Find Legal Information

The following factual recitation is taken from the evidence presented at the arbitrationhearing conducted on August 29, 1995.

The claimant was hired to work for Inter-City's predecessor, Snyder General, as a coil benderon or about May 20, 1991. His duties required that he roll coils for heat pumps and air-conditioningunits into circles. The claimant testified that some of the coils that he was required to lift weighedup to 70 pounds. After the plant was sold to Inter-City, the claimant continued working there in thesame capacity.

According to the claimant, he never had problems with his shoulders or neck prior to beingemployed by Snyder. After he began working for Snyder, he started to experience an aching in hisleft shoulder. He recalled an incident in June 1991 when, as he was lifting a coil, he "felt somethinglike a rubber band" in between his neck and his shoulder and stated that he "knew then thatsomething was wrong." On July 24, 1991, several weeks after the plant had been sold to Inter-City,the claimant noticed that his neck, shoulder, arm, and thumb were hurting and that he was unableto keep up with the pace of his normal duties.

On July 29, 1991, the claimant saw his family physician, Dr. Craig W. Furry, complainingof aching in his left shoulder which developed at work. Dr. Furry noted tenderness in the claimant'sleft shoulder and diagnosed a left shoulder strain. He gave the claimant a slip authorizing him totake off work and scheduled a return visit in 10 days.

When the claimant returned to see Dr. Furry on August 9, 1991, he complained of pain fromhis left shoulder to his elbow. Although Dr. Furry found no tenderness to palpation, he noted apossible cervical radiculopathy and ordered x-rays of the claimant's cervical spine. Those x-rays,taken on August 10, 1991, revealed a minimal narrowing of the C5-C6 intervertebral space andlocalized cervical osteoarthritis. According to the x-ray report, no evidence of fracture, dislocation,metastatic destruction, or other significant degenerative change was detected.

The claimant next saw Dr. Furry on August 16, 1991. At that time, he complained of tinglingin his left shoulder. Dr. Furry ordered a CT scan of the claimant's cervical spine and recommendedthat he begin physical therapy. The report of the CT scan, taken on August 19, 1991, notesdegenerative spurring involving the left posterior lateral joint between C5 and C6 and states that thepossibility of a protruding disc at C5-C6 could not be ruled out, since the protrusion could beobstructed by the degenerative process.

The claimant began physical therapy on August 19, 1991. According to the hospital records,on that date, the claimant gave a history of soreness in his left shoulder which began after he startedto work for Snyder. He reported a tingling in his shoulder and an aching from the shoulder to theelbow. The claimant attended 12 physical therapy sessions between August 19 and September 17,1991, and received treatments which included cervical traction, ultrasound, and megatherm.

The claimant saw Dr. Furry on August 23, 1991, at which time Dr. Furry noted that theclaimant's CT scan showed no evidence of a disc problem and referred the claimant to Dr. RobertE. Schultz, Sr., a neurosurgeon.

The claimant next saw Dr. Furry on September 11, 1991. Dr. Furry's note of that visit reflectsthat the claimant reported pain which was localized in his left shoulder but which did not radiatedown his arm. The claimant did not complain of numbness in his arm or finger but did complainof continuing tingling and achiness in his neck and left shoulder.

Dr. Schultz examined the claimant on September 24, 1991, and recorded his impressions as:"C6 radiculopathy - left upper extremity" and "Degenerative disc disease - C5-6." He gave theclaimant a prescription for a cervical traction apparatus and prescribed Naprosyn. In his report toDr. Furry, Dr. Schultz noted his recommendation that the claimant have an EMG and a nerveconduction study of both upper extremities. The tests were never done, however, due to claimant'srefusal to have any test which involved needles.

On September 25, 1991, Inter-City terminated the claimant's benefits after the claimantignored a request by Inter-City's insurance carrier that he see a doctor of its choosing. Thereafter,the claimant received no further medical treatment until August 24, 1992.

