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Obszanski v. Foster Wheeler Construction

March 08, 2002

EDWARD OBSZANSKI, PLAINTIFF-APPELLANT,
v.
FOSTER WHEELER CONSTRUCTION, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 96 L 6830 Honorable Michael J. Kelly, Judge Presiding.

The opinion of the court was delivered by: Justice Reid

Released for publication March 12, 2002.

EDWARD OBSZANSKI, PLAINTIFF-APPELLANT,
v.
FOSTER WHEELER CONSTRUCTION, INC., DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County. No. 96 L 6830 Honorable Michael J. Kelly, Judge Presiding.

The opinion of the court was delivered by: Justice Reid

PUBLISHED

 The plaintiff, Edward Obszanski, brought suit to recover damages for injuries he sustained while working as an ironworker for Pangere Corporation (Pangere), which was performing steel and siding erection on a job site where defendant Foster Wheeler Construction, Inc. (Foster), was the construction manager.

After trial, the jury returned a verdict in Obszanski's favor. The jury awarded damages for present and future pain and suffering, for medical expenses, for value of lost earnings, but $0 for disability. On appeal, Obszanski contends the trial court abused its discretion when it: (1) denied his post-trial motion for a new trial on the issue of damages, and (2) allowed evidence of a subsequent injury. For the reasons that follow, we reverse and remand this matter for a new trial as to damages only.

THE FACTS

On Friday, January 12, 1996, Obszanski was employed as an ironworker at a construction site in Robbins, Illinois for Pangere where Foster was the construction manager of the project. The project involved the construction of multiple buildings and structures for a waste to energy plant. Heavy equipment such as cranes, lulls *fn1, and large end loaders were used on the job site. These large pieces of equipment would create large ruts or craters in the ground in and around the job site. According to the plaintiff, the ground would not be filled in and smoothed over until the ironworkers left the job site. Snow, ice and mud were also present from time to time on the job site.

At trial, Obszanski testified that he injured his back while walking from his work area to a company tool box to retrieve shears. As he was walking, another ironworker yelled to him to beware of nearby overhead work. As Obszanski looked up to observe the overhead work, it was his testimony that his "feet kicked out from underneath [him] and [he] landed on all fours," in a hole with snow and ice in it with mounds of dirt around it.

Immediately, Obszanski felt pain in his back. He was able to get up and after stretching returned to work. Obszanski did not immediately seek medical treatment, and his back pain grew worse over the next days.

On Monday, after working through the weekend, Obszanski visited the Blue Island Medical Clinic. There, he received medication for his back. Although, his back pain persisted, Obszanski continued to work.

During working hours, on Thursday, January 18, 1996, Obszanski visited Dr. Raymond Schlueter. Dr. Schlueter examined Obszanski, performed diagnostic tests and prescribed medication.

At that time, the pain in his back began to radiate to his buttocks and legs. His back was stiff and there was soreness and burning in the buttock and leg. The doctor prescribed narcotic medication as well as diagnostic tests, including a lumbar myelogram. The plaintiff was sedentary due to the pain radiating into his right leg. Any activity prompted more pain. The doctor's findings included diminished reflexes, a slight limp, and limited range of motion. These findings were consistent with a herniated disc compressing a nerve root in plaintiff's lumbar spine. Obszanski no longer returned to work.

On March 7, 1996, Obszanski sought a second opinion from Dr. Gary Skaletsky. Now, Obszanski was feeling pain as far down as his ankles and toes from the injury. After various medical tests and a diagnosis of a herniated disc, Obszanski underwent surgery, on March 11, 1996. Dr. Skaletsky excised a large disc herniation which was extruding. Dr. Skaletsky testified that the herniation "had completely broken through the membrane or annulus where it usually resides within and was lying directly up against the nerve root." Dr. Skaletsky removed approximately 30 percent of the disc.

Dr. Skaletsky concluded the disc herniation was recent based on the condition of the disc when it was removed. It was his opinion that Obszanski sustained the injury when he fell on January 12, 1996.

Following the surgery, Obszanski underwent physical therapy. Dr. Skaletsky testified that therapy was prescribed to build strength, flexibility, endurance and mobility.

Dr. Skaletsky testified that removal of the disc material is a very poor way to relieve back pain. Disc operations typically will not relieve a person's low back pain completely. Patients can develop increasing low back pain after the disc herniation has been removed. Dr. Skaletsky expected Obszanski to experience episodic bouts of lower back pain.

Dr. Skaletsky explained that "with the removal or loss of disc volume, the vertebral bodies move closer to each other. The joints holding the vertebra together, which are known as the facet joints, do not mesh quite so well anymore. That there can be what is known as facet arthropathies; [he likened] that to cracking one's knuckles for a long time and seeing a lump of bone when one is older. This can be a competent cause of low back pain in the postoperative disc herniation patient."

Dr. Skaletsky stated that the scar tissue at the herniation site could also cause back pain. Dr. Skaletsky was also of the opinion that Obszanski was susceptible to developing degenerative arthritis in the area of his herniation as a result of the surgery. Diagnostic films taken of Obszanski's back in 1999 confirmed the development of arthritis, which in Skaletsky's opinion was partially caused by the fall in January 1996.

Dr. John McClellan testified on behalf of the defendant that in his opinion falls do not cause disc herniations. Dr. McClellan did not think that the 1996 fall was a contributing factor to Obszanski's herniated disc. Instead, Dr. McClellan believed Obszanski suffered from degenerative arthritis. However, Dr. McClellan agreed that he could not state that Obszanski had a herniated disc prior to his fall in January 1996.

Obszanski testified that he injured his back in 1988 and in 1990. In 1988, Obszanski said that he was hit with a concrete drill in the back. Afterwards, his back was stiff and sore. Obszanski went to physical therapy and was unable to work for a few weeks.

In 1990, while Obszanski was working as an electrician, he felt a pain in his back. After visiting the doctor, Obszanski went to physical therapy. Obszanski testified that subsequent to the 1990 injury he experienced no back pains until January 1996.

At the conclusion of trial, the jury returned a verdict in favor of Obszanski. It awarded him $40,000 for present and future pain and suffering, $20,217 for medical expenses, $28,470 for value of lost earnings, and $0 for disability. After a reduction for contributory negligence, Obszanski received damages in the total amount of $55,872.81. Obszanski filed a ...


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