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05/03/96 ENRICO L. PAOLETTI v. INDUSTRIAL

May 3, 1996

ENRICO L. PAOLETTI, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL., (VILLAGE OF WINNETKA, APPELLEE).



Appeal from the Circuit Court of Cook County. No. 91 L 51022. Honorable Alexander P. White, Judge, Presiding.

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

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Claimant, Enrico L. Paoletti, appeals the trial court's affirmance of the Industrial Commission's decision which modified the arbitrator's decision. Claimant argues on appeal that: (1) The Commission's finding that the "net profit" of his landscaping business should not be included in the calculation of his average weekly wage is against the manifest weight of the evidence; (2) the ruling of the Commission, admitting additional evidence, is against the manifest weight of the evidence; (3) he was denied due process of law because the arbitrator did not allow him to present rebuttal evidence to the testimony of Dr. Mercier; (4) he was denied due process of law because the Commission did not allow him to present rebuttal evidence to a video surveillance tape of claimant; and (5) the Commission's finding that he is permanently partially disabled only to the extent of 20% loss of the person as a whole is against the manifest weight of the evidence. We affirm in part, reverse in part, vacate the Commission's award and remand this cause to the Commission with directions.

The following are the pertinent facts. Claimant sustained an injury to his back on May 17, 1985, when he picked up a bag of garbage while he worked as a refuse scavenger for respondent, Village of Winnetka, Public Works Department. Claimant was treated for his back injury at the Highland Park Hospital emergency room on May 18, 1985.

We note that the claimant, while working for respondent, was also the president and sole shareholder of E. Henry Paoletti, Inc., which is a landscaping business. The claimant operated his landscaping business as a subchapter S corporation, and elected to be covered under the Workers' Compensation Act.

The claimant testified that he was seen on three occasions by Dr. Henry Hollander, who was the respondent's doctor. He stated that Dr. Hollander referred him to Dr. Rothman for treatment on his back. Claimant was admitted to Highland Park Hospital on July 26, 1985, where he underwent a laminectomy and microdisectomy. The disc at L5-S1 was removed during these procedures. Claimant was discharged from the hospital on August 1, 1985. Claimant injured his back again in a car accident on August 13, 1985.

Gayle Jones, a personnel officer for respondent, testified that Dr. Rothman was one of the doctors who handled work related injuries for the respondent. Dr. Rothman provided respondent, at its request, records and reports of the claimant's progress during the period of May 21, 1985, through October of 1986.

Ms. Jones sent Dr. Rothman a letter, dated November 18, 1985, which requested Dr. Rothman to give his opinion on whether claimant would be able to perform certain jobs for respondent. The list of possible jobs were identified as follows:

Drive truck

Drive truck (pick up parts)

Sweep floor

Mop floor

Clean wash rooms

Wash windows

Wash walls

Rake leaves

Clean trucks

Polish trucks

Landscaping (in season)

Operate snow blower (mounted on tractor)

Plow snow

Shovel ...


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