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Edward Gray Corp. v. Industrial Commission

September 28, 2000

EDWARD GRAY CORP., APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL. (MICHAEL GIMINO, APPELLEE.)



Appeal from Circuit Court Cook County No. 99L50690 Honorable Thomas P. Quinn, Judge Presiding.

The opinion of the court was delivered by: Justice Rarick

Claimant, Michael Gimino, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries sustained while in the employ of Edward Gray Corporation (Graycor). Gimino was employed by Graycor as an ironworker. Gimino injured his back on October 7, 1994, while cutting metal sheets with a saw. The arbitrator found that Gimino had sustained an accidental injury arising out of and in the course of his employment. The arbitrator awarded medical expenses, 18 6/7 weeks of temporary total disability (TTD) benefits, 16 3/7 weeks of maintenance benefits pursuant to section 8(a), and a wage differential award pursuant to section 8(d)(1) of the Act. The Industrial Commission (Commission) in a 2-1 decision, affirmed and adopted the decision of the arbitrator. The Commission's decision was confirmed by the circuit court of Cook County. We affirm.

The record reveals that Gimino had suffered numerous lower back problems. Gimino sought workers' compensation benefits for a low back injury which occurred on May 6, 1986, while employed with Midland Steel. A CT scan at that time revealed a bulging disc at L4-5 and a herniated disc at L3-4. Gimino was determined to be permanently partially disabled to the extent of 8% of the person as a whole. Gimino also sought benefits for a low back injury sustained on September 19, 1988, while in the employ of M.C. Stanley. He received conservative treatment and returned to work for M.C. Stanley. He received five weeks of TTD benefits. He sustained a second injury while working for M.C. Stanley on June 15, 1989. He sought compensation benefits and filed a civil suit in the circuit court of Cook County. Gimino was determined to be permanently partially disabled to the extent of 32% of the person as a whole. A functional capacity evaluation conducted on November 28-29, 1989, by Worker Rehabilitation Services, Inc., revealed that Gimino was capable of performing at the medium level of work. Mary Petershack, the examiner, concluded that Gimino could return to his previous occupation provided that he limited the amount of stooping and overhead lifting.

Gimino returned to work in April 1990, eventually obtaining employment with Pangere Corporation. On April 1, 1994, Gimino injured his back while turning corrugated sheets of metal. Gimino saw Dr. George Miz on April 25, 1994. He underwent physical therapy and work hardening. A functional capacity evaluation conducted on July 12, 1994, by Med-Works Physical Therapy Center established various lifting restrictions, as well as restrictions against stooping and climbing ladders. The evaluation noted that Gimino did not meet the maximum lifting requirements of his job at Pangere but found that he could return to work as an ironworker if certain modifications could be placed on the job. Gimino filed a workers' compensation claim (95WC21521) as a result of this accident.

Dr. Miz released Gimino with certain restrictions, but Pangere did not offer Gimino a job or vocational assistance. Gimino did not return to Pangere but obtained work at West Side Erectors, where he worked for several weeks in July 1994. This job was described as a "soft touch" job which was less physically demanding.

Gimino began working for Graycor on August 11, 1994, performing ironwork fabrication at the Ford Assembly Plant in Chicago. On his job application, Gimino indicated that he suffered from no physical conditions which would affect job safety or performance. Gimino worked with two sizes of aluminum sheeting, one weighing 100 pounds and the other weighing 50 pounds. Gimino's job was to attach these metal sheets to a wall. To do so, he would stand on a roof and pull the sheets up 20 feet onto the roof by a "handline." Once it was on the roof, he would position it on blocks and cut it with a 30-pound saw. Cutting the sheets required him to stand in a bent-over position.

On October 7, 1994, after cutting approximately 20-30 sheets, Gimino began experiencing low back pain. Later, the pain began radiating down into his right leg. Gimino worked the following week but did less and less because of the pain. On October 18, 1994, he was forced to leave work after only 15 minutes because of the pain. He contacted Dr. Vaught, a chiropractor, and scheduled an appointment with Dr. George Miz.

Gimino saw Dr. Vaught on October 19, 1994. He complained of pain radiating down into his right leg when he sat, stood or laid down. Dr. Vaught's records reflect a comment that Gimino had previously injured his back while lifting heavy objects and that the cause of his back problems stemmed from a fall in 1989. Gimino treated with Dr. Vaught from October 19 through November 2, 1994.

On October 25, 1994, Gimino saw Dr. Miz. He gave Dr. Miz a history of pain beginning on October 7, 1994, while working with a saw which weighed approximately 20-30 pounds. The pain became progressively worse. Gimino characterized the pain as 50% back pain and 50% right leg pain. Dr. Miz felt that Gimino's symptoms were more consistent with disc pathology than degenerative changes. An MRI performed on October 28, 1994, revealed a moderate to large right L5-S1 disc herniation. Physical therapy was recommended and a work hardening program was instituted.

Gimino underwent physical therapy from October 27, 1994, through February 6, 1995. He underwent a functional capacity evaluation on February 7, 1995, and was released to return to work under a light- medium physical demand level.

Gimino was examined by Dr. Jeffrey Coe on November 18, 1995. Gimino gave Dr. Coe a history of cutting sheet metal at work when he began experiencing pain in his low back and right leg. After examining Gimino and reviewing his medical records, Dr. Coe diagnosed a right- sided herniation of the L5-S1 disc with right lumbar radiculopathy. He opined that this condition was related to the October 7, 1994, accident.

Gimino was seen by Dr. Calvin Brown on February 24, 1995, at the request of Graycor. Dr. Brown concluded that, based upon the lack of objective findings, Gimino had reached maximum medical improvement and could return to work without restrictions. Brown testified that Gimino may have described the October 7, 1994, accident to him, but that he did not have any independent recollection. Dr. Brown also testified that he took no notes during the examination and that made his report based upon his memory. Dr. Brown testified that he did not feel that Gimino was at a high risk of reinjuring his back if he returned to ironworking. Dr. Brown further testified that he did not feel that the February 24, 1995, functional capacity evaluation was a valid measure of Gimino's abilities. Brown admitted that the only records he had to review were some of Dr. Miz's records and the MRI. Brown testified that if he had the additional medical records his opinion might change.

Dr. Miz released Gimino to return to work with permanent restrictions of no lifting over 15 pounds on a frequent basis and no lifting over 45 pounds on an occasional basis. Dr. Miz testified that vocational rehabilitation was appropriate because the February 7, 1995, functional capacity evaluation demonstrated that Gimino could not return to work as an ironworker. He further testified that Gimino was totally disabled from October 18, 1994, through February 27, 1995.

Gimino did not return to work as an ironworker for Graycor or any other ironworking employer. Instead, he obtained employment at the Greater Chicago Auto Auction as a porter, making approximately $304 per week. His ...


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