At the request of Inter-City, Dr. Daniel Phillips, a board certified neurologist, examined theclaimant on January 9, 1992, and reviewed his CT scans and x-rays. According to Dr. Phillips, theclaimant related that he began experiencing soreness and left shoulder pain radiating down his armabout one month after he started work as a coil bender but did not report any specific injury. Duringthe examination, the claimant complained of neck and shoulder pain and an aching in his thumb andreported that his hand feels "funny" at times. Dr. Phillips testified that, during the physicalexamination, the claimant demonstrated full range of motion in the cervical spine, left shoulder,elbow, and wrist. He stated that the claimant's left arm pain did not give a clear dermatomal typereading as might be expected with a radiculopathy and that he found normal strength, no musclespasm, intact sensation, and equal reflexes. Dr. Phillips further testified that his review of theclaimant's x-rays and CT scan revealed a small spur at C5-C6 on the left with some bilateralnarrowing at C5-C6. According to Dr. Phillips, a spur is a chronic condition and "wouldn't berelated to his [the claimant's] work." Based upon his examination of the claimant and his review ofthe claimant's CT scan and x-ray, Dr. Phillips concluded that the claimant was capable of workingwithout restrictions and had no residual disability.

The claimant returned to see Dr. Furry on August 24, 1992. According to Dr. Furry's notesof that visit, the claimant informed the doctor that his lawyer had asked him to return. At the August24 visit, the claimant complained of stiffness in his left arm, left shoulder, and neck. Dr. Furryprescribed medication and referred the claimant back to Dr. Schultz for further evaluation.

On November 5, 1992, the claimant returned to Dr. Furry complaining of pain and stiffnessin his neck extending into his left arm.

When the claimant saw Dr. Schultz on November 10, 1992, he reported that he experiencedsome improvement when he used the cervical traction apparatus but that his symptoms returnedwhen he stopped using the apparatus. He also reported having discontinued the use of Naprosyn asit made him sick. The doctor changed the claimant's medication and recommended evoked potentialtesting, which the claimant underwent on November 17, 1992. The testing revealed bilateralabnormal dermatomal potentials at C6 and C7 with greater involvement on the left than on the rightand borderline abnormal dermatomal potentials at the right of C5.

During his January 5, 1993, visit to Dr. Schultz, the claimant reported that he was stillexperiencing pain. In correspondence to Dr. Furry dated that same day, Dr. Schultz observed thatall conservative measures had failed and that he was referring the claimant to an anesthesiologist fortrigger point injections. The record reflects that the claimant never had the injections and that henever returned to Dr. Schultz for further treatment.

The claimant was re-examined by Dr. Phillips on March 16, 1993. Dr. Phillips testified thatthe claimant complained of pain in his neck and left suprascapular and trapezius region and in theleft lateral arm and reported spontaneous aching in his left fourth and fifth fingers which had beguntwo to three weeks earlier. According to Dr. Phillips, his examination of the claimant revealed fullcervical range of motion without spasm and full shoulder range of motion. The examination of theclaimant's arm was negative and he had normal strength sensation and reflexes. Dr. Phillips statedthat he reviewed the results of the claimant's evoked potential tests, the findings of which he statedwere not significant. Dr. Phillips testified that he had the same opinions that he had after his earlierexamination; namely, that the claimant was capable of working without restrictions and that he hadno residual disability.

On March 19, 1993, the claimant returned to Dr. Furry and reported that he had been in anautomobile accident approximately one month earlier. The claimant complained of difficulty feelingwith his left leg and little fingers and of tenderness in the thoracic spine. Dr. Furry diagnosed athoracic strain and referred the claimant back to Dr. Schultz.

On November 4, 1993, the claimant underwent an MRI study at Dr. Phillips' request. Theradiologist's report of that study states that the claimant had "degenerative disc disease [at] C5-6 witha protrusion or small herniation lateralizing to the left within the canal extending into the left C5-6neutral foramen." Dr. Phillips reviewed the films of the test and testified that the abnormality at C5-C6 looked more like a spur than a disc. Dr. Phillips rendered an opinion, based upon hisexamination of the claimant and a review of the x-rays, CT scan, and MRI study, that the claimantsuffered from chronic cervical spondylolysis and that the condition was not caused, aggravated, oraccelerated by his employment with Inter-City. He again opined that the claimant was capable ofworking without restrictions and that he had no residual disability related to his employment.

