author: JUSTICE HENRY LEWIS

text:
    GUST K. NEWBERG CONSTRUCTION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (James McDonald, Appellee).
    Third District (Industrial Commission Division)
    No. 3—91—0774WC
    Opinion filed June 11,1992.

      Richard B. Levy and Gerald J. Porento, both of Commonwealth Edison Company, of Chicago, for appellant.
    Noel C. Lindenmuth, Richard A. Kimnach, and John A. Salzeider, all of Anesi, Ozmon & Rodin, Ltd., of Chicago, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

Claimant, James McDonald, filed two applications for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), for two injuries incurred while employed by two separate employers. The first injury was incurred on April 8, 1987, while the claimant was employed by the respondent, Gust K. Newberg Construction (Newberg). The second injury was incurred on January 5, 1988, while he was employed by Midway Industrial Contractors, Inc. (Midway). The claimant filed section 19(b — 1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) petitions in both of these cases, and the petitions were consolidated for hearing. Following the hearing on the petitions, the arbitrator found that the claimant was entitled to 1093/? weeks of temporary total disability (TTD) and to medical expenses in the amount of $31,793.50, and that the claimant’s condition of ill-being resulting from his left knee and cervical injuries was causally connected to his accident of April 8, 1987. Newberg, the only employer involved in this appeal, appealed the arbitrator’s decision to the Industrial Commission (Commission). The Commission modified the arbitrator’s decision by reducing the claimant’s TTD to 1033/? weeks but otherwise affirmed the arbitrator’s decision. On appeal to the circuit court, the court determined that the Commission’s decision was not against the manifest weight of the evidence and confirmed the Commission’s decision. Newberg appeals.

On appeal, Newberg contends that the Commission’s determination that the claimant’s condition of ill-being was causally connected to his work accident of April 8, 1987, was against the manifest weight of the evidence. Specifically, Newberg asserts that the intervening accident of January 5, 1988, broke the causal connection between his accident of April 8, 1987, and his condition of ill-being regarding his cervical and left-knee injuries. Newberg further asserts that, since the claimant stopped working only after the second accident, his benefits and medical expenses incurred after the second accident should be paid by Midway. Newberg also argues that the subsequent intervening accident in which the claimant sustained a herniated disc in his lumbar spine and two hernias was the major contributing cause of the claimant’s inability to return to work, and the Commission failed to consider this factor in its determination. The second issue raised by Newberg is that the Commission erred in relying on Dr. Mash’s medical report in its decision, since that report was not admitted into evidence in the case at bar.

At the hearing on his section 19(b — 1) petitions, the claimant testified that he is 50 years of age, and that he has worked as a carpenter and as a painter for over 30 years. Prior to April 8, 1987, the claimant had not sustained any injury to his neck, upper extremities, low back or his lower extremities. On April 8, 1987, the claimant was employed by Newberg as a carpenter at the Braidwood Nuclear Power Plant and was helping to construct a scaffold that was 40 feet from the ground. His work on this scaffold required him to stand on a conveyor system three or four feet off of the ground and to hand lumber measuring 4 inches by 6 inches by 24 feet up to another worker on a ledge 20 feet off of the ground. The claimant estimated that the 4-inch by 6-inch by 24-foot piece of lumber weighed approximately 180 to 220 pounds. While performing this work on that date, a 4-inch by 6-inch by 24-foot piece of lumber was dropped by the person working on the ledge above the claimant and struck the claimant across the neck and the shoulder. When the lumber struck the claimant, it caused his left leg to go “through” the conveyor system upon which he was standing while his right leg swung into the side of the conveyor. Immediately after his accident, he noticed swelling in his knee and his ankle, and his neck and shoulder hurt.

Following this accident, the claimant reported his accident to his foreman and continued to work, but he did not seek medical treatment until approximately two weeks later. According to the claimant, he was able to keep working because “my partners were taking care of me.” Although he continued to work, the claimant stated his condition became worse, and he could not lift anything. The claimant stated that his left arm was starting to go numb, his right arm was almost useless, and he was having trouble with both of his knees and the ankle on his left leg.

The claimant was sent to Dr. Adelmann by Newberg’s company nurse. Dr. Adelmann examined him, took X rays, and prescribed Butazolidin for the claimant, but he discontinued this medication when the claimant developed an allergic reaction. Subsequently, the claimant went to Dr. Michael Greenwald. Dr. Greenwald also examined him and took X rays, and he treated the claimant conservatively with prescribed medication, cortisone injections and physical therapy.

The claimant continued to work for Newberg for almost a month after his accident, until he was laid off work. After a month’s layoff from Newberg, the claimant went to work for Midway as a painter at the Braidwood Nuclear Power Plant. The claimant worked for Midway until January 5, 1988. On that date, while carrying a bag of glass beads or sand, the claimant stepped over a drainage hose and slipped in grease from a nearby motor. When the claimant fell, he struck his lower back and felt a “real sharp pain in the groin.” Later that day, the claimant developed lumps on both sides of his groin, and his lower back was injured. The claimant denied that he struck his head in this fall.

The claimant testified that he had been having progressive difficulties with his neck, shoulders, arms, left knee and left ankle, and that following his accident of January 5, 1988, he noticed no change in these areas. After his second accident, the claimant sought treatment from Dr. Rubino, his family physician, for the hernias in his groin area. Dr. Rubino performed surgery on his hernias, but the claimant treated with Dr. Greenwald for his lower back. The claimant had been seeing Dr. Greenwald prior to his accident of January 5, 1988, and he continued to see the doctor after his second accident. Dr. Greenwald had the claimant undergo an MRI (magnetic resonance imaging), a dye-injected CAT scan, and an arthrogram on his left knee. Dr. Greenwald wanted to perform surgery on the claimant’s knee and then operate on his neck at a later time. However, the claimant went to Dr. Nuber, who performed surgery on his left knee in August 1988, and he went to Dr. Butler for a second opinion on his neck. Subsequently, Dr. Butler performed surgery on his neck on June 19,1989.

The claimant testified that his current complaints consist of his arms going numb, his fingers “locking,” and severe pains in his shoulder and right arm. Also, his knee wants to give out on him. The claimant stated he has numbness over his whole body, especially his lower extremities, and that he has problems with “losing my bowels on many occasions.” Recently, Dr. Butler had the claimant undergo another MRI for his low-back pain.

The claimant had not worked since his accident of January 5, 1988. He had seen Dr. James Duffy on two occasions at his lawyer’s request, but Dr. Duffy did not treat him. He also saw Dr. Steven Mash at the request of Hartford Insurance, Midway’s insurance carrier.

On cross-examination, the claimant admitted that he did not have lower-back pain until after the accident of January 5, 1988, and that it was not until after the March 1988 MRI that the claimant was told he had a herniated disc in his neck. He also admitted that he may have told Dr. Butler he struck his head in the accident of January 5, 1988, and that he may have told Dr. Nuber his neck hurt more after his second accident. Dr. Adelmann had told the claimant that his problem was arthritis and advised the claimant to see an "arthritis specialist.” After his second accident, the claimant noticed that he had radiating pain in both of his arms, where before the accident the pain was in his one arm. The claimant stated that he had neck pain after his accident of April 8, 1987, and that he continued to have neck problems after the January 5, 1988, accident. The claimant testified that before his accident of January 5, 1988, he had problems lifting with his right arm, he had some numbness in his left arm, and he had severe problems with his left knee and ankle and right ankle.

When questioned regarding his employment at Midway, the claimant responded that his work consisted mainly of touching up defects on the painted surfaces, such as where a spot of orange paint may have gotten on a surface painted brown. He also washed down walls and metal with thinner in preparation for painting. While his work with Midway involved twisting and turning, he did not often carry bags or do heavy work. According to the claimant, the 40-pound bag he was carrying on January 5, 1988, was the heaviest item he had carried while employed by Midway. The claimant stated that he hurt when he carried the bag at Midway, but that he “had to make a living.”

