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02/04/94 ROCCO LO RUSSO v. INDUSTRIAL COMMISSION ET

February 4, 1994

ROCCO LO RUSSO, PLAINTIFF-APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (NORTH SHORE CEMENT, INC., DEFENDANT-APPELLANT). NORTH SHORE CEMENT, INC., PLAINTIFF-APPELLANT, V. THE INDUSTRIAL COMMISSION ET AL. (ROCCO LO RUSSO, DEFENDANT-APPELLANT.)



Appeal from Circuit Court of Cook County. Nos. 90L50763, 90L50106. Honorable Mary L. Conrad, Judge Presiding.

Released for Publication March 18, 1994.

Woodward, Rakowski, Rarick, McCULLOUGH, Slater

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Claimant, Rocco Lo Russo, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). Therein he alleged injuries to his lower back arising out of and in the course of his employment with the employer (North Shore Cement, Inc.). Claimant filed a petition for immediate hearing, pursuant to section 19(b-1) of the Act. Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b-1).

On April 8, 1988, the arbitrator found that, as a result of accidental injuries arising out of and in the course of his employment of July 9, 1987, claimant was temporarily totally disabled for a period of 38 3/7 weeks and was entitled to reasonable and necessary medical expenses. On August 8, 1988, the Commission affirmed the decision of the arbitrator. This decision was not appealed by the employer.

Claimant filed a second section 19(b-1) petition on February 1, 1990. The arbitrator found that evidence of treatment for injuries sustained by claimant in a December 11, 1987, automobile accident were not submitted at the first section 19(b-1) hearing and that these documents were relevant to the issue of causation and admissible at the second section 19(b-1) hearing. The exhibits were admitted over claimant's objection. The employer's exhibit 1 consisted of Dr. Belisario Arias' records, which made reference to claimant's car accident of December 11, 1987. Exhibit 2 is a January 8, 1988, report from River Grove/Melrose Park Clinic, which stated that claimant had increased pain due to a car accident. Exhibit 3 is a November 11, 1989, report from the Melrose Park Clinic; it merely refers to the subject accident. The arbitrator relied on these exhibits in finding that claimant failed to prove there was a causal connection between his inability to return to work and the accidental injury of July 9, 1987. The arbitrator denied additional compensation or reimbursement of medical expenses. Claimant appealed the arbitrator's decision.

On June 4, 1990, the Commission affirmed and adopted the arbitrator's decision. Claimant appealed this decision to the circuit court, and, on February 15, 1991, the trial court found that the doctrine of collateral estoppel barred the introduction of the employer's exhibits 1, 2 and 3, because they could have been offered at the first section 19(b-1) hearing.

The trial court directed the Commission to make a new decision on claimant's eligibility for temporary total disability (TTD) compensation, excluding the employer's exhibits 1, 2 and 3 from its consideration. The Commission, after considering the entire record without the excluded exhibits, found that claimant was temporarily totally disabled for a period of 51 6/7 weeks between February 17, 1989, and February 15, 1990, that his condition of ill-being was causally related to the July 9, 1987, accident, and that he was entitled to reasonable and necessary medical expenses. The circuit court confirmed this decision, and employer made a timely appeal.

On appeal, the employer raises two issues, namely, (1) whether the circuit court erred in ruling that exhibits 1 through 3 were barred by collateral estoppel, and (2) whether the Commission's decision upon remand was against the manifest weight of the evidence.

First Section 19(b-1) Hearing

The first arbitration hearing was held on February 22 and April 8, 1988. Nicola D'Alesio testified through an interpreter that, on July 9, 1987, claimant and he worked at a site near Belmont and Central in Chicago, Illinois. Claimant complained of back pain after they tried to lift a heavy concrete slab with a 2 by 4. Mr. D'Alesio was present on July 10, 1987, when claimant informed foreman Vincent Battista about the injury. Mr. D'Alesio stated that Mr. Battista suggested that claimant seek medical care.

Phillip Rubino, president of North Shore Cement, Inc., stated that Vincent Battista was claimant's crew foreman on July 9, 1987, and that Mr. Battista was in Italy at the time of the arbitration hearing. He acknowledged it was possible that the company was performing work at Belmont and Central in July 1987. Mr. Rubino agreed that claimant was performing cement finishing duties during that month. He was unable to verify whether claimant was on the pouring crew at the Belmont site on July 9, 1987. Claimant notified Mr. Rubino of a work-related injury after he had been off work a few days. Mr. Rubino instructed claimant to get medical help. He denied suggesting that claimant pursue a claim under the union's insurance plan.

