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Pietrzak v. Industrial Commission of Illinois

April 18, 2002

GERALD J. PIETRZAK, PLAINTIFF-APPELLANT,
v.
INDUSTRIAL COMMISSION OF ILLINOIS AND LANDAIR TRANSPORT, INC., DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Cook County No. 99L50593 Honorable Alexander P. White, Judge Presiding.

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

UNPUBLISHED

Claimant, Gerald J. Pietrzak, appeals from an order of the circuit court of Cook County confirming a "corrected" decision of the Illinois Industrial Commission (Commission) following an earlier remand by the circuit court. The respondent employer is Landair Transport, Inc.

The issues on appeal are whether (1) the Commission improperly considered the reports of Drs. Joel Grossman and Jeffrey Coe; (2) the Commission's reduction of TTD benefits by 1 6/7 weeks by excluding the period from November 2, 1994, through November 14, 1994, was against the manifest weight of the evidence; (3) the Commission's award of PPD under section 8(d)(1) of the Act instead of section 8(d)(2) of the Act was against the manifest weight of the evidence or contrary to law; and (4) the denial of additional compensation and attorney fees was against the manifest weight of the evidence or contrary to law. We affirm.

The arbitrator awarded claimant $722.24 for 60 5/7 weeks for temporary total disability (TTD); a wage differential for the "duration of disability"; and $18,579.36 for medical expenses. 820 ILCS 305/8(b), (d)(1), (a) (West 1994). The arbitrator denied claimant's request for additional compensation and attorney fees. 820 ILCS 305/19(l), (k), 16 (West 1994). On October 27, 1997, the Commission issued a decision modifying the arbitrator's award as follows: (1) awarded $666.67 per week for 58 6/7 weeks for TTD; and (2) vacated the permanency award made pursuant to section 8(d)(1) of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 1994)), and (3) found claimant permanently partially disabled to the extent of 20% loss of the man as a whole pursuant to section 8(d)(2) of the Act (820 ILCS 305/8(d)(2) (West 1994)) in the amount of $396.89 per week for 100 weeks. In all other respects, the Commission affirmed and adopted the arbitrator's decision.

On judicial review, the circuit court entered an order on September 24, 1998, setting aside the Commission decision and remanding it with instructions that the Commission make findings and give reasons, including inferences drawn from the evidence, to support its decision as to four issues specified in the circuit court's order. On remand, the Commission issued a "corrected" decision affirming and adopting its earlier decision as modified. After readjusting claimant's average weekly wage, the Commission awarded claimant $722.24 per week for 58 6/7 weeks TTD, $396.89 per week for 100 weeks for permanent partial disability (PPD) pursuant to section 8(d)(2) of the Act, reaffirmed its earlier award of medical expenses, and continued to deny claimant additional compensation and attorney fees.

We initially consider whether the Commission improperly considered the reports of Drs. Joel Grossman and Jeffrey Coe. The Commission's findings with regard to the facts objected to by claimant were as follows:

"10. Petitioner was also examined by Respondent [sic] independent medical examiner Dr. Coe on April 14, 1995. He also noted Petitioner's condition to be consistent with L5-S1 radiculopathy, but opined that the condition had plateaued. He was found capable of light duty with an appropriate restriction of no lifting over 35 lb. on an occasionally [sic] basis with ability to change positions during the day. Light duty would include supervisory and management duties. Upon further examination of the medical records, he opined that the various histories Petitioner gave regarding his back injury suggested an intervening accident. He found Petitioner to be at maximum medical improvement as of December 16, 1994, the date he was released from physical therapy (RX9). Dr. Grossman, who also reviewed Petitioner's medical records in July 1995, opined that the three different versions given by Petitioner as to how his injury occurred raised significant doubt as to the issue of causal connection (RX16)."

Respondent's exhibit 16 was a report authored by Drs. Kenneth Fischer and Joel Grossman, who reviewed medical records at the request of respondent. The report did include a response by those doctors to a question from respondent about the relationship of the treatment to the alleged injury of October 1994. Before the arbitrator, claimant's attorney objected to respondent's exhibit 16. The arbitrator admitted these exhibits into evidence.

On appeal, in a one paragraph argument without citation to legal authority, claimant argues that the Commission should not have considered Grossman's opinion as he did not examine claimant and the report was only relevant to the reasonableness of medical bills. As shown in its findings, paragraph 10, the Commission merely observed the fact that the report was made. In none of its concluding paragraphs did the Commission refer to this report as a basis for its decision.

In the circuit court, Judge White concluded that, while respondent's exhibit 15 was offered with respect to the reasonableness and necessity of the medical treatments and bills, there was no such limited offer with regard to Grossman's report. There was no ruling by the arbitrator to the effect that respondent's exhibit 16 (the Fischer/Grossman report) was limited to the reasonableness of the treatment and medical expenses. Judge White correctly stated that the admissibility of the reports of Grossman and Coe was not raised or argued by claimant before the Commission in the review proceeding. Moreover, the issue was not raised by claimant in the initial judicial review proceeding. As a result, the circuit court found both of the arguments waived. We agree. See Service Adhesive Co. v. Industrial Comm'n, 226 Ill. App. 3d 356, 370, 589 N.E.2d 766, 774 (1992) (failure to raise an issue before the Commission waives the issue).

Moreover, Service Adhesive provides additional basis for finding waiver of the issue in this case, the failure to cite legal authority in support of the argument. Service Adhesive, 226 Ill. App. 3d at 365, 589 N.E.2d at 771. The one-sentence statement in claimant's brief, "Similarly, Dr. Coe's reports were objected to on hearsay and those should not have been admitted" will not be deemed argument that complies with Supreme Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7)).

Although respondent apparently offered the Grossman report as relevant to the question of the reasonableness of the charges and treatment, it was not admitted for that limited purpose by the arbitrator and, although claimant objected to the exhibit, claimant did not ask that the consideration of the exhibit be limited to the reasonableness of the medical treatment. The Commission simply referred to the existence of the report from Grossman and did not rely on it as the basis for its decision. There was no error by the Commission in its consideration of Grossman and Coe reports.

We next consider whether the Commission's reduction of TTD benefits by 1 6/7 weeks by excluding the period from November 2, 1994, through November 14, 1994, was against the manifest weight of the evidence. The Commission found that the first day claimant was not able to work was November 15, 1994, as established by a letter from Dr. Alan Hirsch, a neurologist. Claimant argues that his entitlement to TTD should be calculated beginning November 2, 1994. Claimant concedes that Hirsch authored a letter keeping claimant off work from November ...


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