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Daniels v. Industrial Commission

June 19, 2000


Appeal from the Circuit Court of Cook County. No. 97 L 50733 Honorable Joanne L. Lanigan, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

Claimant, Pervis Daniels, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)), alleging that while in the employ of respondent, Archibald Candy Company, he injured his back while lifting a kiln. An arbitrator awarded claimant $593.11 per week in temporary total disability (TTD) benefits for a period of 57 6/7 weeks (see 820 ILCS 305/(b) (West 1992)), $7,828.25 in medical expenses (see 820 ILCS 305/8(a) (West 1992), and additional compensation pursuant to sections 16, 19(k), and 19(l) of the Act (see 820 ILCS 305/16, 19(k), 19(l) (West 1992)). On review, the Industrial Commission (Commission) determined that claimant was entitled to TTD benefits for a period of only 14 5/7 weeks. The Commission also vacated the awards of additional compensation and medical expenses. The circuit court of Cook County confirmed.

On appeal, claimant contends the Commission's decision is void because the panel that rendered it was illegally constituted. Alternatively, claimant argues that the Commission's findings as to causal connection, TTD benefits, medical expenses and additional compensation are against the manifest weight of the evidence. We affirm.


The following summary of facts is taken from the record on appeal. Claimant worked for respondent, a candy manufacturer, for 27 years. Prior to the accident at issue, claimant sustained a work-related injury in 1981, when he fell off a ladder. As a result of the fall, claimant sustained a herniated disc at the L4-L5 level, for which he underwent surgery in January 1982. This surgery was performed by Dr. James Dupre. Dr. Dupre continued to treat claimant for approximately seven months. Following the surgery, claimant ceased working for about one year. Claimant testified that from the time he returned to work after the surgery until June 23, 1994, he continued to have problems with his back. Most notably, every few months claimant's back would stiffen up for a period of several days. However, claimant did not miss any work due to these problems.

The accident at issue occurred on June 23, 1994. At that time, claimant worked as a supervisor-cook. Claimant's duties included running a "sand vac" machine. According to claimant, the "sand vac" machine consists of a large conveyor belt. Candy emerges from the "sand vac" machine on the belt and is deposited into a large kiln which sits on a scale. When the scale registers between 220 and 222 pounds, it is lifted onto a horse by two employees. Claimant stated that he felt a "pop" in the lower part of his back while helping lift a kiln. Following the accident, claimant experienced pain in his lower back and he could barely move. Medical personnel employed by respondent advised claimant to take aspirin for the pain.

Claimant continued working for a week after the accident. However, he noticed that his back was not improving. On June 30, 1994, defendant saw Dr. Eduardo Israel at Rush-Presbyterian-St. Luke's Occupational Health Center (Rush). Dr. Israel diagnosed claimant with back strain and gave him medication and a back brace. Dr. Israel also referred claimant to physical therapy. Claimant was returned to restricted work duties. However, no such work was available at that time.

On July 6, 1994, claimant saw Dr. Leonard Smith, an orthopedic surgeon at Rush. Dr. Smith advised claimant to remain off work and to continue physical therapy. Dr. Smith also recommended an MRI. The MRI showed post-discectomy changes at L4-L5 with moderate to severe bilateral neuroforaminal stenosis, mild bilateral neuroforaminal stenosis at L2-L3 and L3-L4 with congenital narrowing of the spinal canal to the entire lumbar region.

Dr. Smith examined claimant next on August 15, 1994. At that time, claimant was complaining of pain and burning involving his leg. After reviewing claimant's X rays, Dr. Smith opined that there was no adequate explanation for this pain. Dr. Smith also concluded that the MRI findings were not consistent with the June 23, 1994, date of injury. Dr. Smith ordered an EMG of claimant's back and leg to determine the physiologic status of the nerves. He also started claimant on a temporary program of TENs unit and pelvic traction. The EMG study did not show any abnormalities. However, the neurologist that performed the EMG noted that the exam was difficult because of claimant's inability to relax.

On September 7, 1994, Dr. Smith prescribed epidural blocks for claimant. During this treatment, claimant remained off work and continued to receive physical therapy. Dr. Smith noted that during the course of this treatment, claimant's condition was gradually improving. On October 7, 1994, Dr. Smith found that claimant had substantially improved and was able to resume regular work activities.

Claimant returned to work on October 10, 1994. However, claimant testified that he was still experiencing pain in the lower part of his back. On October 18, 1994, claimant was examined by Dr. Chang Sun Kim, a physician with Treister Orthopaedic Services, Ltd. Dr. Kim prescribed medication and physical therapy. Dr. Kim also recommended that claimant refrain from working.

Dr. Michael Roy Treister examined claimant on November 10, 1994. According to Dr. Treister, X rays showed a fusion at L3-L4 and L4-L5 in the interbody area between the vertebral bodies. The X rays also revealed that the disc space at L5-S1 was intact. However, Dr. Treister noted that while there were not many secondary changes in L5-S1, the canal looked very tiny on lateral films. Dr. Treister opined that claimant had what appeared to be an acute disc herniation at the L5-S1 level on the right, which was probably related to lifting the kiln on June 23, 1994.

