{
  "id": 2581644,
  "name": "MARATHON OIL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Broussard, Appellee)",
  "name_abbreviation": "Marathon Oil Co. v. Industrial Commission",
  "decision_date": "1990-08-22",
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    "parties": [
      "MARATHON OIL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Broussard, Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPetitioner, Joseph Broussard, sought workers\u2019 compensation benefits following an injury suffered while working for respondent, Marathon Oil Company. An arbitrator awarded $344 per week for 596/? weeks as temporary total disability benefits, and $344 per week for life as permanent total disability benefits. The Industrial Commission (Commission) modified that decision. It affirmed the award of $344 per week for 606/? weeks as temporary total disability. However, it awarded $293.61 per week for 250 weeks after finding him permanently disabled to the extent of 50%. The trial court reversed the Commission\u2019s decision, finding it against the manifest weight of the evidence, and remanded with directions to compensate petitioner for permanent and total disability. On appeal, respondent contends that the trial court erred in holding that the Commission\u2019s finding of 50% permanent disability was against the manifest weight of the evidence.\nOn November 1, 1984, the 46-year-old petitioner was at work, helping move oil tanks from a truck when a 1,000-pound skid slipped off a truck, hit him on the head, knocked him to the ground and landed on his pelvis. Petitioner suffered a fractured pelvis, a sprained ankle and a cervical contusion.\nDr. Turner treated petitioner. He performed an insertion of external pelvis fixation with closed reduction of pelvic suprapubic symphysis diastasis on November 7, 1984. In February 1985, petitioner returned to work for three weeks, but testified that he could not perform the duties, and complained to his physician of tingling in his hands when he bent his neck.\nIn March 1985, Dr. Turner referred petitioner to Dr. Emil Weber, a neurologist. Dr. Weber examined petitioner and diagnosed a probable spinal cord contusion associated with the accident, and with the osteoarthritic ridging and a narrowed spinal canal leading to the electricity sensation which Dr. Weber referred to as a \u201cLhermitte\u2019s Phenomenon.\u201d On March 28, 1985, Dr. Weber performed a laminectomy at CS, C4, C5 and C6.\nOn April 3, 1985, petitioner reported some improvement in the Lhermitte\u2019s Phenomenon. On June 7, 1985, petitioner reported these symptoms had ceased except when triggered by light percussion on the back of his neck in the surgical incision area. On July 28, 1985, petitioner was readmitted to the hospital for tests when the symptoms persisted. A myelogram was normal, as was a CT scan. A cervical collar relieved any further symptoms of Lhermitte\u2019s Phenomenon. On September 3, 1985, petitioner reported to Dr. Weber that the collar helped, but that he experienced intermittent parethesia to the extremities with a jolt or concussive force.\nOn September 3, 1985, Dr. Weber released petitioner for work, with the limitation that he not climb ladders or be in a position from which he might fall if the electric phenomenon occurred. Thus, he should not work near moving gears and belts in case he collapsed into the machinery. Petitioner did not return to work. He saw Dr. Turner again, complaining of left knee problems. On September 19, 1985, Dr. Turner performed an arthroscopic examination of petitioner\u2019s knee. Dr. Turner released petitioner for work, from an orthopedic standpoint, on October 14, 1985.\nOn December 26, 1985, petitioner returned to work, sweeping, mopping, waxing, dusting and carrying things. He did not climb ladders or work near machinery. Petitioner testified he could perform the janitorial duties, but continued to experience problems. On January 7, 1986, petitioner complained that the electricity sensations and numbness in his shoulder, neck and arm bothered him. On January 7, 1986, Dr. Kirkwood, the company doctor, examined petitioner and sent him back to work. Petitioner has not returned to work since that day.\nOn January 14, 1986, Dr. Michael Laws, a neurologist, examined petitioner. He diagnosed chronic neck pain with evidence of Lhermitte\u2019s Sign. He found an inconsistent sensory loss in the arms and legs and a decrease in flexion and extension and rotation of the neck. Dr. Laws referred petitioner back to Dr. Weber.\nOn February 6, 1986, petitioner told Dr. Weber that at work he was involved in vigorous physical activity such as lifting, pushing and pulling. Dr. Weber stated that, \u201che felt like he could not do this kind of work, that he physically was incapable of doing it and there was no objective way I had to make an evaluation other than that.\u201d Dr. Weber believed petitioner could perform sedentary work such as stock clerk duties. Petitioner has not since returned to Dr. Weber.