The claimant presented numerous medical records and two evidence depositions, one of Dr. Michael Greenwald and one of Dr. James Duffy. In Dr. Greenwald’s evidence deposition taken on May 15, 1990, the doctor testified that he is an orthopedic surgeon and that he first saw the claimant on May 29, 1987. The history given to Dr. Greenwald by the claimant indicated that the claimant had had a work accident on April 8, 1987, wherein the claimant was struck by a weight on a hoist across his neck and shoulder, following which the claimant fell through a conveyor thereby injuring his left leg. Dr. Greenwald was aware that the claimant incurred an injury to his right foot and ankle nine months previous.

The claimant complained to the doctor that his left knee pained him, particularly when he drove and used a clutch. The claimant also told the doctor that he had neck pain, and that the pain was on the top of his right shoulder and burning in nature. Additionally, the claimant had weakness in his right arm with occasional pain in the musculature of the right arm. The doctor noted that the claimant complained of “frequent radiculitis, which is pain shooting down the right arm.”

The doctor’s examination of the claimant revealed that the claimant had about 30% of normal range of motion of the neck laterally; about two-thirds of normal range of motion in forward flexion; and about one-half of normal range of motion in hyperextension of the neck. The claimant complained of a burning sensation on right lateral flexion and on hyperextension of the neck. The doctor indicated that a burning sensation is evidence of nerve-root irritation. The doctor found the neurological evaluation of the claimant’s upper extremities to be normal, which indicated there was no destructive process going on in the nervous system. The doctor’s examination of the left knee revealed no effusion (fluid in the tissue), no fluid in the joint, and no instability.

Dr. Greenwald had X rays taken. The X rays of the claimant’s neck showed that he had large osteophytes (bone spurs) at the C5-6 and C6-7 levels, and that the space between the C5-6 vertebrae was narrowed. According to the doctor, the narrowing of the disc space showed degenerative changes at that level with weakness and softening of the disc which permitted the disc to partially collapse. The doctor found a suggestion of preexisting damage to the right shoulder. The doctor’s impression of the claimant’s condition at his initial visit was that the claimant had diffuse moderate osteoarthritic problems with superimposed multiple strains, with the osteoarthritic problems as a preexisting condition prior to April 8, 1987.

The doctor next saw the claimant on June 11, 1987. The claimant’s lab work was unremarkable, and his physical findings were substantially unchanged. The claimant had not responded to the medication prescribed, so the doctor changed his medication. At the next visit on June 23, 1987, the doctor noted that the claimant had modest improvement, but that his right arm was getting worse, particularly in the biceps. The doctor again changed the claimant’s medication. On July 11, 1987, the claimant had not improved, so the doctor gave the claimant a steroid injection and placed him on an anti-inflammatory drug.

On August 7, 1987, the claimant complained of a brief, very severe episode of central neck pain which had lessened by the time he had seen the doctor. The claimant also complained of right shoulder pain. On August 14, 1987, the doctor noted that the claimant continued to have radicular pain into the right arm. The doctor again injected the claimant’s neck with a steroid and continued him on anti-inflammatory medication. In the doctor’s opinion, the radiculitis of the right arm was indicative of a nerve-root compression problem in the neck related to the pathology (the degenerative-disc disease) at the C5-6 and/or C6-7 level and the strain of the injury of April 8, 1987.

The claimant’s next visit to Dr. Greenwald was on September 15, 1987. At that visit, the doctor and the claimant discussed only the claimant’s knee problem as that was giving the claimant more difficulty. The doctor again saw the claimant for his left-knee problem on October 6,1987.

On November 17, 1987, the doctor noted little change in the claimant. On November 20, 1987, the claimant had left-knee pain due to bumping it at work two days previous. The next visit with the claimant was on January 12, 1988, at which time the claimant told the doctor of his second accident on January 5, 1988. The claimant told the doctor he had been carrying a bag of sand and slipped, twisting his back. As a result of the second injury, the claimant had back pain, neck pain and right-shoulder pain. The claimant had also developed hernias from the accident. The claimant advised the doctor that he had not worked since January 5, 1988. The doctor was aware that the claimant’s greatest problems were pain in his left knee and his right shoulder; however, because the claimant was to be off work six weeks following his hernia operation, the doctor thought the time off would be beneficial for his neck and knee injuries.

The doctor saw the claimant again on February 16, 1988. At that time, the claimant had persistent neck pain with radiation of pain into the head and both arms, with the pain being greater on the left than the right. The doctor found this to be a change in the claimant’s condition, as previously the pain had been primarily on the right side. The doctor noted that the claimant had localizing areas of numbness in the left arm, and that he had milder symptoms in his back and knees. Therefore, the doctor concentrated on the claimant’s most severe complaints of neck and radicular pain resulting from his neck. The doctor scheduled an MRI for the claimant. The MRI, performed on February 23, 1988, indicated there was a degenerated disc at C4-5, C5-6 and C6-7 levels; there were small osteophyte formations at the C5-6 and C6-7 levels; and there was a bulging disc at the C5-6 level but no solid evidence of herniation.

At the claimant’s visit of March 1, 1988, the claimant continued to complain of neck and knee symptoms. At this time, the doctor ordered a dye-injected CAT scan for the claimant. The CAT scan of the claimant’s left knee showed a tear of the medial meniscus, and the CAT scan of the neck revealed large spurs at C5-6 level, as well as a bulging disc with uncertain evidence of herniation at the C3-4 level. Because the doctor believed the claimant’s condition was worse than the radiologist reported, the doctor talked to the radiologist, following which he made a handwritten notation on the report that there was possible nerve encroachment. The doctor thought that the claimant had nerve entrapment at the C5-6 level because of a herniated cervical invertebral disc. The doctor explained that the symptoms of a herniated cervical disc would be local and radicular pain in the areas where the sixth cervical nerve extended. It was the doctor’s opinion that the nerve encroachment revealed on the CAT scan was the cause of the claimant’s radicular complaints the claimant had had regarding his right arm prior to the accident of January 5, 1988.

The doctor admitted that the claimant had a preexisting condition of degenerative-disc disease, which contributed to his problem; however, the claimant was asymptomatic prior to April 8, 1987, from which the doctor concluded that the accident in April 1987 was a contributing factor to the claimant’s condition. The doctor stated that while the claimant’s preexisting condition made him more susceptible to injury, the injury the claimant suffered on April 8, 1987, was sufficient to aggravate his preexisting condition. It was the doctor’s opinion that the claimant’s accident of April 8, 1987, was a major contributing factor to his disc herniation and the nerve-root impingement. The doctor admitted that while the claimant’s MRI and CAT scan revealing the herniated disc were done after the accident of January 5, 1988, he had suspected a herniated disc in May 1987 based upon the evidence of the bulging disc revealed on the plain X rays and from the claimant’s radiculitis before the second accident. The MRI and the dye-injected CAT scan provided more complete evidence of the herniation of the cervical disc. The doctor admitted that he had not advised the claimant to discontinue working after his first accident, but he stated that if the claimant had reported to him that he was unable to work because of the severity of the pain, he would have restricted the claimant from working. The doctor was of the opinion that the claimant was unable to work after the second accident of January 5,1988.

The doctor also related the claimant’s left-knee injury to his accident of April 8, 1987. The doctor explained that his reference to the claimant’s “old ostochondritis dissecans” in his letter of May 29, 1987, referred to the kneecap, but that the narrowing of the medial compartment, the injury incurred in the claimant’s first accident, referred to the knee joint itself. According to the doctor, the degenerative changes in the claimant’s knee weakened the meniscus, but that it took an additional external application of force to cause the tear.

The doctor believed that the claimant’s accident of January 5, 1988, could have caused the claimant’s low-back injury, as the claimant had not complained of low-back pain prior to this second accident. When asked if the claimant’s low-back injury was responsible for the claimant’s inability to return to work, the doctor responded that he had insufficient knowledge of the claimant’s low back to answer the question, as he had only X-rayed the claimant’s lower back at his last visit.

In Dr. James Duffy’s deposition taken on April 27, 1990, he testified that he is a neurological surgeon. Dr. Duffy stated that he saw the claimant on two occasions at the request of the claimant’s attorney. At these visits, the doctor examined the claimant but he did not treat him. The claimant’s first visit to Dr. Duffy was on July 11, 1988. The history given to the doctor by the claimant conformed to the history given to Dr. Greenwald, i.e., that he had an accident in April 1987 and a second accident in January 1988. Dr. Duffy knew that the claimant’s first accident involved him falling through a conveyor and being struck across the head, neck and shoulder with a piece of lumber. Dr. Duffy described the claimant’s second accident as an episode wherein the claimant was carrying a bag of sand and slipped and fell.

