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Ross v. Entenmann's Bakery
State: Illinois
Court: Industrial Commission
Docket No: 1-03-2999WC Rel
Case Date: 12/31/1969
                         NOTICE
Decision filed 10/13/04.  The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same.


 

NO. 1-03-2999WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Industrial Commission Division

Robert Ross,
                    Plaintiff-Appellant,
                    v.
Entenmann's Bakery and Industrial
Commission of Illinois,
                    Defendants-Appellees.

 

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Appeal from
Circuit Court of
Cook County
No. 03L50337

Honorable
Dennis J. Burke,
Judge Presiding.


 

PRESIDING JUSTICE McCULLOUGH delivered the opinionof the court:

Claimant, Robert Ross, sought benefits pursuant to theWorkers' Compensation Act (Act) (820 ILCS 305/1 through 30 (West1996)) for an injury he sustained to his back. Claimant allegedhe suffered an accident during the course of his employment withemployer, Entenmann's Bakery, on April 4, 1996. Following ahearing, the arbitrator found claimant proved he sustained accidental injuries arising out of and in the course of hisemployment with employer and awarded claimant benefits. Onreview, the Industrial Commission (Commission) reversed thedecision of the arbitrator finding claimant failed to prove hesustained accidental injuries arising out of and in the course ofhis employment with employer. Claimant sought judicial review ofthe Commission's decision in the circuit court of Cook County,which confirmed the Commission's decision.

On appeal, claimant argues the Commission's findingthat claimant failed to prove he sustained accidental injuriesarising out of and in the course of his employment with employeron April 4, 1996, is against the manifest weight of the evidence.

We affirm the circuit court's order confirming the Commission'sdecision.

Claimant testified at hearing that he worked as a"bakery cleaner." On April 4, 1996, while poking garbage in atrash compactor, claimant felt "a real sharp pain in [his] back."

Claimant reported the accident to a supervisor and continued towork.

On April 25, 1996, claimant sought treatment withEugene John Bartucci, a medical doctor specializing in orthopedicsurgery. Claimant told Dr. Bartucci that he had suffered aninjury at work approximately three weeks earlier. Dr. Bartuccinoted that "x-rays *** show[] some degenerative change, butnothing major." Dr. Bartucci diagnosed claimant with lumbarstrain and recommended "[l]ight duty for three weeks." Claimantremained "light duty" until he underwent unrelated surgery onJune 27, 1996.

On May 17, 1996, employer videotaped claimant (1)raking gravel, (2) attempting to push or lift a strandedmotorist's vehicle, (3) scooping gravel, (4) driving a van, and(5) lifting a large concrete slab. Also on May 17, 1996,claimant sought treatment with Dr. Bartucci. Dr. Bartucci notedthat claimant continued to experience "trouble with his back." Claimant did not reference the events videotaped earlier thatday. Dr. Bartucci recommended that claimant undergo an MRI. OnJune 14, 1996, Dr. Bartucci noted a "bulging disk at L3-4" andrecommended a course of physical therapy following unrelatedsurgery. On June 27, 1996, claimant underwent unrelated surgeryand did not work. Dr. Bartucci continued to note that claimantexperienced back pain. On September 3, 1996, Dr. Bartucciremoved claimant from work specific to claimant's back pain. Claimant remained off work for approximately six monthsundergoing various courses of physical therapy and other medicaltreatment. On February 14, 1997, Dr. Bartucci noted "myelogramnegative for disk herniation" and returned claimant to light dutywork. Claimant did not return to work. On March 21, 1997,claimant injured his back while lifting a mattress in his homeand sought treatment in an emergency room. On April 10, 1997,claimant underwent an MRI. The radiologist noted (1) a "milddisc bulge at L3-L4" and (2) "no significant change when comparedto previous study of 6/6/96." Claimant remained off work.

In a letter dated May 14, 1997, employer terminatedclaimant because claimant failed to return to light duty work onFebruary 14, 1997. Claimant testified that he has gained 125pounds since April 4, 1996. He continues to experience backpain.

On direct examination, Dr. Bartucci testified that hebelieved claimant's back pain "might or could have been causallyconnected to the injuries dumping trash." Following a review ofthe videotape, Dr. Bartucci testified that he would not be ableto state whether the work accident on April 4, 1996, or thoseactivities claimant engaged in on May 17, 1996, caused claimant'scontinuing back pain. Dr. Bartucci testified that had he viewedthe videotape on May 17, 1996, he "probably" would have returnedclaimant "to some sort of work."

