Poore v. Industrial Comm'n
State: Illinois
Court: 4th District Appellate
Docket No: 5-97-0223WC
Case Date: 09/08/1998
NO. 5-97-0223WC
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
Industrial Commission Division
PAUL POORE, ) Appeal from
Appellant, ) Circuit Court of
v. ) Macon County
THE INDUSTRIAL COMMISSION et al. ) No. 93MR125
(Auto Parts Unlimited, Appellee). )
) Honorable
) John K. Greanias,
) Judge Presiding.
_________________________________________________________________
JUSTICE RAKOWSKI delivered the opinion of the court:
Claimant, Paul Poore, filed a petition for review
pursuant to sections 8(a) and 19(h) of the Workers' Compensation
Act (Act) (820 ILCS 305/8(a), 19(h) (West 1996)), requesting that
the Industrial Commission (the Commission) modify a previous
decision. Specifically, claimant asked the Commission to
increase his permanent partial disability (PPD) benefits, grant
him additional temporary total disability (TTD) benefits, and
award him an additional reimbursement for medical expenses. The
Commission granted claimant's request for further reimbursement
for medical expenses and denied claimant's requests for an
increase in PPD benefits as well as an additional award of TTD
benefits. Claimant appealed to the circuit court of Macon
County, which confirmed the Commission. We affirm the denial of
PPD benefits, but we reverse the denial of additional TTD
benefits and remand for further proceedings. I. FACTS
On January 8, 1988, claimant sustained severe burns
arising out of and in the course of his employment with Auto
Parts Unlimited (employer). Claimant suffered burns over 46% of
his body, covering the majority of claimant's lower body and
extremities. On April 21, 1990, the arbitrator awarded
petitioner TTD benefits of $160 per week for 85 1/2 weeks
pursuant to section 8(b) of the Act as well as PPD benefits of
$144 per week for 250 weeks for claimant's permanent loss of 50%
of a man as a whole pursuant to section 8(d)(2) of the Act. 820
ILCS 305/8(b), 8(d)(2) (West 1996). Both parties appealed to the
Commission, and, on February 26, 1991, the Commission modified
the arbitrator's award, awarding claimant TTD benefits for 76 5/7
weeks instead of 85 1/2 weeks. Neither party appealed this
determination.
After the Commission's decision, claimant still
required additional medical treatment for the burns he sustained
in 1988. The back side of claimant's left calf developed a
neuroma and an ulceration. Dr. Ernest Clyde Smoot III,
claimant's plastic surgeon, corrected this problem in December
1990.
In addition, as a result of the treatment of claimant's
burns, his left heel no longer met the ground when he walked,
causing claimant to walk on his toes instead of his entire left
foot. Claimant's abnormal gait caused sores and calluses to
develop on the bottom of his left foot. Consequently, claimant
limped and was in constant pain due to his condition.
Dr. Smoot referred claimant to Dr. John R. Fisk, an
orthopedic surgeon, to address claimant's left heel condition.
Dr. Fisk determined that claimant suffered from an equinus
contracture of the left ankle, or in other words, claimant's
Achilles tendon had "shortened." This condition decreased
dorsiflexion by 18 degrees. Because claimant was falling often
as well, Dr. Smoot also referred claimant to Dr. Gelber, a
neurologist. Having determined that claimant's problem was
mostly mechanical and not neurological, Dr. Gelber quit treating
claimant, and claimant returned to Dr. Fisk for treatment.
Dr. Fisk initially attempted to cure claimant's
condition by using casts to stretch the Achilles tendon.
However, because the casts excessively irritated claimant's leg,
claimant opted to undergo surgery, which was successful.
Dr. Fisk asserted that, after recovery from the
surgery, claimant had a normal gait. Similarly, Dr. David J.
Fletcher testified that the tendon surgery increased the range of
motion of claimant's left foot. He also opined that claimant's
disability status had not changed from the original arbitration
of his claim, although claimant testified that his problems have
recurred. Dr. Fisk, Dr. Smoot, and Dr. Fletcher all agreed that
claimant's tendon condition and the subsequent need for surgery
were causally related to claimant's burn accident.
