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Navistar International Transportation Corporation v. Industrial Commission

June 30, 2000

NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL., (JORGE C. DIAZ) APPELLEE.



Appeal from the Circuit Court of Cook County, Illinois. No. 98 CH 13063 Honorable JOHN A. WARD Judge Presiding.

The opinion of the court was delivered by: Justice Holdridge

Claimant, Jorge Diaz, filed a claim pursuant to the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq.) (West 1996) seeking compensation for a low back injury sustained on August 14, 1990, while employed by Navistar International Transportation Corporation (the employer). The arbitrator found that claimant sustained accidental injuries which arose out of and in the course of his employment, and which were causally connected to his August 14, 1990, accident. The arbitrator further made findings with respect to disputed financial issues of earnings and credit due to the employer under §8(j) of the Act. The arbitrator awarded claimant temporary total disability (TTD) benefits for three work absences. The first compensated absence was from August 27, 1990 to October 9, 1990. The second was from July 6, 1992 to January 15, 1993, and the third was from November 28, 1994 to June 7, 1995. The latter two absences occurred after claimant underwent low back surgery. The arbitrator also awarded claimant permanent partial disability (PPD) benefits for a 35% partial disability of the person for claimant's back condition. The Illinois Industrial Commission (the Commission) affirmed the arbitrator's award with one modification: the Commission limited medical expense reimbursement to only those expenses incurred by claimant prior to January 4, 1991. The Circuit Court of Cook County confirmed the Commission's decision.

Claimant, 59 years old at the time of the accident, had been employed by Navistar for 22 years prior to August 14, 1990. On that date, while claimant was performing his duties as a painter at employer's Melrose Park engine plant, he sustained injury to his low back. Claimant was using a crowbar to release an engine that was stuck on a conveyor belt in the paint booth when the injury occurred. Claimant continued to work the remainder of his shift but reported the accident to his foreman about an hour after the accident when he developed a pain in his low back. The pain radiated from his low back to his legs. Claimant sought no medical treatment on the day of the accident. The following day, claimant appeared at work but, due to continued pain, saw the employer's company nurse and received Ibuprofen. Claimant continued to have back pain radiating to his lower extremities. Claimant sought no further medical attention for his injury until August 27, 1990, when he saw his chiropractor, Dr. Minnis, who took x-rays, prescribed physical therapy, ultrasound, manipulation, and ice pack therapy. Dr. Minnis opined that claimant's injury was a result of claimant's work-related accident. Dr. Minnis also advised claimant to stop working for two weeks after finding that claimant had some limitation of motion. At claimant's request, Dr. Minnis discharged claimant to the company doctor on August 30, 1990.

The company physician referred claimant to Dr. Akkeron, an orthopedic surgeon. On August 30, 1990, Dr. Akkeron examined claimant and determined that the motion of claimant's lumbar spine was limited but that claimant had full range of motion of both hips and found no evidence of muscle atrophy or weakness. X-rays showed degenerative disc disease and arthritic changes in the lumbar spine. Dr. Akkeron prescribed and a lumbar spine MRI which was preformed by Dr. Liebman on September 2, 1990. Dr. Liebman determined that the MRI showed no evidence of disc herniation or intradural abnormalities but that it did show degenerative disease at L5-S1, minimal bulging at L2-3 and L3-4, with spinal stenosis at L4-5 and possibly at L3-4. Based on Dr. Liebman's MRI report and his own review of the MRI, in his September 21, 1990, report, Dr. Akkeron stated that he did not believe that the changes on the MRI were due to the claimant's accident of August 14, 1990, and that there was no evidence of a ruptured disc. Dr. Akkeron prescribed physical therapy, ultrasound, electrical stimulation, intermittent traction and that claimant remain off work. Claimant attended the physical therapy sessions from September 11 to October 10, 1990, but continued to complain of back pain, problems sleeping due to the pain, numbness, and pain in both thighs.

