{
  "id": 2468083,
  "name": "DENNIS FRIGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kelly Beverly Plumbing, Appellee)",
  "name_abbreviation": "Frigo v. Industrial Commission",
  "decision_date": "1990-06-08",
  "docket_number": "No. 1\u201489\u20142859WC",
  "first_page": "880",
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    "judges": [],
    "parties": [
      "DENNIS FRIGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kelly Beverly Plumbing, Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPetitioner, Dennis Frigo, sought worker\u2019s compensation benefits following a knee injury sustained while working for respondent, Kelly Beverly Plumbing. An arbitrator awarded no benefits after finding that, although a work-related accident had occurred, no disability resulted, and the present condition of ill-being was the result of a non-work-related accident which occurred 16 months later. The Commission upheld the arbitrator\u2019s decision in all respects, except that it awarded medical costs for services rendered within a few weeks after the accident. The circuit court confirmed the Commission\u2019s decision. Petitioner appeals, contending the Commission\u2019s decision is against the manifest weight of the evidence.\nPetitioner worked as a plumbing superintendent for respondent. On August 14, 1986, petitioner and another man were carrying a 150-pound box when petitioner tripped, striking his left knee on concrete. The box fell on his legs. Petitioner was in \u201cexcruciating pain, I was screaming for about it seemed like eternity ***.\u201d He did not work the remainder of the day. That evening he noticed swelling, pain, and a weakness in the leg. He did not seek medical care that day. On August 15, 1986, petitioner saw Dr. Connell. Petitioner testified that Dr. Connell told him to return to work and \u201ctake it easy if you could.\u201d\nDr. Connell\u2019s findings were negative. X rays were also negative. Dr. Connell diagnosed a left knee contusion and recommended that petitioner take aspirin, consider an orthopedic evaluation, and return to work.\nA Palos Community Hospital worker\u2019s compensation report dated August 15, 1986, states all tests were negative except for \u201cmild supra-patellar joint effusion\u201d and \u201ctender over left medial knee cap area.\u201d Petitioner refused drugs and a knee brace. He was released for light work \u201cfor 2 days, rest if possible.\u201d\nOn the following work day, petitioner returned to work. On August 28, 1986, Dr. Farrell, an orthopod, examined petitioner. He recommended that petitioner continue to watch the knee and, if there was no improvement in a month, have an arthroscopy performed. Petitioner did not return to Dr. Farrell or to any other physician for medical treatment. Petitioner testified that he did not elect to have the arthroscopy because \u201cI don\u2019t like being cut. I don\u2019t like visiting doctors.\u201d\nPetitioner continued to work for the next 16 months. His job duties required him to perform \u201cactive\u201d plumbing duties several times a week. This required squatting down, kneeling and standing. He noticed \u201ca stiffness in the knee,\u201d and some pain and swelling. The symptoms \u201cnever completely\u201d went away. Petitioner missed no work during this time. He did complain to his supervisor and respondent\u2019s owner, Richard Kelly, \u201cperiodically,\u201d such as when the weather would change.\nFrom October 1986 through January 1987, and from October 1987 through January 1988, petitioner participated in pheasant and water fowl hunting seasons. Pheasant hunting required walking through fields which were not level. He usually hunted every weekend. After hunting, he noticed swelling, grinding and crunching in his knee.\nOn January 3, 1988, petitioner was pheasant hunting in a field on snowy, frozen ground. \u201cAs I was walking *** my [left] knee gave out on me.\u201d Petitioner described the incident: \u201cIt gave out on me and I went down. When I went down, it felt like I fell in a hole, but there was no hole there.\u201d He noticed \u201cexcruciating pain.\u201d It was \u201cjust about the same pain\u201d that he had experienced 16 months earlier, in August 1986. Petitioner \u201ctried walking and then it buckled up on me and I figured something was wrong.\u201d He returned to the truck and rested while the others continued hunting.\nOn January 4, 1988, petitioner sought medical treatment at Palos Community Hospital. A hospital form filled out at 10:15 a.m. states \u201cfell in a hole.\u201d The hospital report includes typewritten information taken down at 10:33 a.m., and states petitioner\u2019s \u201cchief complaint\u201d is: \u201c(L) Knee Injury/Fell in a Hole.