*1 court’s compassion both the defendant Ultimately, and victim. the court probation determined not an appropriate sentence imposed aforesaid, the minimum of imprisonment. term As record is amply supports disposition. court’s It neither arbitrary nor an abuse of discretion and will not be on appeal. disturbed
The judgment of the circuit County court Will affirmed. Affirmed. WOMBACHER, JJ.,
STOUDER and concur. COOK, Appellee, ROBERT E. v. THE INDUSTRIAL et COMMISSION al.
(Caterpillar Company, Appellant). Tractor (Industrial Division) Third District No. 3 — 87—0047WC Opinion 13, 1988. Rehearing 16, 1988. filed October denied December — *2 McNAMARA,JJ., dissenting. McCULLOUGH Peoria, Serblin, appellant. for D. Forrest Peoria, appellee. Halliday, of E. Ronald PRESIDING JUSTICE BARRY delivered the opinion court:
The petitioner, Cook, Robert E. filed an application for adjust ment of claim under the Workers’ Act Compensation (the Act) (Ill. Rev. Stat. seq.), 138.1 et ch. par. for a knee suffered while he was employed respondent, Caterpillar Tractor Com An pany. arbitrator awarded the petitioner total and temporary per manent partial disability. The Industrial Commission (the Commission) reversed the award, arbitrator’s finding that the petitioner failed to that he prove sustained an accidental injury arising out of and in the course of his employment. The circuit court found the Commission’s decision to be clearly against the manifest weight evidence, va cated the Commission’s decision and reinstated the award of the arbi trator. The respondent has perfected this appeal.
At hearing before the arbitrator, the petitioner gave the fol- lowing on testimony direct examination. He began working for the re- spondent in November 1977. For three months prior March 1978, the alleged date of injury, petitioner had working been line, assembly hand-tightening engine bolts with a five-foot-long torque wrench. To tighten each of the 30 to 40 bolts per engine, the petitioner would have brace himself to on the pull wrench. The pro- cess involved considerable use of his legs, including bending and twist- *3 ing of the knees.
Approximately one 25, month before March the defendant began to notice that when he using was the wrench, torque his knees were stiff and in pain. During the month, ensuing the petitioner soaked his in legs a hot after bath work and applied heating to pad his knees. In the morning, stiffness petitioner had to work the out of his knees, right especially 25, knee. On Friday, 1978, March peti- tioner noticed that his right knee was more than painful usual. He did not stop working that day. The next morning, as the petitioner was getting bathtub, out of the his knee right locked in a bent position. He and his wife were eventually able to work the knee into a straight The position. following 28, March Monday, the petitioner testified that he called the respondent about his knee. He Font, then saw Dr. his family doctor. Dr. Font instructed the petitioner to off stay leg his for one week and to see Dr. Jay Alameda, an orthopedic The surgeon. pe- titioner Dr. Alameda during saw sometime that week and returned to work on the following Monday, April 4. 4,
While at work on April the petitioner’s knee again locked up. He went to see the nurse, company who informed him that the injury was not work-related and that the company could do nothing about it. petitioner The not day. did return work that again
The to see doctor petitioner went Dr. Alameda. The advised petitioner his required knee was surgery. Surgery performed or April. 24, Thereafter, about petitioner returned light work but was restricted to The duty. petitioner continued to see 19, Dr. Alameda not 1979, as knee did On Dr. improve. January Alameda for a operated second time on the knee.
The testified at no time prior to March had he experienced knee or any leg problems. Prior to March not engaged had been in other any strenuous activities. At physical the time of the arbitration hearing, his knee testified would swell and cause him He pain. could walk short distances. His knee when popped clicked he bent it. cross-examination,
On told Dr. stated that he Ala- meda that he had been getting up. around well until his knee locked telling He denied the doctor that his was caused fall when he was out getting of the bathtub.
