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05/05/94 CASSENS TRANSPORT COMPANY v. INDUSTRIAL

May 5, 1994

CASSENS TRANSPORT COMPANY, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (BERNARD SHAW, APPELLEE).



Appeal from the Circuit Court of Winnebago County. Nos. 93-MR-130, 93-MR-131. Honorable Alford R. Penniman, Judge, Presiding.

Released for Publication June 8, 1994.

McCULLOUGH, Egan, Woodward, Slater, Rarick

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

These consolidated appeals by respondent Cassens Transportation Company, Inc., are from orders of the circuit court of Winnebago County confirming two decisions of the Illinois Industrial Commission (Commission) relating to claimant Bernard Shaw. Winnebago County case No. 93-MR-130 involved the judicial review of the Commission's decision in 91-WC-11512. Claimant filed an application for adjustment of claim on March 4, 1991, alleging disk herniation in the low back due to repetitive trauma with a date of accident of February 15, 1988. The arbitrator awarded claimant temporary total disability (TTD) benefits of $554.27 per week for 26 1/2 weeks. (Ill. Rev. Stat. 1991, ch. 48, pars. 138.8(b), 138.19(b).) Winnebago County case No. 93-MR-131 involved the appeal of the Commission decision in 91-WC-58019. Claimant filed an application of claim in that case on November 6, 1991, alleging disk herniation and lumbar syndrome caused by repetitive trauma with a date of accident of December 8, 1989. The arbitrator awarded claimant TTD of $554.27 for 125 5/7 weeks. On review of both decisions, the Commission affirmed and adopted the arbitrator's decision, noting that the decisions did not bar further hearings and decision under Thomas v. Industrial Comm'n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322, 35 Ill. Dec. 794.

On appeal, respondent raises the following issues: (1) whether the Commission's finding that the accident arose out of and in the course of claimant's employment with respondent was against the manifest weight of the evidence; (2) whether the Commission's finding that the claimant's condition of ill-being was causally related to said accident was against the manifest weight of the evidence; (3) whether the arbitrator committed an abuse of discretion by sustaining an objection to Dr. Jeffrey Coe referring in his testimony to three charts prepared by Garth Hall, an engineer, showing the vibration of truck seats and by sustaining an objection to respondent's questioning of Coe, a specialist in occupational medicine, concerning the significance of vibration in relation to the human body; and (4) whether the Commission's award of TTD for the period of January 15, 1992, through October 14, 1992, was against the manifest weight of the evidence because claimant was working during that period of time. We affirm.

Briefly, claimant's theory of liability was that the autohauler driving environment in which respondent placed claimant caused claimant's condition. The facts necessary for an understanding of this court's decision will be summarized as relevant to the Discussion of each issue.

The first issue concerns the arbitrator's evidentiary rulings. Two contentions are raised by respondent. One of these contentions is that claimant's objection on the ground of lack of foundation to respondent's question of Coe concerning the significance of vibration in relation to the human body should not have been sustained. However, respondent cites no authority in violation of Supreme Court Rule 341(e)(7) (145 Ill. 2d R. 341(e)(7)). This court declines to address respondent's argument for that reason alone. Nielsen v. United Services Automobile Association (1993), 244 Ill. App. 3d 658, 663, 612 N.E.2d 526, 529, 183 Ill. Dec. 874.

The arbitrator also sustained an objection of claimant to respondent's questions of Coe concerning charts made by Garth Hall and testified about by Hall. Coe, a practitioner in occupational medicine, had never examined claimant or any of the trucks driven by claimant. The objection to Coe's testimony with regard to these charts only related to two of the three charts. There was no objection to Coe testifying as to deposition exhibit No. 2, which compared the vibration frequency and vertical vibration of three different types of truck seats. When Coe was asked to relate the medical significance of the data shown on deposition exhibit No. 3 relating to fore and aft vibration of the Bostrom Fore & Aft Isolater, claimant objected because of lack of foundation and relevance. The objection was sustained. As to deposition exhibit No. 4, a chart comparing the typical ride of cars, four-wheel drive vehicles, trucks, and autohaulers, claimant objected again for lack of foundation because the testimony did not establish that Coe was the author of the document or was familiar with the data that went into the document. This was a continuing objection, and it was sustained.

Generally, Illinois rules of evidence govern proceedings before the Commission. ( Dexheimer v. Industrial Comm'n (1990), 202 Ill. App. 3d 437, 440, 559 N.E.2d 1034, 1036, 147 Ill. Dec. 694; 50 Ill. Adm. Code § 7030.70 (1991).) The evidentiary ruling of the arbitrator will only be overturned if it resulted from an abuse of discretion. (See Coriell v. Industrial Comm'n (1980), 83 Ill. 2d 105, 111, 413 N.E.2d 1279, 1281, 46 Ill. Dec. 166.) Likewise, whether an expert is qualified to testify about a particular subject is a matter to be decided by the trial Judge, and that decision will be overturned only if it constitutes an abuse of discretion. People v. Free (1983), 94 Ill. 2d 378, 410, 447 N.E.2d 218, 233, 69 Ill. Dec. 1.

Although demonstrative evidence can make expert testimony more understandable, unlike the situation in Burke v. Toledo, Peoria & Western R.R. Co. (1986), 148 Ill. App. 3d 208, 213, 498 N.E.2d 682, 686, 101 Ill. Dec. 358, this case did not involve a jury and the charts were already before the arbitrator as a result of Hall's deposition. Furthermore, Coe was asked to interpret the charts without demonstrating that he had any knowledge of how the charts were created or where the information came from which appeared on the charts. In addition, Coe was not asked if these charts were the type of facts or data on which practitioners in occupational medicine rely in formulating opinions. We note particularly that the record does not disclose that respondent ever argued the merits of this issue before the arbitrator. Instead, the objection was made during Coe's evidence deposition, and the arbitrator ruled on the objection by marginal notation without benefit of arguments of counsel. Additionally, although the objection was made in an evidence deposition and respondent could not then know the arbitrator's ruling, no attempt was made by respondent to lay a better foundation or rephrase the questions. On the record before us, there is nothing to demonstrate an abuse of discretion on the part of the arbitrator in sustaining claimant's objections to Coe's testimony concerning the charts.

We next consider whether the Commission's finding that the accident arose out of and in the course of claimant's employment with respondent was against the manifest weight of the evidence and whether the Commission's finding that the claimant's condition of ill-being was causally related to said accident was against the manifest weight of the evidence. Respondent complains there is no single event or specific activity to which claimant can point as the onset of the condition and there is no expert evidence that vibration of an autohauler can or did cause claimant's condition. Respondent also argues that although driving the autohauler could have caused pain to claimant, that did not establish that the driving was the cause of the condition because the condition could have resulted from an aging or degenerative process.

The unrefuted testimony of claimant was that the pain he experienced in his back and legs first manifested itself in February 1988 while he was driving an autohauler for respondent. His job involved moving ramps to load cars, driving the cars, attaching a hook and chain to the cars, and ratcheting the car down to the springs. Depending upon the size of the car or the position he was in, he would work the steel bar for the ratchet with one hand or two. When the cars were on the upper rack, he stood underneath them and would ratchet with his arms over his head. He used his arms interchangeably. He would then drive the truck loaded with cars to the appropriate destinations, unload the cars, and return to a terminal. Depending on the loads and destinations, such travel would entail 500 to 2,000 miles per week.

In the nearly 10 years he worked for respondent prior to February 1988, claimant drove several different autohaulers with different types of seats. He never had a brand new autohauler. Of the approximately 20 autohaulers he drove, only one may have had less than 100,000 miles on it. The seats were worn ...


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