Inland Robbins Const. Co. v. Industrial Commission

• Citation: 78 Ill.2d 271,399 N.E.2d 1306,35 Ill.Dec. 778
• Decision Date: 23 January 1980
• Docket Number: No. 51862,51862
• Parties: , 35 Ill.Dec. 778 INLAND ROBBINS CONSTRUCTION CO., Appellant, v. The INDUSTRIAL COMMISSION et al. (Otha Griffin, Appellee).
• Court: Illinois Supreme Court

Page 1306

399 N.E.2d 1306

78 Ill.2d 271, 35 Ill.Dec. 778

INLAND ROBBINS CONSTRUCTION CO., Appellant, v. The INDUSTRIAL COMMISSION et al. (Otha Griffin, Appellee).

No. 51862.

Supreme Court of Illinois.

Jan. 23, 1980.

Galliani & Kuzel, Ltd., Chicago (William R. Galliani, Chicago, of counsel), for appellant.

O'Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., and Vitell, Greenfield, Johnson & Goldstein, Ltd., Chicago (Peter B. Carey, Laura Di Giantonio, and Phillip J. Johnson, Chicago, of counsel), for appellee.

UNDERWOOD, Justice:

An arbitrator for the Industrial Commission awarded claimant, Otha Griffin, compensation based upon a finding of permanent total disability resulting from injuries arising out of and in the course of his employment by respondent, Inland Robbins Construction Co. The Industrial Commission affirmed, and the employer appeals from confirmation of the award by the Cook County circuit court. The sole issue is whether the finding of permanent and total disability is contrary to the manifest weight of the evidence.

On July 24, 1975, claimant, who was employed by Inland as a construction worker, fell from a scaffold onto a concrete floor approximately 8 feet below, landing on his back. Initially, he did not think he was hurt, but when he tried to resume work he felt a sharp pain in his back. Claimant was then taken to the Southwest Industrial Clinic, where he was examined and told to return the following morning. The examining physician, Dr. James Boscardin, subsequently hospitalized claimant and kept him in traction for one week.

After his discharge the pain did not subside, and claimant was hospitalized again on September 27 for treatment of a herniated disc resulting from the fall. Following a myelogram and an electromyography, Dr. Boscardin suggested surgery for the herniated disc, but claimant preferred to continue conservative treatment. The pain increased, however, and he was rehospitalized. Dr. Boscardin performed a laminectomy on October 31, but he was unable to remove a large bony spur infringing on the nerve root and disc.

The operation did, however, reduce claimant's pain and Dr. Boscardin was optimistic about claimant's condition. He continued to treat him after his discharge from the hospital until the end of July 1976. When claimant was released to return to work the doctor placed limitations on lifting and pulling and also indicated that claimant should wear a back brace. The doctor also thought claimant had a permanent partial loss of use of his right leg.

During the course of the subsequent hearings before the arbitrator and the Commission, claimant presented the testimony of Dr. Irwin Barnett, who had examined him three times. Dr. Leo Markin and Dr. James Milgram, each of whom had examined claimant once, were called by the employer. Dr. Barnett had also referred to claimant's hospital records, but neither Dr. Markin nor Dr. Milgram had done so. While disagreeing as to the extent of claimant's physical disabilities, all of the doctors agreed that he could not do the type of heavy work he had previously done. Dr. Barnett diagnosed claimant as having a herniated disc syndrome and a flattening of the third lumbar disc space. Based on the results of his examinations, which commenced a year after the surgery and continued for a year and a half, Dr. Barnett concluded claimant was incapable of holding down any permanent job. The doctor thought claimant might be able to do some work for a limited time if it did not involve lifting, bending beyond his capabilities, or prolonged walking, but that he would also have to have rest periods every 45 to 60 minutes. In the doctor's opinion, however, the buildup of pain and tension in claimant's back and legs would prevent him from working at such a job for a long period of time. Dr. Barnett's observations indicated that claimant's condition was deteriorating and that he suffered a major loss of the use of both legs.

Neither Dr. Markin nor Dr. Milgram considered Griffin's condition that serious. Their measurements of the mobility of Griffin's back and legs indicated a considerably greater range of motion than those of Dr. Barnett. Both also thought that inconsistencies in some of the measurements indicated claimant was simulating a greater injury than he actually had. On cross-examination Dr. Barnett had testified that he had performed unspecified malingering tests on claimant but that the results were negative. Although both Dr. Markin and Dr. Milgram conceded that the mobility of claimant's back and legs was less than normal, both thought he could perform light duties such as driving a taxi cab, operating an elevator or working as a crossing guard or elevator operator.

Claimant and his employer also jointly submitted a medical report by Dr. Prem Pahwa. That report indicated some loss of mobility in both the back and legs with considerable pain in the back radiating into the legs, primarily the right leg. Dr. Pahwa though these results were residual symptoms from the laminectomy which could be helped with conservative treatment in a hospital.

Claimant testified that he had pain in his back which radiated into his legs. When ...