When the doctor examined the claimant, the claimant complained of severe neck pain, bilateral shoulder pain, low-back pain, left-knee pain and had mild complaints of pain to the right shoulder and the right ankle. The claimant also complained of numbness and cramping in both hands, which occurred intermittently.

Dr. Duffy reviewed the reports from the claimant’s CAT scan and the MRI. These reports revealed that the claimant had marked arthritic involvement of the lumbar as well as the cervical area, and that there was osteophyte formation at the C3-4, C4-5 and the C5-6 level with disc involvement at the C4-5 and C5-6 level. The doctor was aware that the claimant also had degenerative changes and a tear in the medial meniscus of the knee.

The doctor’s neurological examination showed that the claimant had hypesthesia (decreased sensation) over the entire body below the clavicle on both sides; that he had no muscle weakness; that all movement of the lumbar spine was restricted by pain; and that there was moderate paraspinal muscle spasm both in the neck and the lumbar region. It was the doctor’s conclusion that the claimant had a tear in the cartilage of the left knee, and that he had severe arthritic changes aggravated by injury in the cervical region with a possible disc protrusion in the neck. The doctor thought the disc protrusion was probably at the C5-6 level. It was the doctor’s understanding that the claimant’s first accident of April 8, 1987, injured the claimant’s neck, his left knee and possibly his right ankle, while the claimant’s second accident in January 1988 injured primarily the claimant’s lower back.

Dr. Duffy saw the claimant for the second time on April 9, 1990. At this time, the claimant’s complaints were generally the same as at his first visit, i.e., he had low-back pain and considerable pain in the neck. Dr. Duffy was aware that the claimant recently had neck surgery, that he had knee surgery, and that he recently had an MRI on his lower back, but the doctor had not seen the results of the MRI. From the doctor’s examination, the doctor found the claimant had vague areas of decreased sensation over his entire body, and in particular, he had an oval area of anesthesia over the left thigh, a condition which is referred to as meralgia paresthetica (an abnormal condition marked by tingling, burning, and stabbing pains in the outer side of the lower part of the thigh).

It was Dr. Duffy’s opinion that the claimant was totally disabled from performing any construction work, and that the claimant was unable at this time to perform light-duty work. The doctor thought that the claimant may require surgery on his lower back. When asked if the doctor had an opinion on whether the claimant was able to work given his neck injury, the doctor responded that “[rjelative to the neck alone, no, he would not be able to work at the present time.” The doctor also thought the claimant could not work due to his lower-back injury. The doctor gave as his opinion that the claimant’s neck injury was a result of his accident of April 1987, and that the accident of January 1988 may have aggravated the injury but it did not cause it. The doctor explained that, in his opinion, the claimant would have required neck surgery even if the second accident had not occurred.

Dr. Duffy agreed with Dr. Greenwald that, although the MRI and CAT scan revealing the claimant’s herniated disc in his neck were performed after the second accident, there was objective evidence of herniation before the accident of January 1988. Dr. Duffy explained that Dr. Greenwald’s notes of August 1987 implied that there was pain in the cervical spine and in the right shoulder before August. Dr. Duffy also noted that Dr. Greenwald reported the claimant had complaints of neck pain in May and June 1987. Dr. Duffy found that Dr. Adelmann’s notes indicated that the claimant had radicular symptoms in May 1987 when he sneezed or coughed or made sudden motions, and Dr. Duffy explained that these are the type of symptoms he expects to find in a case of a herniation at the C5-6 level. Dr. Duffy also explained that persons with herniated cervical discs could perform physical labor for long periods of time with this condition. Dr. Duffy stated that he would return a person with a herniation to work as long as he had no pain. Dr. Duffy did not find it unusual for the claimant to have an increase in pain after his second accident where there is a preexisting herniation.

Dr. Adelmann’s notes indicated that he saw the claimant on May 1, 1987, at which time the claimant complained of numerous problems which had developed as a result of a work accident three weeks ago. Dr. Adelmann had X rays taken of the claimant’s cervical spine. From the X rays and his examination of the claimant, the doctor determined that the claimant had rather severe arthritis with foraminal narrowing and interspace narrowing at multiple levels bilaterally, that the claimant had considerable limitation of range of motion in his neck, and that no radicular symptoms were produced with compression testing, but that he did have radicular symptoms with sneezing, coughing or making sudden motions. Additionally, the doctor found that the claimant might have sustained a strain of his left knee, but that he may also have a medial-meniscal degenerative-type tear underlying the strain.

Dr. Greenwald’s notes of the claimant’s visits in 1987 and 1988 and Dr. Duffy’s written reports of his two examinations of the claimant were also admitted into evidence. These notes basically corroborated their testimony presented in their evidence depositions.

The hospital records from St. Joseph’s Hospital established that the claimant underwent a bilateral femoral herniorrhaphy on January 15, 1988, for his hernias incurred in the accident of January 5, 1988. These records indicated that this surgery was performed by Dr. Rubino.

Dr. Steven J. Mash’s letter of April 19, 1988, to Hartford Insurance was admitted over the objection of Newberg, with the proviso that it was admitted only as an admission against interest against Midway. In Dr. Mash’s letter, the doctor indicated that he saw the claimant at the request of Midway on April 15, 1988. Dr. Mash stated in his letter that the claimant has orthopedic complaints which the claimant related to an accident of April 8, 1987. Dr. Mash reiterated the facts regarding the accident of April 8, 1987, and these facts correlated with other histories of the accident. The doctor stated in his letter that the claimant incurred injuries to his left knee and to his neck from this accident. Dr. Mash also set forth the facts concerning the claimant’s accident of January 5, 1988, and he stated that the claimant’s low-back difficulties were related to this accident.

Dr. Mash reviewed the claimant’s arthrogram of his left knee, the CAT scan of the left knee, the X rays of his neck, the CAT scan of the neck and the MRI of the claimant’s neck. The doctor noted that the CAT scan of the left knee indicated there was a tear of the medial meniscus posteriorly. The CAT scan of the claimant’s neck revealed degenerative changes throughout the neck, while the MRI revealed degenerative narrowing at C4-5, C5-6 and C6-7 with osteophytic formation and a bulging disc at C5-6.

The doctor reported that the claimant complained of pain to his left knee and his back. The doctor found his examination of the claimant’s cervical spine to be normal, but he noted that in his examination of the claimant’s low back the claimant walked with a wide-based, drop-foot gait on the left. The X rays the doctor took of the claimant’s low back were unremarkable. The doctor gave his clinical diagnosis of the claimant’s condition as a probable tear of the medial meniscus of the left knee, degenerative cervical arthralgia, and he had written down “[rjule out herniated disc, lumbar spine.” The doctor found that the claimant had objective findings to support his subjective complaints. Dr. Mash gave as his opinion that most of the claimant’s difficulties were related to his injury of April 1987 and were only temporarily aggravated by his injury of January 1988.

The records of Northwestern Medical Faculty Foundation containing Dr. Gordon Nuber’s orthopedic notes were admitted into evidence. These notes established that Dr. Nuber first saw the claimant on May 17, 1988. At that time, the claimant complained of pains “over his whole body,” but that the claimant was seeing him because of left knee, right ankle, neck and back pain. Dr. Nuber noted the claimant’s two accidents, the one in April 1987 and the second accident in January 1988. His examination of the claimant’s knee revealed no effusion, that the knee was quite stable anteroposteriorly and mediolaterally, that Steinman was positive along the medial joint line, that the knee had full range of motion, and that there was mild crepitation present in the knee. Dr. Nuber indicated in his notes that he was going to refer the claimant to Dr. Butler, as the claimant had a history of a herniated disc in his neck and he did not want to treat that. Dr. Nuber’s impression of the claimant’s left-knee condition was that the claimant had a torn cartilage, but he recommended an arthrogram to confirm this. Subsequent notes of the doctor revealed that the claimant had two arthrograms performed, and that these tests revealed he had a tear in the cartilage of his left knee, for which the doctor recommended arthroscopy. Dr. Nuber performed an arthroscopy on the claimant’s left knee on or about August 20, 1988, and he saw the claimant for follow-up visits on August 30, 1988; September 23, 1988; November 1,1988; and February 16, 1989.

