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12/20/89 Birdsley Trucking Company, v. the Industrial Commission

December 20, 1989

BIRDSLEY TRUCKING COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (STEVEN PHILHOWER, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

548 N.E.2d 772, 192 Ill. App. 3d 39, 139 Ill. Dec. 387 1989.IL.1988

Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Claimant, Steven Philhower, suffered injuries in a car accident while allegedly driving on a work errand for his employer, Birdsley Trucking Company. Claimant's mother, a passenger in the car, was killed in the accident. An arbitrator awarded claimant $216.39 per week for life, plus interest, and medical expenses of $37,000 for total and permanent disabilities which arose out of and in the course of the employment. The Industrial Commission (Commission) heard additional evidence, and later summarily affirmed the arbitrator's decision, declining to review the record based on the employer's failure to timely file the required written summary of its position. The circuit court of Bureau County confirmed the Commission's decision, and the employer filed an appeal to this court. This court remanded the case to the Commission with directions, and the case came to the Commission for a review on the merits.

The Commission again affirmed the decision of the arbitrator, and the circuit court confirmed the Commission's decision. The employer appeals, contending that the Commission's finding that claimant's injuries arose out of and in the course of his employment is against the manifest weight of the evidence; that the Commission incorrectly computed his average weekly wage; that the Commission erred in awarding benefits for injuries stemming from the personal, and not the business, portion of the trip; that the Commission's award of certain medical benefits is not supported by the record; that one witness' testimony should be stricken in its entirety; that the Commission's alleged loss of certain films inhibits the appeal process; and that the Commission failed to provide a full and complete record for this appeal.

On March 20, 1979, claimant began working for Birdsley Trucking as an over-the-road truck driver/mechanic near Princeton, Illinois. On May 5, 1979, the automobile accident occurred. Claimant was driving his automobile from nearby Ladd, Illinois, where, he testified, he picked up a fuel gauge at Knauf Implements for the truck he drove for respondent. Another car broadsided the passenger side of claimant's car. His mother was killed, and he suffered fractures to the right humerus and left tibial plateau, and a severe closed head injury. He remained in a coma for nearly two months. Subsequently, he has not worked and has been diagnosed as having neurological problems which prevent him from working, and which have resulted in total and permanent disabilities manifested both in neurological problems and gross motor problems.

Claimant introduced numerous medical records into evidence. A June 11, 1979, EEG showed a "markedly abnormal EEG" with "severe generalized cerebral depression and/or damage indicating the presence of diffuse cerebral dysfunction." A June 27, 1979, EEG showed only slight improvement. A July 10, 1979, discharge summary from one hospital showed a final diagnosis of closed head injury; cerebral contusion and concussion, moderate in intensity; and expressive dysphasia, secondary to the cerebral injuries. Claimant remained hospitalized until August 8, 1979.

Claimant offered an October 14, 1982, report from Dr. James V. Magnuson, a psychiatrist. Dr. Magnuson treated claimant from October 9, 1981, through May 7, 1982. He also reviewed all relevant medical records. Claimant initially complained of disinterest in all activity, mixed sleep disorder, and a sense of being greatly slowed down. He manifested marked psychomotor retardation and difficulty concentrating, and described an intense sense of anhedonia, decreased appetite, and compulsive eating habits. These symptoms began in the summer of 1979.

Dr. Magnuson explained that of particular significance were the closed head injury and prolonged comatose state; his mother's death; and the neurological injury, which was the most enduring factor. Dr. Magnuson noted further that the movement disorder was asymmetrical. A neurological evaluation revealed "increased muscle tone in both upper and lower extremities with the left side being more affected than the right and a decrease in the coordination of muscular actions. These findings do not have localizing significance and therefore stem from a diffuse injury to the central and right sided regions of the brain. Because the brain scan was normal and the injury occurred approximately three years ago, it can be said with confidence that the above described residual from the brain injury is chronic and unredeemable."

Dr. Magnuson reported further that the "functional effects of the neurological damage is [sic] that [claimant] will be unable to operate motor vehicles of the type that had formerly provided his livelihood. In addition, his coordination is interfered with in such a way that he would be prevented from functioning as an effective mechanic even though he appears to retain the knowledge necessary to be a mechanic. Because the deficits are pervasive, he would also be prevented from availing himself of retraining since his performance in all jobs requiring motor coordination would be adversely affected." The neurological and psychiatric disorders would affect claimant adversely for the rest of his life. "In my view, rehabilitation offers [claimant] little hope since his disorders are pervasiveaffecting his entire person rather than a single body part or isolated function."

