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May 12, 1995


Appeal from the Circuit Court of Cook County. The Honorable Joanne L. Lanigan, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: McCULLOUGH, P.j., Colwell, McCUSKEY, and Rarick, JJ., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Donald Pluto, Jr. (claimant) 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., now 820 ILCS 305/1 et seq. (West 1992)) alleging that he sustained an accidental injury arising out of and in the course of his employment with T.R. Hess Construction (employer). The arbitrator awarded the claimant 110-3/7 weeks of temporary total disability (TTD) benefits at $540.53 per week for the period of February 16, 1989, through March 31, 1991. For the purpose of calculating a wage differential award under Section 8(d)1, the arbitrator found that the claimant's average weekly wage was $810.80. The arbitrator rejected the payment of medical bills from Northwest Indiana Neurodiagnostics in the amount of $2,650 and Methodist Hospital in the amount of $734. The arbitrator further found that the claimant was unable to perform his usual and customary employment and awarded the claimant $282.40 per week for the duration of his disability pursuant to Section 8(d)1 of the Act. The arbitrator denied the award of penalties pursuant to Section 19(1) of the Act. The Illinois Industrial Commission (Commission) affirmed the arbitrator's award and on administrative review, the Commission's decision was confirmed by the circuit court. The issues raised on appeal are: (1) whether the calculation by the Commission of the wage differential award pursuant to Section 8(d)1 of the Act was in accordance with the law; (2) whether the denial of payment of a portion of the medical expenses was consistent with Section 8(a) of the Act; (3) whether the determination of the Commission that the claimant was not entitled to penalties pursuant to Section 19(I) is against the manifest weight of the evidence; and (4) whether the Commission's findings that the claimant was engaged in suitable post-occurrance employment is supported by the evidence. For the reasons which follow we affirm.

The claimant was employed as an ironworker on February 16, 1989, when he fell and landed on his left foot and buttocks. He received emergency treatment on the day of the accident and also saw his physician, Dr. Jones, who referred him to Dr. Patel, a surgeon. Dr. Patel performed surgery to the left foot to repair fractures of the second, third, and fourth metatarsals.

The claimant also sought treatment from Dr. Kostidis, a chiropractor, for back pain. Dr. Kostidis had treated the claimant for pain in his neck, upper and lower back prior to the accident. Following the accident, the claimant's back pain increased due to his limping and walking with crutches.

The claimant remained under the care of Drs. Patel and Kostidis throughout 1989. As of October 23, 1989, Dr. Patel concluded that the fractures were healed and he advised the claimant to engage in progressive activity and return to work. The claimant did return to work for a few days but experienced stiffness, pain and instability of his foot. He returned to Dr. Patel and began physical therapy treatments. The claimant also saw Dr. Mitsos on January 24, 1990, who concluded that the claimant's injuries were healed but that there might be a psychological component to his complaints. On March 24, 1990, the claimant saw Dr. Farrales who diagnosed the claimant as having a post-traumatic stress disorder and recommended a work-hardening program.

The claimant began the work-hardening program at STEPS in April 1990. During the program he experienced pain in his foot, ankle, and back. The claimant returned to Dr. Kostidis and Dr. Jones for treatment of his back pain. The claimant completed the work-hardening program on May 18, 1990. Although the claimant was classified as being able to do heavy work, ironworking was considered very heavy work. Therefore, it was recommended that the claimant undergo vocational retraining to find suitable employment up to the heavy work level.

The claimant met with Beth Healy from Rehabilitation Management and began on-the-job training with Werner-Herbison-Pagett on September 20, 1990. On April 1, 1991, he began working for the company as a construction consultant and estimator at a starting salary of $400 per week.

Dr. Shermer examined the claimant on January 28, 1991, on behalf of the employer and concluded that the claimant's metatarsal fractures were healed and well aligned. His further findings were that there was excellent stability and function of the foot with the exception of minimal restriction of the ankle joint with plantar flexion and eversion. There was also a mild flexion restriction of the second and third digits due to the surgical scar. Dr. Shermer concluded that the claimant was able to return to his former position as an ironworker. Dr. Patel saw the claimant on February 28, 1991, and also concluded that he could return to work but that he should start with a low level of work and progress very slowly.

The claimant saw Dr. Sommer, a podiatrist, who recommended orthotics and an ankle brace. On August 12, 1991, the claimant was examined by Dr. Pahwa, on behalf of respondent. Dr. Pahwa concluded that the claimant's foot and ankle were stable with some loss of inversion and swelling over the forefoot and second toe. He was also of the opinion that the claimant could resume work as an ironworker.

In September 1991 the claimant sought treatment from Dr. Wojnaroski who referred him to Dr. Mylos. Dr. Mylos recommended an EMG and a NCV which was performed by Dr. Amico. At his attorney's request, the claimant was also examined by Dr. Coe. Dr. Coe was of the opinion that the claimant was unable to return to his position as an ironworker.

The claimant was paid TTD benefits through January 28, 1991, which was the date that the employer's physician, Dr. Shermer, concluded that the claimant could return to work. Thereafter, an advance against permanent partial disability (PPD) of $4,859.41 was made to resolve a dispute over TTD benefits from January until April 1991 when the claimant began work at Werner-Herbison-Pagett. There had also been an underpayment of weekly TTD benefits prior to ...

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