Lastly, a letter from Dr. Albert Butler to Dr. Nuber dated May 31, 1988, and the doctor’s discharge summary and report of operation from Northwestern Memorial Hospital following the claimant’s cervical surgery were admitted into evidence. In Dr. Butler's letter of May 31, 1988, he indicated that he saw the claimant on May 30, 1988, at which time the claimant complained of neck and bilateral episodic arm pain. Dr. Butler stated that the claimant indicated his symptoms arose as a result of a fall at work in January 1988, but that he later indicated that he had suffered neck pain as much as five years ago. The doctor’s examination of the claimant showed some mild weakness of the biceps on the right, a questionable weakness of triceps function on the left, and some “patchy but identifiable hypalgesia in both the right and left C5-6 distribution.”

Dr. Butler reviewed the claimant’s myelogram, CAT scan and MRI, all of which indicated an abnormality at the C5-6 level. Dr. Butler indicated that he did not feel this problem was acute but was a long-standing problem which was exacerbated by his injury at work. He recommended conservative treatment “until such time as he noted increasing significant pain, increasing weakness of the right and/or left arm and any difficulties of gait, possibly suggesting spinal cord compression.”

In Dr. Butler’s discharge summary from Northwestern Memorial Hospital dated June 24, 1989, he stated the claimant’s condition arose from an injury to the cervical spine in an accident at work in April 1987. The doctor reported that the claimant noticed subsequent numbness in his hands which became progressively worse; pain in his arms, hands, back and hips; and, most recently, decreased strength in his arms bilaterally. On June 19, 1989, the claimant underwent an anterior cervical diskectomy at C5-6 with an osteophytectomy with an iliac crest bone graft. At the time of the claimant’s discharge from the surgery, the numbness and tingling in the claimant’s fingers were gone and the pain in his legs was similarly reduced. The doctor’s discharge diagnosis was a herniated cervical disc at the C5-6 level.

Dr. Butler’s report of the operation on the claimant’s neck indicated that conservative treatment had failed to help the claimant’s condition. Dr. Butler reported that the claimant’s radiologic findings were consistent with his physical complaints, and that the claimant’s right-upper-extremity pain in distribution was consistent with a C6 radiculopathy.

From the foregoing evidence, the arbitrator found that the claimant’s current condition of ill-being regarding the claimant’s left knee and cervical spine was causally connected to his work accident of April 8, 1987. The arbitrator further found that, although a recent MRI of the lumbar spine indicated the claimant has a herniated disc in that area, no evidence was presented to show that the lumbar-spine injury and the hernias were preventing the claimant from working, but that the evidence of the claimant’s knee arthroscopy and the cervical herniation surgery had shown that these injuries had rendered the claimant incapable of working. The arbitrator held that the claimant was entitled to 1093/t weeks of TTD commencing from April 16, 1988 (which the arbitrator indicated in his decision was the date the claimant’s disability from the hernia surgery ended), and that he was entitled to medical expenses totalling $31,793.50. As was noted previously, the Commission modified the arbitrator’s decision by reducing the claimant’s TTD to 1033/? weeks but otherwise affirmed the arbitrator’s determination. The Commission’s decision was confirmed by the circuit court on review.

On appeal, Newberg contends that the Commission’s determination that the claimant’s current condition of ill-being regarding his cervical spine and his knee injury was causally connected to his initial work-related accident of April 8, 1987, was against the manifest weight of the evidence. Newberg’s argument of this issue is twofold: (1) that the evidence revealed that the intervening accident of January 5, 1988, was a major contributing cause to the claimant’s condition of ill-being, and, thus, Midway should be held to be responsible for the TTD and the medical expenses incurred after the second intervening accident, and (2) that the Commission concluded incorrectly there was no medical evidence presented that the lumbar-disc herniation incurred in the claimant’s subsequent accident was preventing the claimant from returning to work.

With regard to the respondent’s first contention that the intervening accident was a major contributing cause of claimant’s cervical-spine injury and his left-knee injury, the respondent argues its position is supported by the fact that the claimant continued to work after the first accident of April 8, 1987, that the claimant failed to seek medical treatment for his injuries until two or three weeks after the accident, that Dr. Greenwald never restricted the claimant’s work duties until after the second accident, and that the intervening accident worsened and accelerated his preexisting condition and generated new injuries which prevented the claimant from working. We disagree.

It is well established that it is the Commission’s function to determine the credibility of witnesses and to determine causal connection, and that the Commission’s determination of these issues will not be overturned upon review unless the Commission’s decision is against the manifest weight of the evidence. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655; Dean v. Industrial Comm’n (1986), 143 Ill. App. 3d 339, 493 N.E.2d 16.) Where a work accident aggravates or accelerates a preexisting condition, the preexisting condition will not prevent an employee from receiving benefits if it is shown that the work-related accident is a factor which contributed to the disability. (Material Service Corp. v. Industrial Comm’n, 97 Ill. 2d 382, 454 N.E.2d 655.) Moreover, an award of TTD is justified even if an employee’s incapacity does not immediately follow an accidental injury, if it is shown that the incapacity is directly traceable to and the result of the injury. (Christman v. Industrial Comm’n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773.) Furthermore, an employee will not be denied compensation because he continued to work for as long as he could after the injury. (Christman v. Industrial Comm’n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773.) In addition, just as a nonwork-related accident does not prevent a claimant from receiving TTD, neither does an intervening work-related accident cut off the claimant’s right to receive TTD for the first work-related injury. Christman v. Industrial Comm’n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773.

Here, the evidence in the record established that, while the claimant continued to work after his accident of April 8, 1987, he was helped in his work duties by his “partners” and did not lift heavy items, and that he continued to work because he “had to make a living.” The claimant also testified that his work at Midway did not involve heavy lifting, and except for the day of his subsequent accident when he carried the bag of sand, he mainly corrected painting errors and washed walls with thinner. Furthermore, it was the claimant’s testimony that his pain from the injuries he received in the initial work-related accident became progressively worse as time passed. Dr. Greenwald testified that, although he did not restrict the claimant’s work duties after the accident of April 8, 1987, he would have if the claimant had reported to him that he was unable to work because of the severity of his pain. Similarly, Dr. Duffy testified that a person with a herniated cervical disc could perform physical labor for long periods of time with this condition, and that he would allow a person with this injury to work as long as he had no pain.

Additionally, we do not consider the fact that the claimant did not seek immediate medical treatment a detriment to his collecting TTD. After his condition became worse, the claimant did seek treatment within two to three weeks of his injury.

Further, the medical testimony presented at the arbitration hearing established that the claimant’s herniated cervical disc and his left-knee injury were traceable to his work-related accident of April 8, 1987. The testimony of Dr. Greenwald, the claimant’s treating physician in 1987 and 1988, revealed that although the claimant had a preexisting condition of degenerative-disc disease which contributed to his problem, and that the claimant had an “old ostochondritis dissecans” in his left knee, nevertheless, the claimant’s herniated cervical disc and his left-knee injury were caused by the work-related accident of April 8, 1987. Additionally, the doctor had suspected the claimant had a herniated disc at the C5-6 level as early as May or June of 1987, before the subsequent accident occurred. The doctor also testified that the claimant’s radicular symptoms in 1987 and the bulging disc revealed in the early plain X rays taken of the claimant’s cervical spine presented objective evidence of herniation of the cervical disc, and that the more comprehensive diagnostic tests, i.e., the MRI and the CT scan, which were not performed until after the second accident of January 5, 1988, served only to provide more complete evidence of the claimant’s condition.

Additionally, Dr. Duffy’s testimony established that it was his opinion that the claimant’s neck and knee injuries were related to the initial accident of April 8, 1987. He, too, testified that the claimant’s radicular symptoms were noted as early as May 1987 and provided objective evidence of the claimant’s herniated cervical disc, and thus, the herniated disc was present before the subsequent accident occurred. Ee also found that the claimant had severe arthritic changes in his cervical spine, but he determined this condition was aggravated by the injury to the neck in the accident of April 8, 1987. Both Dr. Duffy and Dr. Greenwald attributed the claimant’s lower-back injury and his development of hernias to his subsequent accident of January 5,1988.