Dr. Treister prescribed a lumbar myelogram and postmyelogram CT scan, which claimant underwent on November 30, 1994. According to Dr. Treister, the postmyelogram CT scan showed significant and severe lumbar spinal canal stenosis, particularly at the L4-L5 level but also at the L5-S1 level. Moreover, there was considerable hypertrophy of the posterior elements at L5-S1. Claimant continued to complain of pain and Dr. Treister recommended surgical decompression of the lower two lumbar levels. However, this surgical procedure was never performed.

Based on this history, Dr. Treister opined that claimant's condition of ill-being was caused in part by the accident which occurred on June 23, 1994. Dr. Treister acknowledged that claimant suffered from a spinal canal stenosis long before the June 23, 1994, accident. However, Dr. Treister attributed the spinal canal stenosis to three causes: (1) claimant's 1981 work-related accident; (2) degenerative disc disease; and (3) a congenitally small spinal canal. It was Dr. Treister's opinion that claimant's June 23, 1994, accident aggravated a pre-existing condition.

On March 8, 1995, Dr. Smith reexamined claimant. In his notes pertaining to that visit, Dr. Smith noted claimant's prior history of back injury. Dr. Smith also concluded that claimant's symptoms, which included evidence of a congenitally narrow spinal canal with post-discectomy changes of epidural scarring, neural foraminal occlusion and spinal stenosis, were not-related to the June 23, 1994, accident. Dr. Smith recommended a work-hardening program and opined that claimant would be able to return to a medium-work-level program with restriction for heavy lifting. Dr. Smith did not believe that surgery would significantly help claimant. Moreover, Dr. Smith commented that any surgery would be for a condition not causally connected to the June 23, 1994, incident.

At the time of the arbitration hearing, claimant testified that he suffered from incontinence and had trouble walking even short distances. In addition, claimant stated that he could not perform any household chores and he could drive only short distances.

The arbitrator rendered her decision on October 25, 1995. The arbitrator determined that claimant's present condition of ill-being was causally related to his injury. In so concluding, the arbitrator deemed Dr. Smith's opinion "virtually worthless" because it provided no elaboration. Relying on medical records and the testimony of claimant and Dr. Treister, the arbitrator awarded claimant TTD benefits of $593.11 per week for a period of 57 6/7 weeks and medical expenses of $7,828.25.

The arbitrator also found that while it was undisputed that claimant was unable to work from June 30, 1994 through October 9, 1994, a period of 14 4/7 weeks, respondent paid claimant for only 12 weeks. Moreover, despite Dr. Treister's notes and letters that claimant was unable to work after October 19, 1994, respondent did not compensate claimant. Thus, the arbitrator concluded that claimant was entitled to $2,500 in penalties under section 19(l) of the Act. The arbitrator also determined that respondent unreasonably or vexatiously delayed payment of compensation to claimant, entitling him to penalties of $13,599.05 under section 19(k) of the Act. Finally, the arbitrator found that respondent had unreasonably and vexatiously delayed payment of benefits due claimant, entitling him to attorney's fees of $10,225.08 pursuant to section 16 of the Act.

The Commission issued its decision on June 12, 1997. The Commission modified the arbitrator's decision, finding that claimant was entitled to TTD benefits for only 14 5/7 weeks. The Commission based its decision on the fact that claimant had a prior fusion of the L3-L4 and L4-L5 level in 1982. The Commission relied on Dr. Smith's records and his opinion that claimant was able to return to work on October 7, 1994. Since the panel determined that termination of the TTD benefit payments by respondent on October 7, 1994, was not unreasonable, it vacated the additional compensation awarded pursuant to sections 16, 19(k), and 19(l) of the Act. Finally, the Commission vacated the award of medical expenses because they represented expenses for treatment incurred after October 7, 1994. On administrative review, the circuit court of Cook County confirmed the Commission's decision.


A. Composition of the Commission

Claimant first contends that the Commission's decision is void because the panel which considered and decided this case was illegally constituted.

1. Section 13 of the Act

Section 13 of the Act (820 ILCS 305/13 (West 1992)), governs the composition of the Commission. It provides that the Commission is to consist of 7 members to be appointed by the Governor, by and with the consent of the Senate. Of those seven, two are to be representative citizens of the employing class operating under the Act (management members), two are to be representative citizens of the class of employees operating under the Act (labor members), and 3 are to be representative citizens not identified with either the employing or employee class (public members). Moreover, no more than 4 members of the Commission shall be of the same political party and one of the 3 public members must be designated by the Governor as Chairman. Section 13 further provides:

"Notwithstanding any other provision of this Act, in the event the Chairman shall make a finding that a member is or will be unavailable to fulfill the responsibilities of his or her office, the Chairman shall advise the Governor and the member in writing and shall designate a certified arbitrator to serve as acting Commissioner. The certified arbitrator shall act as a Commissioner until the member resumes the duties of his or her office or until a new member is appointed by the Governor, by and with the consent of the Senate, if a vacancy occurs in the office of the Commissioner, but in no event shall a ...

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