The Commission did not make any findings regarding the
time span that claimant was totally incapacitated due to the
above treatments. However, the evidence shows that Dr. Gelber
first released claimant from work in February 1991 and that Dr.
Fisk believed claimant was physically able to return to work on
August 5, 1991. The record also shows that, on behalf of
claimant, Mrs. Poore requested a written release to work on
November 29, 1991.
II. DISCUSSION
A. Permanent Partial Disability Benefits
At oral argument, claimant argued that the Commission
erred by failing to award an increase in PPD benefits. However,
after careful review of claimant's argument in his appellate
brief, we conclude that claimant only raised the issue of whether
the Commission properly denied additional TTD benefits. As such,
we deem claimant's argument regarding an increase in PPD benefits
waived. 155 Ill. 2d R. 341(e)(7) ("Points not argued [in
appellant's brief] are waived [by appellant] and shall not be
raised in the reply brief, in oral argument, or on petition for
rehearing"); Archer Daniels Midland Co. v. City of Chicago, 294
Ill. App. 3d 186, 190, 689 N.E.2d 392, 395 (1997).
Even assuming arguendo that this argument has not been
waived, appellant's argument is without merit. After careful
review of the record, we find the record replete with evidence
that claimant recovered from his left leg pathology to the extent
that an increase in PPD benefits was unwarranted. As such, we
cannot conclude that the Commission's decision was against the
manifest weight of the evidence. Chicago Park District v.
Industrial Comm'n, 263 Ill. App. 3d 835, 843, 635 N.E.2d 770, 776
(1994) ("The extent and permanency of a claimant's disability are
questions of fact, and the Commission's factual determinations
will not be overturned unless they are against the manifest
weight of the evidence").
B. Temporary Total Disability Benefits
Claimant also contends that the Commission erred when
it denied claimant's petition for additional TTD benefits
pursuant to section 19(h) for the period he was unable to work
due to treatment of and recovery from his Achilles tendon
condition. Claimant's contention raises the issue of whether an
additional award of TTD benefits is contemplated by section 19(h)
of the Act where the Commission determined in prior proceedings
that claimant's injury reached a state of permanency.
Section 19(h) provides in pertinent part:
"[A]s to accidents ***, which are
covered by any agreement or award under this
Act providing for compensation in
installments made as a result of such
accident, such agreement or award may at any
time within 30 months after such agreement or
award be reviewed by the Commission at the
request of either the employer or the
employee on the ground that the disability of
the employee has subsequently recurred,
increased, diminished or ended.
On such review, compensation payments
may be re-established, increased, diminished
or ended." 820 ILCS 305/19(h) (West 1996).
In denying additional TTD benefits, the Commission
relied on Briggs Manufacturing Co. v. Industrial Comm'n, 212 Ill.
App. 3d 318, 570 N.E.2d 1152 (1989), without explanation. In
Briggs, the court reversed the Commission's grant of TTD benefits
and affirmed the Commission's denial of an increase in PPD
benefits. There, after the Commission's initial decision,
claimant had been laid off once because of a general layoff,
rehired, and then laid off again because of her medical
restrictions. Another employer ultimately hired her to perform
light work. It was at this job that she had recurring back pain,
which was treated by pain medication from her doctor. She left
that job due to pay cuts and later took a job as a waitress.
Before making its findings, the court asserted:
"***TTD benefits are available only from
the time an employee is injured until he has
recovered as much as the character of his
injury will permit. [Citation.] Temporary
incapacity might be described as the period
of the healing process. [Citation.] Once
the Commission concludes that the
petitioner's condition has stabilized and
that the permanent nature of the injury can
be assessed, an award of temporary total
disability is no longer appropriate under
section 19(h)." Briggs Manufacturing Co.,
212 Ill. App. 3d at 320, 570 N.E.2d at 1153.
Applying this reasoning to the facts, the court found that
claimant's permanent disability had stabilized at the time of the
Commission's first decision and that the Commission
inappropriately awarded TTD benefits. Briggs Manufacturing Co.,
212 Ill. App. 3d at 321, 570 N.E.2d at 1153. See also Howard v.
Industrial Comm'n, 81 Ill. 2d 50, 60, 405 N.E.2d 750, 755 (1980)
(asserting that a claim for additional TTD benefits was not
properly before Commission where "claimant's condition had
stabilized and that the permanent nature and extent of the injury
could be assessed"); City of Alton v. Industrial Comm'n, 231 Ill.