On December 23, 1993, at the suggestion of his attorney, the claimant saw Dr. R. AnthonyMarrese, an orthopedic surgeon. Dr. Marrese testified that the claimant reported that he hadexperienced pain in his neck, left shoulder, and left arm after lifting heat pump coils at work. Dr.Marrese made no mention of the claimant having been in an automobile accident in February orMarch of 1993, and the claimant could not recall whether he told the doctor about the accident. Dr.Marrese stated that he reviewed the claimant's x-rays, CT scan, and MRI study and noted spurringat C6 bilaterally, a substantial posterior osteophyte coming off the back of the body of C5 and C6,and a narrowing of the C5-C6 disc space. He admitted that the posterior osteophyte predated anywork-related injury. He stated, however, that reaching, pulling, and lifting would rub the nerve rootover the roughened area and create symptomatology. After reviewing the claimant's x-rays, CT scan,and MRI study, Dr. Marrese examined the claimant. According to Dr. Marrese, that examinationrevealed some paravertebral spasm in the trapezius, limited cervical range of motion, unequal bicepsreflexes, numbness in the C6 dermatome on the left, and below normal grip strength.

Dr. Marrese saw the claimant again on February 7, 1994. He testified that his findings as ofthat visit were the same as those of December 23, 1993.

As of the taking of the first session of Dr. Marrese's evidence deposition on April 29, 1994,he recommended that the claimant be admitted to a hospital and undergo a myelogram and a post-myelogram CT scan to confirm or deny any additional abnormalities. As of that date, he was of theopinion that the claimant's work-related activities of lifting and moving heavy coils brought hiscondition into "clinical reality." He was also of the opinion that the claimant was in need oftreatment, including corrective surgery to remove the obstructions of the spinal cord, and that theclaimant was "most probably unemployable in any job that involves physical activity until he hasproper diagnosis and treatment."

The claimant returned to see Dr. Marrese on July 11, 1994. According to Dr. Marrese, therewas no change in the nature of the claimant's complaints as of that visit. On November 8, 1994, theclaimant was admitted to the hospital under Dr. Marrese's care. The clinical resume of thatadmission prepared by Dr. Marrese states that the claimant was admitted "for myelographicevaluation, CT post myelogram, [and] probable anterior cervical discectomy at C5-C6." Theclaimant had a cervical myelogram and a CT scan of the cervical subarachnoid on the day he wasadmitted to the hospital. In his report of the cervical myelogram, Dr. J. Sherlock noted theappearance of widening of the cord on the frontal view at the C5-C6 level which he "felt" was dueto a combination of degenerative spurring and "possible" superimposed disc herniation at the C5-C6level. He also noted asymmetry of exiting nerve roots on the right of the C6-C7 level and prominentexiting nerve roots bilaterally at the C5-C6 level. Dr. Sherlock's report of the CT scan notes: a veryminimal bony prominence along the anterior aspect of the spinal canal at C3-C4; a relative narrowingof the left intervertebral foramen at C5-C6 with bony prominence and superimposed disc herniation;a narrowing of the spinal canal primarily on the left along the superior aspect of the C6 vertebralbody with a "quarter moon" shaped flattening of the cord; considerable bony prominence continuingalong the major portion of the C6 vertebral body; a small focally herniated disc centrally at C6-C7;and a mild bony prominence along the anterior aspect of the spinal canal at the C5 level.

Dr. Marrese operated on the claimant on November 9, 1994, performing cervicaldiscectomies and underbody fusions at C5-C6 and C6-C7 and foramenotomies at C5-C6. Dr.Marrese testified that he removed bone spurs and multiple extruded fragments of herniated disc atthe C5-C6 level. He also stated that he encountered "brisk arterial bleeding" as he was working inthe C6 neuroforamen. Dr. Marrese diagnosed cervical radiculopathy secondary to spinal cordcompression with early myelopathy, spinal cord compression at C5-C6, and a small herniated discat C6-C7. When deposed, Dr. Marrese opined that the claimant's condition was causally connectedto his job duties and that the claimant was unable to perform even light duty work after July 24,1991.

The claimant continued to treat with Dr. Marrese post-operatively. When deposed on January13, 1995, Dr. Marrese testified that the claimant was doing well and experiencing a good recovery. As of that date, Dr. Marrese was of the opinion that the claimant could return to "some sort oflimited duty" which did not require him to look up or look down. Dr. Marrese also testified to thenecessity for the medical care rendered to the claimant up to that time and the reasonableness of thecharges for those services.