Claimant offered into evidence a November 11, 1980, report from Dr. John H. Van Landingham, a neurosurgeon, who examined claimant on October 31, 1980, and reviewed his medical records. He described the examination: "[Claimant] is obese, unkempt, and unshaven. He has not washed for at least a number of weeks judging by the state of his skin. He walks with a very slow gait with impairment of the normal right arm swing, and he carries his right hand with the fingers somewhat flexed." His neurological examination was normal. Dr. Van Landingham concluded that claimant "suffered a rather severe closed head injury with contusion of the left cerebral hemisphere. In view of my neurological examination at the present time, I am at somewhat of a loss to explain his complaints of inability to walk well and poor motor control of his legs and right arm. On the other hand, I think that these are real symptoms and not due to either a functional disturbance or to malingering, and I suppose are compatible with diffuse cerebral damage."

Claimant offered the May 14, 1985, evidence deposition of Dr. David K. Deets before the Commission. Dr. Deets, a surgeon, testified that he examined claimant four times over a course of four months in 1985. Claimant consistently displayed a degree of expressive aphasia, a slowness in speech. The examinations were normal in most respects. His gait was observed, and claimant was "quite uncertain of walking." He was unsteady. "When he would walk, his right foot would drag just ever so slightly as if he was using it to find his way as someone that had suffered a stroke." He seemed generally uncertain about the right side of his body. He was unclean. Claimant demonstrated a quite labile blood pressure, which is sometimes the result of central nervous system malfunction. He complained of daily headaches and dizziness.

Dr. Deets opined that "because of his apparent problems of expressing himself, of his seeming inability to concentrate at certain times, his generalized depression . . . I think the only type of employment . . . that I could see [claimant] in would be in a sheltered workshop type of facility perhaps with constant supervision as to details and which would not require any physical stress or fine manipulations." Dr. Deets had "severe reservations" about whether claimant should possess a driver's license at all. To a reasonable degree of medical certainty, claimant could not function as a truck driver or automobile mechanic.

Dr. Deets questioned both claimant's ability to physically exert himself and his mental capabilities to diagnose and repair things. He could not climb ladders or do general physical labor because of his dizziness. He could not operate farm equipment because of his inability to react or make judgments quickly.

Dr. Deets was shown two films of claimant which were taken by a covert photographer for the employer. As to part of the first film, he did not see claimant walk in that manner in the office. He observed in the film, however, that the "[r]ight arm doesn't seem to swing as much as the left arm does." In regard to the second film, Dr. Deets stated: "That's the way that he walks more often in the office than he did on the other film." The fact that claimant may have worked on cars, driven a pickup for a short distance, or helped out with errands around a farm would not alter Dr. Deets' opinion because "of the sporadic nature of what's been demonstrated . . . [that is,] whether he has the endurance to do it day in and day out."

Floyd Philhower, claimant's father, testified that he saw his son at the gas station on May 5, 1979, and claimant mentioned that he was going to Ladd. He did not state the purpose of the trip or that he was taking his mother. After the accident, claimant's father saw Harold Birdsley, claimant's boss, at the hospital. Philhower and his daughter, with Birdsley and his wife following, drove to where claimant's car had been parked. Philhower was retrieving claimant's tools from the car when he found an object and told Birdsley, "I don't know what this piece is." Birdsley replied, "That is what Steve [claimant] was to go after for the truck . . .." Birdsley said that he would take the object home with him.

Claimant presently lives with his father. Philhower observed that claimant has trouble performing even small tasks, and can do no heavy work. He has not returned to work. Until shortly before the arbitration hearing, four years after the accident, Philhower always washed and dressed claimant. Claimant was unable to feed himself very well. Philhower prepared all claimant's meals and handled his financial and insurance matters.

Betty Mecum, claimant's sister, testified that in May 1979 she lived at home with her parents and claimant. On the morning of May 5, 1979, she was with her father and Birdsley at the garage where claimant's wrecked car was parked. She heard her father say he did not know what something was, that it was not one of claimant's tools, and Birdsley replied, "This must be what -- it looks like something Steve got for the truck." Earlier, Birdsley had telephoned Mecum and said that he expected claimant to work on the truck that morning.

At the arbitration hearing, the 36-year-old claimant testified that when he was hired, he understood that he was to drive Birdsley's truck and maintain it in good repair. In respect to obtaining parts for the truck, claimant would sometimes drive alone to another city, once to Chicago, and once to Peru, to pick up a part. At other times, claimant and Birdsley drove together to pick up a part. For long-distance trips, claimant would either go in Birdsley's pickup or personal automobile. Birdsley paid for the parts. If claimant "had enough money to possibly pay for the part, I would go without getting money from [Birdsley]." Most of the time, he ...


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