Village of Oreana v. Industrial Comm'n
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0202WC
Case Date: 06/30/1997
NO. 4-96-0202WC
IN THE APPELLATE COURT OF ILLINOIS
FOURTH DISTRICT
Industrial Commission Division
THE VILLAGE OF OREANA, ) Appeal from
Appellant, ) Circuit Court of
v. ) Macon County
THE INDUSTRIAL COMMISSION et al. ) No. 95MR120
(Tommy Gephart, Appellee). )
) Honorable
) John K. Greanias,
) Judge Presiding.
_________________________________________________________________
JUSTICE RAKOWSKI delivered the opinion of the court:
Claimant, Tommy Gephart, filed an application for adjustment
of claim pursuant to the Workers' Compensation Act (820 ILCS
305/1 et seq. (West 1994)) for injuries to his back that he sus-
tained on January 22, 1993, while working for the Village of
Oreana (employer). The arbitrator found that claimant failed to
prove a causal connection between the condition that necessitated
surgery and his accident on January 22, 1993. The Industrial
Commission (the Commission) reversed and the circuit court of
Macon County confirmed. Employer appeals, contending the
Commission's decision that claimant proved a causal connection
between his condition that necessitated the surgery, including a
spinal fusion, and the accident is against the manifest weight of
the evidence. We agree.
FACTS
Claimant worked for employer as a public works superinten-
dent in its water department. On January 22, 1993, while
working, he attempted to hop over an 8-inch-high, 12-inch-wide snow drift and, according to him, "[w]hen I landed, everything in
my back just felt like it collapsed, just like an accordion, came
together, and pain." He noticed pain in his mid and lower back
and a burning sensation in his hips, legs, and calves. After
taking 15 minutes to walk back to the treatment building, he
phoned his wife, who took him to the hospital. At the hospital,
he received X rays and medication and was told to see his family
physician, Dr. Fritz.
Claimant saw Dr. Fritz on January 25, 1993. Claimant ad-
vised Dr. Fritz that he had had 15 to 20 episodes with his back
since 1977 and had had six to seven in the last year. Claimant
stated his problems could occur without any precipitating stress.
Dr. Fritz ordered an MRI and referred claimant to Dr. Fulbright,
a neurosurgeon. Dr. Fulbright saw claimant on February 8, 1993.
After taking claimant's history, performing an examination, and
reviewing the MRI, he ordered outpatient physical therapy and
referred claimant back to Dr. Fritz. Dr. Fulbright found no
evidence of a surgically remedial disease.
On March 8, 1993, at employer's request, claimant saw Dr.
Ankenbrandt. Dr. Ankenbrandt diagnosed significant central disk
protrusion or herniation and stated claimant may require surgery
to correct his problems. However, he opined that claimant's back
showed no sign of traumatic injury on January 22, 1993. He also
stated there were no signs of a previous injury to claimant's
back even though claimant gave such a history.
On March 17, 1993, claimant saw Dr. Schroeder, whom he was
referred to by Dr. Fritz. Dr. Schroeder prescribed additional
physical therapy, a TENS unit, and after these were unsuccessful,
two steroid injections, also unsuccessful. He did not find
claimant to be a surgical candidate. Dr. Schroeder could ascer-
tain no cause for claimant's complaints and stated, "[t]his
gentleman's pain complaints [are] inconsistent with any form of
disability I know. I think this gentleman is suffering from a
severe conversion reaction." He believed claimant might require
psychiatric help. Dr. Schroeder referred claimant to Dr. Harms,
an orthopedic surgeon.
Claimant first saw Dr. Harms on May 20, 1993. Claimant told
Dr. Harms he had had some back problems on and off over the past
12 years but stated he had no prior injuries, accidents, or bro-
ken bones. He advised the doctor that, after jumping the snow
drift, he experienced immediate pain in his back that went into
his legs. Dr. Harms examined claimant and reviewed X rays and
the MRI. He diagnosed symptomatic degenerative disk disease at
L4-L5 and L5-S1. Dr. Harms was aware claimant had treated with
Dr. Fritz and Dr. Schroeder but did not recall reviewing their
records.
On July 13, 1993, Dr. Harms performed a laminectomy and
spinal fusion at L4, L5, and S1. Claimant returned to work on
November 15, 1993, working 12 hours per week. However, after
returning, he noticed pain in his hips and leg cramps from his
hips to his ankles.
At employer's request, Dr. Matz, a neurosurgeon, reviewed
claimant's medical records in late August of 1993. He found no
indication that claimant's surgery was causally connected to the
January 22, 1993, accident. He believed claimant's problems
subsequent to January 22, 1993, were, "in essence, *** another
episode involving his lower back, indistinguishable from the
lengthy history of low back complaints that he had over the
years." He also stated that if claimant suffered an aggravation
of a preexisting injury on January 22, 1993, this condition re-
solved itself by the time he saw Dr. Fulbright on February 8,
1993, since at that time, Dr. Fulbright found no psychologic
abnormalities. Dr. Matz also disagreed that claimant required
surgical intervention and stated the surgery was performed by Dr.
