31 July 2000

No. 3-99-0741WC

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

INDUSTRIAL COMMISSION DIVISION

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Ricky J. Gallianetti, appeals the decision of the circuit court of Bureau County confirming the decision of the Industrial Commission (Commission). On appeal, claimant argues that the Commission erred in awarding him permanent partial disability (PPD) benefits under section 8(d)(2) of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(2) (West 1992)) in lieu of a wage-differential award under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 1992)). Alternatively, claimant contends that the Commission (1) erred in modifying the arbitrator's award of temporary total disability (TTD) benefits and (2) improperly granted respondent a credit against his PPD award. For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

I. FACTS

On July 11, 1994, claimant filed an application for adjustment of claim. Claimant alleged that he sustained injuries to his left elbow while working as a tree trimmer for respondent, Asplundh Tree Expert Company. According to the application, on July 3, 1992, claimant was hit in the left elbow with shotgun pellets while working for respondent in the Peoria area. An arbitration hearing on claimant's application was held on October 7, 1996. The record from that hearing reveals the following relevant facts.

Claimant is a resident of Tiskilwa, Illinois. Tiskilwa is located approximately 55 miles north of Peoria, 30 miles west of LaSalle-Peru/Ottawa, and 7 miles south of Princeton. Although he quit high school before completing his sophomore year, claimant eventually completed an apprenticeship with the International Brotherhood of Electrical Workers (IBEW), Local 51, in Springfield. While affiliated with Local 51, claimant held jobs as part of the spray crew and the tree trimming crew. At the time of his injury, claimant was 41 years old and working as a tree trimming crew foreman. Claimant's duties included climbing trees, cutting them with a chainsaw, and running a chipper. Working as a tree trimmer involved lifting equipment in excess of 40 pounds.

The day after he sustained his injuries, claimant treated at the emergency room at Perry Memorial Hospital (Perry) in Princeton. The following day claimant returned to Perry for X rays. The X rays revealed two foreign bodies consistent with pellets. One of the pellets was lodged in soft tissue, while the other was intra-articular. Claimant was treated with intravenous antibiotics.

On July 7, 1992, claimant sought treatment with Dr. Martin Faber. Dr. Faber referred claimant to Dr. Mark Phillips, an orthopaedic specialist. On July 24, 1992, Dr. Phillips performed an arthroscopy of the left elbow with a partial synovectomy and a debridement of the elbow joint. Despite the surgery, claimant's complaints persisted, and Dr. Phillips referred claimant to Dr. Ronald Palmer.

On December 8, 1992, Dr. Palmer performed an arthrotomy of the left elbow with pellet removal. To assist claimant's recovery, Dr. Palmer prescribed physical therapy. On July 6, 1993, Dr. Palmer released claimant to work without restrictions. Although claimant returned to work, any vibration, lifting, or heavy pulling would aggravate his condition. He would also experience swelling and burning and needle-like sensations in his arm. Because of these symptoms, claimant was unable to climb trees or use a chainsaw. On July 26, 1993, Dr. Palmer diagnosed claimant with cubital tunnel syndrome and recommended surgery if his symptoms intensified. On September 1, 1993, Dr. Palmer authorized claimant off work and scheduled surgery. On December 28, 1993, claimant underwent an anterior transposition of the left ulnar nerve at the elbow. After the operation, claimant was placed in a work-hardening program.

Eventually, claimant returned to Dr. Faber, who referred him to Dr. Daniel Nagle. Claimant first treated with Dr. Nagle on February 10, 1994, with complaints of pain in the elbow particularly when extended. Dr. Nagle indicated the presence of a foreign object in claimant's left elbow. Dr. Nagle also noted possible nerve compressions. Dr. Nagle eventually ordered a magnetic resonance imaging (MRI) and electrodiagnostic studies. These tests revealed a pinched ulnar nerve.

Claimant testified that in July 1994, respondent contacted him regarding a flagging job. According to claimant, although he expressed interest in the position, respondent never followed through with an offer.

On August 16, 1994, Dr. Nagle prescribed steroid shots in the elbow and ordered a functional capacity evaluation. On September 27, 1994, claimant underwent the functional capacity evaluation. On October 18, 1994, Dr. Nagle reviewed the results of the evaluation with claimant. The evaluation showed that claimant would be unable to return to his normal job duties as a tree trimmer. The evaluation indicated a sedentary-type job which would not place resistive demands on claimant's left upper extremity and which would require only light intermittent use as an assist to the right hand. Following claimant's October 1994 appointment, Dr. Nagle discharged claimant to return on an as-needed basis.

Claimant continued to experience pain and swelling in his arm. Although claimant attempted to contact Dr. Nagle by telephone in January 1995, he never spoke with the doctor.

Claimant testified that he telephoned Local 51 approximately four times between September 1994 and September 1995 in an attempt to find work. Claimant spoke with a Dominic Rivero. Around the same time, claimant also contacted several employers in the Tiskilwa and Princeton areas. All of these efforts were fruitless.

Around October 1995, claimant began experiencing pains in his left thumb, forearm, hand, neck, and shoulder. He also noted "popping" and locking in his left elbow. On October 17, 1995, claimant visited Dr. Nagle, who prescribed pain medication and vitamin B6 and ordered additional electrodiagnostic studies. Claimant last treated with Dr. Nagle on January 9, 1996. At that time, Dr. Nagle advised claimant to continue taking his pain medication and authorized him to return on an as-needed basis.