Dr. Phillips examined the claimant again on March 8, 1995. According to Dr. Phillips, theclaimant was wearing a neck brace and complained of aching in his neck and left arm and ofnumbness in his left thumb. Dr. Phillips testified that his examination of the claimant revealednormal strength sensation and normal deep tendon reflexes. Dr. Phillips stated that he reviewed themyelogram and CT scan performed on November 8, 1994, and found chronic degenerative discdisease at C5-C6 with sclerotic borders and mild decreasing disc height and a spur which did notcompress the cord. Because spinal fluid was visible anterior to the cord, Dr. Phillips explained thatthere was no herniated disc at that level. He testified that the claimant's doctors had misinterpretedan artifact as a herniation and attributed the artifact to the small format imaging machine in use atthe hospital where the test was performed. According to Dr. Phillips, there was evidence ofspondylolysis at C6-C7 but no evidence of a herniated disc. He also found no evidence of herniationat C5-C6. Dr. Phillips repeated his earlier opinion that the spur seen in the studies predated anywork-related injury. He further opined that the claimant's job duties did not necessitate surgery.

On May 30, 1995, the claimant saw Dr. Marrese, whose notes reflect that the claimant hadfull normal abduction and internal rotation and reported feeling good except for stiffness in his neck. Dr. Marrese released the claimant to return to light duty work with restrictions against lifting,bending, and stooping.

The claimant testified that he neither worked nor sought employment from July 21, 1991,until he was released to work by Dr. Marrese, at which time he began working for his father.

Following the arbitration hearing, the arbitrator issued a decision finding that the claimanthad sustained an accidental injury which arose out of and in the course of his employment with Inter-City. The arbitrator further found, however, that the claimant's condition had stabilized bySeptember 24, 1991, and that his condition of ill-being at the time of the arbitration hearing was notcausally related to his work activities. Accordingly, the arbitrator awarded the claimant TTDbenefits for a period of 8 2/7 weeks ending on September 24, 1991, and PPD benefits for 5% lossof a man as a whole. The arbitrator also ordered Inter-City to pay $260 in medical expenses incurredprior to September 24, 1991. In his decision, the arbitrator made specific note of the fact that theclaimant elected not to undergo the tests recommended by Dr. Schultz, missed eight physical therapysessions prescribed by Dr. Furry in August and September of 1991, failed to attend a medicalexamination scheduled by Inter-City in September 1991, and received no medical treatment fromSeptember 1991 until August 1992, when he returned to Dr. Furry at the suggestion of his attorneyshortly after he signed an application for adjustment of claim. The arbitrator noted in his decisionthat he accepted the testimony and opinions of Dr. Phillips and found the testimony of Dr. Marreseto be not credible. The arbitrator concluded that the objective medical evidence failed to rebut Dr.Phillips' opinion that the claimant had a pre-existing degenerative spur which could have beenaggravated by his work activities in 1991, but that the effects of that aggravation resolved withoutaffecting the claimant's ability to work and did not necessitate further treatment.

The claimant sought a review of the arbitrator's decision before the Commission. On July18, 1997, the Commission issued a unanimous decision affirming and adopting the arbitrator'sdecision. Thereafter, the claimant sought a judicial review of the Commission's decision in thecircuit court of Randolph County (docket number 97 MR 67).

On October 27, 1998, Judge Patrick M. Young entered an order, finding inter alia that: theclaimant's condition of ill-being after September 24, 1991, was causally related to his work injury;the medical treatment which the claimant received after that date was both reasonable and necessary;and the Commission's decision of July 18, 1997, is against the manifest weight of the evidence. Judge Young remanded the matter to the Commission.

Inter-City filed a notice of appeal from the circuit court's October 27, 1998, order. On July18, 1999, this court dismissed that appeal, docketed as number 5-98-0712WC, for lack ofjurisdiction. See Inter-City v. Industrial Comm'n, No. 5-98-0712WC (1999) (unpublished orderunder Supreme Court Rule 23).

