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09/01/89 P.T.O. Services, Inc., v. the Industrial Commission

September 1, 1989

P.T.O. SERVICES, INC., APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (JERALD MENOZZI, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

543 N.E.2d 1099, 188 Ill. App. 3d 24, 135 Ill. Dec. 531 1989.IL.1369

Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

On March 3, 1978, the petitioner, Jerald Menozzi, was a truck driver/delivery man for the respondent, P.T.O. Services, Inc. On that date, in the course of his employment, the petitioner, while straightening out the back of his truck, slipped on some broken skids. He fell from the back of the truck, landing on his right arm and wrist. During the course of the fall, he hit his back on a piece of angle iron in the truck. He felt something pop in his right shoulder and experienced pain in the right shoulder and back. He received injuries to his back, right shoulder and ribs.

The arbitrator made an award under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), finding that the petitioner had a permanent partial disability to the extent of 50%. The arbitrator awarded the petitioner 84 3/7 weeks of temporary total disability. On review, the Industrial Commission reduced the temporary total disability award to 56 weeks and the award of permanent partial disability from 50% loss of a man as a whole to 8% loss of a man as a whole and 15% loss of the use of the right arm.

Following a hearing, which was ordered by the Illinois Supreme Court in Menozzi v. Industrial Comm'n (1983), 96 Ill. 2d 468, 451 N.E.2d 853, on Mr. Menozzi's petition under section 19(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)), the Industrial Commission reiterated its initial reduced award.

The petitioner appealed to the circuit court of Will County, which reversed the Industrial Commission's award, finding the Commission's decision to be against the manifest weight of the evidence. The court ordered the arbitrator's award reinstated.

The respondent, P.T.O. Services, Inc., brought this appeal, contending that the circuit court erred in finding that the decision of the Industrial Commission, following remand from the Supreme Court, is against the manifest weight of the evidence.

Following his injury, the petitioner was taken to the emergency room at St. Joseph's Hospital in Joliet. He was examined by emergency room personnel and by his family physician, Dr. Rousenelous, who had been called to the hospital. Dr. Rousenelous viewed the X rays and prescribed two rib braces for the petitioner to wear. His right arm was placed in a sling. He returned to Dr. Rousenelous about a week later. The petitioner continued to experience pain in his back and right shoulder. He also had difficulty getting out of bed and getting up from a sitting position. Dr. Rousenelous prescribed pain pills.

The petitioner was referred to Dr. Howard Sather, an orthopedic surgeon who examined him on or about May 8, 1978. Dr. Sather examined the X rays and administered two shots of cortisone in the right shoulder and one shot of cortisone in the back.

Between this initial visit and the arbitrator's hearing on November 26, 1979, the petitioner continued to be treated by Dr. Sather at two-to five-week intervals. The petitioner was given exercises to do and continued to receive periodic cortisone shots. In the summer of 1978, on Dr. Sather's instructions, the petitioner received 2 1/2 to 3 weeks of physical therapy consisting of three or four sessions per week.

On November 8, 1978, at Dr. Sather's request, the petitioner was examined by Dr. Michael A. Simon, an assistant professor of orthopedics with the University of Chicago Department of Surgery. Dr. Simon found tenderness in the anterior portion of the right shoulder. The results of the neurological examination and the range of motion tests of the back and shoulder were normal. Dr. Simon concluded that the petitioner would continue to get symptomatic relief over time. He recommended continued conservative treatment of the condition and hoped that the majority of symptoms would continue to resolve themselves. At the time of examination, he did not favor allowing the petitioner to do the type of heavy lifting his duties as a ...


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