App. 3d 334, 338-39, 596 N.E.2d 639, 641 (1992) (declining to
review whether claimant suffered from a temporary total
disability since no increase in his permanent partial disability
was shown); Archer Daniels Midland Co. v. Industrial Comm'n, 174
Ill. App. 3d 918, 922, 529 N.E.2d 237, 240 (1988) (asserting that
"once the employee's physical condition has stabilized and he has
completed a rehabilitation program which will enable him to
resume employment without further training or education, neither
TTD nor maintenance is appropriate); but see Hardin Sign Co. v.
Industrial Comm'n, 154 Ill. App. 3d 386, 388, 506 N.E.2d 1066,
1067 (1987) (noting that, after a section 19(h) hearing, the
Commission had awarded TTD benefits without an increase in PPD
benefits and no parties appealed that determination).
Under different facts, this court in World Color Press
v. Industrial Comm'n, 249 Ill. App. 3d 105, 619 N.E.2d 159
(1993), found that a claimant was entitled to TTD benefits under
section 19(h). There, claimant's hand disability worsened after
the Commission's decision, requiring three additional surgeries.
As a result, claimant's physicians took him off work for
substantial intervals. The Commission granted claimant's section
19(h) request for an increase in PPD benefits and additional TTD
benefits.
In affirming the Commission's award of TTD benefits,
the court clarified the rule followed in Briggs. The court
explained that a period of temporary total disability can be the
result of a period in which a petitioner's permanent partial
disability, which was once thought to be permanent, becomes
unstable or degenerates and requires additional treatment to
restabilize. World Color Press, 249 Ill. App. 3d at 109, 619
N.E.2d at 162. The court asserted that, in such cases, an
additional period of temporary total disability is compensable by
an award of TTD benefits. World Color Press, 249 Ill. App. 3d at
109, 619 N.E.2d at 162.
Employer argues that, under World Color, claimant must
first prove that his permanent partial disability materially
increased before he can obtain an additional award of TTD
benefits. We disagree. Although the law requires a claimant to
prove that his permanent disability has materially increased to
qualify for an increase in his PPD benefits, a claimant does not
have to prove an increase in his permanent disability to be
entitled to TTD benefits. See World Color Press, 249 Ill. App.
3d at 109, 619 N.E.2d at 162 (claimant required additional
treatment to restabilize a condition that was thought to be
stable and permanent causing claimant to be temporarily and
totally disabled during the treatments and the subsequent
recovery periods). Rather, all claimant must show is that his
disability destabilized and required more treatment or recovery
time and that, consequently, he was temporarily and totally
disabled. World Color Press, 249 Ill. App. 3d at 109, 619 N.E.2d
at 162. That claimant's permanent disability later restabilized
or improved after further treatment or recovery does not change
the fact that he was temporarily and totally disabled and unable
to work.
This approach comports with the spirit and purpose of
the Act.
"'The Workers' Compensation Act is a
humane law of a remedial nature. [Citation.]
The underlying purpose of the Act is to
provide financial protection for workers
whose earning power is interrupted or
terminated as a consequence of injuries
arising out of and in the course of their
employment.'" World Color Press, 249 Ill.
App. 3d at 109, 619 N.E.2d at 162, quoting
Hardin Sign Co., 154 Ill. App. 3d at 389, 506
N.E.2d at 1068.
When the Commission rendered its decision, it lacked
the benefit of the guidance provided in World Color.
Consequently, we remand this case back to the Commission for
determination of whether claimant is entitled to an additional
award of TTD benefits.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit
court's confirmation of the Commission's decision denying an
increase in PPD benefits, but reverse the circuit court's
confirmation of the Commission's decision denying additional TTD
benefits and remand this case back to the Commission for further
proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
McCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK,
JJ., concur.
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