\u201d The nurse\u2019s notes written at 11:45 a.m. reads: \u201cmale [states] he fell in a hole 1-3-88.\u201d The examining physician\u2019s notes made at about 1:25 p.m. state petitioner complained of \u201cfalling in hole with left leg and twisting left knee.\u201d\nHe complained of pain and weakness in the knee. The examination revealed forward flexion with pain; mild to moderate effusion; tenderness; discoloration from the left knee to the foot; and pain with ambulation. X rays revealed a supra-patellar joint effusion. The diagnosis was left knee joint effusion with 2-degree blunt trauma. Petitioner\u2019s left knee was placed in a knee immobilizer, and he was given crutches. Petitioner did not return to work. Petitioner testified that he did give a history to the admitting nurse, but denied reporting that he fell in a hole, twisting the left knee the previous day.\nOn January 6, 1988, petitioner saw Dr. Basel I. Al-Aswad, an orthopedic surgeon. In a May 19, 1988, evidence deposition, Dr. AlAswad testified:\n\u201cHe gave me a history of his past problems dating back to 1986 when he had a possible meniscal tear and he gave me the history that he had given to Dr. Farrell, but there was a new history in that he was out hunting three days prior to him seeing me and his knee gave out on him and it swelled up. But he denied any significant trauma at that time, any new injury or twisting trauma.\u201d\nDr. Al-Aswad testified that there was \u201ca discrepancy between the history given to me and the history that\u2019s on the chart for [January 3, 1988] in the emergency room.\u201d\nDr. Al-Aswad observed effusion, or fluid, of the left knee, tenderness and limited range of motion. Dr. Al-Aswad aspirated 40 cc\u2019s of a bloody fluid from the knee. The excess fluid could have been the result of a twisting incident of the knee. Dr. Al-Aswad testified on cross-examination that the presence of the fluid indicated a recent injury. Fluid accumulates \u201cvery rapidly\u201d after trauma. If the knee gave out, petitioner could then have twisted it and fallen. While there was mild effusion seen in August 1986, \u201c[b]y the time he saw me, it just started to accumulate, it became much worse.\u201d\nOn January 13, 1988, petitioner again saw Dr. Al-Aswad, complaining of pain and inability to bear weight on his left leg. On January 18, 1988, Dr. Al-Aswad performed an arthroscopy. During surgery, he observed Grade II chondromalacia, and synovial hypertrophy, i.e., marked swelling and inflammation of the synovial lining. There was no ligament tear, and no meniscal tear. Dr. Al-Aswad also noted a mild anterior cruciate ligament strain. This condition could have resulted from a twisting incident, or a fall or a variety of incidents. The chondromalacia could occur to \u201ca person who uses his knees a lot in bending.\u201d It can be caused by trauma and can be aggravated by the type of trauma petitioner suffered in August 1986.\nDr. Al-Aswad testified that the negative findings noted by Dr. Connell in August 1986 suggested that no anterior cruciate instability existed, and no collateral ligament instability existed, after the work accident. The lateral collateral ligament tenderness which Dr. AlAswad observed was a new finding compared to the August 1986 examinations. However, \u201cit may be new, but I don\u2019t think it\u2019s that significant from that point of view.\u201d The tenderness and effusion could result from a twisting incident. On May 4, 1988, Dr. Al-Aswad released petitioner for work.\nAt the May 19, 1988, evidence deposition, Dr. Al-Aswad opined, in answer to a hypothetical question, that petitioner\u2019s present condition was \u201cmost likely related to an earlier dat[ed] injury rather than to an acute recent injury, so that it\u2019s related to the original one in \u201986.\u201d\nAt a May 18, 1988, evidence deposition, Dr. James Ryan, an orthopedic surgeon, testified that on May 13, 1988, he examined petitioner at respondent\u2019s request. In answer to a hypothetical question which included the fact that the patient experienced \u201cpain and grinding\u201d in his knee during the 16-month period, Dr. Ryan opined that the January 18, 1988, surgery was necessitated by the hunting incident of January 3, 1988, and not the August 1986 work incident. The effusion seen in January 1988 was the result of a new injury. \u201c[Bjloody fluid in a situation like that is a fresh injury ***.\u201d The bloody fluid would not exist over a 16-month period and was the result of a recent injury. Moreover, the \u201cgiving way and locking and swelling *** was something relatively recent.