{ "id": 3460290, "name": "LLOYD RUFF, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Borg & Beck, Appellee)", "name_abbreviation": "Ruff v. Industrial Commission", "decision_date": "1986-10-29", "docket_number": "No. 1-85-1565WC", "first_page": "73", "last_page": "79", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 73" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "411 N.E.2d 1161", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 630", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537410 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0630-01" ] }, { "cite": "485 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499279 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0541-01" ] }, { "cite": "240 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 356", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323216 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0356-01" ] }, { "cite": "240 N.E.2d 661", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "40 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856849 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0548-01" ] }, { "cite": "278 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911517 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0342-01" ] }, { "cite": "433 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "89 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493838 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/89/0428-01" ] } ], "analysis": { "cardinality": 516, "char_count": 11744, "ocr_confidence": 0.747, "pagerank": { "raw": 1.4279173551835128e-07, "percentile": 0.6502850166167989 }, "sha256": "8d2eac65eccc763049b6e270ca53db15c4e99ae2811d4d3dcd58f625a9a4721e", "simhash": "1:8d84638b2c8f197d", "word_count": 1903 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LLOYD RUFF, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Borg & Beck, Appellee)." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nThe petitioner, Lloyd Ruff, filed a petition under sections 8(a) and 19(h) of the Workers\u2019 Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(a), 138.19(h)), alleging that his disability had increased to 100%. Originally, the arbitrator granted and the Industrial Commission affirmed compensation for the petitioner\u2019s 271/2% permanent loss of the use of his right arm in connection with a December 13, 1976, work-related injury. In the present action the Commission found that the petitioner failed to prove a material increase in permanent disability and denied his petition for relief. The circuit court of Cook County affirmed the Commission\u2019s decision. The petitioner brings this appeal.\nThe evidence establishes that on December 13, 1976, the petitioner injured his right elbow while working for his employer, the respondent, Borg & Beck. At the time of the injury, the petitioner was employed as a clutch assembler. His condition was diagnosed as lateral epicondylitis, or tennis elbow. On September 23, 1977, surgery was performed on the petitioner\u2019s right arm. On August 11, 1978, an arbitrator found that the petitioner had permanently lost 2772% of the use of his right arm. Both parties appealed the arbitrator\u2019s decision.\nOn April 15, 1980, the Commission conducted a review of the arbitrator\u2019s ruling. At this review Dr. Farahvar, the petitioner\u2019s treating doctor from March of 1979 to April of 1980, testified that during the treatment period he found intermittent swelling and tenderness in the area of the surgical scar at the petitioner\u2019s right elbow. Dr. Farahvar further testified he had prescribed both physical therapy and medication during the treatment period and had prescribed, in April of 1979 and again in February of 1980, that the petitioner not work. On November 25, 1980, the Commission affirmed the decision of the arbitrator. There was no further appeal.\nOn September 18, 1981, the petitioner filed a petition for increased compensation under sections 19(h) and 8(a) of the Act. The Commission heard new testimony given at several hearings conducted on the section 19(h) petition during the summer of 1982, as discussed below.\nIt appeared that following his December 1976 injury the petitioner continued to work for Borg & Beck as a janitor. His duties included sweeping, using a shovel to remove chips from a machine, and pulling drums. The sweeping was done with a push broom with a 6-foot-long handle. The petitioner needed to use both hands when using the broom. After April 15, 1980, the petitioner worked basically full-time at sweeping.