The into respondent presented evidence claim form for company weekly disability benefits. theOn the defendant answered “no” to the question: “Was an The petitioner accidental involved?” explained that he thought “something that the term “accident” meant *** like a car happening, accident is an accident.” Cook, wife,
Debra the petitioner’s testified that on March 1978, she help petitioner get had to out of the bathtub because he could not straighten his knee. Debra in said the petitioner She pain. knew had taking been hot baths for his knees. According Debra, the petitioner had not in participated activities sports day question and did not have knee difficulties before working respondent. deposition Dr. Gordon Shultz was into admitted evidence. Shultz, orthopedic surgeon,
Dr. a board-certified testified that he ex- diagnosis amined the 1982. His was that May peti- suffering tioner was from traumatic arthritis of the knee. In right the petitioner’s condition was opinion, progressive doctor’s and per- manent. Dr. Shultz was asked a hypothetical question by the peti- tioner about the cause and source of a in a person’s injury situation replied to that The doctor petitioner. similar cause *4 knee of cartilage be tom in the and that the source injury the would cross-examination, hy- On when asked a the was injury work-related. which the knee of a respondent person the by pothetical question while he out of stepping locked was up no knee complaints with injury the was bathtub, opinion still of the the doctor was a doctor, fell if the However, according petitioner to the work-related. in- locked, caused the his the fall could have first and then knee then was the activity type the work opined petitioner’s Dr. Shultz jury. knee problems. of that could have caused his activity into evidence. the of Dr. was admitted deposition Alameda Lastly, fol- petitioner Dr. that he took from the Alameda testified a April on 1978. Accord- lowing Hospital his admission into Proctor that he well history, doing the the stated had been ing petitioner of the and get earlier when started out bathtub until two weeks knee in Dr. Alameda’s being petitioner fell from his locked. The was time the believed that at which doctor following Monday, office the two had The returned weeks petitioner the a knee. sprained knee, discovering Alameda the loose Friday. later on a Dr. examined 24, 1978, Dr. operated in the knee Alameda joint. April On body knee. cartilage the of loose from his removing piece petitioner, months, the next nine Dr. Alameda saw the During approximately occasions, several several of those times. On Also, fluid had to drained from that right pain. of knee be complained 19, 1979, again Dr. on the January operated peti- knee. On Alameda knee. The found a tear in the knee. On cartilage tioner’s doctor subse- Alameda, quent complain visits Dr. continued to pain right in his knee. examination, direct to Dr. Alameda a petitioner posed hy-
On similar to pothetical question assuming presented by facts those petitioner. The doctor the cause opined hypothetical per- son’s knee could have been work-related. cross-examination, Dr. his medical history
On Alameda stated that knee petitioner’s onset of would have suggested problems or or 10. April operation, April been two weeks before The stated that the back completing doctor side he had answered “no” weekly disability ques- an opinion disability by tion: “In caused your patient’s respondent at In response hypothetical question by work?” to a 10, 1978, until 9 or when regarding patient healthy April who was fell, out and he and the knee was getting “he was bathtub locked,” the doctor would have occurred on opined 9 or 10 and not have work connected. record April would been he saw the by peti- not indicate denial Dr. Alameda that does problem during tioner for a knee the week March above, awarded the 46.14 Based on arbitrator for a compensation total 35% per- weeks of temporary disability The award was reversed right leg. loss of use of his manent *5 550
Commission. We note that the on Commission review based its deci- sion solely on the evidence before the The parties pre- arbitrator. sented no to new evidence the Commission.
The respondent’s argument first on that appeal petitioner is the to give failed notice of the accident within the time required statutory period. respondent The contends it of ac- that first received notice the cident when the petitioner filed his application adjustment claim 15, on 28, 1978, October 1980. The on petitioner responds that March he gave respondent the oral notice of the The also injury. petitioner 4, 1978, asserts that he gave notice on he the April when saw com- nurse pany after his knee locked while at work. The up did not make a on finding this issue. 6(c)
Section
the Act provides in
or
pertinent part that oral writ
ten notice of the
given
accident shall
the
be
to
as soon as
employer
practicable, but not later than
days
45
after the accident. (Ill. Rev.
