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06/07/96 JACK ALANO v. INDUSTRIAL COMMISSION

June 7, 1996

JACK ALANO, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL. (COUNTY OF COOK, A BODY POLITIC, APPELLEE).



Appeal from the Circuit Court of Cook County, Illinois. No. 94-L-50357. Honorable Alexander P. White, Judge, Presiding.

Rehearing Denied August 6, 1996. Released for Publication August 13, 1996.

The Honorable Justice Holdridge Delivered The Opinion OF The Court. McCULLOUGH, P.j., and Rakowski, J., concur. Colwell, J., specially concurs. Rarick, J., dissents.

The opinion of the court was delivered by: Holdridge

JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT

The employee, Jack Alano (claimant), filed an application for adjustment of claim pursuant to the Worker's Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq. now 820 ILCS 305/1 et seq. (Michie 1995)) for injuries he allegedly sustained while working for the County of Cook (employer). Following a hearing, the arbitrator found the claimant eligible for temporarily totally disability (TTD) benefits and for permanent partial disability (PPD) benefits to the extent of 45% of the person as a whole. The Illinois Industrial Commission (Commission) modified the arbitrator's decision and ordered the employer to make payments for 125 weeks as provided under Section 8(d)2 of the Act because injuries sustained caused permanent partial disability to the extent of 25% of the person as a whole. The circuit court of Cook County confirmed the decision of the Commission. The claimant appeals, maintaining that he should have been found totally and permanently disabled. We affirm.

The claimant drove a truck for the employer for 14 1/2 years. His daily duties included filling potholes, cutting grass and picking up debris. On November 1, 1983, the claimant fell from his truck to the ground, hitting the entire right side of his body, including his leg, knee, ribs, arm, hand and shoulder. On November 3 and 4, 1983, the claimant received physical therapy treatments to his right shoulder from Dr. George Ruis. Shortly thereafter, the claimant began to treat with Dr. Robert Heck who prescribed heat treatments.

On November 18, 1983, Dr. Heck referred the claimant to Dr. Arthur Rodriguez of the South Side Physical Medical Center for physical therapy. Dr. Hari K. Agrawal, a staff member at South Side, opined on March 26, 1984, that the claimant could be released to light duty work. Physical therapy was discontinued on April 6, 1984.

The claimant continued treatment with Dr. Heck for pains alleged to have been caused by the accident. On August 31, 1984, Dr. Heck diagnosed Paget's disease, a chronic bone disease, in the claimant's pelvis and right leg.

The claimant was examined on April 17, 1984, at the employer's request by Dr. Melvin Post, chairman of orthopedic surgery at Michael Reese Medical Center. Dr. Post diagnosed arthritis and a torn rotator cuff in the claimant's right shoulder. He opined that surgery might be necessary and that the claimant could "perform light work activities not involving lifting especially in the overhead position in a repetitive manner." Dr. Post performed a follow-up examination on July 17, 1984, after which he opined that "nothing more need[s] to be done if the [claimant] avoids any work activities other than answering a telephone or sitting at a desk using his hands for fine manipulation."

The claimant was next examined by Dr. Sid John Shafer at the respondent's request on October 19, 1984. In his written report, Dr. Shafer noted the claimant's preexisting conditions of Paget's disease and osteoarthritis. Dr. Shafer opined that he "did not feel that the [claimant] is able to return to his regular daily tasks, but of course if a sedentary job is available, he certainly can return to work."

On October 22, 1984, the claimant underwent surgery for the removal of a bladder tumor. The record shows no further examination of the claimant until February 12, 1988, when Dr. Audley Loughran examined the claimant at the request of the employer. Dr. Loughran noted symptoms of Paget's disease and opined that the claimant could return to light duty. The claimant testified that he continued to receive TTD benefits until September 30, 1990.

On January 21, 1991, the claimant was examined at his request by Dr. Samuel J. Chmell. Dr. Chmell testified by evidence deposition that he had diagnosed the claimant's condition as a post-traumatic rotator cuff arthropathy of the right shoulder and exacerbation of degenerative arthritis of the right hip. Dr. Chmell opined that the November 1, 1983, fall was the cause of the claimant's right shoulder problem, and an exacerbating factor as to the claimant's right hip. Dr. Chmell further opined that the claimant was "totally and permanently disabled" as a result of his injuries.

The claimant was examined on January 2, 1991, by Dr. William F. Hejna at the request of the employer. Dr. Hejna testified by evidence deposition that the claimant had primary osteoarthritis throughout his spine, right shoulder, right knee and right hip. Dr. Hejna opined that the claimant's shoulder problem could be related to the accident on November 1, 1983. He further opined however that the claimant's neck, hip, and knee problems were the result of osteoarthritis and Paget's disease and were not causally related to the accident. Dr. Hejna further noted his opinion that the claimant was "totally disabled for work purposes on a permanent basis due to his osteoarthritis and Paget's disease."

The claimant testified at the arbitration hearing that daily pain persisted in his knee, shoulder and hip. Before the incident of November 1, 1983, the claimant performed several physical activities without pain. He had two years of high school education and had worked previously as a hotel doorman, car checker and cashier. The claimant, who was 65 years old at the time of the ...


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