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Irikzarry v. Industrial Commission2/25/2003
ns, we reverse the circuit court's judgment confirming the Commission's decision. The cause is remanded to the Commission for determinations consistent with this opinion.
Reversed and remanded with directions.
HOFFMAN, O'MALLEY, Jack, and GOLDENHERSH, JJ., concur.
PRESIDING JUSTICE McCULLOUGH, dissenting:
I disagree that arbitrator Caliendo's second decision and arbitrator Akemann's findings and decision are inconsistent. Of utmost importance is to point out arbitrator Caliendo's decision concerns temporary disability while arbitrator Akemann's decision addresses permanency.
With respect to the majority's reliance upon arbitrator Caliendo's "description" of claimant, that is exactly what it appears the arbitrator stated, a "description." The one statement referred to by the majority should not be taken in isolation.
As that decision states, "At issue is the extent of Petitioner's temporary disability." Arbitrator Caliendo's decision does address the extent of claimant's temporary disability concerning his left knee, neck, right shoulder, and lower back.
In his second decision, Caliendo found that on September 12, 1991, Dr. Clark released claimant to return to work; that on July 23, 1992, Dr. Morgenstern released claimant to return to work; and that the preponderance of the medical evidence shows that petitioner can, in fact, work.
Arbitrator Caliendo also found that as a result of an examination by Dr. Kranzler on June 30, 1994, Kranzler did not elicit:
"any objective findings to substantiate the petitioner's current complaints of pain to his back. Dr. Kranzler noted several inconsistencies and found 'no reason to limit [petitioner's] work activities on the basis of his back examination.' Dr. Kranzler's findings are credible when taking into consideration prior diagnostic studies of the back which have resulted in essentially normal findings."
Additionally, Caliendo found that claimant refused to cooperate with respondent's vocational rehabilitation program:
"Dr. Clark, Petitioner's own physician, once questioned Petitioner's efforts when he wrote on September 12, 1991: 'I really feel it would be most important for [Petitioner] to go back to work and to try and get on with it instead of looking for disability which I am beginning to feel is the major thrust behind all of this situation (PX3).' "
Although the majority accepts claimant's testimony that he could not speak English, Caliendo found claimant "not a particularly credible witness" including his ability to speak "basic English."
Arbitrator Caliendo's second decision refers in several paragraphs to the inconsistencies in the claimant's testimony, found him not credible, found that he would not cooperate with the rehabilitation consultant, found that his own physician, Dr. Clark, questioned his efforts to work, and found that, as Caliendo stated, the doctor indicated he should try to go back to work instead of looking for disability, which, the doctor stated, he was "beginning to feel the major thrust behind all of this situation." With respect to the back injury , arbitrator Caliendo found that Dr. Kranzler examined the claimant and did not elicit any objective findings to substantiate the claimant's complaints of pain to his back. The doctor noted several inconsistencies and found no reason to limit the claimant's work activities on the basis of his back examination. Since claimant's move back to Puerto Rico in 1997, he acknowledges he has not sought any type of work.
Contrary to claimant's argument and the majority decision, there is no inconsistency between arbitra
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