Stat.
ch.
par. 138.6(c).)
provision
The notice
of the Act
tois
be liberally construed. Atlantic &
Tea Co. v. Industrial
Pacific
Comm’n
67 Ill. 2d
In the the petitioner instant that testified on March he called the respondent regarding his on March 25. injury Friday, The benefits disability form indicates that the respondent approved benefits petitioner for the April on offered respondent The no witnesses the dispute petitioner’s testimony regarding notice. Thus, the liberally construing regard evidence, Act with to the above we find the that respondent received notice of petitioner’s the injury the within statutory 45-day period.
The respondent’s recited issue on is appeal whether the Industrial Commission’s that did finding employee not sustain accidental injuries out and in the arising course of his is employment with consistent the manifest evidence. The respondent contends that there evidence to show not that ample was injury related, actually not also that did not on work but occur 25,1978. March First, the record. emphasizes
The several elements of respondent conflicts with respondent argues petitioner’s testimony that Dr. gave Dr. Based on that Alameda history history, Alameda. of a fall in the concluded that was disabled because petitioner Next, hypotheti- respondent argues response bathtub. fell in complaints cal where with no knee question patient agreed bathtub, Dr. Shultz resulting locking in his knee’s up, in re- *6 Drs. Alameda and Shultz concurred that the to a hypothetical was person petitioner’s in a situation akin to work related. The in and had not in petitioner pain engaged also notes that he had been 25. Both other to March any knee-threatening physical activities 1978, his knee petitioner 26, and his wife testified that on March locked up getting hearing, while he was out of the At the bathtub. telling denied Dr. Alameda that he fell in the bathtub. As to form, that he indi- weekly disability petitioner argues 10, cated April 1978, as the he of first was disabled because his day because that he simply was the date determined that unable to return to work. Also the petitioner argues as to that that he was unaware of the of the term “accident” in rela- meaning tion to his condition. cases, long
In a
line of
appellate courts
held that
have
it
original jurisdiction; may
Commission has
both consider evidence
fact-finding agent,
arbitrator,
that was
to its
presented
and con
sider evidence
to the Commission. (See
that is first
Poca
presented
462,
Mining
hontas
Co. v.
301 Ill.
134
(1922),
Industrial Comm’n
349,
160;
N.E.
3d
App.
Dunker v. Industrial Comm’n
126 Ill.
(1984),
466
1255.)
N.E.2d
The law is
well
that the Com
similarly
established
mission has
to determine all unsettled
and is not
authority
questions
bound
by
arbitrator’s
even when it
reviews the
findings,
merely
48,
evidence presented
1985,
at arbitration.
ch.
pars.
Ill. Rev. Stat.
138.18, 138.19;
590,
Rodriguez v.
371 Ill.
(1939),
Industrial Comm’n
741;
21 N.E.2d
Dunker v.
(1984),
Industrial
126 Ill.
3d
App.
Comm’n
349,
In cases where Commission has the arbitrator’s rejected receiving evidence, new it findings factual without is the function entire of this court on to examine the record and weigh review 552 of the Industrial findings the factual to determine whether evidence (Wirth the evidence. the manifest of against were 592.) N.E.2d While 57 Ill. 2d 312 (1974),
v.
Comm’n
Industrial
an arbitrator’s
way
by
is in no
bound
that the Commission
recognizing
ef
legal
not without
decision,
decision is
note that the arbitrator’s
we
Ill. 2d
289
Quick
(1972),
Comm’n
fect.
v. Industrial
(See
(1969),
Comm’n
617;
v. Industrial
see also Lewandowski
N.E.2d
its
Further,
that in performing
we note
520.)
254 N.E.2d
Ill. 2d
disad
is at a
record,
practical
the Commission
role as reviewer of the
arbitrator,
heard
having
The
as
to the arbitrator.
vantage
compared
that evi
to evaluate
position
a better
testimony,
actually
the live
3d
155 Ill.
(1987),
App.