On May 31, 2000, the Commission, without taking any additional evidence, issued itsdecision on remand, one commissioner dissenting. The Commission awarded the claimant TTDbenefits for a period of 200 6/7 weeks, PPD benefits for 25% loss of a man as a whole, and$33,425.70 in medical expenses. Contrary to the finding in its original decision, the majoritydetermined that Dr. Marrese was a credible witness. Also, in the second paragraph of its decision,the Commission stated that it was ordered by the circuit court to recalculate the claimant's TTDbenefits from July 25, 1991, through May 30, 1995, and to recalculate his PPD benefits. Thedissenting commissioner asserted that the claimant did not establish his entitlement to TTD benefitsfor the period from September 25, 1991, through December 27, 1993.

Inter-City sought a judicial review of the Commission's May 31, 2000, decision in the circuitcourt of Randolph County (docket number 00 MR 60). On December 11, 2000, Judge William A.Schuwerk, Jr. entered an order confirming the Commission's decision, and Inter-City filed a timelynotice of appeal.

On appeal, Inter-City first asks us to review the circuit court's October 27, 1998, order settingaside the Commission's initial decision in this case. Inter-City argues that the Commission's July 18,1997, decision was not against the manifest weight of the evidence, as Judge Young found, and that,accordingly, we must reverse the October 27, 1998, circuit court order and reinstate theCommission's original decision.

In Stockton v. Industrial Comm'n, 69 Ill. 2d 120, 126, 370 N.E.2d 548 (1977), the IllinoisSupreme Court held that, in an appeal from a decision entered by the Commission upon remand fromthe circuit court, the reviewing court is "authorized to review the entire record and determine thepropriety of the circuit court's original order, which reversed and remanded the matter to theindustrial Commission ***. [Citations.]" Our analysis begins, therefore, with an examination of theOctober 27, 1998, order, in which the circuit court found the Commission's decision of July 18,1997, to be against the manifest weight of the evidence.

It is the function of the Commission to decide questions of fact, judge the credibility ofwitnesses, and resolve conflicting evidence, including conflicting medical evidence. O'Dette v.Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980). The Commission's determinationon a question of fact will not be disturbed on review unless it is against the manifest weight of theevidence. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005 (1987).

For a finding of fact to be contrary to the manifest weight of the evidence, an oppositeconclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288,291, 591 N.E.2d 894 (1992). Whether a reviewing court might reach the same conclusion is not thetest of whether the Commission's determination of a question of fact is supported by the manifestweight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in therecord to support the Commission's determination. Benson v. Industrial Comm'n, 91 Ill. 2d 445,450, 440 N.E.2d 90 (1982).

The disposition of this case before the Commission rested almost entirely upon a resolutionof the conflicting medical evidence offered by Dr. Phillips and Dr. Marrese.

After reviewing the claimant's x-rays, CT scans, MRI study, and myelogram, Dr. Phillipsdetected spurring at C5-C6 but no evidence of any herniated disc. He diagnosed the claimant assuffering from chronic cervical spondylolysis which was not caused, aggravated, or accelerated byhis employment. Dr. Phillips testified that, when he examined the claimant on January 9, 1992, andMarch 16, 1993, he found the claimant to have full range of motion, normal strength, and normalreflexes. As early as January 9, 1992, Dr. Phillips was of the opinion that the claimant was capableof working without restrictions and had no residual disability. He was also of the opinion that thesurgery performed by Dr. Marrese was not necessitated by the claimant's work activities.

According to Dr. Marrese, his examination of the claimant on December 23, 1993, revealeda limited range of motion, unequal reflexes, and below normal strength. He testified that, when heoperated upon the claimant on November 9, 1994, he removed bone spurs and multiple extrudedfragments of herniated disc at C5-C6. Dr. Marrese diagnosed the claimant as suffering from cervicalradiculopathy, spinal cord compression, and disc herniation, which he opined was causally relatedto the claimant's job duties. Dr. Marrese also testified that the claimant was unable to perform evenlight duty work after July 24, 1991.

In its original decision, the Commission unanimously adopted the decision of the arbitrator,which accepted the opinions and testimony of Dr. Phillips and found Dr. Marrese to be not credible. The circuit court's October 27, 1998, order finding the Commission's original decision to be againstthe manifest weight of the evidence states that Dr. Phillips' opinions concerning the nature of theclaimant's condition are contrary to Dr. Marrese's observations when he operated upon the claimantand are also contrary to the radiology reports issued over a four-year period from shortly after theclaimant began experiencing pain, up until his operation. However, the circuit court's findings asto the radiology reports are a bit overstated.

