A R A Services, Inc. v. Industrial Com'n

• Decision Date: 21 February 1992
• Docket Number: No. 1-90-3668WC,1-90-3668WC
• Citation: 168 Ill.Dec. 756,226 Ill.App.3d 225,590 N.E.2d 78
• Parties: , 168 Ill.Dec. 756 A R A SERVICES, INC., Appellant, v. The INDUSTRIAL COMMISSION, et al. (The Treasurer of the State of Illinois, as Ex-Officio Custodian of the Injury Fund, et al., Appellees). First District, Industrial Commission Division
• Court: United States Appellate Court of Illinois

Page 78

590 N.E.2d 78

226 Ill.App.3d 225, 168 Ill.Dec. 756

A R A SERVICES, INC., Appellant, v.The INDUSTRIAL COMMISSION, et al. (TheTreasurer of the State of Illinois, as Ex-Officio Custodian of the Injury Fund, et al., Appellees).

No. 1-90-3668WC.

Appellate Court of Illinois,

First District,

Industrial Commission Division.

Feb. 21, 1992.

Dowd & Dowd, Ltd., Chicago (Joseph V. Dowd and Michael G. Patrizio, of counsel), for plaintiff-appellant.

Atty. Gen. of Illinois, Roland W. Burris, Chicago (Rosalyn B. Kaplan, Claudia E. Sainsot, Asst. Atty. Gen., of counsel), for defendants-appellees.

Justice WOODWARDdelivered the opinion of the court:

Respondent, ARA Services, Inc.(ARA), appeals from an order of the circuit court of Cook County confirming the decision of the Illinois Industrial Commission(Commission) which found the claimant, John Maggiore(Maggiore), permanently and totally disabled under section 8(f) of the Workers' Compensation Act(Ill.Rev.Stat.1989, ch. 48, par. 138.8(f)(Act)).

The facts here are largely undisputed.Maggiore had been employed by ARA since 1959.He completed one year of high school.In 1959, he suffered the loss of his left eye and had an artificial one in its place.In 1963, he suffered a low back injury.In 1966, he had surgery on his neck and in 1969, he underwent a fusion of his lower spine.

In 1983, Maggiore was 51 years of age and working for ARA as a field mechanic traveling to various locations to repair vending machines.On December 22, 1983, he made a service call to Bedford Park.A vending machine, which was approximately 6 feet tall and weighed 700 to 900 pounds, had been damaged and knocked out of place.Maggiore went behind the machine and tried to push it forward.As he did so, he felt a little click in his neck.He developed stiffness and a little pain in his neck.He finished work that day.The next day, he could not turn his head.He reported the incident to his boss who instructed him not to lift anything heavy.He continued to work, sporadically until the end of January 1984.

In January 1984, Maggiore was under the care of Drs. Cascino and Harrison.Maggiore was diagnosed as suffering from cervical strain and initially treated with hot packs and naprapathic (manipulation of connecting tissues) treatment.Later in January, a CAT scan was performed which showed spondylosis.On January 23, 1984, Maggiore underwent a myelogram which showed a block of the cervical canal on the spinal cord at C6-7 and confirmed the existence of spondylosis.

In February 1984, Maggiore underwent two surgeries.The first on February 17, 1984, was a posterior cervical laminectomy from inferior C2 to superior C5.Two days after the surgery, Maggiore had no feeling below the nipple area.The cause of the loss of feeling was diagnosed as either spinal cord swelling (Dr. Cascino) or Brown-Sequard Syndrome (Dr. I. Joshua Speigel).On February 19, 1984, Maggiore underwent a second surgery in which the laminectomy was extended from inferior C2 to C7.Maggiore regained feeling on his left side but not on the right side.According to Dr. Cascino, Maggiore had no incontinence or involuntary movement and had a good hand-fist formation on both sides and good strength in regard to grip control.

In March 1984, Maggiore began a program at the Rehabilitation Institute of Chicago.In 1985, he was evaluated by Drs. Addison and Yarkony.Dr. Addison noted that Maggiore was now able to walk on the toes of his right foot.Dr. Addison stated that "[i]t appears that with the right kind of total motivation instilled that there should be some work ability for [Maggiore]."Dr. Yarkony noted that Maggiore wanted to return to some type of employment.In April 1985, Maggiore underwent a driver education evaluation.According to the report, Maggiore had no problem driving and was a good defensive driver.He needed no specially adapted equipment to drive safely.

In his medical report of September 25, 1986, Dr. Cascino noted that Maggiore was experiencing numbness in both upper extremities and a tightening sensation of the soles of both feet.There was a diminution in the right extremities as compared to the left side.According to Dr. Cascino, Maggiore could not work, since he did not have the education for office work, and Dr. Cascino would not give him permission to drive.

