Edward Don Company (Edward Don) appeals from a circuit court order confirming adecision in which the Industrial Commission (Commission) awarded the claimant, Bart J. Amato,benefits in connection with his application for adjustment of claim under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). For the following reasons, weaffirm the circuit court's order in part and reverse it in part, set aside the Commission's decision inpart, and remand this matter to the Commission with instructions. The claimant filed an application for adjustment of claim seeking benefits for injuries heallegedly received on January 31, 1996, while in the employ of Edward Don. Prior to thecommencement of the arbitration hearing on November 28, 2000, counsel for Edward Doninformed the arbitrator of the following facts. The matter had previously been set for a hearing onNovember 1, 2000. On that date, Edward Don requested a continuance because a witness it hadsubpoenaed, Luis Ramirez, did not appear. The matter was continued to November 28, 2000. Counsel further informed the arbitrator that the process server Edward Don engaged had, on fouroccasions, attempted to serve Ramirez with a subpoena to appear on November 28 but that theseattempts had been unsuccessful. Counsel then requested a continuance for the purpose ofsecuring Ramirez's presence, stating:
"I don't want to continue the trial with the [claimant] being here and Mr. Given[claimant's counsel] being prepared, but we would like to have either anopportunity to serve Mr. Ramirez or an order from you indicating that he mustappear at a later date."
The claimant's counsel objected to the request for a continuance, stating that, when the arbitratorgranted a continuance from November 1 to November 28, he stated that the latter was "a finaldate." The arbitrator denied Edward Don's motion for a continuance, and the hearingcommenced.
The following facts are taken from the testimony, depositions, and records admitted intoevidence during the arbitration hearing.
The claimant testified that, in January 1996, he was employed by Edward Don as adelivery truck driver. On January 31, 1996, the claimant made a delivery to St. Mary of NazarethHospital. According to the claimant, it was snowing on that date and "there was ice all around." The claimant stated that, as he was unloading cartons from the back of his truck, he slipped andfell on some ice on the step of his truck. His arm was "just a little bruised" and his right foot wasinjured. The claimant testified that he telephoned Edward Don to report the injury and was givenpermission to receive treatment at the hospital. He then went to the emergency room.
According to the emergency room records from St. Mary of Nazareth Hospital, theclaimant reported having twisted his right foot and ankle on the tailgate of his delivery truck. Thereport of an x-ray taken of the claimant's right foot states that no evidence of a fracture ordislocation was revealed. The claimant was diagnosed with a "contusion/sprain" of the right footHe was treated with ice packs and Motrin and an Ace bandage was applied to his right foot. Theclaimant was discharged from the emergency room with crutches and instructed to engage in noweight bearing on the right foot, to take Motrin for pain, and to follow up with Dr. Farahvar.
The claimant first saw Dr. Farahvar on February 15, 1996. According to Dr. Farahvar'sreport of that visit, his physical examination of the claimant revealed swelling, echymosis of theright foot with tenderness of the heel and lateral foot, and decreased range of motion with pain. Dr. Farahvar's report further states that the x-ray taken at the emergency room on January 31,1996, showed a "questionable avulsion fracture of calcaneus at Achilles tendon attachment" butthat the x-ray "had poor view." Dr. Farahvar ordered an x-ray of the claimant's right foot, whichwas performed that day. The radiologist's report of that x-ray states that no fracture ordislocation was seen but notes the presence of degenerative spurs at the first metatarsal-phalangeal joint, an Achilles tendon spur, and calcification in the Achilles tendon. Dr. Farahvar'sreport, however, states that the February 15 x-ray showed an avulsion fracture of the lateralcuboid and an old avulsion of the Achilles tendon. Dr. Farahvar applied an air cast and advisedthe claimant to use crutches. He further advised the claimant "to do a light duty work sitting jobonly and no driving" and to return in two weeks.
