Manis v. Industrial Com'n

• Decision Date: 05 June 1992
• Docket Number: No. 1-90-2206WC,1-90-2206WC
• Citation: 230 Ill.App.3d 657,595 N.E.2d 158,172 Ill.Dec. 95
• Parties: , 172 Ill.Dec. 95 Joyce MANIS, Appellant, v. The INDUSTRIAL COMMISSION et al. (Exclusively Expo, Inc., Respondents-Appellees).
• Court: United States Appellate Court of Illinois

Page 158

595 N.E.2d 158

230 Ill.App.3d 657, 172 Ill.Dec. 95

Joyce MANIS, Appellant, v. The INDUSTRIAL COMMISSION et al. (Exclusively Expo, Inc. Respondents-Appellees).

No. 1-90-2206WC.

Appellate Court of Illinois,

First District,

Industrial Commission Division.

June 5, 1992.

Kane, Doy & Harrington, Ltd. (Gregory E. Ahern, of counsel), Chicago, for claimant-appellant.

Potter & Schaffner, Chicago, for respondents-appellees.

Justice RAKOWSKI delivered the opinion of the court:

The employer, Exclusively Expo, Inc., appeals the order of the circuit court which set aside the decision of the Industrial Commission and reinstated the award of the Arbitrator. The circuit court further ordered that a determination of whether claimant Joyce Manis should benefit from vocational rehabilitation be made by the Commission upon remand. We reverse.

The pertinent facts are as follows. Claimant, 48, began working for the employer in about August of 1987. Her duties consisted of getting on her knees and pulling vinyl from a large roll of vinyl which weighed about 100 pounds and was about 32 inches wide. After claimant pulled the vinyl from the roll, she placed the vinyl upon a machine. On February 8, 1988, claimant experienced sudden pain in her shoulder area while working. Claimant underwent a course of treatment which culminated in a cervical fusion. On August 16, 1988, claimant returned to work with restrictions from her physician, Dr. Lim, that included a four hour work day, lifting no more than 10 pounds, and no bending, crawling, climbing or rapid movement. Upon her return to work, she experienced pain associated with movement of her arm and head.

Claimant was again authorized by Dr. Lim to return to work on September 12, 1988, although this authorization did not include any restrictions. Claimant, however, experienced a substantial increase in pain upon returning to work, and sought further treatment from her chiropractic physician, Dr. Tenny. Dr. Tenny recommended that claimant change jobs. On November 7, 1988, Dr. Lim advised claimant to seek a job which did not require constant motion of the arm, shoulder and neck. Dr. Triester, an orthopedic surgeon who examined claimant on April 4, 1989, found that she could not do any type of work which required repetitive, left, upper extremity utilization, and recommended vocational rehabilitation.

Claimant's previous work experience included jobs as a machine operator, a hair-dresser, a waitress and as a fast-food cook. Claimant had an 11th grade education and had completed a course in cosmetology. Subsequent to Dr. Tenny's recommendation that she change jobs, claimant did not seek other employment.

The Arbitrator rendered his decision on June 24, 1989, awarding claimant temporary total disability benefits for a period of 66-3/7 weeks and medical expenses totalling $21,579.05. The decision of the Arbitrator does not reflect a finding that claimant was in need of vocational rehabilitation. On November 1, 1989, the Industrial Commission rendered its decision, which reduced the period of benefits to 33-4/7 weeks. On June 6, 1990, the circuit court entered an order which reversed the Commission, reinstating the period of benefits the Arbitrator had awarded, and further ordering that claimant's need for vocational rehabilitation be evaluated.

In the recent case of Hayden v. Industrial Comm'n (1991), 214 Ill.App.3d 749, 754, 158 Ill.Dec. 305, 574 N.E.2d 99, the court explained:

"An employee is totally disabled when he cannot perform any service except those for which no reasonable stable labor market exists. [Citations.] Section 8(b) of the Act provides that 'weekly compensation * * * shall be paid * * * as long as the total temporary incapacity lasts.' [Citation.] An employee is temporarily totally incapacitated from the time that the injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of the injury will permit. [Citations.] Thus, once an injured employee's physical condition stabilizes, he is no longer eligible for temporary total disability benefits."

Whether a claimant is entitled to compensation for temporary total disability generally and for how long she is entitled to such benefits are questions of fact, and the reviewing court will only disturb these findings of the Commission if contrary to the manifest weight of the evidence. (Phillips Getschow Co. v. Industrial Comm'n (1988), 172 Ill.App.3d 769, 122 Ill.Dec. 742, 527 N.E.2d 114; Archer Daniels Midland v. Ind. Comm'n (1990), 138 Ill.2d 107, 118-19, 149 Ill.Dec. 253, 561 N.E.2d 623.) While in the case sub judice we hold that the Commission's determination of the duration of claimant's temporary total disability was not against the manifest weight of the evidence, we do so on somewhat different grounds than the parties argue, and on somewhat different grounds than the Commission appears to have based its determination.

Both claimant and the employer focus on the issue of whether claimant was able to work in another capacity during the time of her treatment after her injury, the employer emphasizing, as the Commission appeared to in its decision, that claimant did not appear to seek alternative employment after it was suggested that she need to do so by her physicians, and claimant emphasizing that she would not have been able to find employment within her restrictions based on her education and work experience. What neither party focuses on, but what we feel to be dispositive of the issue, is the fact that claimant's condition, which the employer admits was temporarily disabling until November 7, 1988, the last day which the Commission determined claimant to be disabled, had stabilized at that point.

In Archer Daniels Midland, our supreme court restated the settled law that "an employee is temporarily totally incapacitated from the time an injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of his injury will permit." (138 Ill.2d at 118, 149 Ill.Dec. 253, 561 N.E.2d 623.) The court further observed that "[o]nce an injured employee's physical condition stabilizes, he is no longer eligible for ...