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05/03/96 PRAIRIE FARMS DAIRY v. INDUSTRIAL

May 3, 1996

PRAIRIE FARMS DAIRY, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (EDWARD J. KOSSMAN, APPELLEE).



Appeal from the Circuit Court of Madison County. No. 94-MR-612. Hon. Michael Meehan and David Herndon, Judges, presiding.

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

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Claimant, Edward J. Kossman, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries to his back that he allegedly sustained on November 10, 1981, while working for Prairie Farms Dairy (employer). Following hearing on claimant's section 19(b) petition, arbitrator Boyd found that claimant had sustained an injury to his back that arose out of and in the course of his employment and awarded him 24 weeks' temporary total disability (TTD) in the amount of $231.09 per week and $5,000 in necessary medical expenses. The Industrial Commission (the Commission) affirmed and remanded to the arbitrator for proceedings pursuant to Thomas v. Industrial Comm'n, 78 Ill. 2d 327, 35 Ill. Dec. 794, 399 N.E.2d 1322 (1980).

On remand in August 1990, arbitrator Douglas found that claimant's additional multiple medical conditions, such as his diabetes, hypertension, peripheral neuropathy, cholecystitis, residual effects of a stroke, degenerative osteoarthritis, degenerative disc disease, and left-sided spastic hemiplegia, were not related to the accident of November 10, 1981, based on the numerous medical records introduced and the report of Dr. Holder. The arbitrator further stated, "The considerable part of the medical points to unnecessary surgery for conditions of ill-being that were not related to one isolated traumatic event [accident of November 10, 1981]." Nonetheless, he found an aggravation of a preexisting condition and awarded claimant 24 weeks' TTD, $5,000 in medical benefits, and 15% disability of the person as a whole. The Commission again affirmed on May 8, 1991. On administrative review, the circuit court of Madison County, Judge Meehan presiding, reversed, finding the Commission's decision to be against the manifest weight of the evidence. The court stated, relying on Edgcomb v. Industrial Comm'n, 181 Ill. App. 3d 398, 130 Ill. Dec. 153, 536 N.E.2d 1364 (1989):

"In Edgcomb vs. Industrial Commission, 181 Ill. App. 3d 398, 536 N.E.2d 1364, 130 Ill. Dec. 153 (1989) the Appellate Court ruled that the treating surgeon's opinions ought to be given greater weight than the conclusions of examining doctors. As in Edgcomb, the treating doctor's findings were obtained from extensive examinations, objective tests and an internal inspection of petitioner's low back. [Citation.] It was error for the Industrial Commission to disregard Dr. Jacobs' testimony in favor of the cursory conclusions of the respondent's examining doctors." (Emphasis in original.)

On remand, the Commission relied entirely upon Dr. Jacobs and found that claimant was permanently and totally disabled and awarded him medical benefits in full. The circuit court of Madison County, Judge Herndon presiding, confirmed. Employer appeals, contending that Judge Meehan erred in holding that the Commission's award of 15% of the person as a whole was against the manifest weight of the evidence. For the reasons that follow, we agree.

Claimant alleges he suffered a back injury on November 10, 1981, after he slipped and fell. According to claimant, at the end of his workday he was washing his delivery truck and slipped on a soapy deck. He fell out of the truck's back door, striking his back on the bumper, his chest on the door, and his knee on the ground. Claimant had sustained a previous back injury, and he underwent surgery in 1978 by Dr. Jacobs. Claimant stated that between the 1978 surgery and the 1981 fall, he had no problems with his back.

Claimant first sought treatment in January 1982. He missed 24 weeks of work and then returned. In June, Dr. Jacobs admitted claimant to the hospital for testing. A myelogram revealed defects at L3-L4, L4-L5, and L5-S1. The defect at L5-S1 was new, according to Dr. Jacobs, while the other two defects were preexisting conditions. An EMG revealed lower motor neuron involvement of all leg muscles. The discharge summary contained the following diagnoses: herniated nuclear pulp at L3-L4; diabetes mellitus; peripheral neuropathy; weight loss; and lumbar spondylosis.

Dr. Hardin performed an extensive work-up on claimant on June 8, 1982, at the request of Dr. Jacobs. Dr. Hardin found evidence of peripheral neuropathy, particularly in the lower extremities, which he attributed partially to the diabetes and partially to the herniated nucleus pulposus at L3-L4. Dr. Hardin's impressions following the work-up were peripheral neuritis, peripheral neuropathy secondary to diabetes, old scarring and disc disease with nerve root compressed L4 and S1 on the right, degenerative arthritis of the thoracic and lumbar spine with spondylosis, and depression.

Claimant underwent a second myelogram in September 1982 under the direction of Dr. Hardin. This test showed that claimant's cervical and thoracic spines were normal. The lumbar spine showed extra dural defects at L1-L2, L3-L4, and mild reverse spondylolisthesis of L4 and L5. Upon discharge, Dr. Hardin diagnosed claimant with diabetic peripheral neuropathy and status post-lumbar laminectomy in 1978. Claimant continued working until March 24, 1984, when he had another accident in which he injured his ribs. He returned to work on May 7, 1984.

On April 7, 1985, claimant was admitted to the hospital for gall bladder surgery. He was diagnosed at this time with diabetes. He suffered a stroke on April 15 and underwent rehabilitation for approximately one year.

In a report dated September 24, 1985, Dr. Jacobs states: "[Claimant] did well with some intermittent back pain [following the surgery in 1978], but generally worked, and was symptom free with conservative management until June, 1982 when he had another myelogram, but no surgery."

In November of 1985, claimant was admitted to the hospital to undergo testing, including a myelogram. Diagnoses upon discharge were: displacement disc lumbar L4-5 left and L4-5 and S1 midline; spondylosis lumber; spinal stenosis lumbar L-3, 4, 5, and S1; arachnoiditis; hemiparesis, left poststroke; right middle cerebral artery branch occlusion; hypertension; and diabetes mellitus. Surgery to decompress at L3-L4 was discussed, but claimant decided to try physical therapy first. During this admission, claimant was twice examined by a consulting physician, Dr. Holder, at the request of Dr. Jacobs. Dr. Holder's report states that claimant suffers from multiple medical problems, including degenerative osteoarthritis of a severe and diffuse nature throughout the entire lumbar spine. In addition, he has severe degenerative disc disease with almost complete disc ...


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