Dr. Butler’s discharge summary of the claimant following the claimant’s surgery on his herniated cervical disc indicated that the claimant’s herniated cervical disc resulted from the accident of April 8, 1987. From the foregoing evidence, the Commission’s determination that the claimant’s cervical injury and left-knee injury were causally connected to the accident of April 8, 1987, was not against the manifest weight of the evidence.

We next consider Newberg’s contention that the Commission incorrectly failed to consider that the claimant’s lumbar injury resulting from his subsequent accident was the major contributing factor in the claimant’s inability to work. Without refining on this unduly, a review of the record reveals that Dr. Greenwald testified that he had insufficient knowledge of the claimant’s lumbar-spine injury to determine if that injury prevented the claimant from returning to work. Dr. Duffy testified that the claimant’s cervical-spine injury was a major factor in the claimant’s inability to work. Dr. Duffy also testified that the claimant’s lumbar-spine injury would prevent him from working. Thus, it is reasonable to infer that each of these injuries was sufficient in itself to prevent the claimant from returning to work. The majority of the evidence presented at the arbitration hearing concerned the claimant’s diagnosis and treatment of his left-knee injury and his herniated cervical disc. There was also a brief statement in the record that the claimant has a herniated lumbar disc, but very little other evidence was presented as to what the projected prognosis and treatment of this condition was to be.

Newberg argues that it should not have to undertake the entire financial burden for the claimant since he was only unable to work after the subsequent accident in January 1988. However, Newberg is not assuming the total financial burden for the claimant’s disability but is paying benefits for the claimant’s injuries resulting from the accident in April 1987 only, as the record reveals that the arbitrator held that the claimant was entitled to TTD from Midway for his hernias until April 16, 1988, at which time the disability from the hernias ended. Subsequent to the hernia operation, the claimant was still unable to work, and Dr. Nuber began his care and treatment of the claimant’s left-knee injury shortly thereafter. Dr. Nuber operated on the claimant’s left knee in August 1988. Also, Dr. Butler began his care of the claimant for his herniated cervical disc in May 1988, and he performed the surgery on the claimant’s neck in June 1989. Since the claimant’s left-knee injury and his neck injury were incurred in his first accident while employed with Newberg, the Commission’s determination that Newberg was responsible for the claimant’s TTD during the time of treatment for these two injuries was not against the manifest weight of the evidence.

The last issue raised by Newberg is that the Commission relied on improper evidence in its determination of causal connection. New-berg argues that the Commission relied on Dr. Mash’s report wherein the doctor stated irrefutably that the claimant’s cervical injury and left-knee injury were causally connected to his accident of April 8, 1987. Newberg asserts that this was reversible error as this document was not admitted into evidence in connection with the claimant’s claim against it, but was only admitted on the premise that it was an admission against interest against the respondent Midway. This argument is without merit.

While the Commission did refer to Dr. Mash’s report and his conclusions regarding causal connection of the claimant’s neck and knee injuries, the Commission also referred in its decision to Dr. Greenwald’s and Dr. Duffy’s conclusions that the claimant’s injuries were causally connected to the first accident. Thus, although the Commission discussed Dr. Mash’s report in conjunction with the claimant’s claim against Newberg, the Commission’s decision was supported by the other testimony in the record on causal connection, and there was no prejudice to Newberg. We find that, if the admission of Dr. Mash’s report was arguably error, the discussion of the report by the Commission was harmless error, since Dr. Mash’s report did not materially affect the outcome of this case but was simply cumulative of other evidence. Illinois Piping Co. v. Industrial Comm’n (1987), 156 Ill. App. 3d 955, 509 N.E.2d 1107.

For the foregoing reasons, the judgment of the circuit court of Will County confirming the decision of the Industrial Commission is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CASEY D. GAZELLE, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SCOTT E. REDNOUR, Defendant-Appellee.
    Fourth District
    Nos. 4—91—0820, 4—91—0907 cons.
    Opinion filed June 11,1992.
    John B. Huschen, State’s Attorney, of Eureka (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Susan Alesia, both of State Appellate Defender’s Office, of Springfield, for appellee Casey D. Gazelle.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellee Scott E. Rednour.
   JUSTICE STEIGMANN

delivered the opinion of the court:

These consolidated appeals present the issue of whether a person can commit the offense of bringing contraband into, or possessing contraband in, a penal institution (Ill. Rev. Stat. 1989, ch. 38, pars. 31A— 1.1(a), (b)) when the alleged contraband is a small scissors. The trial court held as a matter of law that a small scissors was not contraband under the statute defining those offenses and dismissed the charges against both defendants. We agree and affirm.

I. BACKGROUND

A. Case No. 4-91-0820

In case No. 4 — 91—0820, the State charged defendant Casey D. Gazelle on September 4, 1991, with bringing contraband into a penal institution in violation of section 31A— 1.1(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1(a)), alleging that on August 31, 1991, he “knowingly and without authority of any person designated or authorized to grant such authority brought an item of contraband, a weapon, into the Woodford County Jail, a penal institution.”

On October 21, 1991, Gazelle filed a motion to dismiss, arguing that the contraband the State claimed he brought into a penal institution — a small scissors — failed to fit the definition of contraband as contained in section 31A — 1.1(c)(2) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1(c)(2)). On October 31, 1991, at the hearing on that motion, the parties stipulated that the alleged contraband that was the basis of the charge against Gazelle was a pair of fold-up scissors with blades ls/s inches long. They further stipulated that each scissors blade came to a point.

The trial court granted Gazelle’s motion, holding that his bringing the scissors into the penal institution could not constitute an offense under section 31A — 1.1(a) of the Code. The trial court dismissed the indictment against Gazelle, and the State appeals that dismissal.

B. Case No. 4-91-0907

In case No. 4 — 91—0907, the State charged defendant Scott E. Rednour on September 4, 1991, with possession of contraband in a penal institution in violation of section 31A— 1.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1(b)), in that on August 31, 1991, he “possessed an item of contraband, a weapon, in the Woodford County Jail, a penal institution.” On October 15, 1991, Rednour made a motion to dismiss on the ground that the alleged contraband — the same scissors at issue in Gazelle’s case — did not fit under the definition of contraband contained in section 31A — 1.1(c)(2) of the Code. This case involved the same scissors because Gazelle had allegedly smuggled the scissors in a plastic bag hidden in the crotch of his pants into the Woodford County jail in order to get the scissors to Rednour, a jail inmate at the time, so that Rednour could trim his moustache. The scissors were ultimately found in Rednour’s jail cell.

On November 25, 1991, at the hearing on Rednour’s motion to dismiss, the parties stipulated that the court could consider the transcript of the proceedings from Gazelle’s similar motion to dismiss. The parties agreed not to present further evidence or arguments. The trial court again held that the scissors did not come within the definition of contraband in section 31A — l.l(cX2) of the Code. The court dismissed the indictment against Rednour, and the State appeals that dismissal as well.

II. ANALYSIS

These consolidated appeals require this court to construe section 31A — 1.1 of the Code, which reads, in pertinent part as follows:

“Bringing Contraband into a Penal Institution; Possessing Contraband in a Penal Institution, (a) A person commits the offense of bringing contraband into a penal institution when he knowingly and without authority of any person designated or authorized to grant such authority (1) brings an item of contraband into a penal institution ***.
(b) A person commits the offense of possessing contraband in a penal institution when he possesses contraband in a penal institution, regardless of the intent with which he possesses it.
(c) For the purposes of this Section, the words and phrases listed below shall be defined as follows:
* * *
(2) ‘Item of contraband’ means any of the following:
* * *
(v) ‘Weapon’ means any knife, dagger, dirk, billy, razor, stiletto, broken bottle, or other piece of glass which could be used as a dangerous weapon. Such term includes any of the devices or implements designated in subsections (a)(1), (a)(3) and (a)(6) of Section 24 — 1 of this Act, or any other dangerous weapon or instrument of like character.” Ill. Rev. Stat. 1989, ch. 38, pars. 31 A — 1.1(a), (b), (c)(2)(v).

