] arthritis of the left knee with varus deformity." Because of her surgery, petitioner was disabled for work from April 23, 1980, until April 27, 1981.

In addition to petitioner's testimony, Dr. Mehta's records regarding his ongoing treatment of the petitioner, petitioner's hospital records of her initial examination at the time of her injury and of her surgery in 1980, a one-page report by Dr. Sadler, and two letters from a Dr. Donald S. Miller were admitted as exhibits on her behalf. The only evidence presented by respondent was a one-page report by Dr. Sadiq.

Petitioner's review hearing before the Industrial Commission was held on July 27, 1982. At that hearing, petitioner testified that although she could perform her duties at work while sitting down, she still suffered from pain in her left knee and up her thigh. By April 1982, the pain was so intense that she was almost unable to walk. She returned to Dr. Mehta and he injected her knee with cortisone and prescribed two weeks of physical therapy. He also gave her a prescription for Darvocet, a pain killer she had been taking since the date of her injury.

Petitioner further testified that, at the end of her shift at work, she had a lot of pain and her legs were weak. On weekends and in the evenings, she had to elevate her legs to relieve the pain. She used a cane to enter and to leave work and for any long-distance walking; however, she did not use the cane when she was at home. In addition to petitioner's testimony, petitioner's medical records were admitted as evidence.

The Industrial Commission entered its decision as to petitioner's disability on November 2, 1984, in which it awarded her all her medical expenses, compensation for temporary total disability for 61 3/7 weeks and compensation for permanent partial loss of 50% of the use of her left leg.

On March 26, 1986, petitioner filed a section 19(h) petition alleging an increase in her disability. Hearings on this petition were conducted on March 27, 1986, and on May 28, 1986, at which petitioner testified and medical records and doctors' reports were introduced. Petitioner's testimony established that she continued to work at General Electric until October 30, 1983, whereupon she then entered the hospital at Dr. Mehta's behest. During this hospitalization, Dr. Mehta did an Insall-Burstein total ...

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