\nDr. Weber testified that he believed petitioner should be restricted to light duty. The Lhermitte\u2019s condition was probably permanent. Maximum healing had been reached by February 6, 1986. Since September 1985, the condition was essentially the same.\nOn May 7, 1986, Dr. Barry Lake Fischer examined petitioner. In an evidence deposition, Dr. Fischer opined that petitioner was not employable in any recognized branch of the labor market. The disability was due to the electric shock phenomenon, which Dr. Fischer \u201ccould obviously not objectively demonstrate during the physical examination.\u201d Petitioner also had hip and knee problems. Dr. Fischer agreed with the restrictions suggested by Dr. Weber, with the addition of no driving.\nOn cross-examination, Dr. Fischer testified that petitioner could perform a well tester job, depending on the question of driving and the use of tools and the weight of meters. Petitioner could perform light duty work, if consistent with his vocational capacity. Dr. Fischer did not believe that petitioner simply was not interested in returning to work.\nDr. John Gapsis testified for respondent that he examined petitioner on March 4, 1986. He found no gait abnormality or deviation. Cervical range of motion was full and complete. Neurologic examination was overall normal. Dr. Gapsis found that petitioner was not totally disabled. He opined that, \u201cfor whatever reason, this man is not interested in returning to gainful employment no matter how his job is modified or adapted to his capabilities by the employer.\u201d Petitioner would need some restrictions, but he could perform in some physical capacity.\nPetitioner testified that he had a 10th-grade education. He drove his car most days. He walked frequently, and also went mushroom hunting. Each time he took a step, he felt tingling through his neck and shoulders. He could carry laundry and a few grocery bags to the house, but it bothered him. He could mow the lawn for 45 minutes to an hour, using a riding and a power mower. Petitioner could not perform the well tester job because it involved driving a pickup truck, taking meters off and using a wrench. Driving a truck could jar his neck, causing electricity to run through his body. Even when he drove his car this occurred. Petitioner also testified that his weak knee, ankle and hip, and the electricity phenomenon and numbness in his arms, hands, chest and neck, still troubled him.\nOn September 3, 1986, the arbitrator found that petitioner was temporarily totally disabled to December 26, 1985, and permanently totally disabled after that date.\nIn April and June 1987, the Commission heard additional evidence.\nAnna Collins, an outreach worker for a community action agency, testified for respondent that petitioner had helped unload a commodity/cheese truck nine times in July, October, November and December 1986, and in January, February and April 1987. He unloaded cartons of cheese, rice, honey, milk and cornmeal. The cartons each weighed 25 to 51 pounds. Petitioner told Collins he did not care if he was observed working. Petitioner never complained of neck problems while working.\nHoward Kirchoff testified for respondent that in July 1986, he was working as a private investigator and undertook a surveillance of petitioner at the request of respondent. On July 7, Kirchoff saw petitioner driving and unloading several cartloads of smashed aluminum cans from a pickup truck. On July 10, he saw petitioner driving. In December 1986, Kirchoff saw petitioner driving and apparently working under the hood of his car. On January 8, 1987, he saw petitioner unloading boxes from a truck and carrying them into a building, for 1 to V-k hours. The bed of the truck was four feet high. Petitioner walked 25 to 30 feet into the building, and stacked boxes from four inches off the ground up to shoulder height.\nTerry Reed testified for respondent that he performs personnel duties for respondent. On January 8, 1987, Reed saw petitioner unloading a cheese truck.\nFred Newman testified for respondent that he was an employee relations representative for respondent. In December 1986, Newman spoke with petitioner and John Farrell. Petitioner reported that he could not return to work on a light duty basis. On March 2, 1987, Newman spoke with petitioner, who said he knew an investigator had been following him. Petitioner admitted unloading the cheese truck, cutting wood, and riding a motorcycle. Petitioner said that he did it to \u201ctest\u201d himself and determine his limitations.\nDr. Robert Kuhlman, an orthopedic surgeon, testified for respondent in an evidence deposition. He examined petitioner on February 9, 1987. His objective findings were largely negative and did not support a need to impose work restrictions. There was a 20-degree loss of right lateral rotation and a 10-degree loss of full flexion of the cervical spine. Petitioner had excellent strength in both hands, and no muscle atrophy was noted. Sensation was intact over both upper extremities, and his reflexes were equal and active at the level of the elbow. Dr. Kuhlman could not duplicate the electrical shocks.