Because section 31A — l.l(c)(2)(v) of the Code refers to sections 24 — 1(a)(1), (a)(3), and (a)(6) of the Code, we also quote those sections, in pertinent part, as follows:

“Unlawful Use of Weapons, (a) A person commits the offense of unlawful use of weapons when he knowingly:
(1) Sells, manufactures, purchases, possesses or carries any bludgeon, black-jack, slung-shot, sand-club, sand-bag, metal knuckles, throwing star, or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or a ballistic knife, which is a device that propels a knifelike blade as a projectile by means of a coil spring, elastic material or compressed gas; or
* * *
(3) Carries on or about his person or in any vehicle, a tear gas gun projector or bomb or any object containing noxious liquid gas or substance ***; or
* * *
(6) Possesses any device or attachment of any kind designed, used or intended for use in silencing the report of any firearm.” Ill. Rev. Stat. 1989, ch. 38, pars. 24 — 1(a)(1), (a)(3), (a)(6).

Section 31A — l.l(c)(2Xv) of the Code, defining the term “weapon,” contains the descriptions we must analyze to resolve these appeals. That section is composed of two sentences, and we will analyze each sentence in turn.

The first sentence reads as follows: “ ‘Weapon’ means any knife, dagger, dirk, billy, razor, stiletto, broken bottle, or other piece of glass which could be used as a dangerous weapon.” (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1. l(c)(2)(v).) It is readily apparent that the scissors do not fit any description of “knife, dagger, dirk, billy, razor, stiletto, [or] broken bottle.” The phrase at the end of that sentence — “which could be used as a dangerous weapon” — does not help the State in its efforts to include the scissors within the definition of “weapon” because that phrase clearly modifies only the words “or other piece of glass” and does not otherwise stand alone. Because scissors are obviously not a “piece of glass,” we conclude that the scissors at issue in these cases do not fit any of the descriptions contained in the first sentence of section 31A — l.l(c)(2)(v) of the Code.

The second sentence of that section reads as follows: “Such term [meaning the term ‘weapon’] includes any of the devices or implements designated in subsections (a)(1), (a)(3)[,] and (a)(6) of Section 24 — 1 of this [Code] or any other dangerous weapon or instrument of like character.” Considering first the references to subsections of section 24 — 1 of the Code, and analyzing them in reverse order, it is again readily apparent that subsections (a)(6) and (a)(3) of section 24— 1 do not apply at all to the scissors at issue in the present cases. Subsection (a)(6) deals only with devices used for silencing the report of a firearm, and subsection (a)(3) deals only with bombs or noxious substances. Subsection (a)(1) has a rather extensive listing of devices— “bludgeon, black-jack, slung-shot, sand-club, sand-bag, metal knuckles, throwing star, or any knife, commonly referred to as a switchblade knife, *** or a ballistic knife” — but again none of the items described remotely compares to a small scissors.

Although the State correctly points out that the small pair of scissors could be used as a knife, that assertion does not help its position because characterizing anything as a mere knife does not make it come under section 24 — l(aXl) of the Code; instead, a knife must either be a switchblade knife or a ballistic knife to come under section 24 — l(aXl) of the Code, and the scissors at issue are neither.

Thus, in order for the State to succeed in its characterization of the scissors as a “weapon” under section 31A — l.l(c)(2)(v) of the Code, the scissors must fit under the last portion of the second sentence of that section, which reads as follows: “or any other dangerous weapon or instrument of like character.” (Ill. Rev. Stat. 1989, ch. 38, par. 31A — l.l(c)(2Xv).) In fact, this is the argument the State made at trial and repeats here on appeal. However, we find that argument distorts the plain meaning of the words used in that sentence. In our view, the phrase “or any other dangerous weapon or instrument of like character” means a dangerous weapon or instrument of a character like those in the portion of the sentence immediately preceding the word “or,” which is the following: “any of the devices or implements designated in subsections (a)(1), (a)(3)[,] and (a)(6) of Section 24 — 1.” In other words, merely being a dangerous weapon or an object which could be used like a dangerous weapon is not enough to place an object within the descriptions contained in sections 24— 1(a)(1), (a)(3), or (a)(6) of the Code. Instead, to fit under this reference in section 31A — l.l(c)(2)(v), such an object must be similar to the other dangerous weapons or instruments set forth in section 24 — 1(a)(1), (a)(3), or (a)(6), and cannot be just a potential dangerous weapon or instrument of whatever character.

In our judgment, that is the erroneous interpretation the State would have us make of section 31A — l.l(c)(2)(v) of the Code as it defines “weapon.” In rejecting the State’s argument, we find guidance in the recent Illinois Supreme Court decision, Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 441-42, wherein the court discussed statutory construction and wrote the following:

“The primary rule of statutory construction is to determine and give effect to the intent of the legislature. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341.) The language of the statute itself gives the best indication of that intent. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 238.) Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions, despite the lack of any negative words of limitation. Department of Corrections v. Civil Service Comm’n (1989), 187 Ill. App. 3d 304, 310; 2A N. Singer, Sutherland on Statutory Construction §47.23 (Sands 4th ed. 1992).”

In section 31A — l.l(cX2Xv), the legislature elected to “listQ the things to which it refers,” namely, the various weapons specified either within that section or by reference to the subsections of section 24 — 1 of the Act, thereby causing “an inference that all omissions should be understood as exclusions, despite the lack of any negative words of limitation.” Burke, 148 Ill. 2d at 442.

Furthermore, the Code provides convincing evidence that the legislature can make its intent perfectly clear regarding how generally or how specifically it wishes to categorize weapons. For instance, as opposed to the specificity the legislature used in defining “weapon” in section 31A — l.l(c)(2Xv) of the Code, the legislature has used the most general of descriptions in other sections of the Code. See section 18— 2(a) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)), defining armed robbery as being committed when a person commits the offense of robbery (see Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1) and carries or is otherwise armed “with a dangerous weapon”; section 12— 4(b)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1)), defining aggravated battery as being committed when a person commits a battery (see Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3) and “[u]ses a deadly weapon”; section 10 — 3.1(a) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3.1(a)), defining aggravated unlawful restraint as being committed when a person knowingly and without legal authority detains another “while using a deadly weapon”; and section 12— 11(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(a)(1)), defining home invasion as being committed when, under certain circumstances, a person enters the dwelling place of another “[w]hile armed with a dangerous weapon.”

The clearest example of the legislature’s ability to use general and intentionally broad language when referring to weapons appears in section 12 — 14(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(a)(1)), defining aggravated criminal sexual assault as follows:

“(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
(1) the accused displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.”

The State argues that the trial court erred by ruling that the scissors was not a dangerous weapon because “whether a particular object qualifies as a dangerous weapon or [is] susceptible to use in a manner likely to cause serious injury is a question of fact.” The State then cites several cases so holding, but fails to note that in each of those cases, the defendant was charged with an offense in which the term “dangerous weapon” was used without any accompanying specifics that might limit the scope of that term. The cases the State cites, among others, are People v. Westefer (1988), 169 Ill. App. 3d 59, 522 N.E.2d 1381 (defendant charged with armed robbery); People v. Charles (1991), 217 Ill. App. 3d 509, 577 N.E.2d 534 (defendant charged with aggravated criminal sexual assault in violation of section 12 — 14(aXl) of the Code); and People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164 (defendant charged with armed robbery).

The State in effect asks this court to rewrite section 31A— l.l(cX2Xv) of the Code so that it would contain the same generalized description of a dangerous weapon as is contained in section 12— 14(aXl). We decline to do so, noting that it is the province of the legislature to draft statutes, not this court. If the legislature were to decide that a broader interpretation of the word “weapon” is needed or desirable than the interpretation given to that word in this opinion, the legislature could amend section 31A — l.l(c)(2)(v) of the Code to make more general that statute’s reference to weapons, as is the case with the armed robbery, aggravated criminal sexual assault, aggravated battery, and aggravated unlawful restraint statutes mentioned earlier.

Last, we view our holding in this case as consistent with the recent decision of this court in People v. Morissette (1992), 225 Ill. App. 3d 1044, 1049, 589 N.E.2d 144, 148, in which we affirmed the trial court’s dismissal of a charge of unlawful possession of contraband in a State penal institution, in violation of section 31A — 1.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1(b)), on the ground that the hacksaw blade at issue in Morissette did not come within the definition of contraband prohibited by section 31A — 1.1 of the Code.