Harms, who was unaware of contradictory physical findings in the
medical records.
There is no dispute that prior to January 22, 1993, claimant
suffered from back problems and had treated numerous times dating
back to 1977. In February of 1977, while in the military, claim-
ant injured his back while lifting a welder. He was discharged
and received a disability rating. In 1979, claimant lifted a
spring suspension from a truck and injured his back. He suffered
from a constant ache in his back that radiated into his legs. In
1980, claimant was hospitalized for 30 days due to the 1979 inju-
ry. In 1982, a myelogram was performed with normal results. In
April of 1987, claimant was seen at the Veteran's Hospital. At
this time, he stated he had been raking for approximately 10
minutes when he felt a pop in his low back. He complained of low
back pain with radiation into his legs. In December of 1989,
claimant again was seen at the Veteran's Hospital with complaints
of discomfort in his low back and hips as well as radiation of
burning into both legs. Finally, on January 30, 1990, claimant
was seen for complaints of low back pain that he stated he had
had for three to four months. He also complained of a burning
sensation in the posterior regions of his thighs.
Claimant also admitted that on January 18, 1993, four days
prior to the accident, he had back pain. However, he stated his
back pain after the accident was different from the pain prior to
the accident.
ANALYSIS
Employer's only contention is that the Commission erred in
finding a causal connection between claimant's accident of Janu-
ary 22, 1993, and his condition that necessitated surgery in July
of 1993. It contends that the only testimony that addressed
causal connection was that of its expert, Dr. Matz, who found no
causal connection. It argues that the Commission's reliance on
Dr. Harms' testimony was error.
In finding claimant sustained his burden of proving a causal
connection, the Commission based its opinion on "[claimant's]
credible testimony, [his] consistent history of accident given to
all of the physicians, treating as well as evaluating doctors,
the chain of events and Dr. Harms' causal connection opinion that
the January 22, 1993 accident was an aggravation of [claimant's]
pre-existing condition and that this aggravation accelerated
[claimant's] condition of ill-being, necessitating fusion sur-
gery." The Commission then stated, "[i]t is for the Commission
to decide which medical view is to be accepted ***. [Citation.]
The Commission accords greater weight to the opinions of Dr.
Harms than the opinions of Dr. Matz, finding that Dr. Harms'
opinions are more consistent with the facts and are credible and
persuasive."
Again, employer contends that there is no conflicting medi-
cal testimony in this case and the only opinion on causal connec-
tion is that of Dr. Matz.
"Just as the existence of accidental injury is a question of
fact for the Commission where a preexisting condition is in-
volved, so too is the question of whether there is a causal con-
nection between the alleged accident and the current condition of
ill-being. [Citation.] The appropriate question is whether the
evidence can support an inference that the accident aggravated
the condition or accelerated the processes which led to the
claimant's current condition of ill-being." Cassens Transport
Co. v. Industrial Comm'n, 262 Ill. App. 3d 324, 331 (1994).
"[I]t is solely within the province of the Commission to judge
the credibility of witnesses, to draw reasonable inferences from
their testimony, and to determine the weight accorded thereto,
and the Commission's findings on these questions will not be
disturbed on review unless they are contrary to the manifest
weight of the evidence." Price v. Industrial Comm'n, 278 Ill.
App. 3d 848, 852 (1996). "'The manifest weight of the evidence
is that which is "the clearly evident, plain and indisputable
weight of the evidence." [Citations.] In order for a finding to
be contrary to the manifest weight of the evidence, an opposite
conclusion must be clearly apparent.'" Drogos v. Village of
Bensenville, 100 Ill. App. 3d 48, 54 (1981), quoting In re Appli-
cation of County Collector, 59 Ill. App. 3d 494, 499 (1978).
Employer's argument that the Commission credited Dr. Harms
with rendering a diagnosis he actually did not make (aggravation
of a preexisting condition) and, thus, rendering an opinion con-
trary to Dr. Matz's, is persuasive. Employer contends that the
Commission mischaracterized Dr. Harms' testimony. According to
employer, Dr. Harms never testified claimant sustained an aggra-
vation of a preexisting injury. He testified that that was one
possibility; he stated the accident could have caused a back
strain or an aggravation. Moreover, after receiving more de-
tailed information concerning claimant's prior back history, Dr.
Harms admitted it was impossible for him to state whether
claimant's surgery was necessitated by the accident on January
22, 1993. Claimant has the burden of proving causal connection.
