Ming Auto Body/Ming Decatur v. Indus. Com'n

• Decision Date: 18 November 2008
• Docket Number: No. 1-07-1125WC.,1-07-1125WC.
• Citation: 899 N.E.2d 365
• Parties: MING AUTO BODY/MING OF DECATUR, INC., Appellant, v. The INDUSTRIAL COMMISSION, et al., (Darrell Marmor, Appellee).
• Court: United States Appellate Court of Illinois

899 N.E.2d 365

MING AUTO BODY/MING OF DECATUR, INC., Appellant, v. The INDUSTRIAL COMMISSION, et al., (Darrell Marmor, Appellee).

No. 1-07-1125WC.

Appellate Court of Illinois, First District, Workers' Compensation Commission Division.

November 18, 2008.

Winters, Featherstun, Gaumer, Postlewait, Stocks & Flynn (Daniel L. Gaumer, of counsel), Decatur, IL, for Appellant.

Touhy & Touhy, Ltd. (Timothy J. Touhy, of counsel), Chicago, IL, for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Ming Auto Body / Ming of Decatur, Inc. (Ming Auto) appeals from an order of the circuit court of Cook County, confirming a decision of the Illinois Workers' Compensation Commission (Commission), which awarded the claimant, Darrell Marmor, benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)). The claimant has also filed a cross-appeal. For the reasons stated below, we affirm.

BACKGROUND

The claimant filed an application for adjustment of claim pursuant to the Act, seeking benefits for injuries he alleged that he received on October 5, 1990, while in the employ of Ming Auto. Two arbitration hearings were conducted to resolve the issues raised in the claimant's application. In November 1995, a hearing was held pursuant to section 19(b) of the Act. Thereafter, a permanency hearing was conducted in November and December of 2002.

In order to resolve the issues raised on appeal, it is necessary to consider the evidence presented at both the section 19(b) hearing conducted in November 1995 and the permanency hearing conducted in November and December 2002. The following factual recitation is taken from the evidence presented at those hearings.

At the hearing pursuant to section 19(b), held in November 1995 before arbitrator Peter Akemann, the claimant testified that he was a 29-year-old mechanic and that he sustained a work-related injury to his back on Friday, October 5, 1990, while employed by Ming Auto. The claimant stated that he was injured while doing heavy lifting in order to perform repairs on a car. He did not report the injury to his employer until the following Monday, and he sought medical treatment on Tuesday, October 9, 1990. In December 1991, the claimant underwent a spinal fusion, which was performed by Dr. Gunnar Andersson and included the insertion of rods.

Numerous witnesses testified at the hearing, and there was conflicting evidence as to whether the claimant injured his back while helping a neighbor repair a grain auger on Saturday, October 6, 1990, the day following his alleged work accident. There was also conflicting evidence as to whether the claimant had ever injured his back prior to October 5, 1990.

In their respective evidence depositions, two of the claimant's treating physicians, Dr. Gunnar Andersson and Dr. Francis Lagattuta, expressed their professional opinions that the claimant's lumbar disc was likely torn by heavy lifting at work on Friday, October 5, 1990, and that normal body movements would cause the nucleus pulposus to slowly extrude through the tear over time. Dr. Andersson performed a spinal fusion in December 1991 to cure the internal disc disruption. According to Dr. Andersson, the claimant was unable to perform physical tasks of his occupation as a result of his work-related accident. Dr. Andersson, found that the claimant had attained maximum medical improvement (MMI) on February 2, 1993, and he released the claimant to work at a medium level of exertion, meaning that he could occasionally lift a maximum of 75 pounds and could frequently lift 35 pounds.

Dr. Andersson further testified that he advised the claimant in June 1993 that he should undergo a second surgical procedure to remove the rods that had been inserted during his fusion surgery. According to Dr. Andersson, the rod-removal procedure is similar to the fusion surgery in that the muscles and tissues need to heal. The hospital stay for such surgery would typically be approximately three days. In addition, Dr. Andersson stated that the recuperation time for the rod-removal procedure was between 8 and 10 weeks, with four weeks of rest before commencing physical therapy and then four to six weeks of physical therapy. Finally, Dr. Andersson testified that, even assuming the claimant underwent the second surgery to remove the fusion hardware, he would not be able to progress beyond the ability to work at the medium level of exertion described above.