Luckenbill v. Industrial Comm’n
dence. See
v. Industrial
Co.
1185;
Peabody Coal
compare
507 N.E.2d
338,
Of
of
A chain
his knees.
with
medical difficulties
had no
the
health, an ac
good
of
condition
previous
which demonstrates
events
disability
resulting
being
ill
of
cident,
condition
subsequent
and a
nexus be
a causal
to prove
evidence
circumstantial
sufficient
bemay
Harvester
International
injury.
and the employee’s
the accident
tween
59, 442
Ill.
N.E.2d
2d
(1982),
Comm’n
v. Industrial
the
answer
negative
Also,
note that
the
we
in
accidental
form of whether an
disability
on the
question
consid
one factor to be
only
not
It is
dispositive.
was involved is
jury
Tea
v. Industrial
&
Co.
(Atlantic
evaluating
claim.
ered in
his
Pacific
the
83.)
peti
Comm’n
Certainly,
364 N.E.2d
67 Ill. 2d
(1977),
the word
definition of
legal
not
the
tioner could
be
know
expected
v.
Comm’n
in the Act. Luckenbill
Industrial
it is
“accident” as
used
155 Ill.
3d
We further note that when a worker’s con the body, under stresses on way repetitive job-related (Interlake in the of employment. sidered to arise out of and course Steel, Inc. v. 269, 474 Industrial Comm’n 130 Ill. 3d App. knee in 402.) Here, presented N.E.2d the evidence that his of repetitive tightening was caused of hundreds jury by stress engine bolts. large record, testi consideration of the including
Our entire Schultz, sug his wife Drs. Alameda of the and and petitioner, mony conclusions, and the arbitrator’s contrary that in the of gests light than the ar of the Commission other the absence evidence before that record, conclusions bitration the Commission’s in the and failed to his accidental arose out of prove injuries that of the evi against weight course of his were the manifest employment adopt Judge Manning’s analysis dence. We Circuit Robert cogent follows:
“This Court aware in order to requirement is well of reverse decision of Illinois Industrial Commission that weight decision of the evidence. against must be the manifest bar, In the case at considered the Commis- evidence arbitrator; ev- sion was that introduced before the no additional idence was the Commission. A care- review before presented ful consideration of that indicates there was a evidence question factual the Com- before the and thus arbitrator before However, mission. of fact simply question because there was [a] does Commission not mean that the of before decision arbitrarily must be followed. The decision upon must founded conclu- be a sensible Industrial Commission contrary considered manifest sion which cannot be to simply not the test state weight in the It is evidehce case. and the Commission's that there is a of fact question present, stand; against finding will of fact must not be finding opinion It is the of the Court manifest evidence. *** of the reading testimony petitioner, concise wife, treating examining physician petitioner, *8 554
physician shows and convincing clear proof the petitioner sustained an injury alleged accidental as petition. The Commission’s to the decision is contrary clearly against weight manifest of the evidence be re- and must versed.”
Accordingly, we find that the entitled to petitioner was compensation. affirm
We of the vacating decision circuit court the Commis- sion’s decision reinstating award of arbitrator’s the petitioner.