The x-rays of the claimant taken on August 10, 1991, revealed a minimal narrowing at C5-C6and localized cervical osteoarthritis but no other significant degenerative changes. The report of theCT scan performed on August 19, 1991, noted degenerative spurring at C5-C6 but stated that the"possibility" of a protruding disc at that location could not be ruled out. The report of the MRI studyconducted on November 4, 1993, states that the claimant has degenerative disc disease at C5-C6 witha protrusion "or" a small herniation at that level. Dr. Sherlock's report of the myelogram performedon November 8, 1994, notes degenerative spurring and a "possible" superimposed disc herniationat C5-C6. The post-myelogram CT scan done on November 8, 1994, revealed a bony prominenceat C5-C6 with a superimposed disc herniation. It is only Dr. Sherlock's report of this post-myelogram CT scan which is unequivocal on the presence of a disc herniation. However, Dr.Phillips opined that Dr. Sherlock misinterpreted an artifact as a herniation and attributed the errorto the small equipment in use at the hospital where the test was performed. He also testified that thepresence of visible spinal fluid eliminated the possibility of a disc herniation.

Clearly, Dr. Phillips' testimony, if believed, is more than sufficient to support theCommission's original decision and in particular its finding that the claimant's condition of ill-beingsubsequent to September 24, 1991, is not causally related to his employment with Inter-City or itspredecessor, Snyder. It appears that the circuit court, in its order of October 27, 1998, substitutedits judgment for that of the Commission on a credibility issue rather than according theCommission's decision the required deference. The claimant, however, notes that, in its May 31,2000, decision, the Commission found Dr. Marrese to be a credible witness and found that theclaimant's condition of ill-being after September 24, 1991, was causally related to his employment. Citing the Illinois Supreme Court's holding in Freeman United Coal Mining Co. v. IndustrialComm'n, 188 Ill. 2d 243, 720 N.E.2d 1063 (1999), the claimant argues that it is the Commission'sMay 31, 2000, decision, not its July 18, 1997, decision, which must be accorded deference. Webelieve, however, that the claimant has interpreted Freeman United far too broadly.

In Freeman United, the circuit court set aside the Commission's initial decision denying theclaimant benefits, finding it to be against the manifest weight of the evidence. On remand, theCommission awarded the claimant benefits, and the circuit court subsequently confirmed thatdecision. Freeman United, 188 Ill. 2d at 244-45. It is true that our supreme court held that thefactual determinations set forth in the Commission's second decision must be accorded deference. Freeman United, 188 Ill. 2d at 248. Significantly, however, the supreme court had alreadydetermined that the Commission's original decision was incorrect as a matter of law and that thecircuit court properly reversed that decision and remanded the matter back to the Commission forfurther consideration. Freeman United, 188 Ill. 2d at 246, 249. The supreme court did not rely uponany factual finding in the Commission's second decision to support its conclusion that theCommission's initial decision was properly reversed. To do so would, for all practical purposes,render a circuit court's order setting aside a decision of the Commission unreviewable. We believethat the holding in Freeman United is properly interpreted as requiring a court reviewing aCommission decision entered upon remand from the circuit court to first resolve the question ofwhether the circuit court properly reversed the Commission's initial decision and, if it did, then toaccord deference to the Commission's factual determinations on remand. If, on the other hand, thetrial court erred in reversing the Commission's initial decision, its order should be reversed, theCommission's subsequent decision after remand vacated, and its original decision reinstated. SeeF & B Manufacturing Co. v. Industrial Comm'n, No. 1-00-2931WC (September 20, 2001).

Our review of the record in this case leads us to conclude that the Commission's originaldecision in this matter was not against the manifest weight of the evidence. As a consequence, wefind that the circuit court erred when it set aside the Commission's decision and remanded the matterfor further consideration.

For the foregoing reasons, we reverse the circuit court's order of October 27, 1998, vacatethe circuit court's order of December 11, 2000, vacate the Commission's decision of May 31, 2000,and reinstate the Commission's decision of July 18, 1997.

Reversed in part and vacated in part; original Commission decision reinstated.

McCULLOUGH, P.J., and O'MALLEY, HOLDRIDGE, and RARICK, JJ., concur.