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04/07/89 Frances M. Edgcomb, v. the Industrial Commission

April 7, 1989





536 N.E.2d 1364, 181 Ill. App. 3d 398, 130 Ill. Dec. 153 1989.IL.492

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


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


Claimant, Frances Edgcomb, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) for a work-related incident which occurred on March 24, 1981. Claimant alleged that, while driving a school bus in respondent's employ, she suffered neck injuries in a collision with an automobile. The arbitrator awarded claimant 37 6/7 weeks of temporary total disability and found her condition had not yet reached a level of permanency. The Industrial Commission (Commission) modified the arbitrator's award of TTD to 24 6/7 weeks and found there was no causal relationship between the March 24, 1981, accident and claimant's cervical surgery performed on October 27, 1981. Though noting that it would not have reached the same result as the Commission, the circuit court of Peoria County confirmed the Commission's decision and denied respondent's motion to dismiss claimant's writ of certiorari for lack of subject matter jurisdiction. This appeal followed.

On appeal, claimant argues that the Commission's decision is against the manifest weight of the evidence. Respondent's cross-appeal argues that the circuit court of Peoria County did not acquire special statutory subject matter jurisdiction over this case. We address claimant's appeal first.

On March 24, 1981, claimant was employed by respondent as a bus driver. She was operating a bus that was struck from behind by an automobile; the impact caused claimant to be thrown between the steering gear and the door. Claimant testified that the impact was "severe." Following the accident, she was treated for neck, shoulder, and lower back pain by her family physician, Dr. Thomas Cassidy, an internist. She was hospitalized from March 27 to April 10, during which time she underwent physical therapy and received pain-killing medications. Following her release, she was maintained by Dr. Cassidy on a conservative treatment regimen, consisting of physical therapy, pain medication, muscle relaxants, and minor tranquilizers. Claimant testified that following her release from the hospital, she continued to feel pain and stiffness in her neck and occasional numbness and shooting pain in her right arm and fingers.

While in the hospital following the accident and upon being discharged, claimant was treated by Dr. O. Sureka, a physician with the Institute of Physical Medicine and Rehabilitation. Dr. Sureka examined claimant on March 30, 1981. He observed tenderness at the back of the cervical and lumbar spine. Movement of the cervical spine was painful at terminal 10 degrees of forward flexion, extension, and lateral rotation. He noted moderate muscle spasms of paraspinal muscles in the cervical and thoraco-lumbar area. Also, he detected a slightly diminished sensation in the right thumb. On May 18, 1981, Dr. Sureka observed that movement of claimant's cervical spine was restricted beyond 30 degrees in forward flexion, extension, lateral flexion, and rotation. On June 15, 1981, Dr. Sureka noted that claimant's ability to move her cervical spine had improved but she was still experiencing pain in the back of the neck. He also noted decreased sensation in her right hand to touch and pain. On July 21, claimant was again examined by Dr. Sureka, who noted a tenderness at the base of the cervical spine. He found that movement of claimant's cervical spine was painful. The results of the July 21 electromyographic and nerve conduction tests performed by Dr. Sureka were normal.

During her treatment program with Dr. Sureka, claimant attended physical therapy on a weekly basis, wore a cervical collar, used cervical traction equipment at home, and took muscle relaxants, analgesics, and minor tranquilizers to relieve her symptoms. Claimant evidently stopped seeing Dr. Sureka in or about July. The record does not indicate the reason for this termination.

At the respondent's request, claimant was examined by Dr. Lorin Whittaker, a surgeon, on July 23, 1981. He reported that claimant experienced stiffness in the posterior neck, which caused her to proceed in a cautious manner during the exam. She could hyperextend, flex, rotate, and laterally bend her neck to essentially a normal degree, but her capacity to perform these neck movements varied from one time to another. Claimant's neck contour was normal, and no muscle spasm was noted. It was Dr. Whittaker's impression that she had sustained a flexion-extension type of injury and that she was still experiencing some symptoms of cervical strain. Nevertheless, he opined that claimant could return to work on August 15.

Claimant's treating physician, Dr. Thomas Cassidy, saw claimant on numerous occasions while she was first in the hospital following her accident and upon her discharge. His notes dated from April to September 1981 describe claimant's ongoing cervical spine problems. On May 4, he observed that claimant had increased range of motion of the cervical spine but that she was still experiencing substantial pain with flexion, extension, and rotation. On June 1, he noted that claimant had a fair range of motion in both flexion of the neck, but less than full. On July 7, 1981, he observed that claimant was experiencing a lot of tenderness with range of motion in any direction. During office examinations on August 4 and August 25, Dr. Cassidy observed that claimant was experiencing considerable neck spasms and lack of range of neck motion.

At the request of Dr. Cassidy, claimant was examined by Dr. Jesse Weinger, an orthopedic surgeon, on September 14, 1981. Dr. Weinger found that claimant's motor strength and sensory examinations were within normal limits and that she had full range of motion of her cervical spine. Dr. Weinger noted claimant's complaints of neck stiffness and discomfort and opined that these complaints were out of proportion with objective findings. He found no evidence to suggest a cervical disc protrusion or significant ligament instability. Dr. Weinger thought that claimant could return to work and made no suggestions for further medical care. Claimant testified that this examination lasted approximately seven minutes.

Dr. Cassidy's note regarding his September 22 examination of claimant states:

"O: Examwise she has pain when you turn her head to the right and when you extend it and flex it to the point where it stops her moving it. She has had no definitive abnormal neurologic findings or EMG findings throughout this whole thinghowever, her physical ...

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