For the reasons stated, we affirm the judgments in each of these consolidated cases, which granted the defendants’ motions to dismiss the charges against them.

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    COLE TAYLOR BANK, Plaintiff-Appellee, v. ARTHUR CORRIGAN, Defendant-Appellant and Third-Party Plaintiff (Daniel Frawley, Third-Party Defendant).
    Second District
    No. 2—91—1168
    Opinion filed June 10,1992.

      Thomas J. McDonough, of Chicago, for appellant.
    John Jeffrey Zimmerman, Julie Line Bailey, and Thomas R. Mulroy, all of Jenner & Block, of Chicago, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Arthur Corrigan, appeals the order granting summary judgment in favor of plaintiff, Cole Taylor Bank (the bank), in the amount of $3,043,215.78. The bank sued defendant to collect on his guaranty of certain corporate debt. Defendant raises four issues on appeal: (1) whether the trial court abused its discretion in denying him discovery; (2) whether the trial court erred by not considering defendant’s affirmative defenses when it entered summary judgment against him; (3) whether the bank’s affidavit was sufficient to support the claimed amount of damages; and (4) whether the trial court abused its discretion in entering summary judgment without first giving defendant an opportunity to file a response after his motion for a continuance for discovery was denied. We reverse and remand.

The bank filed a complaint against defendant to collect on defendant’s guaranty of a debt owed by Dancor International, Inc. (Dancor), which subsequently filed for protection under chapter 11 of the Bankruptcy Code (11 U.S.C.A. §1101 et seq. (West Supp. 1991)) on February 6, 1991. Dancor was founded in 1984 and is in the business of buying and selling plastic resin throughout the United States. On April 1, 1989, the bank and Dancor entered into a loan and security agreement, which was amended on July 1, 1990. The loan agreement provided for a line of credit secured by accounts receivable, inventory, equipment, intangibles and all other personal property owned by Dan-cor. On April 1, 1989, defendant, the vice-president of Dancor, and Daniel T. Frawley, the president, each signed personal guaranties of the indebtedness. The agreement originally terminated by its own terms on July 1, 1990; the amendment provided that the agreement would extend until September 15, 1990.

On September 15, 1990, the loan agreement was further extended by way of an amendment, but defendant did not sign the amendment. As of September 1, 1990, defendant was no longer vice-president of, or associated in any way with, Dancor. In the cause before this court, count I of the bank’s pleadings is an action to collect on the guaranty. In count II, the bank pleaded that defendant had made fraudulent misrepresentations to induce the extension of credit.

After defendant’s appearance, the bank served requests for admissions and interrogatories. Defendant’s request to file his answer after he obtained discovery was denied by the trial court. Defendant filed his answer to the complaint on June 20, 1991. He denied some allegations in the complaint and alleged he was without sufficient knowledge to respond to transactions between Dancor and the bank after his departure from Dancor. Defendant affirmatively alleged that the September 15, 1990, extension of the loan agreement was not authorized or binding on him or Dancor. Defendant affirmatively alleged that the September 15 amendment so changed the terms of the original agreement as to deny the bank the right to seek collection on the guaranty. Defendant listed four affirmative defenses: (1) the agreement terminated September 15, 1990, and the new extension did not apply to defendant; (2) upon information and belief, all funds currently due to the bank by Dancor were based on disbursements made after September 15, 1990; (3) the terms and conditions of the September 15 amendment so changed the terms of the loan that defendant was released from his liability on the guaranty; and (4) the July 1990 amendment was not attested to and was not a sufficient ground upon which to base liability. Defendant also filed a counterclaim against the bank.

On June 20, 1991, defendant filed a third-party complaint against Frawley seeking implied indemnity. He also filed with the court a request that the bank produce documents. In that request, he sought the documents supporting the loan agreement and records of all disbursements made by the bank to Dancor. On July 9, defendant filed his response to the bank’s requests for admission and request for production of documents.

On July 11, 1991, the bank filed a motion for partial summary judgment in which it sought judgment only on count I. The bank alleged that as of July 9, 1991, there was a balance due from Dancor in the amount of $3,043,215.78. The motion was presented at a status conference at which counsel for defendant was not present. The motion was not served on defendant until that date. The court entered an order giving defendant until August 8, 1991, to file a response. The court set August 22, 1991, for a reply by the bank and September 6,1991, for oral argument.

On July 31, 1991, defendant filed a motion for a continuance to respond to the bank’s motion for summary judgment. Defendant also served his earlier filed discovery requests. Defendant’s motion was heard by the court on August 8. Defendant explained that at the July 11 status conference the bank’s motion was filed without prior notice to defendant. Defense counsel was engaged before another court on that date. Defendant had filed responses to the bank’s discovery request, but defendant had not obtained discovery from the bank. Defendant charged the bank was trying to deny him the evidence he needed to support his response to the motion for summary judgment. Defendant contended he needed the documents showing that the loan he had guaranteed was paid and the current indebtedness arose subsequent to September 15, 1990. The documents showing the amounts disbursed to Dancor were exclusively within the control of the bank, and defendant had no access to these records.

On August 15, 1991, the trial court issued a written opinion denying the motion for a continuance. The court noted that the guaranty provided that it was effective until defendant gave written notice to the bank that the prior guaranty would not apply to future loans. Defendant failed to give a written notice of termination. Thus, the trial court concluded the guaranty would cover all of Dancor’s debt. The court accepted the bank’s statement that there were no new loans involved, but only extensions of the existing loan which defendant had guaranteed. The court saw no reason why defendant would need discovery. The court denied defendant’s motion for a continuance and simultaneously entered summary judgment in favor of the bank in the amount of $3,043,215.78.

Defendant immediately moved to vacate the judgment. He repeated that the documents in the bank’s possession would show that the loan balance on September 15, 1990, should have been paid off completely by collections of the accounts receivable. Defendant also stated that the documents supporting the amount of the loan were entirely within the control of the bank. Defendant also raised the same issues which will be addressed in this appeal.

The trial court denied defendant’s motion to vacate judgment, opining that his requests were a mere “fishing expedition.” The court dismissed defendant’s counterclaim and granted the bank’s motion to dismiss count II of the complaint. The court found no just cause to delay enforcement or appeal of the order, and defendant filed a timely notice of appeal.

DISCOVERY

Defendant’s first argument is that the trial court erred in denying him discovery by not granting his motion for a continuance. The sole issue considered by the trial court was whether the requested discovery was necessary to respond to plaintiff’s summary judgment motion. The trial court found, and the bank raised, no other defect with defendant’s motion for a continuance to complete discovery.

The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practical. The objectives of pretrial discovery are to enhance the truth-seeking process, to enable attorneys to better prepare and evaluate causes, to eliminate surprises, and to insure that judgments rest on the merits and not upon the skillful maneuvering of counsel. (Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 231-32.) Discovery is not a tactical game. Pretrial discovery presupposes a wide range of relevance and materiality which includes not only what is admissible at trial but also that which leads to what is admissible at trial. (Mistler, 111 Ill. App. 3d at 232.) The defendant’s requests were not a fishing expedition, as the trial court characterized them, because the requested documents related to some of the ultimate facts necessary for judgment. (See Computer Teaching Corp. v. Courseware Applications, Inc. (1990), 199 Ill. App. 3d 154, 157.) The documents would have helped defendant prepare his case, and thus the trial court erred in denying discovery. (Senese v. Climatemp, Inc. (1991), 222 Ill. App. 3d 302, 320.) While the question of defendant’s liability might have been a question of law because it was based on documents, the question of damages is a question of fact. (Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 734-35.) The trial court determined that the bank’s records were not relevant even when this factual issue was contested by defendant.

The trial court’s finding that the bank’s records were not relevant ignores the realities of the accounts receivable financing agreement in question. This loan was not a single disbursement of funds upon which a balance can easily be calculated, but it involved numerous transactions. The bank agreed to lend Dancor up to 80% of the value of its invoices as they were submitted over a period of many months. The loan balance was reduced as Dancor’s receivables were paid. The interest rate tracked the prime rate. The number of days on which interest accrued at a certain rate on a constantly changing balance also varied. All the documents which supported the claim for judgment, namely, the lists of the dates and amounts of disbursements, were in the hands of the bank. Defendant was a guarantor who had no knowledge of the amounts disbursed to the principal, the dates of the disbursements, the interest rates or the dates and amounts of the set-offs. He was in no position to determine whether the bank’s allegations were correct. Thus, by refusing to allow defendant discovery as to the documents, the trial court erred because the documents related to the issue of damages, which was a factual, not legal, issue.