Before a fact question arises, claimant must demonstrate that Dr.
Harms rendered an opinion in his favor. The issue boils down to
whether a reasonable person could conclude that Dr. Harms ren-
dered an opinion that claimant's condition of ill-being and re-
sulting surgery were caused by the January 22, 1993, accident.
After a review of Dr. Harms' testimony, we conclude that the
answer is no.
Because resolution of this case hinges on Dr. Harms' opinion
or lack thereof, a somewhat lengthy recitation of his testimony
is necessary. During direct examination, Dr. Harms testified as
follows:
"Q. Doctor, *** what is your opinion,
based upon a reasonable degree of medical
certainty, as to causation between the event
which took place on January 22, 1993 and the
conditions of ill-being for which you've
treated your patient Mr. Gephart?
A. The patient in the incident de-
scribed could have had a back strain or could
have had an aggravation of his underlying
premature degenerative disk disease.
***
Q. Doctor, what is your opinion, based
upon a reasonable degree of medical and sur-
gical certainty, as to whether or not the
operative procedure you've performed -- and I
realize the first diagnostic test was a
discogram, but then the spinal fusion was
necessitated by the event your patient de-
scribed as occurring on January 22, 1993.
A. If the patient had underlying prema-
ture degenerative disk disease that was ag-
gravated by the incident, then the surgery
was done sooner than it otherwise would have
been in the absence of the incident." (Em-
phasis added.)
On cross-examination, he stated:
"Q. Doctor, I think you previously
testified that there could be a causal rela-
tionship between the condition that you ob-
served in Mr. Gephart's back and the need for
surgery and this incident back in January of
1993, is that right?
A. Yes, sir, there could be.
Q. Is the basis of that opinion in
large part the history that Mr. Gephart pro-
vided you?
A. Yes, sir. Without the history I
have no way of knowing about any connection
whatsoever.
Q. Doctor, I'm going to ask you a hypo-
thetical question and to assume a number of
things. ***
***
A. Yes, sir. Specifically, if a person
has an incident, the less symptomatic they
were before the incident, the more likely it
is to be related to their symptoms. The more
symptomatic a person is after the incident
and the sooner they start having the symptoms
after the incident, the more likely it is to
be related. The more significant the trauma,
that is the more the significant the energy
that the body absorbs during an incident, the
more likely it is to be related.
You have asked me to assume that in a
patient similar to this one, that there was
back pain with a lifting incident in the
military in 1977. There was low back pain
after a work incident in 1980. That there
were complaints of low back pain and leg pain
in 1987, '89 and '90. You have asked me to
assume there were six or seven incidents of
back problems, complaints in 1992 and '93.
And you've asked me to assume that there were
back complaints even as soon as four days
before the incident described. With all of
this information, it appears that there would
be a high probability that even in the ab-
sence of a jumping incident, that the patient
could have become sufficiently symptomatic
that treatment up to and including surgery
might need to be done about the time that I
did surgery on the patient.
Q. In other words, I think when you
testified previously, you said that the sur-
gery was necessitated by this incident be-
cause it accelerated a need for incident.
But with this additional history of prior
back problems, you can no longer say that
this incident, within a reasonable degree of
medical certainty, necessitated an earlier
surgery date?
***
A. The information provided to me ini-
tially was that the patient did not have
significant back problems previous to the
incident and then had increasingly severe
symptoms which warranted surgery. I previ-
ously testified that the patient could have
gotten a back strain at the time or could
have had aggravation of his underlying prema-
ture degenerative disk disease, which eventu-
ally necessitated surgery. That statement
was made within a reasonable degree of medi-
cal certainty.
If I assume the facts that you've given
me about previous back problems, then it is
less likely that the incident played a sig-
nificant role in the patient's symptoms,
which were bad enough for him to undergo the
surgery that I performed."
In response to re-direct examination, Dr. Harms testified:
"Q. Doctor, certain hypothetical sce-
narios were developed and propounded by op-
posing counsel. I'd ask you to assume con-
versely that the patient ***.
What is your opinion, based upon a rea-
sonable degree of medical certainty, as to
whether or not that particular situation as
I've developed in the hypothetical could have
been a significant causative factor to accel-
erate any underlying low back disease?
***
A. You're asking me to assume that
there was a pop in the back at the time of
the incident, and he had pain in the back
that radiated down both legs.
Q. Correct.
A. And that the leg symptoms were
greater than he had before, and that there
was a pop or heat or burning sensation in the
back?
Q. That's correct.
A. With that additional information
you're asking me my opinion as to whether the
incident accelerated the need for surgery for
his condition?
