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January 28, 1994


Appeal from Circuit Court of Will County. No. 92MR14375. Honorable Thomas Ewert, Judge Presiding.

Honorable John T. Mccullough, Presiding Justice, Honorable Thomas R. Rakowski, Justice, Honorable Alfred E. Woodward, Justice, Honorable Kent Slater, Justice, Honorable Philip J. Rarick, Justice

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Claimant, John Burgett, sought benefits pursuant to the Workers' Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.)(the Act) for injuries sustained while in the employ of respondent General Refractories. Burgett began working for General Refractories in 1978 as a grinder operator. Burgett injured his back on September 16, 1987. The injury consisted of a right-sided herniated disc at L5-S1 with mild compromise of the L4-L5 neural foramen bilaterally and a bulging disc at L-4-L5. Burgett's treating physician, Dr. Noel Bass, testified that this condition was permanent and that Burgett might be a candidate for surgery.

An arbitration hearing was held on May 15, 1989. The arbitrator found that the condition was permanent and that Burgett was permanently and totally disabled. Prior to the award becoming final, the parties entered into a settlement agreement which provided in pertinent part:

In lieu of litigation, the parties hereby compromise and adjust any and all claims for benefits under the Workers' Compensation Act arising out of the accident of 9/16/87, and including, but not limited to, claims for the cost of first aid, medical, surgical and hospital services incurred, and claims for compensation and other benefits on account of any and all disablements, disfigurements, diseases and death, whether known or unknown, and further waive any rights they may have under Sections 19(h) and 8(a) of the Act. The total amount of $90,000.00 represents approximately 50% loss of use of Petitioner's man as a whole plus disputed claims.

Burgett subsequently requested and received a release to return to work from Dr. Bass, and returned to work for General Refractories in February of 1990.

Prior to his return to work, Burgett was given a pre-employment physical by Dr. Hiroshi Eguro, an orthopedic surgeon. Dr. Eguro found a healed herniated disc and released Burgett to return to work with a 45-pound lifting restriction. Upon returning to work on February 19, 1990, Burgett's duties included flipping gates, moving shuttle conveyors and crushing vats, and unloading railroad cars. Burgett would have to unload vats of bad brick, and throw the bricks, each of which weighed from 12 to 90 pounds, into a crusher. Unloading railroad cars involved using a steel bar six to seven feet long and weighing about 25 pounds. On October 30, 1990, while opening a railroad car, the bar slipped and Burgett spun sideways, struck his back against the car and fell to the ground. A witness, Michael Fossen, testified that he saw Burgett fall, and that he complained of pain immediately thereafter. Burgett was taken to the emergency room at St. Joseph's Hospital. Dr. Donald Brobst, the treating company doctor, diagnosed a possible worsening of the lumbar sacral disc herniation and a thoracolumbar lumbar radiculopathy and referred Burgett to Dr. Leonard Rutkowski, a board certified neurosurgeon. Dr. Rutkowski had treated Burgett for his September 16, 1987, injury. Initially, Dr. Rutkowski prescribed work hardening and a functional capacity exam, and released him for light duty, with a 20-pound lifting restriction. General Refractories refused to pay for either the work hardening or functional capacity exams so neither was performed. Burgett returned to work on December 18, 1990, but was only able to work a few hours. Burgett returned to Dr. Rutkowski on December 24, 1990. Dr. Rutkowski gave him medication and took him off work. On January 3, 1991, Dr. Rutkowski performed a CT scan and a myelogram. On January 4, 1991, Dr. Rutkowski recommended surgery, which was performed on February 21, 1991. The surgery consisted of decompressing the disc at L4-L5 and removing 30-40% of the disc at L5-S1.

Dr. Rutkowski noted that prior to the October 30, 1990, injury, Burgett had totally normal reflexes with a hint of hamstring weakness on the right side. In contrast, after the October 30, 1990, injury, Burgett had a decreased reflex on the right side, leading to a new diagnosis of S1 radiculitis on the right. The S1 nerve was irritated acutely as demonstrated by diminishment of the right Achilles reflex, which Dr. Rutkowski found significant. Dr. Rutkowski also noted as significant the fact that the 1990 injury involved falling backwards with a twisting motion. Such twisting could exacerbate and cause a problem with the disc herniation or irritate the nerve roots. Dr. Rutkowski opined that the October 30, 1990, injury was a combination of causing a new condition and aggravating a preexisting condition, and was significant enough in and of itself to cause a herniated disc resulting in irritation of the nerve at S1 on the right side. According to Dr. Rutkowski, Burgett's difficulties with the S1 nerve as to function and irritability were a result of the October 30, 1990, accident.

A number of Burgett's co-workers testified that during the period between February 1990, when he returned to work, and the date of the accident, Burgett never complained of any back problems, nor did they notice him limping prior to the accident.

Section 19(b) hearings were held on March 6 and April 2, 1991. The arbitrator found that as a result of the October 30, 1990, accident, Burgett suffered an irritation to the S1 nerve root and an aggravation of his previously herniated disc requiring surgery; that surgery would not have been required but for this injury; and that the evidence did not establish that Burgett's prior condition was progressive or that Burgett's condition had so deteriorated that any normal activity would likely produce the complained-of condition. The arbitrator based his decision primarily on the medical deposition of Dr. Rutkowski and the fact that Burgett had been performing very heavy work since his return to work in February of 1990.

The arbitrator awarded 26 6/7 weeks of TTD and medical expenses. The arbitrator also awarded penalties of $1,530 pursuant to section 19(1), $3,608.61 pursuant to section 19(k), and attorney fees in the amount of $2,500 pursuant to section 16. These awards were based on the arbitrator's finding that an objective view of the evidence showed no reasonable basis to contest the claim.

On review, the Commission found that Burgett suffered a major industrial accident on October 30, 1990, which arose out of and in the course of his employment, and that his present condition of ill-being was causally related thereto. The Commission based its finding on the medical opinion of Dr. Rutkowski and on Burgett's testimony that he could perform heavy labor prior to the accident but not thereafter. The Commission also noted the testimony of Burgett's co-workers that Burgett worked normally before October 30, 1990, and was in severe pain after the accident. With respect to General Refractories' argument with regarding waiver, res judicata, and estoppel, the Commission ruled that those defenses went to the issue of whether Burgett's condition was the result of a new work injury or was solely the result of the natural degeneration from his 1987 work injury. The Commission adopted the opinion of Dr. Rutkowski and found that Burgett's condition was the result of both a new work injury as well as the aggravation of the preexisting condition from the 1987 work injury.

The Commission affirmed the TTD award, but reduced the medical expense award to $27,145.97 from $27,284.97. The Commission also affirmed the arbitrator's award of penalties and attorney fees, but increased the section 19(k) award to $4,130.77 and reduced the award for attorney fees to $826.15. Finally, the Commission remanded the case to the arbitrator ...

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