In addition, defendant raised an issue that the documents were relevant to whether his obligation was released when the bank and Dancor changed the nature of the underlying obligation. (See McLean County Bank v. Brokaw (1988), 119 Ill. 2d 405, 413-14; McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 633-34.) Defendant also argued that the bank’s claims that it had not disbursed more funds after September 15, 1990, and that the balance was over $3 million were implausible. The bank’s own documents show that it had lent its funds at an asset base of 80% of Dancor’s receivables, while keeping a security interest in all the receivables. The September 15 extension retained a provision for a borrowing base and allowed the bank to collect 75% of Dancor’s other receivables. Defendant thus contends an examination of the records would show either that the loan he guaranteed was paid in full as the receivables were paid by Dancor’s debtors over the next few months or that the bank extended new funds, which would not have been part of the loan that he guaranteed.

On these facts, we conclude that the trial court erred in ruling that the bank records sought by defendant were not relevant to the bank’s motion for summary judgment.

MOTION FOR A CONTINUANCE

Based in large part on his previous argument that the trial court improperly foreclosed discovery, defendant next argues that the court erred in denying his motion for a continuance. We agree.

We note that defendant’s motion for a continuance was not filed on the eve of a long-scheduled trial. There was no showing that anyone would suffer prejudice from a delay. Moreover, since all the evidence was in the hands of the bank, any delay would depend on, and be in control of, the bank’s prompt delivery of documents. Defendant had not unreasonably delayed the proceeding in requesting discovery. (Cf. Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195 (opponent had four months to respond to summary judgment motion but failed to obtain testimony of an expert, who was not in the control of movant).) Since the bank failed to provide defendant any discovery, he could not do more than request the continuance. Finally, the trial court’s order violated fundamental fairness and the objectives of discovery. Defendant was being sued concerning financial matters entirely beyond his control and knowledge. Thus, the trial court abused its discretion in failing to grant a continuance. Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 77-78.

TRIAL COURT’S RELIANCE ON AFFIDAVIT

Defendant next argues that the trial court erred by relying upon an affidavit by David Lilek, vice-president of the bank, in granting summary judgment and by not striking the affidavit. We agree. In his affidavit, Lilek stated that he was a vice-president of the bank and had personal knowledge of the events he described. Paragraph 6 of Lilek’s affidavit contained the following bare assertions:

“As of September 15, 1990, there was an outstanding principal balance due from Dancor of $3,665,000. Cole Taylor made no additional advances after September 15, 1890. Since September 15, 1990, Dancor has reduced the principal balance due to $2,882,862.70 as of July 9, 1991. Accrued interest as of July 9, 1991, is $160,353.08.”

Defendant moved to strike the affidavit because it violated the best evidence (original writing) rule, the hearsay rule, and the business records rule. In addition, defendant argued that the affidavit does not reflect Lilek’s familiarity with the bank’s bookkeeping records. The affidavit did not have attached to it the documents upon which Lilek relied in determining his calculation of the balance. Defendant also argued that Lilek’s affidavit contained conclusions rather than evidentiary facts, all in violation of Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)). Defendant makes the same arguments on appeal.

Lilek’s affidavit essentially consisted of a summary of unnamed records at the bank. Where a fact may be ascertained only by the inspection of a large number of documents comprised of detailed statements, a summary of those documents may be received into evidence. However, the mass of documents must be placed in the hands of the court or be made accessible to the opposing party for inspection. (People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205, 213.) Defendant- also notes that with bank record computerization, requiring a list of transactions will not place an undue hardship on the bank. We agree that the trial court erred by relying upon a summary when the underlying records and facts were not tested by inspection. See Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co. (1990), 195 Ill. App. 3d 1036, 1051-52.

The bank does not respond to defendant’s arguments but merely states that a bank vice-president is competent to testify regarding a bank’s records. That proposition may be true, and the bank’s cited cases may support it, but it applies to only one element of the admissibility of evidence based on business records. The bank’s cases do not address the other foundational requirements. While the bank’s documents show that Lilek signed the original documents evidencing the loan and security agreement, the affidavit did not show his familiarity with the amounts disbursed or the amounts collected. (Cf. Ford Motor Credit Co. v. Neiser (1990), 196 Ill. App. 3d 515, 522-23 (testimony showing interdepartmental records were reliable).) He did not provide the documents upon which he relied when he made his conclusion that the current balance due was $3,043,215.78. (See Landmark, 195 Ill. App. 3d at 1051-52.) We note that under Supreme Court Rule 236 (134 Ill. 2d R. 236 (admission of business records in evidence)), it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible. (Smith v. Williams (1975), 34 Ill. App. 3d 677, 680; see Ill. Rev. Stat. 1989, ch. 110, par. 8 — 401 (the book shall be admitted into evidence).) The bank did not lay the foundation necessary to overcome the original writing and hearsay rules. The conclusions within the affidavit were not admissible into evidence, and thus the affidavit did not comply with Rule 191(a) (134 Ill. 2d R. 191(a)). Since the affidavit was inadmissible, the trial court erred by relying upon it in granting summary judgment. Kaplan v. Disera (1990), 199 Ill. App. 3d 1093, 1096.

SUMMARY JUDGMENT

Defendant argues that the trial court erred when it entered summary judgment on August 15, 1991, immediately after denying his motion for a continuance. He disputes the trial court’s implication that he waited too long to file the motion.

Summary judgment is an aid in the expeditious disposition of a lawsuit, but it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (Loyola Academy, 146 Ill. 2d at 271.) A trial court determines a motion for summary judgment based on the record as it exists at the time the motion is heard. Where reasonable persons could draw divergent inferences from the record, the motion should be denied. (Loyola Academy, 146 Ill. 2d at 272.) The trial court has no discretion (Loyola Academy, 146 Ill. 2d at 272); summary judgment is proper only when the pleadings and affidavits show that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Keating v. Dominick’s Finer Foods, Inc. (1992), 224 Ill. App. 3d 981, 987). To overcome a motion for summary judgment, an opponent need not prove his case at this preliminary stage but must present some factual basis that would arguably entitle him to a judgment. Keating, 224 Ill. App. 3d at 987.

The trial court had set September 6, 1991, for a hearing on the bank’s motion for summary judgment, which was after the due date of defendant’s discovery requests. Defendant states on appeal that because the court’s docket was backlogged, he filed his motion for a continuance on the first day the judge’s secretary told him was available, which was approximately two weeks prior to the August 8, 1991, hearing. This statement does not appear in the record, and we will therefore not consider it. Nonetheless, the circumstances indicate that defendant acted with due diligence in filing his motion for a continuance, as he filed it before August 8, the due date of his response. Moreover, the bank’s response to the motion, dated August 5, admits defendant’s motion was filed on July 31.

The trial court granted summary judgment to the bank without granting defendant the opportunity to file a response to the bank’s motion, and after denying defendant the opportunity to respond with discovered facts. Upon denying defendant’s request for discovery, the trial court should have given him a chance to file his response to the bank’s motion for summary judgment rather than assuming the bank’s position was unassailable. Summary judgment was an unduly drastic remedy under these circumstances.

In addition, defendant argues the trial court in effect accelerated the judgment date, which was originally scheduled for September 6, to a date preceding the due date of the bank’s responses to discovery, which were due no later than August 30. Defendant may have had the information necessary to impeach the bank’s filings prior to the scheduled hearing. Once judgment was entered, however, defendant had no grounds to compel the bank to comply with the discovery request. His ability to modify or vacate the judgment with factual evidence was eliminated. Under these circumstances, and viewing the evidence in the light most favorable to defendant, we find that the trial court abused its discretion.

Because we reverse the trial court’s judgment, we need not reach the remaining issues raised by defendant. For the above reasons, the judgment of the trial court is reversed, and the cause is remanded so as to allow defendant discovery and for further proceedings.

Reversed and remanded.

BOWMAN and DUNN, JJ., concur.