Thomas v. Industrial Commission

• Decision Date: 23 January 1980
• Docket Number: No. 52175,52175
• Citation: 35 Ill.Dec. 794,399 N.E.2d 1322,78 Ill.2d 327
• Parties: , 35 Ill.Dec. 794 Clarence E. THOMAS, Appellant, v. The INDUSTRIAL COMMISSION (The Levy Company, Appellee).
• Court: Illinois Supreme Court

Page 1322

399 N.E.2d 1322

78 Ill.2d 327, 35 Ill.Dec. 794

Clarence E. THOMAS, Appellant, v. The INDUSTRIAL COMMISSION (The Levy Company, Appellee).

No. 52175.

Supreme Court of Illinois.

Jan. 23, 1980.

Peter Francis Geraci, Chicago, for appellant.

Kane, Doy & Harrington, Chicago (Arthur O. Kane, Chicago, of counsel), for appellee.

KLUCZYNSKI, Justice:

In proceedings under the Workmen's Compensation Act (Ill.Rev.Stat.1975, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found that claimant, Clarence Thomas, was disabled as a result of accidental injuries sustained while he was employed by respondent, The Levy Company. The arbitrator awarded claimant compensation of $244 per week for a period of eight weeks for temporary total incapacity, and further found that claimant had failed to prove that he sustained any permanent disability. On review, without submission of additional evidence by either party, the Commission affirmed the arbitrator's decision. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission, and claimant appealed to this court pursuant to Rule 302(a) (58 Ill.2d R. 302(a)). Claimant contends that the arbitrator exceeded his authority under section 19(b) of the Workmen's Compensation Act (Ill.Rev.Stat.1975, ch. 48, par. 138.19(b)) by entering a finding on the issue of permanent disability, and that respondent's failure to introduce impeaching evidence in rebuttal, the foundation for which was laid on cross-examination, is reversible error requiring a remand on the issue of temporary total disability.

On July 6, 1977, claimant was employed as a dry wall taper for respondent. In the course of performing his duties, it became necessary for claimant to obtain additional materials from respondent's material trailer. The bed of this trailer was approximately 31/2 feet to 4 feet above the road surface. Respondent had supplied a pallet (a portable platform, usually double-faced, on which materials are stacked for storage or transportation, as in a warehouse), to be used as a ladder, for entering and existing the trailer. Claimant gathered the materials needed and started down the pallet carrying a 25-pound bag of taping cement under each arm. As claimant stepped on the pallet, the pallet gave way, causing him to fall to the ground and sustain injury to both knees when he hit the gravel road. He returned to his job site, notified his supervisor of the injury, and continued to work as scheduled through the morning of July 8, 1977. At noon on July 8, claimant left his job to consult his family physician, Dr. George Graham. Claimant did not return to work. Dr. Graham treated claimant conservatively for approximately four weeks. On August 8, 1977, claimant was hospitalized for a stomach disorder. While in the hospital, claimant continued to complain of pain in his knees. He remained hospitalized through August 26, 1977.

Respondent paid claimant temporary total disability payments through September 30, 1977, at which time the payments were discontinued. On October 5, 1977, claimant filed a claim with the Industrial Commission and, on October 12, a petition to advance his cause for hearing. Claimant alleged in his petition that respondent had discontinued payment of temporary total compensation on September 30, 1977, that claimant was without funds to support his family, and that he was prevented from working as a result of injuries sustained in his employment as evidenced by a copy of his physician's report attached to the petition. On November 22, 1977, claimant filed another petition requesting an immediate hearing of his cause. Claimant alleged in this petition that he was disabled as a result of an injury sustained in his employment, that he was currently under the care of a physician and that, despite demands, respondent had discontinued the payment of temporary total compensation. The relief sought by claimant was an order advancing his cause for immediate hearing on the issue of temporary total compensation. The Commission advanced the cause for an immediate hearing on the basis of this petition. In the proceedings before the arbitrator, the parties stipulated, in addition to certain facts and issues not relevant to this appeal, that the issues in dispute were "the amount of additional temporary compensation to which petitioner is entitled, if any, and the nature and extent of the injury, if any."

Claimant testified at the hearing that he was currently under the care of a physician, that he continued to experience pain in his legs and back, and that he was unable to stand for extended periods of time as required by his employment. The medical reports introduced into evidence by claimant, the reports of two treating physicians, concluded that claimant was currently unable to return to work. These reports expressed no opinion on the issue of permanent disability.

Respondent introduced into evidence the reports of his examining physicians, both concluding that claimant was currently ready to return to work, stating further that there was no evidence of any residual impairment to claimant's knees. In addition, respondent introduced into evidence the report of a consulting orthopedist who examined claimant while he was hospitalized in August 1977. This report concluded that his current condition was unrelated to the fall from the trailer. Respondent also introduced records of claimant's prior hospitalizations. His first hospitalization was in 1970 for the treatment of blunt trauma injuries to claimant's neck, stomach, and back. His second hospitalization was for tonsilitis in 1976.

The first issue presented to this court is the scope of the proceedings before the arbitrator, specifically, the validity of the arbitrator's finding on the issue of permanent disability. Both claimant and respondent rely upon section 19(b) of the Workmen's Compensation Act (Ill.Rev.Stat.1975, ch. 48, par. 138.19(b)) to resolve this issue. The section provides:

"The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability."

Claimant contends that the arbitrator is precluded by this provision from entering a finding on the issue of permanent disability in what claimant characterizes as a "19(b)" proceeding. Respondent contends that this provision vests the arbitrator with the discretion to enter any finding supported by the manifest weight of the evidence. We do not find this provision dispositive of the issue presented. It is clear that section 19(b) of the Workmen's Compensation Act (Ill.Rev.Stat.1975, ch. 48, par. 138.19(b)) allows the arbitrator to refrain from ruling prematurely on the issue of permanent disability, but this presumes that the issue is properly before the arbitrator.

In the present case, the proceeding before the arbitrator was conducted pursuant to claimant's petition for an immediate hearing. Claimant alleged in his petition that he was disabled as a result of an injury sustained while working, that he was currently under the care of a physician, and that despite demands, respondent had discontinued payment of temporary total disability benefits. Claimant made no allegation related to permanent disability. The relief sought by claimant was an order advancing his cause for an immediate hearing solely on the issue of temporary total...