The claimant next saw Dr. Farahvar on February 29, 1996, at which time the doctor againordered an x-ray of his right foot. The x-ray report states that there is no evidence of a fractureor dislocation. In his report of the February 29 visit, Dr. Farahvar stated that the x-ray showedthe claimant's fracture was healing well. On physical examination, the doctor found slightswelling of the claimant's right foot, minimal tenderness, and increasing range of motion. Dr.Farahvar instructed the claimant to continue wearing the air cast and to continue "with [a] sittingjob, if available," restricting him to "no driving."
On February 29, 1996, the claimant was examined by Dr. Arthur Broder at the request ofEdward Don. In a letter dated March 6, 1996, and addressed to Edward Don's insurance carrier,Dr. Broder reported that his examination of the claimant revealed the absence of discoloration orswelling of the right foot and a full range of motion. Dr. Broder noted that the radiology reportof x-rays of the claimant's right foot performed on February 15, 1996, indicated there was nofracture or dislocation seen. He further noted that, in his report of the claimant's February 29,1996, visit, Dr. Farahvar stated that x-rays of that date showed the claimant's fracture was healingwell. Dr. Broder stated that the February 29 x-rays were not available to him and "would be incontroversy to the radiologist's report of 2/15/96." Dr. Broder concluded that it was"questionable" as to whether the claimant had sustained a fracture of his right foot. He opined,however, that the claimant could return to work "in a modified capacity immediately" and couldreturn to full-duty work "on or about" March 29, 1996.
The claimant next saw Dr. Farahvar on March 28, 1996. Dr. Farahvar instructed theclaimant to continue with light-duty work, but released the claimant to return to his regular workduties on April 7, 1996. In his March 28, 1996, report to Edward Don, Dr. Farahvar referred toDr. Broder's report and stated: "I suggest you obtain copies of the X-ray films rather than relaying[sic] on the radiologist reports which in my proffesional [sic] opinion are not accurate."
The claimant testified that he returned to work, performing light-duty work, on March 17,1996. Edward Don assigned him full-duty work as of March 29, 1996.
The claimant saw Dr. Farahvar on May 16, 1996, on which date the doctor ordered thatthe claimant could return to his regular work duties but was to work no more than eight hours perday.
At Edward Don's request, the claimant also saw Dr. Broder on May 16, 1996. Dr. Broderordered a bone scan of the claimant's ankle. The bone scan was performed on May 17 andrevealed "focally increased activity in the right foot grossly at the level of the cuboid bone."
On June 6, 1996, Dr. William Hejna examined the claimant at the request of Dr. Broder. In a letter of that same date addressed to Dr. Broder, Dr. Hejna noted that he had "limitedmedical records available for review and no radiologic studies for interpretation." Dr. Hejnaopined that the claimant had sustained an avulsion fracture of the cuboid bone. He further opinedthat the claimant could continue to work as a truck driver/delivery person performing his pre-injury duties, which included 10-hour work days. Dr. Hejna stated that he anticipated that, overtime, the claimant's foot would "return to full normal function."
The claimant saw Dr. Farahvar on July 11, 1996. On that date, Dr. Farahvar ordered thatthe claimant could return to work with no restrictions as of July 12, 1996.
The claimant testified that, prior to this accident, he had never sustained an injury to orhad any treatment of his right ankle or foot. According to the claimant, as of the date of thearbitration hearing, he was experiencing swelling of his right foot upon standing for longer than anhour or driving for longer than two and one half hours. He was also experiencing some pain in hisfoot and taking Motrin for the pain when it became "real bad."
On cross-examination, the claimant testified that, about 35 minutes after his accident, hehad a conversation with Manuel Bruno, a receiving clerk at St. Mary of Nazareth Hospital. According to the claimant, he told Bruno that he wanted treatment. The claimant testified that hecould not recall if Bruno asked him why he was limping. He denied telling Bruno that he hadtwisted his ankle at his last delivery stop. The claimant further testified that Luis Ramirez was notpresent during his conversation with Bruno. Rather, Ramirez was in a different room when theconversation took place. According to the claimant, neither Bruno nor Ramirez witnessed theaccident.
