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07/21/89 Anthony Esposito, v. the Industrial Commission

July 21, 1989





542 N.E.2d 843, 186 Ill. App. 3d 728, 134 Ill. Dec. 497 1989.IL.1133

Appeal from the Circuit Court of Cook County; the Hon. Mary Conrad, Judge, presiding.


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


Claimant, Anthony Esposito, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for back injuries allegedly sustained in the course of his employment with respondent, Metropolitan Sanitary District. An arbitrator awarded claimant temporary total disability for a period of 132 4/7 weeks and permanent total disability benefits under section 8(f) of the Act.

Following a hearing on review, the Industrial Commission (Commission) reduced the TTD award to 5 3/7 weeks and found that claimant was entitled to permanent partial disability as provided in section 8(d)1 of the Act, rather than permanent disability. The circuit court of Cook County reinstated the award of 132 4/7 weeks of TTD and confirmed the Commission's award of permanent partial disability. This appeal followed.

Claimant argues on appeal that the Commission's reduction of his TTD benefits and the award of permanent partial disability rather than permanent total disability were contrary to the manifest weight of the evidence. Respondent cross-appeals, contending that the circuit court's reinstatement of 132 4/7 weeks of TTD was against the manifest weight of the evidence.

The evidence is largely undisputed. Claimant had been employed by respondent as a provisional sheet metal worker since 1976. In 1981, while still employed by respondent, claimant ran for and was elected to a four-year term as the highway commissioner of Worth Township, Cook County. In 1985, he was reelected to another four-year term as highway commissioner.

On March 1, 1982, claimant was standing on a ladder, lifting part of a metal roof, when he felt a "pop" in his back and then pain in his back and down both legs. At the time of his accident, claimant was in good health and had not experienced any problems with his back or legs.

After his accident, the claimant went home, took a hot bath, took his wife's pain pills, and used a heating pad. The next morning he reported to the respondent's nurse's office; he was taken directly to the Clearing Medical Center by respondent's police car. Claimant was treated there with Motrin, various pain pills, and diathermy. He noticed his left foot was numb, and he had pain in both legs and his back. After five or six treatments, which did not result in a release for work, he went on March 8, 1982, to the District Medical Center. Soon thereafter, respondent gave him permission to see an orthopedic physician, Dr. James P. Elmes. Claimant continued to have back and leg pain and numbness in his left leg.

Dr. Elmes originally treated the claimant with injections into the back and hip, medication, physical therapy, traction, a shoe lift, a corset, and a TNS machine. Later ultrasound, bedrest, and other medications were prescribed by Dr. Elmes. In March and April 1982, the claimant experienced weakness in his left leg, and his left leg was collapsing.

On May 23, 1982, claimant was admitted to St. Francis Hospital for 19 days under the care of Dr. Elmes. He received treatment consisting primarily of traction and physiotherapy, and he underwent a myelogram procedure. The myelogram revealed a large defect at L5 on the left and L4 central.

Respondent requested that claimant be examined by Dr. Camacho. Dr. Camacho and claimant discussed the Chymopapain injection, but claimant was not released for work. Claimant received permission from respondent to travel to Canada in August 1982 to see Dr. McCulloch concerning the experimental injection, but claimant was found to be an unsuitable candidate for the treatment.

On September 10, 1982, claimant was again hospitalized at St. Francis Hospital with incapacitating low back pain. On September 14, 1982, two discs located at L4 central and left and L5 central were surgically removed with neurolysis at L5 on the right. At the same time, a spinal fusion at L4-S1 was performed with bone taken from the left hip.

On discharge from the hospital, claimant noticed that he had constant pain in his back and both legs. The pain interfered with his ability to sleep. Following his first operation, claimant was again treated with physical therapy, traction, a TNS unit, ultrasound, and spinal injections.

From October 1983 to January 1984, respondent had claimant attend the Parkview Orthopedic Back School, the Chicagoland Spine Clinic, and the Willow Springs Spinal Clinic for exercises and swimming therapy. Despite these measures, no improvement in claimant's condition was achieved.

In January 1984, the respondent sent the claimant to be examined and treated by Dr. James B. Boscardin, an orthopedic physician associated with the Parkview Orthopedic Clinic. Dr. Boscardin's written report to respondent confirmed that the claimant moves "very, very slowly and carefully," has positive straight leg raising on the left, and decreased extensor hallucis longus. Dr. Boscardin found radiculopathy on claimant's left side. Dr. Boscardin recommended further medical treatment, including a CT scan to rule out spinal stenosis. Dr. Boscardin further found after in-depth evaluation that "this gentleman probably will never return to strenuous activity . . . he represents less than an ideal result following a laminectomy and spinal fusion. He is disabled at this time and unable to work. I feel he has made a total attempt at physical therapy and I do not feel that any further time or effort should be spent in these endeavors."

On July 21, 1984, a computer tomography of the lower spine revealed a mild bulging disc at L4-L5 and no central canal stenosis.

During this time period claimant continued to receive treatment from Dr. Elmes at four- to six-week intervals.

On August 30, 1984, Dr. Elmes wrote the following to Mr. Jack Singh, claims administrator and investigator for respondent:

"Anthony Esposito is unable to return to regular duty at this time, should do sedentary type of work with no lifting, no excessive bending or twisting. Standing ability, to sit at least 5 minutes every half hour and if primarily sitting, to be able to stand and move around at least 5 minutes every half hour.

Please send any job classifications with specific duties involved for any light duty jobs available to see if Mr. Esposito's physical capacities would be adequate.

For specific information on his present condition, please refer to remarks on the enclosed report of his last visit on 8/30/84."

The enclosed report stated claimant was "still disabled." Dr. Elmes never received any response to his letter.

On September 24, 1984, Dr. Elmes examined claimant and was of the opinion that claimant was not able to perform any work, including sedentary work. Thereafter, from October 4, 1984, to February 19, 1985, claimant was treated with additional physical therapy at St. Francis Hospital as an outpatient. On January 10, 1985, the physical therapist noted that "progress overall has been relatively unchanged and his mobility remains limited."

Claimant was treated and examined regularly by Dr. Elmes through the close of proofs on review before the Commission. Claimant was treated for pain with multiple spinal injections of cortisone and ...

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