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06/30/97 VILLAGE OREANA v. INDUSTRIAL COMMISSION ET

June 30, 1997

THE VILLAGE OF OREANA, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (TOMMY GEPHART, APPELLEE).



Appeal from Circuit Court of Macon County. No. 95MR120. Honorable John K. Greanias, Judge Presiding.

Thomas R. Rakowski, J., Honorable John T. McCullough, J. - Concur, Honorable Michael J. Colwell, J. - Concur, Honorable Philip J. Rarick, J. - Dissent, Honorable William E. Holdridge, J. - Joins IN Dissent. Justice Rakowski delivered the opinion of the court. McCULLOUGH, P.j., and Colwell, J., concur. Rarick, J., dissents, joined by Holdridge, J.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Claimant, Tommy Gephart, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1994)) for injuries to his back that he sustained on January 22, 1993, while working for the Village of Oreana (employer). The arbitrator found that claimant failed to prove a causal connection between the condition that necessitated surgery and his accident on January 22, 1993. The Industrial Commission (the Commission) reversed and the circuit court of Macon County confirmed. Employer appeals, contending the Commission's decision that claimant proved a causal connection between his condition that necessitated the surgery, including a spinal fusion, and the accident is against the manifest weight of the evidence. We agree.

FACTS

Claimant worked for employer as a public works superintendent in its water department. On January 22, 1993, while working, he attempted to hop over an 8-inch-high, 12-inch-wide snow drift and, according to him, "when I landed, everything in my back just felt like it collapsed, just like an accordion, came together, and pain." He noticed pain in his mid and lower back and a burning sensation in his hips, legs, and calves. After taking 15 minutes to walk back to the treatment building, he phoned his wife, who took him to the hospital. At the hospital, he received X rays and medication and was told to see his family physician, Dr. Fritz.

Claimant saw Dr. Fritz on January 25, 1993. Claimant advised Dr. Fritz that he had had 15 to 20 episodes with his back since 1977 and had had six to seven in the last year. Claimant stated his problems could occur without any precipitating stress. Dr. Fritz ordered an MRI and referred claimant to Dr. Fulbright, a neurosurgeon. Dr. Fulbright saw claimant on February 8, 1993. After taking claimant's history, performing an examination, and reviewing the MRI, he ordered outpatient physical therapy and referred claimant back to Dr. Fritz. Dr. Fulbright found no evidence of a surgically remedial disease.

On March 8, 1993, at employer's request, claimant saw Dr. Ankenbrandt. Dr. Ankenbrandt diagnosed significant central disk protrusion or herniation and stated claimant may require surgery to correct his problems. However, he opined that claimant's back showed no sign of traumatic injury on January 22, 1993. He also stated there were no signs of a previous injury to claimant's back even though claimant gave such a history.

On March 17, 1993, claimant saw Dr. Schroeder, whom he was referred to by Dr. Fritz. Dr. Schroeder prescribed additional physical therapy, a TENS unit, and after these were unsuccessful, two steroid injections, also unsuccessful. He did not find claimant to be a surgical candidate. Dr. Schroeder could ascertain no cause for claimant's complaints and stated, "this gentleman's pain complaints [are] inconsistent with any form of disability I know. I think this gentleman is suffering from a severe conversion reaction." *fn1 He believed claimant might require psychiatric help. Dr. Schroeder referred claimant to Dr. Harms, an orthopedic surgeon.

Claimant first saw Dr. Harms on May 20, 1993. Claimant told Dr. Harms he had had some back problems on and off over the past 12 years but stated he had no prior injuries, accidents, or broken bones. He advised the doctor that, after jumping the snow drift, he experienced immediate pain in his back that went into his legs. Dr. Harms examined claimant and reviewed X rays and the MRI. He diagnosed symptomatic degenerative disk disease at L4-L5 and L5-S1. Dr. Harms was aware claimant had treated with Dr. Fritz and Dr. Schroeder but did not recall reviewing their records.

On July 13, 1993, Dr. Harms performed a laminectomy and spinal fusion at L4, L5, and S1. Claimant returned to work on November 15, 1993, working 12 hours per week. However, after returning, he noticed pain in his hips and leg cramps from his hips to his ankles.

At employer's request, Dr. Matz, a neurosurgeon, reviewed claimant's medical records in late August of 1993. He found no indication that claimant's surgery was causally connected to the January 22, 1993, accident. He believed claimant's problems subsequent to January 22, 1993, were, "in essence, *** another episode involving his lower back, indistinguishable from the lengthy history of low back complaints that he had over the years." He also stated that if claimant suffered an aggravation of a preexisting injury on January 22, 1993, this condition resolved itself by the time he saw Dr. Fulbright on February 8, 1993, since at that time, Dr. Fulbright found no psychologic abnormalities. Dr. Matz also disagreed that claimant required surgical intervention and stated the surgery was performed by Dr. Harms, who was unaware of contradictory physical findings in the medical records.