Also on cross-examination, the claimant acknowledged that he had filed a civil actionagainst St. Mary of Nazareth Hospital in connection with his injury. When Edward Don's counselasked the claimant if that action had been dismissed for want of prosecution, the claimant'scounsel objected, arguing that the civil lawsuit had no bearing on the workers' compensationproceedings. The arbitrator asked Edward Don's counsel where he was "going with this," towhich counsel responded that he intended to "ask [the claimant] what he said" during anarbitration hearing conducted in connection with the civil suit. The arbitrator sustained theobjection by the claimant's counsel.
Counsel for Edward Don attempted to submit into evidence an unsigned, typewrittenreport, entitled "Supplementary Report of Investigation," which is dated October 28, 1996, andpurports to have been authored by Allen Mittleman. According to the report, the authorinterviewed Luis Ramirez on October 22, 1996, at which time Ramirez stated that, while at workat St. Mary of Nazareth Hospital on January 31, 1996, he heard his coworker, Manuel Bruno,speaking to a delivery truck driver who was wearing an Edward Don uniform. Bruno asked thedriver why he was limping, and the driver responded that he had injured his leg at his last deliverystop prior to the hospital. The arbitrator did not allow the report into evidence.
At the conclusion of the hearing, the arbitrator issued a decision in which he found that, onJanuary 31, 1996, the claimant had sustained accidental injuries arising out of and in the course ofhis employment. The arbitrator awarded the claimant: temporary total disability (TTD) benefitsfor a period of 6 4/7 weeks, representing the period from February 1 through March 17, 1996;permanent partial disability (PPD) benefits pursuant to section 8(e) of the Act (820 ILCS 305/8(e)(West 2000)) for the loss of the use of his right foot to the extent of 25%; and $499.40 inreasonable and necessary medical expenses.
Edward Don sought a review of the arbitrator's decision before the Commission. TheCommission, with one commissioner dissenting, affirmed and adopted the arbitrator's decision. The dissenting commissioner believed the arbitrator's decision should be reversed and the matterremanded for a new hearing because Edward Don was denied a fair hearing as a result of thearbitrator's rulings: (1) denying Edward Don's request for a continuance and an order enforcing asubpoena issued to Luis Ramirez; and (2) sustaining the objection of the claimant's counsel toquestioning as to the content of the claimant's testimony during an arbitration hearing held in theclaimant's civil suit against St. Mary of Nazareth Hospital.
Edward Don filed an action for judicial review in the circuit court of Cook County. Thecircuit court confirmed the Commission's decision, and Edward Don instituted this appeal.
On appeal, Edward Don first contends that the decision of the arbitrator and theCommission to deny it a continuance for the purpose of securing Ramirez's presence was an abuseof discretion and contrary to law.
The granting or denial of a motion for a continuance lies within the sound discretion of thearbitrator or Commission, whose decision will not be reversed absent an abuse of that discretion.South Chicago Community Hospital v. Industrial Comm'n, 44 Ill. 2d 119, 123, 254 N.E.2d 448(1969); LeFebvre v. Industrial Comm'n, 276 Ill. App. 3d 791, 795, 659 N.E.2d 1 (1995).
Here, the claimant's application for adjustment of claim had been pending for over fouryears when, on November 28, 2000, Edward Don requested a continuance. The arbitrator deniedthe request, and the Commission, in its decision affirming and adopting the arbitrator's decision,found that the arbitrator did not err in denying the motion for a continuance. Initially, we notethat the dissenting commissioner stated as follows:
"[Edward Don] served a subpoena for a witness, Ramirez, who did notappear. [Edward Don] asked the Arbitrator to enforce the subpoena and continuethe case until the witness appeared. This request was made before the hearingbegan. The Arbitrator refused."
Subsequently, the dissenting commissioner concluded that the arbitrator's ruling violated section7030.50(d) of the Commission's rules (50 Ill. Adm. Code