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Freeman United Coal Mining Co. v. Industrial Commission

December 27, 2000

FREEMAN UNITED COAL MINING COMPANY A/K/A FREEMAN UNITED COAL,
APPELLANT,
V.
THE INDUSTRIAL COMMISSION ET AL. (EDWARD SISK, APPELLEE).



Appeal from the Circuit Court of Christian County. No. 99-MR-27 Honorable John P. Coady, Judge, presiding.

Justices: Honorable John T. McCullough, P.J. Honorable Thomas E. Hoffman, J., Honorable Michael J. Colwell, J., Honorable William E. Holdridge, J., and Honorable Philip J. Rarick, J. Concur

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

Respondent employer Freeman United Coal Mining Company appeals from an order of the circuit court of Christian County affirming in part and reversing in part a decision of the Illinois Industrial Commission (Commission). The arbitrator awarded claimant Edward Sisk $569.29 per week for 110 3/7 weeks (to the date of the arbitration hearing, August 21, 1998) for temporary total disability (TTD) (820 ILCS 305/8(b) (West 1998)). The Commission modified the duration of TTD to 108 3/7 weeks and otherwise affirmed and adopted the arbitrator's decision. The circuit court, while reversing the Commission's finding of a causal relationship between claimant's current back condition and the October 23, 1995, accident, nevertheless upheld the TTD award based on the causal connection between the January 9, 1995, and October 23, 1995, accidental injuries and the current condition of claimant's knees. No issue is raised in this appeal concerning claimant's back condition.

The issues are whether the following Commission findings were against the manifest weight of the evidence: (1) a causal connection existed between claimant's left knee condition and the accident of October 23, 1995; (2) a causal connection existed between claimant's right knee condition and the accidents of January 9 and October 23, 1995; and (3) the duration of TTD. We affirm.

"The claimant's injury need not be the sole factor that aggravates a pre-existing condition, so long as it is a factor that contributes to the disability. [Citations.] In addition, the question of whether a claimant's disability is attributable to a degenerative condition or, because of an accident, to an aggravation of a pre-existing condition, is a question of fact to be decided by the Industrial Commission." Caterpillar Tractor Co. v. Industrial Comm'n, 92 Ill. 2d 30, 36-37, 440 N.E.2d 861, 864 (1982).

The test for determining whether a factual finding of the Commission is against the manifest weight of the evidence "is not whether this or any other tribunal might reach the opposite conclusion, but whether there was sufficient factual evidence in the record to support the Commission's determination." Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450, 657 N.E.2d 1196, 1199 (1995). The relevant inquiry is whether the evidence supports an inference that the accident aggravated the condition or accelerated the processes that led to claimant's current condition of ill-being. Mason & Dixon Lines, Inc. v. Industrial Comm'n, 99 Ill. 2d 174, 181-82, 457 N.E.2d 1222, 1226 (1983). A medical expert's opinion that the current condition could or might have been caused by the accident may be used by the Commission to support a finding of a causal relationship. Cassens Transport Co. v. Industrial Comm'n, 262 Ill. App. 3d 324, 332, 633 N.E.2d 1344, 1349 (1994). When faced with conflicting medical testimony as to causation, it is the province of the Commission to evaluate that testimony. International Harvester Co. v. Industrial Comm'n, 46 Ill. 2d 238, 244, 263 N.E.2d 49, 53 (1970); Tee-Pak, Inc. v. Industrial Comm'n, 141 Ill. App. 3d 520, 526, 490 N.E.2d 170, 175 (1986).

Respondent initially challenges the finding of causation as to the left knee injury as a result of the October 23, 1995, accident. Respondent attempts to show that claimant did not complain about the left knee for some time after the accident. On October 25, 1995, Dr. Scott Kline saw claimant, and claimant said he hurt both knees on October 23, 1995. Kline diagnosed an acute medial collateral ligament sprain in both knees. The record shows on November 9, 1995, claimant was seen by Kline for follow-up for the work injury involving both knees and his back. Kline did not recommend surgery to the left knee at that time, indicating, "Hopefully his knees will settle down." Respondent also relies on Dr. Z.J. Asali's May 2, 1996, note in which claimant complained of right knee and low-back pain. Asali is claimant's family physician. The back condition was of preeminent concern to claimant at that visit and was the major focus of the doctor's note.

