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04/05/89 Michael Pemble, v. the Industrial Commission

April 5, 1989

MICHAEL PEMBLE, APPELLANT AND CROSS-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (SCHNEIDER, INC., APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

536 N.E.2d 1349, 181 Ill. App. 3d 409, 130 Ill. Dec. 138 1989.IL.483

Appeal from the Circuit Court of Tazewell County; the Hon. Bruce Black, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Claimant appeals a decision of the Industrial Commission (Commission) which denied him additional temporary total disability benefits and certain medical expenses and awarded only 40% permanent total disability to his right arm. Respondent cross-appeals, contending the circuit court was without subject matter jurisdiction to review the Commission award. We affirm.

Claimant, a steam fitter-welder, injured his right elbow in an industrial accident on January 20, 1982. Conservative treatments proved ineffective, and claimant underwent successive surgeries in 1982 and 1983 to release a tendon and nerve in his right arm. Pursuant to his petition under section 19(b-1) of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b-1)), a hearing was conducted on September 10, 1984, after which the arbitrator awarded claimant 89 6/7 weeks of temporary total disability, medicals, and made a finding of 40% permanent and complete loss of use of the right arm. On review to the Industrial Commission, the Commission reduced temporary total disability to 87 1/7 weeks and remanded for further hearing on permanency because the arbitrator erred in reaching this issue at the section 19(b-1) hearing. No further review was sought and respondent paid the award.

Thereafter, claimant filed a second petition alleging intermittent temporary disability from September 10, 1984, the date of the first arbitration hearing, through January 23, 1985, the date of the second arbitration hearing. At this second hearing, claimant testified he attempted to return to work at the Commonwealth Edison Byron Station in October 1984 as a welder. He remained on the job for three weeks, working only three days a week before he quit because of pain and swelling in his right arm and wrist. A treating physician, Dr. Hill, administered an injection for pain in October of 1984. Claimant subsequently attempted to secure a welding position at the Clinton Nuclear Power Plant but was unable to pass a three-day welding test. He was subsequently admitted to the hospital on December 10, 1984, and administered three ganglion blocks by Dr. Hill. Claimant testified he did not notice any improvement in his arm after these procedures. Claimant also submitted to a vocational rehabilitation evaluation in December 1984, although he denied taking this course of action at the direction of his attorney.

On cross-examination, claimant admitted that although he continued to try to find work as a welder, jobs in the construction area were scarce and many members of his local union were out of work.

The deposition of Dr. David Connor, an orthopedic surgeon, was also admitted. Connor initially examined claimant, at respondent's behest, in June 1984. A second examination was requested by claimant's attorney and performed by a therapist working under the direction of Connor at his hand rehabilitation unit on September 19, 1984. Connor reviewed the therapist's notes for the purpose of the deposition.

Based on a comparison of the results of the two exams, Connor was of the opinion claimant had gained motion in several of his digits but the overall range of test scores had not fluctuated. Connor acknowledged pinch and grip strength tests revealed weakness in the right arm as compared to the left, as well as decreased strength in right shoulder flexion, and the lack of ability to fully straighten the right elbow. Based on these findings, Connor concluded it was most likely claimant "could not be doing a lot of heavy, forceful, repetitive activities, and it would probably be somewhat dangerous if he would be climbing and had to rely on [his right] arm to stabilize himself in case he fell." Connor thought lifting 75 pounds very often would be a limiting factor in employment and working overhead with a decreased range of motion to the elbow would probably be difficult for claimant and would decrease the length of time he could work in that position. In Connor's opinion, these restrictions were most likely permanent, although they were the same restrictions Connor would have thought applicable to claimant after his first examination.

On further questioning about the test results, Connor noted claimant's inability to straighten his arm to the extent of 40 degrees in September was actually a 20-degree increase in range of motion from the June 1984 exam. As for the pinch and grip strength tests, Connor stated there was a two- to three-pound margin of error in the pinch test and a four- to five-pound margin of error in the grip test. He agreed if there was more than a four- to five-pound difference in the two tests on the unaffected member, he would suspect a lack of effort on the part of the patient in performing the test. Connor noted in June 1984, claimant had a 107-pound grip strength average in his left arm, while the September exam revealed only an 86-pound strength in the same arm. Connor stated this showed a lack of effort on claimant's part in performing the test.

Connor also found insignificant a lack of five degrees in flexion in the right arm during the September test as compared with full flexion of the arm in June because this small amount of difference did not interfere with the function of the arm. Connor also found no atrophy in the upper right extremity.

Connor disputed the diagnosis of reflex sympathetic dystrophy reached by Dr. Hill and stated his belief further medical treatment would not be likely to provide any benefit to claimant. Connor also ...


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