\n. Between April 15, 1980, and August of 1980, the petitioner noticed both a sharp pain shooting down from his right elbow to his fingers and that his elbow was swollen. During this time, the petitioner was under the care of Dr. Michael Gonzales. Dr. Gonzales prescribed medication for the inflammation and referred the petitioner for physical therapy. In spite of the medication and therapy, the petitioner continued to experience pain while sweeping. In August of 1980 the petitioner\u2019s arm became swollen. Dr. Gonzales ordered the petitioner not to use his right arm, and wrote a letter recommending that the petitioner be relieved of any work requiring the use of that arm.\nThe petitioner was off work from August of 1980 until March 23, 1981. Upon returning to work, he was assigned to a vacuuming job requiring only the use of his left arm, and was not required to do any sweeping. He continued to experience pain in his right arm and remained under the care of Dr. Gonzales until December of 1981.\nDuring the 1982 proceedings, Dr. Michael Gonzales, a physician who is board certified in physical medicine and rehabilitation, testified that he first saw the petitioner on March 26, 1980, and that the petitioner remained under his care until December of 1981. It was Dr. Gonzales\u2019 opinion that the petitioner\u2019s pain, swelling, inflammation, and disability were directly related to his original injury. In the doctor\u2019s opinion, the petitioner\u2019s condition was permanent because of the failure of both surgical and nonsurgical treatment to correct the condition and relieve the pain. Finally, Dr. Gonzales opined that the petitioner would be unable to work at all with his right arm. However, Dr. Gonzales also testified that he did not notice any significant difference in the condition of the petitioner\u2019s right arm from March of 1980 through December of 1981.\nThe petitioner also was examined by the respondent\u2019s doctor, Dr. Clarence Zurfli. Pursuant to his examination on March 16, 1982, Dr. Zurfli indicated that the petitioner was capable of performing sanitation work, including sweeping and some lifting not to exceed 15 to 20 pounds.\nThe Commission considered the evidence and, on June 5, 1984, denied the section 19(h) petition, finding that the petitioner failed to prove any material increase in the extent of his permanent disability. However, the Commission granted the section 8(a) petition, awarding to the petitioner 31 Vy-weeks temporary total disability compensation. On May 17, 1985, the circuit court of Cook County confirmed the decision of the Commission. This appeal followed.\nThe petitioner\u2019s sole issue raised on appeal is whether the finding of the Industrial Commission that the petitioner failed to prove a material increase in his permanent disability was contrary to the manifest weight of the evidence. The petitioner argues that the testimony of Dr. Gonzales was both uncontradicted and conclusive that the disability of the petitioner\u2019s right arm had become both permanent and total.\nThe purpose of a section 19(h) proceeding is to determine whether a claimant\u2019s disability has changed since the time of the original decision by the Commission. (Howard v. Industrial Com. (1982), 89 Ill. 2d 428, 433 N.E.2d 657.) The change in the condition of the claimant\u2019s disability must be a material one. (Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 278 N.E.2d 789.) It is for the Industrial Commission to determine the facts and draw reasonable inferences from the evidence presented. (Gould v. Industrial Com. (1968), 40 Ill. 2d 548, 240 N.E.2d 661.) Such a factual determination by the Commission will not be set aside unless it is contrary to the manifest weight of the evidence. Howard v. Industrial Com. (1982), 89 Ill. 2d 428, 433 N.E.2d 657.\nAlthough the evidence is conflicting, the facts support a finding that the petitioner\u2019s condition was essentially the same from November 25, 1980, the date the Commission affirmed the arbitrator\u2019s August 1978 award for 211k% disability, until mid-1982, when hearings were held on the section 19(h) petition. The diagnosis of Dr. Farahvar, who treated the petitioner from March of 1979 through April of 1980, was similar to the diagnosis of Dr. Gonzales, who treated the petitioner from March of 1980 through December of 1981. Further, Dr. Gonzales testified that he did not notice any significant change in the petitioner\u2019s condition throughout the time he treated the petitioner. Also, Dr. Gonzales\u2019 opinion that the petitioner\u2019s disability was permanent and that he was unable to use his right arm was contradicted by Dr. Zurfli, who indicated that the petitioner was capable of sweeping and light lifting with his right arm.