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August 16, 1996


Appeal from the Circuit Court of Cook County. No. 91-L-50423. Honorable Alexander P. White, Judge Presiding.

Rehearing Denied October 23, 1996. Released for Publication November 18, 1996.

Presiding Justice McCULLOUGH delivered the opinion of the court: Rakowski and Holdridge, JJ., concur. Colwell, J., dissents part. Rarick, J., joins in the dissent.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent employer Modern Drop Forge appeals the judgment of the circuit court of Cook County confirming the Industrial Commission's decision awarding benefits to the claimant, Robert Koenig. The respondent contends that (1) the Commission erred in awarding benefits at the rate of 66 2/3 % of average weekly wage for a statutory amputation, rather than at the 60% rate; (2) the award of penalties and attorney fees was against the manifest weight of the evidence; and (3) the Commission's finding that the claimant's carpal tunnel syndrome in his left hand is causally related to the accident in which his right hand was severed is against the manifest weight of the evidence. We affirm in part and reverse in part the judgment of the circuit court, and confirm the Commission decision as modified.

The claimant was injured on December 15, 1988, at Modern Drop Forge's Blue Island plant when a 1,500 pound "drop hammer" crushed his right forearm and broke his left middle finger at the base of the proximal phalanx. His right arm was subsequently amputated approximately 8 to 10 centimeters below the bend of the elbow. Prior to the accident, Koenig was right-handed. The claimant's initial treating physician, Dr. Neal Zimmerman, offered the claimant surgical and nonsurgical options for repair of the injured finger. Even though the nonsurgical option might result in less than anatomic correction of the fracture, claimant refused surgery on the left hand.

The claimant was fitted with a prosthetic device, and attended physical therapy for both the right arm and left hand. He returned to work on June 12, 1989. Upon his return to work, the claimant was no longer physically able to perform his previous job, which had paid $9.25 per hour for a 40-hour week. Instead, he went to work in the respondent's code inspection shop, where he was paid $6 to $6.50 per hour and worked only 22 to 26 hours per week. This position required the claimant to lift steel machine parts, place them on a table, measure them with a micrometer and then replace them in a bin. The claimant attempted to perform this job using only his remaining left hand, and was not given any vocational rehabilitation.

The claimant testified that soon after he returned to work, he began to notice numbness and tingling in his left hand. Prior to his accident, the claimant had never experienced any problem with hisleft hand. He also said that he was slower than the other inspectors in performing his job.

On August 18, 1989, the claimant resigned from Modern Drop Forge. He testified that he was having trouble using the prosthetic device, he was having numbness and tingling in his left hand, he could not keep up with his work, and he was "really depressed." He moved to Buffalo, New York, to be near his family. He attended some vocational rehabilitation in New York, attempted to return to school (but had difficulty learning to write left-handed) and received services from the New York State Department of Education for Individuals with Disabilities. He was not employed at the time of the hearing before the arbitrator.

From the time of the accident through March 16, 1992, the respondent had paid the claimant $6,173.76 in temporary total disability (TTD) benefits, and had "loaned" him $1,000 against his statutory compensation entitlement for the loss of his right arm. This "loan" was made on August 4, 1989, after the claimant informed the respondent that he was having trouble paying his bills. On March 12, 1992, the claimant filed a petition for penalties and attorney fees regarding the delay in payment of the permanent partial disability (PPD) benefits for the amputation of an arm. On March 18, 1992, the respondent paid the amount of PPD benefits that had accrued to that point ($39,559.48), and thereafter made regular periodic payments.

Dr. Andrew C. Matteliano became the claimant's treating physician in Buffalo and, in January 1991, diagnosed the claimant as suffering from left carpal tunnel syndrome resulting from overuse following the amputation of the dominant right hand. An electromyography (EMG) and nerve conduction velocity test performed on March 6, 1992, were compatible for left carpal tunnel syndrome. Matteliano believed the carpal tunnel syndrome was related to the loss of the dominant arm. He acknowledged that the claimant suffered a fall in December 1990, for which claimant did not give a history of striking the left hand.

At the request of the employer, the claimant was examined on March 16, 1992, by Dr. Janet Elliot. She found no indication of carpal tunnel syndrome. She opined that the claimant suffered from tendonitis. She testified that she got the impression from the claimant that his left hand symptoms were "intermittent" and that he had returned to school and was using his left hand for writing. In her report to the respondent, she acknowledged that the EMG performed at Matteliano's request did show mild evidence of carpal tunnel syndrome. It was her opinion that claimant's left hand symptoms were not caused by the work he performed for respondent in 1989following the amputation of the right arm. She explained that tendonitis could come and go.

Following hearings on June 15 and November 13, 1992, the arbitrator awarded the claimant $246.95 per week for 25 3/7 weeks for TTD (820 ILCS 305/8(b) (West 1992)) and $222.25 per week for 272 1/4 weeks for PPD. The PPD was awarded for loss of 15% use of the left hand, 25% loss of use of the left middle finger, and 100% loss of use of the right arm. 820 ILCS 305/8(e)(a), (e)(3), (e)10) (West 1992). The arbitrator specifically found that the respondent's delay in paying benefits was unreasonable and vexatious, but said he believed he was without authority to award penalties, as only the Commission is specifically authorized to do so. The arbitrator directed the claimant to present his claims for penalties and fees to the Commission.

The Commission modified the arbitrator's award in the following respects by awarding (1) PPD for 100% loss of an arm at the rate of $246.95 (66 2/3% of claimant's average weekly wage) for 235 weeks; (2) PPD at $222.25 per week (60% of the average weekly wage) for a total of 37.25 weeks for loss of use of the left hand (28.5 weeks) and left middle finger (8.75 weeks); and (3) $18,874.39 in penalties pursuant to section 19(k) of the Workers' Compensation Act (Act) (820 ILCS 305/19(k) (West 1992)) and $3,774.88 in attorney ...

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