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Edard Don Co. v. Industrial Commission

November 12, 2003

EDWARD DON COMPANY, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (BART J. AMATO, APPELLEE).



Appeal From The Circuit Court of Cook County No. 02 L 50190 Honorable Alexander P. White Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

Edward Don Company (Edward Don) appeals from a circuit court order confirming a decision in which the Industrial Commission (Commission) awarded the claimant, Bart J. Amato, benefits in connection with his application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). For the following reasons, we affirm the circuit court's order in part and reverse it in part, set aside the Commission's decision in part, and remand this matter to the Commission with instructions.

The claimant filed an application for adjustment of claim seeking benefits for injuries he allegedly received on January 31, 1996, while in the employ of Edward Don. Prior to the commencement of the arbitration hearing on November 28, 2000, counsel for Edward Don informed the arbitrator of the following facts. The matter had previously been set for a hearing on November 1, 2000. On that date, Edward Don requested a continuance because a witness it had subpoenaed, Luis Ramirez, did not appear. The matter was continued to November 28, 2000. Counsel further informed the arbitrator that the process server Edward Don engaged had, on four occasions, attempted to serve Ramirez with a subpoena to appear on November 28 but that these attempts had been unsuccessful. Counsel then requested a continuance for the purpose of securing Ramirez's presence, stating:

"I don't want to continue the trial with the [claimant] being here and Mr. Given [claimant's counsel] being prepared, but we would like to have either an opportunity to serve Mr. Ramirez or an order from you indicating that he must appear at a later date."

The claimant's counsel objected to the request for a continuance, stating that, when the arbitrator granted a continuance from November 1 to November 28, he stated that the latter was "a final date." The arbitrator denied Edward Don's motion for a continuance, and the hearing commenced.

The following facts are taken from the testimony, depositions, and records admitted into evidence during the arbitration hearing.

The claimant testified that, in January 1996, he was employed by Edward Don as a delivery truck driver. On January 31, 1996, the claimant made a delivery to St. Mary of Nazareth Hospital. According to the claimant, it was snowing on that date and "there was ice all around." The claimant stated that, as he was unloading cartons from the back of his truck, he slipped and fell on some ice on the step of his truck. His arm was "just a little bruised" and his right foot was injured. The claimant testified that he telephoned Edward Don to report the injury and was given permission to receive treatment at the hospital. He then went to the emergency room.

According to the emergency room records from St. Mary of Nazareth Hospital, the claimant reported having twisted his right foot and ankle on the tailgate of his delivery truck. The report of an x-ray taken of the claimant's right foot states that no evidence of a fracture or dislocation was revealed. The claimant was diagnosed with a "contusion/sprain" of the right foot He was treated with ice packs and Motrin and an Ace bandage was applied to his right foot. The claimant was discharged from the emergency room with crutches and instructed to engage in no weight bearing on the right foot, to take Motrin for pain, and to follow up with Dr. Farahvar.

The claimant first saw Dr. Farahvar on February 15, 1996. According to Dr. Farahvar's report of that visit, his physical examination of the claimant revealed swelling, echymosis of the right foot with tenderness of the heel and lateral foot, and decreased range of motion with pain. Dr. Farahvar's report further states that the x-ray taken at the emergency room on January 31, 1996, showed a "questionable avulsion fracture of calcaneus at Achilles tendon attachment" but that the x-ray "had poor view." Dr. Farahvar ordered an x-ray of the claimant's right foot, which was performed that day. The radiologist's report of that x-ray states that no fracture or dislocation was seen but notes the presence of degenerative spurs at the first metatarsal-phalangeal joint, an Achilles tendon spur, and calcification in the Achilles tendon. Dr. Farahvar's report, however, states that the February 15 x-ray showed an avulsion fracture of the lateral cuboid and an old avulsion of the Achilles tendon. Dr. Farahvar applied an air cast and advised the claimant to use crutches. He further advised the claimant "to do a light duty work sitting job only and no driving" and to return in two weeks.

The claimant next saw Dr. Farahvar on February 29, 1996, at which time the doctor again ordered an x-ray of his right foot. The x-ray report states that there is no evidence of a fracture or dislocation. In his report of the February 29 visit, Dr. Farahvar stated that the x-ray showed the claimant's fracture was healing well. On physical examination, the doctor found slight swelling of the claimant's right foot, minimal tenderness, and increasing range of motion. Dr. Farahvar instructed the claimant to continue wearing the air cast and to continue "with [a] sitting job, if available," restricting him to "no driving."

On February 29, 1996, the claimant was examined by Dr. Arthur Broder at the request of Edward Don. In a letter dated March 6, 1996, and addressed to Edward Don's insurance carrier, Dr. Broder reported that his examination of the claimant revealed the absence of discoloration or swelling of the right foot and a full range of motion. Dr. Broder noted that the radiology report of x-rays of the claimant's right foot performed on February 15, 1996, indicated there was no fracture or dislocation seen. He further noted that, in his report of the claimant's February 29, 1996, visit, Dr. Farahvar stated that x-rays of that date showed the claimant's fracture was healing well. Dr. Broder stated that the February 29 x-rays were not available to him and "would be in controversy to the radiologist's report of 2/15/96." Dr. Broder concluded that it was "questionable" as to whether the claimant had sustained a fracture of his right foot. He opined, however, that the claimant could return to work "in a modified capacity immediately" and could return to full-duty work "on or about" March 29, 1996.

The claimant next saw Dr. Farahvar on March 28, 1996. Dr. Farahvar instructed the claimant to continue with light-duty work, but released the claimant to return to his regular work duties on April 7, 1996. In his March 28, 1996, report to Edward Don, Dr. Farahvar referred to Dr. Broder's report and stated: "I suggest you obtain copies of the X-ray films rather than relaying [sic] on the radiologist reports which in my proffesional [sic] opinion are not accurate."

The claimant testified that he returned to work, performing light-duty work, on March 17, 1996. Edward Don assigned him full-duty work as of March 29, 1996.

The claimant saw Dr. Farahvar on May 16, 1996, on which date the doctor ordered that the claimant could return to his regular work duties but was to ...


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