As of the date of the arbitration hearing, claimant testified that he is unable to lift anything weighing more than 4 or 5 pounds. Claimant, who is right-hand dominant, also indicated that he is unable to use his left arm for support or to climb or grip. Claimant further testified that respondent has not offered claimant vocational rehabilitation. Following his January 1996 visit with Dr. Nagle, claimant conducted another job search. Specifically, claimant applied to several factories in the Princeton area. Claimant testified that the starting wage at the factories was $5.50 per hour. Claimant also regularly returned to the places he applied to beginning in October 1994. Most of those employers paid minimum wage. Claimant admitted that although Dr. Nagle did not place any restrictions on his driving, he limited his employment search to the area near his home because he experiences discomfort in his arm when driving more than 10 or 15 miles.

Claimant also contacted employers identified in a labor market survey prepared on respondent's behalf. The survey identified four possible types of employment for claimant: tree trimming supervisor, exterminator, storage rental clerk, and security guard. It also listed employer contacts and vocational requirements for 21 jobs in the Peoria and Ottawa areas. Claimant stated that he contacted 4 exterminators and at least two security firms from the labor market survey. Claimant did not obtain a position with any of the employers. Eventually, claimant obtained full-time employment at Steimle Garage, Inc., in Tiskilwa, earning $5.50 per hour. However, he testified that discomfort associated with his injury often prevents him from working the entire week.

Admitted into evidence was the deposition of Michael Holcomb, a business representative for IBEW, Local 51. According to Holcomb, the IBEW has about 30 classifications of employment in three principal areas: (1) tree trimming, (2) electrical work, and (3) telephone work. Among Holcomb's duties is to assign union members to contractors for job placement. Based on the restrictions listed in the functional capacity evaluation, Holcomb opined that claimant would be unable to perform duties within any of the job classifications for which he is qualified. According to Holcomb, although the union tries to place members with restrictions into positions within their limitations, he never had any direct contact with claimant regarding job placement.

Dr. Nagle testified via evidence deposition that claimant is unable to return to work as a tree trimmer. Dr. Nagle also related that based on his decision to release claimant from his care on October 18, 1994, it was his opinion that claimant had reached maximum medical improvement on that date. Dr. Nagle later stated that claimant reached maximum medical improvement on the date that he ordered the functional capacity evaluation. Dr. Nagle also noted that when claimant visited him in October 1995, his condition as it related to the gunshot injury had remained essentially unchanged from October 1994.

Also admitted into evidence was a report authored by Dr. Gerald McDonald. Dr. McDonald examined claimant on February 3, 1996, at the request of claimant's counsel. Dr. McDonald opined that claimant's symptoms are causally connected to his gunshot injury. Dr. McDonald also opined that claimant is permanently and totally disabled from performing his duties as a tree trimmer.

The arbitrator determined that claimant's condition of ill-being was causally connected to his injury. The arbitrator concluded that claimant's condition had not reached a state of permanency until January 9, 1996, when he last treated with Dr. Nagle. In support of her decision, the arbitrator noted that in an August 16, 1994, report, Dr. Nagle estimated that claimant was not expected to improve for a period of 12 months. The arbitrator also noted that the functional capacity evaluation limited claimant to sedentary-type positions. While the arbitrator admitted that claimant did not seek medical attention between October 1994 and October 1995, she noted that during this period, claimant was taking non-prescription pain medication and employing a variety of assistive devices in an effort to alleviate his pain. Further, the arbitrator noted that during that year, claimant demonstrated by his efforts that he was unable to obtain employment within his physical restrictions, and that respondent failed to show that claimant was capable of performing some regular employment within his limitations.

Next, the arbitrator determined that claimant was entitled to $371.36 a week for 300 weeks because the injuries sustained caused claimant to be incapacitated to the extent of 60% loss of use of a man as a whole. See 820 ILCS 305/8(d)(2) (West 1992). Finally, the arbitrator determined that respondent was responsible for claimant's unpaid medical expenses, and that no credit was due respondent for overpayment of TTD.

On appeal, the Commission modified the arbitrator's TTD award. The Commission concluded that claimant was entitled to TTD only until October 18, 1994. It was on that date that Dr. Nagle stated that claimant had reached maximum medical improvement and he released claimant from his care. Therefore, the Commission credited respondent for overpayment of TTD. In all other respects, the Commission affirmed and adopted the arbitrator's decision. On administrative review, the circuit court of Bureau County confirmed. This timely appeal followed.

II. ANALYSIS

Claimant argues that he was entitled to a wage-differential award. According to claimant, only where an individual has not sustained a loss of earning capacity is a percentage-of-the-person-as-a-whole award appropriate. Here, claimant maintains that he demonstrated a loss of earning capacity. Therefore, claimant urges us to grant him a wage-differential award.

Under the Act, once a claimant proves that he or she has sustained a disability, the question of compensation arises. The Act provides for various types of compensation. Relevant to our discussion is paragraph (d) of section 8, which pertains to PPD. 820 ILCS 305/8(d) (West 1992). Section 8(d) specifies two distinct types of compensation. Subparagraph 1 of section 8(d) involves a wage-differential award. 820 ILCS 305/8(d)(1) (West 1992). Subparagraph 2 of section 8(d) involves a percentage-of-the-person-as-a-whole award. 820 ILCS 305/8(d)(2) (West 1992). In General Electric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 438 (1982), our supreme court expressed a preference for wage-differential awards over scheduled awards.