Respondent states that claimant was not complaining about the left knee when he saw respondent's evaluating physician, Dr. James Strickland. In Strickland's first report (June 18, 1996), claimant said he fell on both knees and he saw Kline for his knee problems, which had improved, but they were still causing considerable aching and pain. Strickland noted that claimant only had an injection in the right knee. The remainder of the report concerns the back condition. Strickland's March 28, 1996, report says that claimant twisted both knees, but the accident affected the right knee more. The report focused on the right knee. There is nothing in these reports that says claimant had no pain in the left knee.

Dr. Richard Morgan, who performed surgeries on claimant's knees, diagnosed the left knee meniscus tear and surgically corrected it. He did testify to a causal relationship. Respondent argues that Morgan improperly relied on claimant's history that the left knee remained painful from the date of the accident until he first saw Morgan on June 20, 1996. Morgan testified that, if the history was incomplete or inaccurate, he could change his opinion.

The Commission's finding of a causal connection between claimant's left knee condition and the October 23, 1995, accident was not against the manifest weight of the evidence.

The next issue is whether the Commission's finding of a causal connection between claimant's right knee condition and the accidents of January 9 and October 23, 1995, was against the manifest weight of the evidence. All doctors involved in this case acknowledged considerable significant right knee problems prior to both accidents. Respondent argues that this is a case in which everyday activities could be an overexertion that would make claimant's right knee symptomatic. This is not a case involving a "normal degenerative aging process." Claimant had degenerative changes following multiple prior work-related right knee injuries and continued to work for respondent. Between 1992 and January 9, 1995, claimant worked for respondent without any problems. Following the January 9, 1995, accident, he continued to work for respondent in spite of right knee symptoms until the second, more serious accident on October 23, 1995. On May 23, 1995, claimant saw Asali and complained about injuring his right knee and related a history of hurting it about four months before. On March 8, 1995, claimant told Kline a rock broke off on a belt and smacked him in the lateral leg and claimant complained of pain and stiffness at that time. On October 25, 1995, following the October 23, 1995, accident, claimant complained of injuring both knees. Claimant was asymptomatic before these accidents and symptomatic afterward. The Commission could reasonably find that the accidents aggravated claimant's prior right knee condition. This finding was not against the manifest weight of the evidence.

The final issue is whether the Commission's finding as to the duration of TTD was against the manifest weight of the evidence. The time during which a claimant is temporarily totally disabled is a question of fact for the Commission; and to be entitled to TTD, claimant must prove not only that he did not work but that he was unable to work. City of Granite City v. Industrial Comm'n, 279 Ill. App. 3d 1087, 1090, 666 N.E.2d 827, 828-29 (1996). The dispositive test is whether the condition has stabilized, because a claimant is entitled to TTD when a " 'disabling condition is temporary and has not reached a permanent condition.' " Manis v. Industrial Comm'n, 230 Ill. App. 3d 657, 660, 595 N.E.2d 158, 160-61 (1992) (quoting Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b) (now 820 ILCS 305/19(b) (West 1998))). The Commission reviews the evidence to ascertain whether claimant has reached maximum medical improvement, i.e., the condition has stabilized. Beuse v. Industrial Comm'n, 299 Ill. App. 3d 180, 183, 701 N.E.2d 96, 98 (1998).

The Commission's decision awarded TTD for the periods of October 24, 1995, through December 2, 1996, and September 3, 1997, through August 21, 1998, the date of arbitration. On September 3, 1997, claimant had a second left knee surgery. Respondent concedes claimant was entitled to TTD from October 24, 1995, to August 16, 1996, then disputes entitlement thereafter. Respondent stopped paying TTD on August 16, 1996. Respondent argues that, because there was no causal connection between the left knee injury and the accident of October 23, 1995, claimant was not entitled to TTD from August 16, 1996, to December 2, 1996, and from September 3, 1997, through October 30, 1997. Respondent relies on Morgan's testimony that claimant was off work due to the right knee until August 6, 1996, and due to the left knee thereafter. Because this court upholds the Commission's finding that the left knee injury was causally connected to the October 23, 1995, accident, respondent's argument fails and claimant is entitled to TTD for the period of August 16, 1996, to December 2, 1996, and September 3, 1997, to October 30, 1997. As to the period of October 31, 1997, through August 21, 1998, the respondent argues only that the Commission's decision was contrary to law and against the manifest weight of the evidence. The respondent does not point to any specific evidence or case citation other than that presented with respect to the other time periods.

Claimant worked from December 2, 1996, until he left respondent's employ on June 17, 1997. Morgan performed another surgery on claimant's left knee on September 3, 1997. Respondent argues that claimant was not entitled to TTD after October 30, 1997, because Morgan testified that claimant had recovered from the surgery, and claimant was then in the same condition he had been about a year before. Claimant argues that respondent ignores the fact that ...


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