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D.J. Masonry Co. v. Industrial Commission

March 24, 1998


Appeal from the Circuit Court of Cook County. No. 95L50307 Honorable George Smith, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

Claimant, Chuck Botta, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1994)) (Act) for injuries he sustained while working for D.J. Masonry Company (D.J. Masonry). The arbitrator awarded Botta temporary total disability for 98-1/7 weeks and $2,500 in penalties under section 19(l) of the Act. See 820 ILCS 305/19(l) (West 1994). The Commission modified the arbitrator's award by increasing the average weekly wage. The Commission also awarded Botta penalties and attorney fees pursuant to section 19(k) and section 16 of the Act. See 820 ILCS 305/16, 19(k) (West 1994). The circuit court confirmed the Commission's decision, but remanded the cause to the Commission for a re-calculation of the attorney fees and penalties.

On appeal, D.J. Masonry contends that the state of Indiana, not the state of Illinois, has jurisdiction over this accident. Further, D.J. Masonry argues that the Commission's average weekly wage calculation is erroneous and that the Commission erred in awarding TTD benefits beyond November 30, 1993. Finally, D.J. Masonry maintains that no penalties should be awarded in this case. We affirm in part and reverse in part.

The record shows that in November 1988 Botta was unemployed and living in South Holland, Illinois. Tom Goralka, a friend of Botta's, called Botta one day in November and told him that he currently worked for D.J. Masonry, which was located in Indiana. Goralka told Botta that D.J. Masonry might have a job for him and gave him the owner's phone number.

Botta immediately telephoned the owner, Richard Devries, who lived in Indiana. Botta told Devries that he was a friend of Goralka and that he was an experienced laborer looking for work. Devries told Botta to go to a job site in Crete, Illinois, the following morning and to speak with him.

Botta visited the Crete job site the next morning. He introduced himself to Devries and Devries commented on Botta's possessing his own tools. Devries told Botta to talk to the labor foreman and to tell the foreman that he was going to be given a trial. After speaking with the foreman, Botta worked the remainder of the day scaffolding and tending to the bricklayers. At the end of the day, around 4:00 p.m., Botta spoke with Devries. Devries told Botta that he did a good job and that, as far as he was concerned, Botta had a job. Devries then gave Botta tax forms to complete. Botta completed the forms that evening and gave them to Devries at the job site the next day.

Botta worked for D.J. Masonry through December 22, 1992. On December 22, Botta was injured when a scaffold fell on top of him while he was working at a job site in Indiana. There is no dispute between the parties that Botta was injured during the course of his employment.

At the arbitration hearing, Botta testified that he felt immediate pain in his leg, head, and back after the scaffold fell on top of him. While he waited for the paramedics, he noticed that his head was bleeding. The paramedics took Botta to the hospital. At the hospital, Botta had stitches over his eyes and in the back of his head. Botta went home that night. He did not return to work the next day.

Botta visited his family physician, Dr. Richard S. Kijowski, on December 24, 1992. On January 5, 1993, Botta noticed lower back and left leg pain. He reported to Dr. George S. Miz, a spinal surgeon. Dr. Miz ordered a MRI and physical therapy.

On February 18, 1993, Botta returned to Dr. Kijowski. According to Dr. Kijowski's medical records, Botta had not had any improvement with his "persistent severe left leg pain." Dr. Kijowski recommended surgery and discussed with Botta the possibility that he may not be able to return to work as a laborer.

On March 8, 1993, Botta had back surgery. He was discharged on March 9. Botta testified that, after the surgery, his back did not hurt as much, but that his left leg pain remained. Botta returned to physical therapy. In addition, he completed a work-hardening program. Botta stated that his left leg did not respond to the work hardening or the physical therapy.

On August 31, 1993, Dr. Miz prescribed an MRI. The MRI was conducted on September 17, 1993. According to the radiologist's report, degenerative changes in Botta's back had occurred, but no disc herniation was detected.

In November 1993, Dr. Miz recommended an additional lumbar myelogram and post-myelogram CT scan. The tests were performed on January 18, 1994. According to the medical records, the tests revealed a small herniation and a mild generalized bulge.

At the request of D.J. Masonry, Botta was examined by Dr. Marshall Matz, a board-certified neurosurgeon, on November 30, 1993. According to Dr. Matz's December 1, 1993, report, Botta had good strength, normal reflexes, and walked without a limp. Also, Botta squatted only about a third of the usual range because, according to Botta, his left leg would not bend anymore.

In an evidence deposition, Dr. Matz testified that the results of the examination showed that Botta did not have a pinched nerve. In addition, Dr. Matz explained that Botta's pain in his leg was not radiating behind his knee. Therefore, his knee was simply a "localized area of discomfort." Then, Dr. Matz opined that Botta was not in need of further treatment. Dr. Matz explained that the neurological examination did not reveal any objective evidence of root involvement. Consequently, Botta could return to active employment with "common sense limitations and restrictions with prudent use of the lower back."

Dr. Matz next commented on Botta's September 17, 1993, MRI. Dr. Matz stated that the MRI's result of there not being any disc herniation supported his opinion. Further, the January 18, 1994, myelograms were "normal" in that they did not reveal that there was a herniated disk, root compression, or spinal stenosis. Dr. Matz explained that, taking into consideration his examination and these tests, there was no objective evidence that Botta "was suffering from any derangement about the lower back that required further treatment."

On March 25, 1994, Dr. Joseph G. Thometz, an associate of Dr. Miz, examined Botta. According to Dr. Thometz's report, Botta's flexion was limited. Further, the report indicates that Botta was in need of continued treatment and that he should not return to his construction duties.

Dr. Matz examined Botta again on March 30, 1994. Dr. Matz testified that, on that date, Botta's reflexes were normal and that he had good strength. Dr. Matz then expressed again his opinion that there was no objective evidence of low back derangement that necessitated further treatment. Further, Dr. Matz opined that a diskogram would not be beneficial in evaluating Botta's complaints. Instead, the tests already conducted, the MRI and the myelograms, could better detect any problem.

On cross-examination, Dr. Matz acknowledged that he does not prescribe diskograms for his patients unless they are required as part of a protocol for spinal tapping because he believes diskograms are outdated and "almost always" show that surgery should be performed. Dr. Matz stated that he disagreed with Dr. Miz's and Dr. Slack's diagnosis of left leg sciatica (nerve root compression). However, assuming a person did have left ...

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