Allied Chemical Corp. v. Industrial Com'n of Illinois

• Decision Date: 08 January 1986
• Docket Number: No. 1-85-0548,1-85-0548
• Citation: 94 Ill.Dec. 604,140 Ill.App.3d 73,488 N.E.2d 603
• Parties: , 94 Ill.Dec. 604 ALLIED CHEMICAL CORPORATION, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION OF ILLINOIS and Dollie Elder, Defendants-Appellees. WC.
• Court: United States Appellate Court of Illinois

Page 603

488 N.E.2d 603

140 Ill.App.3d 73, 94 Ill.Dec. 604

ALLIED CHEMICAL CORPORATION, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION OF ILLINOIS and Dollie Elder Defendants-Appellees.

No. 1-85-0548 WC.

Appellate Court of Illinois,

First District,

Industrial Commission Division.

Jan. 8, 1986.

Discipio, Martay, Caruso & Simard, Chicago (Raymond M. Simard, of counsel), for plaintiff-appellant.

Hokin & Melber, Chicago (Michael D. Melber, of counsel), for defendants-appellees.

LINDBERG, Justice.

Plaintiff, Allied Chemical Corporation, appeals from an order of the circuit court of Cook County confirming the decision of the Industrial Commission which awarded the claimant, Dollie Elder, temporary total disability benefits. On appeal, Allied asserts that the decision of the Industrial Commission not to suspend benefits because of her failure to have necessary surgery is contrary to the manifest weight of the evidence.

The claimant testified that she began working for Allied in October 1979, doing general plumbing, pipe fitting and repair work. On August 7, 1980, claimant was working the midnight shift at Allied when there was a power failure due to a thunderstorm. When the power failed, claimant ran to an apparatus known as the "seven unit," intending to shut it down so as to prevent its being damaged by acid. Claimant had shut off the main valve and was running down the stairs to complete the operation when she slipped, sustaining injury to her lower back and right hip.

Plaintiff suffered a further injury on August 29, 1980, when she was shoveling gravel under the direction of her foreman. When she got to the last pile of gravel, she hurt her back and was unable to straighten up, experiencing substantial pain in her lower back, buttocks, right leg and left leg. She consulted Dr. Feldman for her pain and was placed on medication. After a month of this treatment, she was referred to Dr. Levin, who, on October 22, 1980, had her hospitalized for a two-week program of therapy, medication and tests. During this time, claimant was prepared for surgery but did not undergo an operation. Claimant was briefly hospitalized in January and November 1981, and continued to experience pain through the date of the hearing before the arbitrator. The claimant was unable to return to work following her injury on August 29, 1980. She was diagnosed as suffering a herniated disc at two levels of the lumbar spine.

The claimant testified that she had consulted Dr. Levin on numerous occasions since her initial hospitalization, and that he had consistently recommended surgery. The claimant testified that she had refused to have the surgery because she was very afraid of it. She had been weak and suffered from headaches following her myelogram and was opposed even to a new procedure which Dr. Levin had explained to her, involving injections into the spine. The doctor had advised her that if she did not have the surgery, eventually she would be paralyzed from the waist down. Her response was, "When I get paralyzed, I will come for the surgery".

The arbitrator found that the claimant had sustained injuries in the course of her employment which had resulted in her total and permanent disability. The arbitrator further found the claimant's refusal to submit to disc surgery was not unreasonable and did not justify denial or suspension of compensation. Accordingly, claimant was held entitled to weekly compensation of $247.80 for life. The Industrial Commission affirmed, adopting the opinion of the arbitrator. On review, the circuit court sent the parties a memorandum of decision, stating its determination to confirm the decision of the Commission. Allied filed a notice of appeal.

Allied contends that the Industrial Commission erred in finding that the claimant was reasonable in her refusal to have surgery and in deciding not to suspend payments for temporary total disability benefits. Allied relies upon section 19(d) of the Workers' Compensation Act (Ill.Rev.Stat.1979, ch. 48, par. 138.19(d)) which, as relevant, provides that the Industrial Commission may suspend the compensation of any employee who persists in insanitary or injurious practices tending to imperil or retard his recovery, or who refuses to submit to such medical, surgical or hospital treatment as is reasonably essential to promote his recovery. Allied first contends that the claimant's arbitrary course of action places her in a position where, by delaying surgery for 30 months and simultaneously receiving weekly disability benefits, the employer would be deprived of its last opportunity to seek review of the award. (See Ill.Rev.Stat.1979, ch. 48, par. 138.19(h).) Allied claims that a good faith requirement is inherent in situations like the present one, and requests that payment of benefits be suspended effective November 5, 1980, the date upon which the claimant left her initial hospitalization without surgery.

We agree with the claimant that Allied should not be allowed to argue before this court for a suspension of benefits effective November 5, 1980, since it asserted before the circuit court that the appropriate date for suspension of benefits was February 20, 1981, which it then asserted was "the day surgery was first prescribed". Moreover, this case provides no opportunity for this court to superimpose a "good faith" requirement upon the statute providing for temporary total disability benefits (Ill.Rev.Stat.1979, ch. 48, par. 138.8(a)), because there is no evidence in the record remotely suggesting that the claimant has postponed surgery in order to manipulate section 19(h) (Ill.Rev.Stat.1979, ch. 48, par. 138.19(h)) and render her award of temporary total disability benefits nonreviewable.

Allied also contends that claimant has not acted reasonably in refusing to have surgery where the sole basis for her refusal has been her fear of having the operation. We note in this regard that Allied relies heavily upon the claimant's testimony that Dr. Levin informed her that if she did not have surgery she would eventually be paralyzed from the waist down. However, Dr. Levin himself did not testify, and while claimant's testimony regarding this remark and her reaction to it are relevant and probative as to the degree of her fear of surgery, we do not regard it as evidence competent to establish the prognosis of the claimant's condition. (See Caterpillar Tractor Co. v. Industrial Com. (1983), 98 Ill.2d 400, 406, 75 Ill.Dec. 188, 456 N.E.2d 1366; Session v. Industrial Com. (1984), 124 Ill.App.3d 715, 719, 80 Ill.Dec. 22, 464 N.E.2d 887.) The record in this case discloses that Dr. Levin recommended "surgery for disc herniation", and Drs. Hirshtick and Barnett also recommended surgery. However, the record contains scant evidence regarding the nature of the proposed surgery, the...