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Irikzarry v. Industrial Commission2/25/2003
tors Akemann and Caliendo insofar as the second decision of Caliendo is concerned. In his second decision, October 25, 1995, Caliendo stopped the TTD at a date prior to the hearing date, stating that "the petitioner is able to secure employment and is not entitled to maintenance or further vocational rehabilitation from the respondent." I do not understand how Caliendo and Akemann, as arbitrators, were inconsistent in their decisions.
As the majority states, arbitrator Akemann found " 'no objective evidence [existed] of * injury to the Petitioner's head, neck, low back or right shoulder as a result of the * accident.' " Slip op. at 12. This finding by arbitrator Akemann is consistent with arbitrator Caliendo's second decision when Caliendo found "the Petitioner is able to secure employment and is not entitled to maintenance or further vocational rehabilitation from the Respondent." TTD was stopped by Caliendo on September 7, 1993.
The majority determines that because the Commission awarded medical expenses for claimant's neck, right shoulder, and back, the Commission is inconsistent in determining "such treatment failed to support an award." Slip op. at 13. This logic escapes me. That the arbitrator described the injury and authorizes the payment of medical bills does not foreclose a finding of no permanent injury. The Commission has simply awarded expenses for medical treatment but did not find permanency.
The majority cites Heller Financial Inc. v. Johns-Byrne Co. in adopting the law of the case doctrine. The issue here, the extent of claimant's injuries as "described" by arbitrator Caliendo, is not the law of the case. A review of his second decision makes it clear the statement was not and is not the law of the case.
Even if we accept the "description" statement as law of the case, that isolated sentence does not determine the permanency question. The detailed findings of Akemann concerning the medical evidence and his findings as affirmed by the Commission and confirmed by the circuit court make it clear the issues of TTD, impairment and medical expenses have been addressed. As to TTD, Caliendo's 1995 decision terminated TTD on September 7, 1993.
Finally, the majority remands this case to the Commission. I am at a loss to know what the Commission should do on remand. It has already found there is no objective evidence of neurological or orthopedic injury to the head, neck, lower back, or right shoulder. The Commission decision affirming the award of arbitrator Akemann of 40% loss of use of the left leg as confirmed by the circuit court should be affirmed.
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