There is no dispute that prior to January 22, 1993, claimant suffered from back problems and had treated numerous times dating back to 1977. In February of 1977, while in the military, claimant injured his back while lifting a welder. He was discharged and received a disability rating. In 1979, claimant lifted a spring suspension from a truck and injured his back. He suffered from a constant ache in his back that radiated into his legs. In 1980, claimant was hospitalized for 30 days due to the 1979 injury. In 1982, a myelogram was performed with normal results. In April of 1987, claimant was seen at the Veteran's Hospital. At this time, he stated he had been raking for approximately 10 minutes when he felt a pop in his low back. He complained of low back pain with radiation into his legs. In December of 1989, claimant again was seen at the Veteran's Hospital with complaints of discomfort in his low back and hips as well as radiation of burning into both legs. Finally, on January 30, 1990, claimant was seen for complaints of low back pain that he stated he had had for three to four months. He also complained of a burning sensation in the posterior regions of his thighs.

Claimant also admitted that on January 18, 1993, four days prior to the accident, he had back pain. However, he stated his back pain after the accident was different from the pain prior to the accident.

ANALYSIS

Employer's only contention is that the Commission erred in finding a causal connection between claimant's accident of January 22, 1993, and his condition that necessitated surgery in July of 1993. It contends that the only testimony that addressed causal connection was that of its expert, Dr. Matz, who found no causal connection. It argues that the Commission's reliance on Dr. Harms' testimony was error.

In finding claimant sustained his burden of proving a causal connection, the Commission based its opinion on "[claimant's] credible testimony, [his] consistent history of accident given to all of the physicians, treating as well as evaluating doctors, the chain of events and Dr. Harms' causal connection opinion that the January 22, 1993 accident was an aggravation of [claimant's] pre-existing condition and that this aggravation accelerated [claimant's] condition of ill-being, necessitating fusion surgery." The Commission then stated, "it is for the Commission to decide which medical view is to be accepted ***. [Citation.] The Commission accords greater weight to the opinions of Dr. Harms than the opinions of Dr. Matz, finding that Dr. Harms' opinions are more consistent with the facts and are credible and persuasive."

Again, employer contends that there is no conflicting medical testimony in this case and the only opinion on causal connection is that of Dr. Matz.

"Just as the existence of accidental injury is a question of fact for the Commission where a preexisting condition is involved, so too is the question of whether there is a causal connection between the alleged accident and the current condition of ill-being. [Citation.] The appropriate question is whether the evidence can support an inference that the accident aggravated the condition or accelerated the processes which led to the claimant's current condition of ill-being." Cassens Transport Co. v. Industrial Comm'n, 262 Ill. App. 3d 324, 331, 199 Ill. Dec. 353, 633 N.E.2d 1344 (1994). "It is solely within the province of the Commission to judge the credibility of witnesses, to draw reasonable inferences from their testimony, and to determine the weight accorded thereto, and the Commission's findings on these questions will not be disturbed on review unless they are contrary to the manifest weight of the evidence." Price v. Industrial Comm'n, 278 Ill. App. 3d 848, 852, 215 Ill. Dec. 543, 663 N.E.2d 1057 (1996). "'The manifest weight of the evidence is that which is "the clearly evident, plain and indisputable weight of the evidence." [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.'" Drogos v. Village of Bensenville, 100 Ill. App. 3d 48, 54, 55 Ill. Dec. 902, 426 N.E.2d 1276 (1981), quoting In re Application of County Collector, 59 Ill. App. 3d 494, 499, 16 Ill. Dec. 680, 375 N.E.2d 553 (1978).

Employer's argument that the Commission credited Dr. Harms with rendering a diagnosis he actually did not make (aggravation of a preexisting condition) and, thus, rendering an opinion contrary to Dr. Matz's, is persuasive. Employer contends that the Commission mischaracterized Dr. Harms' testimony. According to employer, Dr. Harms never testified claimant sustained an aggravation of a preexisting injury. He testified that that was one possibility; he stated the accident could have caused a back strain or an aggravation. Moreover, after receiving more detailed information concerning claimant's prior back history, Dr. Harms admitted it was impossible for him to state whether claimant's surgery was necessitated by the accident on January 22, 1993. Claimant has the burden of proving causal connection. Before a fact question arises, claimant must demonstrate that Dr. Harms rendered an opinion in his favor. The issue boils down to whether a reasonable person could conclude that Dr. Harms rendered an opinion that claimant's condition of ill-being and resulting surgery were caused by the January 22, 1993, accident. After a review of Dr. Harms' testimony, we conclude that the answer is no.

Because resolution of this case hinges on Dr. Harms' opinion or lack thereof, a somewhat lengthy recitation of his testimony is necessary. During direct ...


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