Claimant testified with the aid of an interpreter. On July 9, 1987, he was 26 years old and worked for the employer as an assistant cement finisher. Nicola D'Alesio, a co-worker, and claimant were using a 2 by 4 to lift a concrete slab that weighed between 50 to 100 pounds. Claimant stated that Vincent Battista, his supervisor was present. Claimant noticed a pain in his lower back that traveled into his left leg, but he continued working. After about 15 minutes, claimant experienced increased discomfort and began to walk in a stooped manner. Claimant sat down and informed Mr. Battista about his injury and pain. Mr. Battista criticized him for walking "crooked" and told claimant that there was nothing wrong with him.

Claimant went home, took a hot bath and applied Ben Gay to his back. He continued performing his duties through July 14, 1987, but reduced his lifting activities due to recurrent back pain. On July 15, 1987, claimant went to the emergency room of Resurrection Hospital, where he gave Dr. Zimmer a history of a work-related injury with an immediate onset of pain in his back and left leg. Dr. Zimmer had X rays taken and prescribed medication. Claimant returned to work the next day and continued working until July 27, 1987. Claimant's complaints of back and left leg pain persisted.

On July 28, 1987, claimant went to Dr. Stephen Pruni, a licensed chiropractor. At this examination, claimant accomplished right leg raising to 30 degree in supine and sitting positions. Claimant had positive Braggards and Valsalva maneuvers, which indicated a disc lesion. Dr. Pruni attributed the positive Goldthwait and Bechter's signs to disc involvement. Claimant experienced problems getting in and out of his chair and had a positive Mineris sign. Dr. Pruni checked claimant's deep tendon reflexes and noted decreased strength and sensation, especially on the left. Heel/toe walking was also positive on the left. Dr. Pruni found severe back spasm and recommended that claimant undergo diagnostic tests. He subsequently diagnosed a L5-S1 disc herniation and treated claimant three times a week with manual traction, low voltage galvanism, hot/moist packs and trigger point physical therapy to the spine.

Dr. Per Freitag, an orthopedic surgeon, evaluated claimant on August 4, 1987, at the request of Dr. Pruni. The same day, Dr. Freitag admitted claimant to John F. Kennedy Medical Center, where he received conservative care and underwent further tests. Dr. Freitag agreed with Dr. Pruni's diagnosis of a left L5-S1 herniated disc with left radiculopathy. Since claimant's symptoms were not alleviated by conservative treatment, Dr. Freitag recommended that claimant undergo a L5-S1 microlumbar diskectomy. He concluded that claimant's back condition was causally related to the July 9, 1987, accident and that it was permanent in nature. On August 10, 1987, Dr. Freitag discharged claimant, restricted him from working and prescribed analgesics and muscle relaxants.

Dr. Pruni, who did not consider claimant capable of working, continued to provide him with chiropractic care through October 1987. There was never any significant improvement of his back during this period. Dr. Pruni testified, based upon a reasonable degree of medical and surgical certainty, that the July 9, 1987, work injury caused claimant's L5-S1 herniation.

Dr. Belisario A. Arias, a neurosurgeon, first examined claimant on October 22, 1987. Claimant gave him a history of back pain beginning on July 9, 1987. Dr. Arias found positive straight leg raising on the left with restricted range of motion of the lumbar spine. Claimant limped and had an antalgic gait. On October 23, 1987, Dr. Arias admitted claimant to Westlake Hospital for a lumbar MRI and myelogram, which confirmed a left L5-S1 extruded disc with degenerative disc disease. Dr. Arias subsequently performed a left L5-S1 hemilumbar laminectomy and foraminotomy with a resection. He provided claimant with follow-up care after his October 30, 1987, discharge. Dr. Arias instructed claimant to remain in bed and prescribed medication and physical therapy. He re-admitted claimant on November 12, 1987, for debridement and secondary closure of the lumbosacral wound that had become infected and partially opened.

A November 14, 1987, CT scan of claimant's lumbar spine revealed that the L5-S1 herniated disc had not been completely removed. Specifically, Dr. B. Yoon, a radiologist reviewing the CT scan, wrote:

"There is obliteration of the left anterior and lateral epidural recess at the level of the L5-S1 intervertebral disc. The finding is most likely due to a herniated disc between the L5-S1 intervertebral disc space on the left side. There is also evidence of a partial laminectomy at the left side of L5 lamina. A similar finding was present in previous study of October 23, 1987.

IMPRESSION: Herniated disc at L5-S1 intervertebral disc space, more pronounced on the left side. Partial laminectomy is also noted."

Claimant testified that he was involved in a car accident on December 11, 1987.

On cross-examination, the following dialogue took place:

"Q. On December 11, 1987, were you involved in an automobile accident?

A. Yes.

Q. And were you with your wife and someone else at that time?

A. Yes.

Q. And after that accident did you see Dr. Pruni?

A. No.

Q. Have you seen any doctor after that accident on December 11, 1987?

A. My own doctor.

Q. And who is that?

A. Arias.

Q. Did you tell him you were in an automobile accident?

A. Yes.

Q. Did he give you any ...


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