Q. Correct, basically.
A. I think at the incident my original
opinion was that the patient suffered either
a back strain or an aggravation of his under-
lying degenerative disk disease. I still
think that's the case. ***
I would still state that if it was de-
generative disk disease that was aggravated
at that time, that the incident could have
accelerated the need for operative interven-
tion." (Emphasis added.)
Finally, on re-cross, Dr. Harms averred in response to combining
all of the above hypotheticals plus the information he obtained
from claimant at the time of his examination:
"A. If I'm to take the information I
have available on Mr. Gephart and add to it
the hypothetical information that both of you
have added to my understanding of the situa-
tion, then it appears that there is a patient
who is having significant problems before the
incident on an intermittent basis. There
appears to have been an incident, and the
patient had continued symptoms after the
incident. The more the problems before the
incident the less likely the incident is in
being a significant factor towards causing
worsening. That is, the patient could have
had problems in spite of the incident. The
more severe, the more frequent the symptoms
before the incident, the more likely that he
would have gotten worse even in the absence
of the incident.
It is also possible that the incident
could have been the straw that broke the
camel's back so to speak. It is difficult
for me or impossible for me to say that abso-
lutely the patient would not have needed
surgery in the absence of the incident. But
it's also impossible for me to say that the
patient would not have been able to go anoth-
er week, another month, another year. Did I
answer the question?
Q. I think you did. Yes. In other
words, based on all those hypothetical situa-
tions, it's impossible for you to say within
a reasonable degree of medical certainty,
it's more probably true than not that this
surgery would have been performed or would
not have been performed at the time it was?
***
A. Are you asking me is it impossible
for me to state that more likely than not the
surgery would or would not have been per-
formed on the date that I did in the absence
of the trauma?
Q. Exactly. ***
A. Correct." (Emphasis added.)
At best, Dr. Harms' testimony is ambiguous. Any opinion he ren-
dered on causal connection is conditioned upon whether claimant
suffered an aggravation of his preexisting disk disease or only a
back strain. Although Dr. Harms continually referred to both, he
never rendered a diagnosis of either. When he was specifically
asked whether claimant would have required surgery in the absence
of the accident, he stated it was impossible to say either way.
Also, while Dr. Harms originally opined there was a causal
connection between claimant's surgery and the accident of January
22, 1993, by the time hypotheticals had been put to him, and he
possessed all of the relevant facts of claimant's condition and
history of back injuries, he stated it was impossible to state
what necessitated claimant's surgery.
From the above, we conclude, contrary to the Commission's
decision, that Dr. Harms did not render an opinion on whether the
claimant's condition that necessitated surgery, including a spi-
nal fusion, was causally related to the January 22, 1993, acci-
dent. Further, the Commission's statements that Dr. Harms' tes-
timony is more credible and is to be accorded more weight would
only have value if Dr. Harms did in fact render an opinion.
Because we conclude that Dr. Harms did not give an opinion on
casual connection, there was no need to resolve conflicting tes-
timony and the Commission erred in doing so. Based on this, the
Commission's decision that claimant proved a causal connection
between the accident of January 22, 1993, and his condition of
ill-being necessitating surgery is against the manifest weight of
the evidence. We wish to emphasize that our decision is limited
to the specific issue presented by employer: whether claimant
proved a causal connection between his accident and his condition
of ill-being necessitating surgery, including a spinal fusion.
Since we have found that claimant failed to meet his burden, he
is therefore not entitled to surgical expenses or temporary total
disability (TTD) benefits associated with the surgery or recuper-
ation therefrom.
Nonetheless, claimant did sustain an injury that arose out
of and in the course of his employment. Although claimant's
entitlement to surgical expenses hinges on whether the accident
aggravated his preexisting disk disease, his entitlement to TTD
is not so dependent. Regardless of the precise nature of the
injury (back strain or aggravation of disk disease), claimant may
recover for that period of time when he was unable to work as a
result of the accident. Accordingly, we remand to the Commission
for further proceedings consistent with this opinion.
CONCLUSION
For the foregoing reasons, we reverse the decision of the
circuit court of Macon County.
Circuit court reversed and remanded to Commission with di-
rections.
McCULLOUGH, P.J., and COLWELL, J., concur.
RARICK, J., dissents, joined by HOLDRIDGE, J.
RARICK, J., dissenting; HOLDRIDGE, J., joins:
Because I believe the majority has substituted its judgment
for that of the Commission on a question of fact, I dissent. As
often stated, it is for the Commission to weigh and resolve con-
flicts in testimony and to choose among conflicting inferences
therefrom. We as a reviewing court cannot reject or disregard
permissible inferences drawn by the Commission merely because
differing inferences may also be drawn from the same facts.
Wagner Castings Co. v. Industrial Comm'n, 241 Ill. App. 3d 584,
594-95, 609 N.E.2d 397, 405 (1993).
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