Admitted into evidence were both still photographs and a surveillance videotape of claimant during the weekend of October 5-6, 1990, which showed claimant performing cement step masonry activities. Claimant cut and replaced 3-4 pieces of ceramic tile on the front stoop of his home over the course of a half-hour. The following week, claimant was examined by employer's physician and, on October 10, 1990, claimant returned to work without restriction to full duty as a painter. Claimant saw Dr. Akkeron on October 11, 1990, who concurred with claimant's return to work. Dr. Akkeron again noted in his records that the MRI did not show any ruptured disc and that the only problem with claimant's lower back was a degenerative arthritic problem. Claimant continued to work full-time, prying engines off the conveyor 3-4 times per shift. Claimant continued to suffer from low back pain.

On October 30, 1990, about three weeks after he returned to full duty, claimant sought a second opinion from orthopedic surgeon, Dr. Lorenz, who was referred by Dr. Akkeron. Dr. Lorenz found that claimant's range of motion was mildly restricted with some discomfort at the extremes of motion and diagnosed claimant's injuries as degenerative changes in his low back. Dr. Lorenz suggested anti-inflammatories. Claimant also saw Dr. Morganstern on November 12, 1990 who also diagnosed claimant as suffering from degenerative disease of the lumbar spine and prescribed Feldene for relief of symptoms. He suggested back exercises and concluded that claimant could continue to perform his job.

On January 4, 1991, claimant saw his family physician, Dr. Kim, and told him that his back pain was worsening and that he was having difficulty sleeping. Dr. Kim examined claimant and found that he was suffering from a back spasm and lower back tenderness and had a straight leg raising test that was positive at less than 75ø on his left side. Dr. Kim prescribed a MRI which was performed by Dr. Diamond on January 10, 1991. Dr. Diamond diagnosed severe spinal stenosis at the L4-5 disc, bulging and stenosis at the L3-4 level, and central herniation of the L4-5 disc. Claimant continued to work in his position as a painter with employer and continued to have low back and leg pain. On referral from Dr. Kim, claimant saw Dr. Acuna on June 17, 1992. On intake paperwork, claimant answered "no" when asked if the injury was work-related. Claimant later told the arbitrator that his condition was work-related, but that he had been confused by the question.

Dr. Acuna hospitalized claimant on July 7, 1992, and performed a decompressive laminectomy from L3 to S1 and surgically excised the herniated L4-5 disc. Dr. Acuna testified that the herniation of the L4-5 disc was not reflected on Dr. Liebman's MRI report because at the time of the first MRI, September 2, 1990, the herniated disc did not exist. Dr. Acuna testified that the decompressive portion of the surgery was a result of claimant's spinal stenosis resulting from the degenerative disc disease. He opined that the work accident aggravated the pre-exiting condition, causing pain, which required surgical correction. Dr. Acuna released claimant to work on January 13, 1993, and claimant returned to his full duties on January 17, 1993, where he continued to experience low back and leg pain and cramping.

In May of 1993, claimant was examined by Dr. Coe who was of the opinion that claimant's injury caused his low back condition. Dr. Coe opined that the injury necessitated the surgeries after aggravating claimant's pre-existing back condition. In June of 1993, further examinations and a new MRI demonstrated some new disc bulging. Claimant continued to work in his full-time position taking medication for his pain and receiving an injection to his lumbar region on November 11, 1993. At employer's request Dr. E. Thomas Marquardt examined claimant on August 26, 1993. Dr. Marquardt testified that: "those degenerative changes and spinal stenosis which were found on that [9/2/90] scan were preexistent degenerative conditions which had existed in the lumbar spine for some period of time...". Dr. Marquardt based his opinion on the fact that the disc herniation was not present in the scan done three to four weeks after claimant's injury but that the herniation appeared later. He testified that the disc herniation occurred between the September 2, 1990, MRI scan and the January 14, 1991 MRI scan. Dr. Marquardt, however, did agree that the accident could aggravate the pre-existing condition, cause pain, and therefore necessitate surgery. He also agreed that claimant's work activities from October 10, 1990 through July 6, 1992, could cause a bulging disc to progress to a herniation.