\nBased on conflicting evidence, the Commission decided that the petitioner had failed to prove a material increase in the disability of his right arm. We find that the Commission\u2019s decision was not contrary to the manifest weight of the evidence.\nIn its brief the respondent raises two additional issues for review. The first is whether the Commission had jurisdiction to hear the section 19(h) petition because the petition was not timely filed. The second is whether the award of temporary total disability as allowed under section 8(a) should be reversed because the petitioner was not under medical care for this injury during the time he was off work. The petitioner argues that the respondent has waived review of these issues by failing to file a notice of cross-appeal.\nAs to the respondent\u2019s first issue, we disagree with the petitioner\u2019s contention. The general rule is that the issue of subject matter jurisdiction cannot be waived. Klaren v. Board of Fire & Police Commissioners (1968), 99 Ill. App. 2d 356, 240 N.E.2d 535.\nAn argument analogous to that presented in the respondent\u2019s first issue was raised in Consolidation Coal Co. v. Department of Labor (1985), 138 Ill. App. 3d 541, 485 N.E.2d 1102. There, the appellee argued that the circuit court was without jurisdiction to hear the appellant\u2019s complaint because it was not timely filed in the circuit court. The appellant replied that the appellee waived the issue by failing to file a notice of cross-appeal. In part, the court rejected the appellant\u2019s waiver argument because the appellee\u2019s issue was one of subject matter jurisdiction and therefore could not be waived. In agreement with the analysis in Consolidation Coal Co., we consider the respondent\u2019s jurisdictional claim.\nThe respondent argues that the petitioner never filed a section 19(h) petition with the Commission and had only first presented it before the circuit court in 1984 during its review of the Commission\u2019s denial of the section 19(h) petition. Therefore, the respondent argues, this court is without jurisdiction to hear this appeal, as the section 19(h) petition was not filed within the 30-month time limit prescribed by section 19(h).\nHowever, a review of the record indicates that the respondent\u2019s argument is without merit. There is a copy of the file-stamped section 19(h) petition indicating that it was filed on September 18, 1981, within the 30-month limit required by section 19(h) (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(h)). Further, in its decision the Commission found that the petitioner filed a timely section 19(h) petition on September 18, 1981. We find that the Commission had proper jurisdiction to hear the petitioner\u2019s section 19(h) claim.\nAs to the respondent\u2019s second issue regarding the section 8(a) disability award, we agree with the petitioner that that issue has not been properly presented to the court. Where a decision contains a specific finding adverse to an appellee, the appellee must file a cross-appeal raising as an issue that adverse finding. (Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, 411 N.E.2d 1161.) If the appellee fails to file the cross-appeal, the reviewing court is confined to only those issues raised by the appellant and will not consider those urged by the appellee except where they are related to the appellant\u2019s issues. 89 Ill. App. 3d 630, 411 N.E.2d 1161.\nHere, the respondent\u2019s challenge to the propriety of the award of temporary total disability concerns a finding adverse to the respondent in the Commission\u2019s decision, which was generally favorable to the respondent. As the petitioner appealed only from the denial of permanent disability compensation and, as the respondent did not raise the instant issue through cross-appeal, we find that the respondent\u2019s second issue has not been properly presented before this court and is therefore waived.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nWEBBER, P.J., and McNAMARA, LINDBERG and KASSERMAN, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Joshua Sachs and Raymond D. Pijon, both of Chicago, for appellant.", "William H. Martay, of Discipio, Martay, Caruso & Simard, of Chicago, for appellee." ], "corrections": "", "head_matter": "LLOYD RUFF, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Borg & Beck, Appellee).\nFirst District (Industrial Commission Division)\nNo. 1\u201485\u20141565WC\nOpinion filed October 29, 1986.\nJoshua Sachs and Raymond D. Pijon, both of Chicago, for appellant.\nWilliam H. Martay, of Discipio, Martay, Caruso & Simard, of Chicago, for appellee." }, "file_name": "0073-01", "first_page_order": 95, "last_page_order": 101 }