On March 19, 1987, Maggiore was examined by Dr. I. Joshua Speigel.Dr. Speigel found that Maggiore's current symptoms of diminished sensation and difficulty with his right foot resulted from the Brown-Sequard Syndrome and was permanent and irreversible.In a letter dated December 29, 1987, Dr. Speigel stated:

"The Brown-Sequard Syndrome has rendered the right lower extremity non-functional to such a degree that, in industrial terms, it can be stated unequivocally that he has sustained A COMPLETE LOSS OF USE OF THE LOWER EXTREMITY AS A RESULT OF HIS INJURY OF DECEMBER 26[sic ].This loss of the use of the right lower extremity is permanent and irreversible."

At the hearing before the arbitrator on September 13, 1988, Maggiore testified that he spends approximately two and one-half to three hours on his feet per day.The rest of the time he spends either on a recliner or the couch.He has constant pain in his upper body and his right side feels like wood.When he walks, he is clumsy.He gets tired and does not know where his right foot is.The numbness on his left side has cleared up, and he has no trouble with his left foot.According to Maggiore, his right foot does not want to turn up sideways.Sometimes he has to keep looking down to see where his right foot is.He has trouble walking up or down stairs because his body feels like it is going to topple over.He has to look down while going down stairs so he can see where his right foot is to prevent him from falling.In the winter, it is worse because of the snow and ice.Sometimes his right foot gets so cold he has to wrap it in a heating pad for up to three hours.Dr. Meracho, an orthopedic specialist, recommended a brace for his right leg but Maggiore did not have this done.

On cross-examination, Maggiore testified that he was using a cane for his right leg but discarded it after doing physical therapy.

On further cross-examination, Maggiore testified that he still had a driver's license even though he does not drive.He does not go out in the winter because he is afraid his leg will get stiff on the ice and snow.His right foot is colder than the left.He gets up at night to walk around in the house.

The arbitrator noted the conflicting medical findings and chose to rely on Dr. Speigel's conclusion that Maggiore had permanently lost complete use of his right leg.The arbitrator therefore ruled that Maggiore was permanently and totally disabled for life under section 8(e) of the Act.

The State Treasurer sought review of the arbitrator's decision by the Commission.On review by the Commission, no new evidence was presented to the Commission.However, based upon Dr. Cascino's report that Maggiore found some sensation in the right leg above the knee and that Maggiore was able to ambulate on the right leg, the Commission found that Maggiore had not lost 100% of the use of his right leg and, therefore, was not permanently and totally disabled under section 8(e) of the Act.Nevertheless, the Commission found Maggiore to be permanently and totally disabled under section 8(f) of the Act.

ARA appealed the decision of the Commission to the circuit court.The circuit court remanded the case to the Commission to make an additional finding of fact as to whether Maggiore lost 100% of the use of his right foot and a conclusion of law as to whether 100% loss of the use of an eye coupled with 100% loss of the use of a foot was a sufficient basis for an award of permanent and total disability pursuant to section 8(e) of the Act.

On remand, the Commission accorded the greatest weight to the opinion of Dr. Cascino, a treating physician, and because Drs. Cascino and Addison's findings and opinions correlated with Maggiore's complaints.The Commission gave no weight to Dr. Speigel's opinion because his opinion as to the extent of Maggiore's permanent disability of the right leg constituted a conclusion of ultimate fact which is the province of the Commission.The Commission then found as follows:

"The Commission notes that although [Maggiore] expressed some apprehension about walking, standing, or climbing stairs, [Maggiore] is able to walk on his right leg and foot without assistance.[Maggiore] failed to establish that the injured members no longer perform their normal function.The Commission therefore finds that 8(e) of the Act is not applicable to this case because [Maggiore] has not proven permanent and complete loss of use of the right leg or the right foot."

The Commission then reaffirmed its original decision that Maggiore be awarded benefits pursuant to section 8(f) of the Act given that Maggiore's age, skill level and lack of education prevented him from performing anything but the most menial task for which no stable labor market existed.

In its lengthy memorandum decision and judgment, the circuit court reviewed the original decision of the arbitrator and the commission, as well as the Commission's decision on remand.The circuit court found that there was sufficient evidence in the record to support the Commission's award of benefits under section 8(f) of the Act and confirmed the Commission's decision.This appeal by ARA followed.

ARA contends that the decision of the Commission was against the manifest weight of the evidence.ARA argues that the evidence supports a finding that Maggiore was permanently disabled under section 8(e) of the Act rather than section 8(f) of the Act.

Section 8(e) of the Act provides in pertinent part as follows:

"8.The amount of compensation which shall be paid to the employee for an accidental injury not resulting in death is:

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