\nDr. Kuhlman believed petitioner appeared able to return to many types of work. Any limitations or restrictions would be related to subjective complaints in regard to the neck. He should be able to perform janitorial functions, or work involving travel by light truck or car, or work involving walking or standing for periods of 15 minutes to an hour. Petitioner should be able to do such work as mopping, sweeping, or cleaning windows, since it was quite unlikely that such activities would generate the subjective complaints petitioner made.\nCertain types of manual labor might lead to problems and would put petitioner at more risk than a normal individual. However, Dr. Kuhlman saw no evidence of instability in the cervical spine. Objectively, he could find no specific reason why petitioner could not engage in work involving relatively normal activities. He should perhaps avoid violent types of jerking activities to the neck. Otherwise, his abilities would have to be determined on a trial and error basis. In regard to petitioner\u2019s subjective complaints, Dr. Kuhlman could not duplicate the symptoms upon examination.\nPetitioner testified on review that he helped unload the cheese truck three or four times. The first time was in January 1987. The reason his name appeared on the list prior to that date is because his wife helped, but his name was put on the list. He only carried things that were not heavy. It was only 10 feet from the truck to the pallet where he stacked the boxes. The work bothered him quite a bit. He experienced a strain on his body, with electricity and numbness running through him. He had to go home and rest after unloading the truck.\nOn cross-examination, petitioner stated that he did not recall whether he unloaded the cheese truck before January 1987. In spite of the videotape taken by the investigator, petitioner refused to say whether or not the videotape showed him unloading the cheese truck. He would only say it looked like him.\nPetitioner testified that when he referred to cutting grass in speaking to respondent\u2019s employees, he meant he showed his son where to start cutting, and how to turn the gas on and check the oil. It was hard for him to bend down and show his son these things. On cross-examination, petitioner testified that he partially mowed his mother-in-law\u2019s lawn in July 1986. In 1985, he cut only one to three logs and did no other wood cutting. After that, petitioner held the wood while the neighbor cut it. Even that bothered his neck, shoulder, arm and fingers. In the fall of 1986, he stood around while his neighbor cut wood, but he denied cutting the wood himself.\nPetitioner stated that no matter what activities he performed, he still had the same symptoms. He had ridden his motorcycle since the accident, but it jarred him. In 1985 he stopped riding it, on his doctor\u2019s advice. Even when petitioner performed sedentary work such as Bible study, it strained his neck, shoulder and arm. Reading and writing caused tension in his neck and arms. He could only, do such work for 15 or 20 minutes at a time.\nAt one point, petitioner did a lot of walking, but he tired easily, his left ankle became swollen, his left hip weakened and his left knee felt weak. Up until three weeks before the June 26, 1987, testimony, petitioner had walked every evening for an hour, with four or five breaks. Petitioner stated that his pelvis feels like it is grinding. He has trouble with his neck if he rides in a car too long.\nThe Commission found petitioner temporarily totally disabled from the date of the accident until February 6, 1986. It found him permanently partially disabled to the extent of 50% of the man as a whole.\nOn October 10, 1989, the trial court reversed the Commission, finding its decision was against the manifest weight of the evidence. It found that petitioner fell into the \u201codd lot\u201d category, and that respondent did not sustain the burden that shifted to it to show appropriate work was available to petitioner. The court ordered the arbitrator\u2019s award reinstated.\nOn appeal, respondent maintains the decision of the Commission that petitioner did not fall into the \u201codd lot\u201d category was not against the manifest weight of the evidence.\nAn employee is totally and permanently disabled under workers\u2019 compensation law where he is unable to make some contribution to industry sufficient to justify payment of wages to him. (Freeman United Coal Mining Co. v. Industrial Comm\u2019n (1984), 99 Ill. 2d 487, 459 N.E.2d 1368.) He must show that he is, for practical purposes, unemployable. (Freeman United Coal Mining Co. v. Industrial Comm\u2019n, 99 Ill. 2d 487, 459 N.E.2d 1368.) A person need not be reduced to a state of total physical helplessness, but is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. A.M.T.C. of Illinois, Inc. v. Industrial Comm\u2019n (1979), 77 Ill. 2d 482, 397 N.E.2d 804.