On October 25, 1996, and February 2, 1999, CharlesMercier, a medical doctor specializing in orthopedic surgery,conducted an independent medical examination of claimant atemployer's request. In a report dated October 25, 1996, Dr.Mercier stated:

"Today, except for very mild subjectivepain to palpation and on motion maneuvers,[claimant's] examination is normal. Ireviewed his records from September 17, 1996. It is clear that [claimant] can andshould have returned to work withoutrestrictions, at least by September 17, 1996,and possibly even before. *** No furthertreatment is necessary in regards to hisalleged low back problem. There is *** noclinical evidence of permanent disability."

Following the hearing, the arbitrator found claimantproved he sustained accidental injuries arising out of and in thecourse of his employment with employer and awarded claimantbenefits. On review, the Commission reversed the decision of thearbitrator finding claimant failed to prove he sustainedaccidental injuries arising out of and in the course of hisemployment with employer. The Commission stated:

"[T]he credible testimony of Dr. Bartucci andthe surveillance video do[] not support afinding that a causal relationship existsbetween Petitioner's current condition ofill-being and the injuries he sustained onApril 4, 1996. The Commission finds that[the] videotape shows Petitioner engaged inheavy activities during a period of time whenPetitioner claimed to be disabled from work. The Commission notes that Dr. Bartucci afterseeing the videotape testified at hisdeposition that []he could not opine whetherthe accident on April 4, 1996 was the causeof Petitioner's ongoing complaints and thathe did not really know the cause ofPetitioner's ongoing complaints ***Petitioner failed to prove continueddisablement to his back."

Claimant sought judicial review of the Commission'sdecision in the circuit court of Cook County which confirmed theCommission's decision. This appeal followed.

Claimant argues the Commission's finding that claimantfailed to prove he sustained accidental injuries arising out ofand in the course of his employment with employer on April 4,1996, is against the manifest weight of the evidence.

In a workers' compensation case, the claimant has theburden of establishing, by a preponderance of the evidence, thathis injury arose out of and in the course of his employment.O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d221, 223 (1980). It is the function of the Commission to decidequestions of fact, judge the credibility of witnesses, andresolve conflicting medical evidence. O'Dette, 79 Ill. 2d at253, 403 N.E.2d at 223-24. The Commission's determination on aquestion of fact will not be disturbed on review unless it isagainst the manifest weight of the evidence. Orsini v.Industrial Comm'n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005, 1008(1987). The Commission's decision is against the manifest weightof the evidence only where an opposite conclusion is clearlyevident; the test is not whether this or any other tribunal mightreach the opposite conclusion, but whether there was sufficientfactual evidence in the record to support the Commission'sdetermination. Gilster Mary Lee Corp. v. Industrial Comm'n, 326Ill. App. 3d 177, 183, 759 N.E.2d 979, 983 (2001).

Claimant argues the Commission's finding is against themanifest weight of the evidence because "Dr. Bartucci, thetreating surgeon, testified to causation." Claimant referencesDr. Bartucci's testimony on direct examination that he believedclaimant's back pain "might or could have been causally connectedto the injuries dumping trash." However, following a review ofthe videotape, Dr. Bartucci testified that he would not be ableto state whether the work accident on April 4, 1996, or thoseactivities claimant engaged in on May 17, 1996, caused claimant'scontinuing back pain. Further, Dr. Bartucci testified that hadhe viewed the videotape on May 17, 1996, he "probably" would havereturned claimant "to some sort of work." The Commission'sfinding that claimant failed to prove he sustained accidentalinjuries arising out of and in the course of his employment withemployer on April 4, 1996, is not against the manifest weight ofthe evidence.

Claimant next argues the Commission's finding isagainst the manifest weight of the evidence because (1) "employerdid not prove *** [claimant] suffered an independent, interveningaccident" and (2) "claimant is not required *** to rule out allother possible activities which could be contributing causes." Claimant's arguments in this regard have no merit. TheCommission's finding that claimant "failed to prove continueddisablement to his back" is not against the manifest weight ofthe evidence.

We affirm the circuit court's order confirming theCommission's decision.

Affirmed.

HOFFMAN, CALLUM, HOLDRIDGE, and GOLDENHERSH, JJ.,concur.

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