Dr. Acuna saw claimant again in April of 1994, and told him that he had degenerative disk disease and arthritis which would never completely be resolved. Claimant saw Dr. Acuna again in October of 1994, and at that time Dr. Acuna referred claimant to Dr. Harrison, a neurosurgeon. In November of 1994, Dr. Harrison prescribed a lumbar myelogram and CT scan which revealed stenosis at L3-4 and L4-5. Claimant underwent a second surgery on November 26,1994, in an attempt to create sufficient room for nerve structures to prevent compression. Dr. Harrison testified that he may have removed both scar tissue and disc tissue but believed that if he did remove disc tissue, it must have developed after the September 2, 1990, MRI (where no disc material was noted) but before the January 10, 1991 MRI (where the disc was noted as present). Dr. Harrison also testified that the compression he operated to relieve was not present during the first surgery. Dr. Harrison opined that a causal relationship existed between claimant's condition and his accident at work. He believed that claimant had a pre-existing condition which, prior to the accident, was asymptomatic. Dr. Harrison also attributed the recurrence of claimant's symptoms to his return to his previous employment activities, which ultimately resulted in the need for the second surgery.

Claimant returned to work in June of 1995 in his full-time position as a painter, although thanks to advances in technology, his job was less manual and more automated. Claimant continues to experience pain in his lower back and legs and takes over the counter medication to relieve his pain. Claimant received group disability benefits for both surgical absences; July 6, 1992 to January 15, 1993; and, November 28, 1994 to June 7, 1995. Employer paid claimant a gross amount of $21,439 in benefits and, after taxes, claimant netted $14,873.67. The arbitrator credited employer for the $14,873.67 under §8(j).

Employer first argues that claimant failed to meet the burden of causation in order to recover under the Act. A claimant bears the burden of proof to establish the elements of his right to compensation. Nabisco Brands, Inc. V. Industrial Comm'n., 266 Ill. App. 3d 1103, 1106 (1994); Board of Trustees of University of Illinois v. Industrial Comm'n., 44 Ill. 2d 207, 214 (1969). In order for accidental injuries to be compensable under the Act, a claimant must show such injuries arose out of and in the course of his or her employment. Nabisco, 266 Ill. App. 3d at 1106; Caterpillar Tractor Co. v. Industrial Comm'n., 129 Ill. 2d 52, 57 (1989); Hammel v. Industrial Comm'n., 253 Ill. App. 3d 900, 902 (1993). For an injury to arise out of one's employment, it must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. Nabisco, 266 Ill. App. 3d at 1106; Lubin, 200 Ill. App. 3d at 435.

It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. Old Ben Coal Co. v. Industrial Comm'n., 261 Ill. App. 3d 812, 814 (1994); Mendota Township High School v. Industrial Comm'n., 243 Ill. App. 3d 834, 836 (1993). The Commission's determination of these issues will not be set aside unless it is against the manifest weight of the evidence. Marathon Oil Co. v. Industrial Comm'n., 203 Ill. App. 3d 809, 815-16 (1990). A determination as to a causal connection is a question of fact to be decided by the Commission, which will not be disturbed unless it is against the manifest weight of the evidence, that is to say, unless the opposite conclusion is clearly apparent. Antonopoulos v. Industrial Comm'n., 195 Ill. App. 3d 689, 693, (1990).

Employer asks this court to reverse the Commission's award of TTD and PPD benefits to claimant arguing that the Commissions finding of causation is against the manifest weight of the evidence. Employer contends that the Commission erred in determining that claimant's low back condition was caused by the work-related accident of August 14, 1990. Employer asserts that claimant, aged 59 at the time of the accident, had a pre-existing degenerative disc disease in his lumbar region. Employer points out that claimant took only Ibuprofen for the first two weeks after his accident and did not seek medical attention until August 27, 1990. In support of its' position that claimant's ...


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