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01/31/89 Richard Frakes, v. the Industrial Commission

January 31, 1989

RICHARD FRAKES, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (OLD BEN COAL COMPANY, APPELLEE)



Before the Commission, on April 25, 1986, petitioner testified that his condition had not improved. He continued under Dr. Thompson's care. He had not sought work and remained at home during the day.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

534 N.E.2d 512, 179 Ill. App. 3d 193, 128 Ill. Dec. 330 1989.IL.94

Appeal from the Circuit Court of Franklin County; the Hon. Lehman D. Krause, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Petitioner Richard Frakes sought workers' compensation benefits after he suffered a head injury while working for respondent Old Ben Coal Company. An arbitrator awarded temporary total disability benefits of $247.14 per week for 72 3/7 weeks, and $247.14 per week for 300 weeks as benefits for a permanent partial disability to the extent of 60% of the man as a whole, and medical benefits. The Industrial Commission (Commission) reduced the permanent partial disability benefits from 300 to 50 weeks, finding the extent of the disability was only for 10% of the man as a whole. The Commission affirmed all other aspects of the arbitrator's decision. The circuit court of Franklin County confirmed the Commission's decision. Petitioner contends on appeal that the Commission's finding of only 10% disability is against the manifest weight of the evidence.

On August 9, 1982, the 31-year-old petitioner was working in a mine when a large rock struck his safety helmet. He was taken to the hospital, where he was told to take Tylenol for pain. Nine days later, petitioner began stumbling when he walked, and later experienced severe headaches, nausea and dizziness. Two or three weeks later he began experiencing periods of unconsciousness. Petitioner has not worked since the day of the injury. The mine closed in January 1983.

Petitioner's wife, Rhonda, testified regarding petitioner's imbalance, headaches, periodic seizures and periods of unconsciousness. The dozens of seizures he suffered were brought on by motion or activity. Sam Mitchell, Rhonda's employer and petitioner's attorney during the initial proceedings in this case, testified that in January 1984 he went to petitioner's home after receiving a call for help from Rhonda, and found petitioner apparently unconscious. After driving petitioner to see Dr. Thompson at a clinic, Mitchell and a friend carried petitioner back to the car and took him home. Mitchell had observed no other incidents of this nature.

Initially, petitioner's family physician referred him to Dr. R. Anthony Marrese, who referred him to Dr. M. Coyle Shea, a neurootologist, specializing in ear, nose and throat disorders.

On December 3, 1982, Dr. Shea examined petitioner and found improper eye tracking. He diagnosed post-concussion syndrome. Dr. Shea testified that his chart indicated petitioner had spontaneous vertical nystagmus, directional preponderance and abnormal vertical sinusoidal tracking. His formal report, however, "was not as forcefully stated, I should say, as it really existed." The report indicates essentially negative results of the key test which Dr. Shea relied upon, an electronystagomography test, which records eye movements upon stimulation of different components of the balance system.

Two subsequent visits showed improvement of subjective symptoms. Dr. Shea recommended to petitioner's father and to his family physician that they seek a psychiatric consultation because of petitioner's depression and suicidal wishes. Dr. Shea believed petitioner had seen a neurosurgeon, but he was unfamiliar with that doctor's findings. Dr. Shea was primarily an otologist and not a neurologist, and thus he always sends a case like this to a neurologist for further evaluation because it was not an inner ear problem.

Dr. Shea testified that, assuming the history and other "information that I was given is true, then I would have to say that the findings that we have come up with indicate that there was damage done from this injury." He believed petitioner was probably disabled for work involving machinery. However, because balance and speech problems could easily be feigned, Dr. Shea would prefer to do another ENG before making a recommendation that petitioner not work near machinery.

In July 1983, Dr. David M. Reisler examined petitioner at respondent's request. Dr. Reisler found no objective signs of injury. All tests were negative. Dr. Reisler could not confirm a diagnosis of cerebral concussion. He saw insufficient evidence of vestibular dysfunction to warrant additional time away from work. Dr. Reisler concluded that there was no evidence of permanent partial disability as a ...


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