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10/18/89 Kress Corporation, v. the Industrial Commission

October 18, 1989

KRESS CORPORATION, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (DONALD J. FORBES, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

545 N.E.2d 1046, 190 Ill. App. 3d 72, 137 Ill. Dec. 285 1989.IL.1638

Appeal from the Circuit Court of Peoria County; the Hon. William J. Voelker, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The petitioner, Kress Corporation (Kress), appeals from an order of the circuit court confirming the decision of the Industrial Commission (Commission) awarding compensation to Kress' employee, Donald J. Forbes. The sole issue raised is whether the decision of the Commission was against the manifest weight of the evidence.

At the hearing before the arbitrator, Forbes testified that he had been employed since 1984 as a welder and material handler. On Friday, July 18, 1986, between 10:30 p.m. and midnight, he was getting ready to weld a large steel structure and was positioning it by the use of a crane. He felt he was losing control, and he grabbed the wrong chain on the crane, which caused the steel piece to start to come down on him. He pulled the other chain and lost even more control. The structure came over him, and he had to force it back into position. The steel structure was approximately 8 feet long and 2 1/2 feet wide, and three-quarters of an inch thick, weighing 1,000 pounds or better. After the incident, which was not witnessed by anyone other than Forbes, Forbes continued to work the rest of his shift.

The next day, Saturday, Forbes, had a mild backache. As he worked on his lawnmower, he noticed that the pain was starting to increase. By Sunday, the pain was so severe that it required two people to get him out of bed. The pain was in the mid-lower part of his back.

Forbes could not get in to see Dr. Mullin, his family doctor until Tuesday. At that time, the doctor examined him and treated him for a pulled muscle, giving him pain medication. Two weeks after the injury, at the employer's request, he saw Dr. Hart, Kress' company doctor. Dr. Hart examined Forbes and asked him what he had done to himself. Forbes told him he did not know and that the only thing he had done was to work on his lawnmower. Then Dr. Hart asked him if he had done anything at work in which he might have strained himself, and Forbes told him about losing control of the structure and how he had to push it back with all his strength. According to Forbes, that effort took a lot out of him, but he did not feel pain or hurt at the time. Dr. Hart then stated that Forbes had suffered an industrial accident and placed Forbes in the hospital where he remained for eight days. He was treated with traction and given medication for pain.

Following his release from the hospital, Forbes contacted Dr. Hart. Kress' hearsay objection to Forbes' testimony about the conversation with Dr. Hart was sustained. Forbes made an offer of proof that in his conversation with Dr. Hart, Forbes told him that the pain went from his back down to his leg and caused him to be up all night. Dr. Hart responded that he thought Forbes had a slipped disc and that Forbes should go to Methodist Hospital for a CAT scan. After the test, Dr. Hart informed Forbes that he had a slipped disc and that he would refer him to a specialist. Several days later, Dr. Hart called Forbes and told Forbes to call him back once his insurance problem (which Forbes was unaware of) was straightened out. Kress objected to the offer of proof but did not identify the basis for the objection.

Forbes testified further that he then saw Dr. Mullin, who supplied him with pain medication. About two months later, Dr. Hart called him. Again Kress' objection to Forbes' testimony regarding this conversation with Dr. Hart was sustained, and Forbes made another offer of proof, in which he stated that Dr. Hart informed Forbes that he was scheduling an appointment for him with Dr. Weinger, an orthopedic surgeon. Dr. Weinger operated on Forbes, after which his left leg was numb with no feeling, and he still suffered from backaches. Forbes continued under Dr. Weinger's care until March 1987, at which time Forbes was released to go back to work with some restrictions. However, when he reported to work, he was told by the day-shift foreman that he was laid off of work. At the time of the hearing, he had not yet returned to work, although he had applied for work elsewhere.

Forbes testified that his left leg is still numb and he has quite a few backaches. He cannot do anything strenuous around the house. By the end of the day, he feels completely worn out, without the stamina he used to have.

On cross-examination, Forbes testified that although he was aware of the company policy of reporting any accidental injuries taking place during work, he did not report the injury to anyone. He also admitted having had a couple of beers with his co-workers after work, and at that time, he had no problem sitting and did not notice anything unusual about his physical condition outside of the usual tiredness and stiffening he generally felt after working his shift.

Forbes testified further that when he got up on Saturday morning, he had a backache, but inasmuch as he had had this before, he did not pay much attention to it. He denied that he associated the pain he felt with his work on the lawnmower because he was in pain prior to working on the lawnmower. He also denied telling Dr. Mullin that he first experienced the pain while he was working on his lawnmower Saturday morning. He stated that he told the doctor he did not know what he had done to cause the pain in his back. He also denied telling Dr. Mullin that the pain started on Sunday morning. He further denied telling anyone that his back problem started on July 14, 1986, after lifting a heavy object.

According to Forbes, after he got the steel structure back in position, he was exhausted and felt a strain in his back which went all the way down his back and legs but which went away after a few seconds. The first time he associated his back problems with the incident at work was when he saw Dr. Hart.

Kress then elicited the testimony from David McKinty and Gerald Simpson, co-workers of Forbes, that following work on Friday, July 18, 1986, they, Forbes, and other co-workers had a few beers together after work. Forbes appeared to have no difficulty sitting at a picnic table, although he had to climb over a cooler to sit down. Forbes made no complaints of pain or discomfort, and neither man noticed anything unusual about him.

Richard Merideth, manager of industrial engineering for Kress, testified as follows. According to Merideth, the steel structure Forbes was working on was a box beam and weighed 3,700 pounds. Based upon his experience and knowledge of the type of work Forbes was doing, Forbes would have had to lift the beam in order to push it as Forbes described, and it would have been literally impossible for a man to lift two tons of steel.

The medical records of Drs. Hart, Mullin, and Weinger were admitted into evidence, as were the evidence depositions of Drs. Hart and Mullin.

The arbitrator denied benefits, finding that Forbes had failed to prove that accidental injuries arose out of and in the course of his employment.

The Commission reversed the decision of the arbitrator and awarded benefits. The Commission found credible Forbes' testimony that he told Dr. Hart that he did not know the cause of his discomfort and that, upon questioning by Dr. Hart, he described his activities with the lawnmower and the incident at work, at which point Dr. Hart informed him that his condition could not have been the result of his activities at home but was related to the incident at work. The Commission noted that Forbes was a relatively young man who had not previously experienced back problems. Based upon the testimony of both Forbes and Dr. Hart, the Commission found that the incident at work caused a small extrusion of disc material which gradually became larger, causing increasing symptomology, and thus, Forbes was found to have sustained accidental injuries to his lower back which arose out of and in the course of his employment.

On review, the circuit court found that the decision of the Commission was supported by the evidence and confirmed the decision. Kress now brings this appeal.

Kress contends that the Commission erred in permitting Forbes to prove his case through the use of double hearsay. In an October 27, 1986, letter to Forbes' attorney, Dr. Hart wrote:

"He [Forbes] was seen in our office on August 8, 1986. He reported that while at work on July 20, 1986 at the Kress Corporation, he was doing some welding. He moved a sill. Then, he stated, he just could not get out of bed the next day. He entered with ...


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