Affirmed. CALVO, JJ.,
WOODWARDand concur. McCULLOUGH, JUSTICE dissenting: out, pointed As the law is clear that the will not reviewing court the findings disturb of the Industrial Commission when are not they (U.S. Chemi Industrial against manifest evidence. v. cal Industrial Co. Comm’n (1986), App. 143 Ill. 3d The Indus 881.) trial Commission has the responsibility determining the facts and drawing inferences from the complete and a will not evidence court overturn Commission’s infer findings because a different simply drawn, ence judgment could be or otherwise its for that of substitute Police v. Comm’n Department Niles Industrial the Commission. Ill. 2d 528. case, In this more there is than sufficient evidence for the Indus- trial Commission to determine that the should not recover. There was evidence on form indicated company that an accidental was not Petitioner on disabil- involved. ity “no,” form answered an accidental If not involved. he had answered to that an in- “yes” question, “Was accidental volved,” he would have also been the form to required by show “date,” “place,” of the accident,” “details and “whether the accident while on at happened the job Caterpillar.” doctors to testify pe- this case were doctors of
titioner’s choice. Dr. Alameda had been the before doctor pa- this incident. particular respect history given by With tient, Dr. Alameda testified: doing
“He well be- gave he was until two weeks get fore the examination when he out of the tub started bath and fell from the being knee locked.” The doctor’s not clear he first testimony peti- as to when saw the tioner respect with to this accident. He first testified that saw on 1978. He then testified him April concerning seeing 23, 1978, on April April and also that he saw the *9 doctor, 1978. The on a checked that the dis- disability patient’s ability was not caused an at also was by testimony work. His not clear as to whether the incident that the to him petitioner related occurred prior 24, 1978, two weeks to 21 or or two weeks April April 10, to April 1978. The doctor did that there no testify would be connection between the injury and the work if the incident occurred April Regardless of the doctor’s recollection and testi- dates, mony as to the Commission could determine to the according of the testimony doctor that the fell in the bathtub and the was not work related. The respondent’s arguments concerning the record in this case against dictate reversal of the Commission. Petitioner’s did testimony conflict with the gave to Dr. Alameda. Dr. Alameda did conclude that a fall in the bathtub caused the Both disability. Dr. Alameda, Shultz and Dr. in answer to a hypothetical question, based upon record, facts in the stated the injury was not work related. As indicated the majority, the petitioner performed his duties regular on March 1978, made no complaints, and both he and Dr. Alameda indicated on the disability form an accidental at work not involved.
In order to overturn the decision of the Industrial Commission case, this we must find that it is against the manifest of the weight evidence. Whether evidence is or conflicting of such a nature that dif ferent inferences therefrom, that may be drawn court reviewing will not disregard permissible inference that drawn. may (Sterling be Casting Steel Co. v. Industrial Comm’n 74 Ill. As (1979), 273.) 2d Commission is the judge of the credibility witnesses and the weight given be to their it is for the Commission to de testimony, cide which the conflicting medical in a opinions case is to be ac cepted. Caterpillar Tractor Co. v. Industrial Comm’n 97 Ill. 2d 35. no
Additionally, importance given should be or any application additional to the record scrutiny be made to the Commission’s reject- ing the arbitrator’s factual findings receiving without new evi- dence. Additional evidence be may presented when such evidence:
“(1) relates to the condition of the time since the employee the arbitration hearing, (2) relates matters that occurred or conditions that developed after the or hearing, (3) arbitration cause,
was, hearing.” not introduced at arbitration good 138.19(e). Ill. Stat. ch. par. Rev. of the evidence ques-
There are cases where the manifest case, tion is In this is not close and we particular question close. of the Industrial Commission. Of should not overturn decision of eroding court also reviewing wary should be equal importance, deci- as it to arbitrators’ pertains of the Commission responsibility of the In- legislative purpose destroy sions. Such action tends responsibility. dustrial Commission’s
McNAMARA, J., concurs. VERMEIL, TRUST AND v. JEFFERSON Plaintiff-Appellee, STANLEY M. *10 PEORIA, Defendant-Appellant. SAVINGSBANK OF Third District No. 3—88—0175 rehearing 10, 1988. on denial of November Opinion filed Modified 3, 1989. January notes The respondent fall could caused the injury. have stated same Dr. Alameda sponse hypothetical question, And, further, not related. had would be work 25, 1978, regular stated that he duties on March with- performed Also, on out of or treatment for knee complaining receiving problems. and Dr. Ala- weekly disability both meda indicated that an accidental at work not involved. The also which respondent argues according 24, 1978, Dr. Alameda took from the 23 or April April Thus, the bathtub incident had occurred two weeks earlier. the re- spondent argues, the accident occurred 10 and approximately April not testified, March 25 as the thereby affecting peti- tioner’s credibility. The petitioner counters that the circuit court correctly reversed denial of compensation. the Commission’s notes that