\u201d A twisting incident could cause pain, inflammation, irritation of the lining of the joint capsule and cause the knee to give way.\nDr. Ryan testified further that the chondromalacia seen during surgery was the result of age and overuse. A traumatic episode like the August 1986 accident would not produce Grade 2 chondromalacia. Instead, it would have to produce \u201ca real significant chondromalacia. Probably a Grade 4, a real crack.\u201d If the August 1986 accident had caused the chondromalacia, there \u201cwould have been a much more significant type of lesion.\u201d Moreover, chondromalacia, which is a degenerative process of the articular cartilage in the knee, is not considered a classical cause of a knee collapsing. The August 1986 incident could have aggravated a preexisting chondromalacia condition. But the condition \u201cin a man of this age is quite common.\u201d\nAt the June 9, 1988, hearing, petitioner called Richard Kelly, respondent\u2019s president and owner, to testify. The arbitrator permitted the testimony over respondent\u2019s objection that Kelly\u2019s name had not been included on the list of petitioner\u2019s witnesses.\nKelly testified that between August 14, 1986, and January 1988, petitioner complained about his left knee approximately once each week. Kelly noticed him limping from time to time, \u201cmostly [on] the left leg.\u201d On May 9, 1988, petitioner had returned to work as a supervisor.\nThe arbitrator denied all benefits, finding that petitioner failed to prove that he sustained any disability on account of the work accident.\nThe Commission found no causal relationship between the August 14, 1986, accident and the condition of ill-being which required medical services after January 3, 1988. The Commission relied on the fact that petitioner sought no medical treatment after August 28, 1986, and continued to work full time until January 4, 1988. The Commission pointed to the January 4, 1988, emergency room records indicating petitioner fell in a hole the previous day, while hunting. Finally, the Commission relied on Dr. Ryan\u2019s opinion that no causal connection existed. The Commission did, however, award $125 in medical costs for treatment rendered prior to January 3, 1988, finding that those costs were causally related to the August 1986 accident.\nThe circuit court confirmed the Commission\u2019s decision, finding that it was not against the manifest weight of the evidence.\nPetitioner contends that the Commission\u2019s decision is against the manifest weight of the evidence.\nIt is within the province of the Industrial Commission to determine questions concerning the credibility of the witnesses, the weight to be assigned to the evidence, causal connection, and the extent of disability. (Berry v. Industrial Comm\u2019n (1984), 99 Ill. 2d 401, 459 N.E.2d 963; Neal v. Industrial Comm\u2019n (1986), 141 Ill. App. 3d 289, 490 N.E.2d 124.) A court may not disregard permissible inferences drawn from the evidence by the Commission merely because other inferences might have been drawn. (Long v. Industrial Comm\u2019n (1979), 76 Ill. 2d 561, 394 N.E.2d 1192.) Where expert medical opinions differ, the Commission must determine the weight to be given to those opinions. (Zarley v. Industrial Comm\u2019n (1981), 84 Ill. 2d 380, 418 N.E.2d 717; Long v. Industrial Comm\u2019n, 76 Ill. 2d 561, 394 N.E.2d 1192.) Moreover, questions of whether a preexisting condition has been aggravated concern primarily medical questions, and a finding of fact by the Commission based on medical testimony should be given substantial deference. (Berry v. Industrial Comm\u2019n, 99 Ill. 2d 401, 459 N.E.2d 963; Long v. Industrial Comm\u2019n, 76 Ill. 2d 561, 394 N.E.2d 1192.) We will not disturb the Commission\u2019s findings on these questions of fact unless they are against the manifest weight of the evidence. Berry v. Industrial Comm\u2019n, 99 Ill. 2d 401, 459 N.E.2d 963; Smith v. Industrial Comm\u2019n (1987), 161 Ill. App. 3d 383, 512 N.E.2d 712.\nIn the present case, the Commission was entitled to conclude that the August 14, 1986, accident produced no disability after August 28, 1986. Petitioner\u2019s examining physician, Dr. Connell, noted that all findings were negative. He recommended aspirin. Petitioner did not need surgery, crutches, medication, or a knee support. He did not miss work. He could walk and engage in everyday activities. During that time, he participated in two full hunting seasons, which required periods of sitting, standing and hiking in cold weather on hard, uneven terrain. At work he performed physical labor in helping the employees with their plumbing tasks. In fact, petitioner continued working for 16 months without complaint to a physician. While petitioner did see Dr. Farrell on August 28, 1986, he never returned for any follow-up treatment.