\nThe employee bears the burden of proving each element of his case, including the extent and permanency of the injury. (A.M.T.C. of Illinois v. Industrial Comm\u2019n, 11 Ill. 2d 482, 397 N.E.2d 804.) It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. The Commission\u2019s determination of these issues will not be set aside unless it is against the manifest weight of the evidence. General Electric Co. v. Industrial Comm\u2019n (1989), 190 Ill. App. 3d 847, 546 N.E.2d 987.\nBased on the medical evidence, the Commission was entitled to find that petitioner was not totally disabled. Dr. Weber prescribed limitations of no climbing ladders or working at heights where petitioner might fall if the electric phenomenon occurred. He also could not work near moving gears. While Dr. Fischer testified that petitioner was not employable, he agreed with these restrictions. Respondent\u2019s attempts to offer janitorial or office work were refused by petitioner.\nDr. Weber believed petitioner could perform sedentary work such as stock clerk duties. Dr. Kuhlman believed petitioner could perform many types of work, including some types of manual labor. The mere fact that a worker cannot perform very strenuous physical labor does not, standing alone, entitle him to an award as permanently and totally disabled. A.M.T.C. of Illinois, Inc. v. Industrial Comm\u2019n, 11 Ill. 2d 482, 397 N.E.2d 804.\nThus, Drs. Kuhlman, Weber, Kirkwood, and Gapsis believed petitioner could perform various jobs, with some restrictions. Dr. Gapsis was of the opinion that petitioner simply did not wish to return to \u201cgainful employment no matter how his job is modified or adapted to his capabilities by the employer.\u201d\nThe Commission could find petitioner\u2019s subjective claims of inability to perform any work not credible. No doctor was able to find objective evidence of a disability. A Back-To-Work Center which tested petitioner indicated that petitioner had the capacity to work. In addition, petitioner\u2019s statements to physical therapists and at the Center varied as to the level of pain he experienced. Moreover, when petitioner returned to work for a few weeks in December 1985, he was able to do the assigned work.\nOther witnesses testified about petitioner\u2019s performing various physical activities, including riding a motorcycle, unloading a cheese truck, and cutting wood. He said he did these things to \u201ctest\u201d himself. Petitioner told Newman he had been mowing the lawn. At the arbitration hearing, petitioner testified he could mow for 45 minutes to an hour. At the hearing before the Commission, however, petitioner testified that he had never mowed the lawn and that his son had done it.\nPetitioner testified that he could not drive a car or truck, because it jarred his neck. Yet, he also testified that he drove nearly every day. There was also contradictory testimony in regard to whether petitioner chopped wood and performed other physical activities.\nIn December 1986, petitioner said he had no ability to perform any function, even office work. Yet in December 1986, he had been unloading the cheese truck, which was also videotaped in January 1987. Petitioner admitted he had been unloading the cheese truck in January 1987, but refused to acknowledge that he was the person in the videotape. He initially stated the first time he unloaded the truck was in January 1987, but then testified that he could not recall. Petitioner testified he carried nothing heavy, but Collins testified the cartons weighed 25 to 51 pounds each. Petitioner testified that the work bothered him quite a bit, but Collins testified petitioner never complained of neck problems while working.\nThe trial court erred when it found the Commission\u2019s decision was against the manifest weight of the evidence. We hold that the evidence amply supports the Commission\u2019s determination that petitioner suffered a permanent disability of 50% of the man as a whole. We remand the case with directions to reinstate the Commission\u2019s decision.\nFor the foregoing reasons, the judgment of the circuit court of Lawrence County is reversed, and the cause is remanded with directions.\nJudgment reversed and remanded.\nBARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE McNAMARA"
      }
    ],
    "attorneys": [
      "Gregory C. Ray, of Craig & Craig, of Mattoon, and Thomas C. Lowry, of Marathon Oil Company, of Robinson, for appellant.",
      "Serkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "MARATHON OIL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Broussard, Appellee).\nFifth District (Industrial Commission Division)\nNo. 5 \u2014 89\u20140738WC\nOpinion filed August 22, 1990.\nGregory C. Ray, of Craig & Craig, of Mattoon, and Thomas C. Lowry, of Marathon Oil Company, of Robinson, for appellant.\nSerkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellee."
  },
  "file_name": "0809-01",
  "first_page_order": 831,
  "last_page_order": 839
}