Dr. Lagattuta testified that the claimant's suffered from a chronic lumbar sprain, an anular tear with herniation, and a post-fusion laminectomy syndrome. Dr. Lagattuta specifically ruled out the possibility that the claimant's back injury resulted from his activity in helping a neighbor move a grain auger on the day following his work accident. Dr. Lagattuta agreed that the claimant's FCE test indicated that he was able to perform work at a medium level of exertion, but he testified that the claimant had not reached MMI as of November 1995. According to Dr. Lagattuta, the claimant was suffering from chronic pain, caused by local irritation of his back, and was totally disabled from performing any work as of November 1995. Dr. Lagattuta recommended that the claimant undergo the second surgical procedure to remove the hardware that had been inserted during the 1991 spinal fusion. Dr. Lagattuta also stated that the claimant would require approximately six weeks of rehabilitation after undergoing this second surgery. In Dr. Lagattuta's opinion, even after the claimant underwent the rod-removal surgery, he would be unable to return to his previous occupation because the nature of that employment required twisting, stooping, and bending, which the claimant would never be able to do.

Arbitrator Akemann resolved the evidentiary conflicts in the claimant's favor and specifically found that on October 5, 1990, the claimant sustained an accident arising out of and in the course of his employment with Ming Auto. The arbitrator also found that the claimant's resulting injury was causally connected to his work injury. Arbitrator Akemann further found that the claimant was entitled to temporary total disability (TTD) benefits for 121 2/7 weeks, representing the period from October 8, 1990 through February 2, 1993, and that the claimant was entitled to reasonable and necessary medical expenses in the amount of $14,640.20, which included payment for the spinal fusion surgery, performed by Dr. Gunnar Andersson in December 1991, and substantial follow-up treatment. In addition, arbitrator Akemann determined that the issues of vocational rehabilitation and maintenance should be deferred until the claimant underwent a second surgery to remove the rods that had been inserted during the 1991 surgery.

Ming Auto sought review of the arbitrator's decision before the Commission. In a unanimous decision dated November 7, 1996, the Commission vacated that portion of the arbitrator's award relating to vocational rehabilitation and to prospective medical treatment because those issues were not properly before the arbitrator at the section 19(b) hearing. The Commission otherwise affirmed and adopted the award, including the findings that the claimant had sustained an employment-related accident and that his condition of ill-being was causally related to that accident. No further appeals were taken from the Commission's decision. No additional hearings were held until November 4, 2002, when the parties appeared before arbitrator Neva Neal for determination of the issues of additional medical expenses, additional TTD benefits, and permanency.

The only witnesses who testified at the permanency hearing conducted by arbitrator Neal in November 2002 were the claimant and his former wife, Cynthia Marmor. Ms. Marmor testified that she and the claimant lived together at two different locations between October 5, 1990 and October 1994, with the exception of a period following the claimant's December 1991 spinal fusion surgery, and that the claimant did not work in any capacity during that time. On cross-examination, Ms. Marmor was questioned about information contained in a job application, completed by the claimant in 1996, that indicated he had worked at Albany Auto, Inc., from November 1990 through May 1996. Ms. Marmor testified that she was employed by Albany Auto in 1992, the summer of 1993, and for a brief time in 1994, and she knew that the claimant had not worked for that company between October 8, 1990 and 1994.

The claimant, who was 41 at the time of the permanency hearing, testified that Dr. Andersson surgically removed the fusion rods and screws from his back in February 1996. After the surgery, he recuperated for approximately eight weeks and then underwent two different courses of rehabilitation therapy, each of which lasted for four weeks.

The claimant further testified that he began working as an estimator for Pat's High Tech Auto Body on June 1, 1996. He admitted that, before applying for work with this employer, he altered his original resume to indicate that he had worked for Albany Auto between 1990 and 1995, even though he had never been employed by that company. The claimant stated that he had falsified his employment history because he had previously applied for work at 17 other businesses, using his original resume, and had not been hired due to questions about his 1990 work injury and claim. The claimant testified that he worked for Pat's High Tech Auto Body until October 1996, when he was fired due to tardiness and absenteeism, which he attributed to back pain and time he had taken off to go to doctors' appointments.

The claimant stated that he was then employed by Albany Auto between October 1996 and April 2000 and that his duties were similar to those he had performed for Pat's High Tech Auto Body. Initially, his boss at Albany Auto was tolerant of his inability to perform certain tasks due to his back injury....