\nDr. Ryan opined that no causal relationship existed between the work accident and the subsequent need for surgery in 1988. Dr. Ryan also stated that the fluid indicated a recent trauma had occurred. The chondromalacia was common in men of petitioner\u2019s age.\nDr. Al-Aswad testified that the negative findings by Dr. Connell\u2019s earlier examination indicated that some of the conditions observed during surgery in January 1988 did not exist in August 1986. Dr. AlAswad also found the tenderness over the lateral collateral ligament was a new finding, and the tenderness could result from a twisting incident. Dr. Al-Aswad admitted on cross-examination that the bloody fluid on the knee indicated that a new injury or trauma had occurred.\nPetitioner points to Dr. Farrell\u2019s August 28, 1986, recommendation that petitioner consider an arthroscopy if his condition did not improve in a month. Petitioner, however, never returned to Dr. Farrell. The mere fact that he did undergo an arthroscopy 16 months later is not sufficient to require the Commission to find a causal connection between the condition of the knee at that time and the August 1986 accident.\nPetitioner argues that the evidence does not support a finding that any accident occurred in January 1988. However, the Commission could properly find that the history given by petitioner at the emergency room was correctly recorded as reported by petitioner. The hospital records filled out by four different people at four different times over a four-hour period repeatedly indicate that petitioner reported falling in a hole.\nInterestingly, two months later, on March 16, 1988, Dr. Al-Aswad noted that petitioner was anxious about what history he had previously given. Dr. Al-Aswad observed that petitioner had a previous problem and was out hunting and had been injured prior to an initial visit of January 4, 1988.\nPetitioner\u2019s argument that section 16 of the Act mandates exclusion of the hospital records is without merit. (See Ill. Rev. Stat. 1987, ch. 48, par. 138.16 (medical records are not \u201cconclusive proof of such matters\u201d).) Notably, it was petitioner who introduced the hospital records into evidence.\nPetitioner relies heavily on the testimony of Kelly, respondent\u2019s owner, that petitioner complained of knee problems intermittently during the 16-month period before January 1988. In view of the medical evidence, however, that testimony does not compel a finding that a new, non-work-related injury did not occur on January 3, 1988. Significantly, Dr. Ryan considered the fact that petitioner complained of knee problems throughout the 16-month period. It did not alter his opinion that no causal connection existed between the August 1986 accident and the condition of the knee in January 1988.\nThe Commission was entitled to find that Kelly\u2019s brief testimony provided only vague confirmation that petitioner experienced some difficulty. It did not detract from the fact that the condition of his knee did not interfere with petitioner\u2019s work duties, that the knee required no medical attention until January 1988, and that the medical findings at that time were significantly different than the August 1986 medical findings.\nPetitioner also relies on Kelly\u2019s testimony that petitioner telephoned in January 1988 and said \u201cthat he had problems with his leg, and that he wouldn\u2019t be able to come in to work,\u201d and that petitioner had reported that the leg \u201ccollapsed.\u201d The Commission need not have found this tends to indicate one way or the other whether the leg \u201ccollapsed\u201d when petitioner stepped in a hole.\nFor the foregoing reasons, the judgment of the circuit court of Cook County, confirming the Industrial Commission\u2019s decision, is affirmed.\nJudgment affirmed.\nBARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE McNAMARA"
      }
    ],
    "attorneys": [
      "Stevenson, Rusin & Friedman, of Chicago (John A. Maciorowski, of counsel), for appellant.",
      "Wiedner & McAuliffe, Ltd., of Chicago (Michael F. Doerries, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "DENNIS FRIGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kelly Beverly Plumbing, Appellee).\nFirst District (Industrial Commission Division)\nNo. 1\u201489\u20142859WC\nOpinion filed June 8, 1990.\nStevenson, Rusin & Friedman, of Chicago (John A. Maciorowski, of counsel), for appellant.\nWiedner & McAuliffe, Ltd., of Chicago (Michael F. Doerries, of counsel), for appellee."
  },
  "file_name": "0880-01",
  "first_page_order": 908,
  "last_page_order": 916
}