concurring in part and dissenting:
I agree with my colleagues that the delay in issuing a decision by the Commission in this case is no basis for reversal. I further agree that the admission of the wife’s hospital records was of limited relevancy but likewise lays no basis for reversal.
However, I part company with them on the question of Dr. Ashbell’s report and the obvious clerical error on the question of right hand versus left hand.
Historically, Illinois followed the rule that an expert could not express an opinion on the ultimate issue. The theory was that this invaded the province of the fact finder. However, the theory was abandoned in Clifford-Jacobs Forging Co. v. Industrial Com. (1960), 19 Ill. 2d 236, 242-43, 166 N.E.2d 582, 586, where the supreme court said:
“The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. In this case the question was whether the appellee’s condition was due to traumatism or other causes. It was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of physicians. These opinions did not invade the province of the jury. [Citations.] It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it.”
Pocahontas Mining stands for the proposition that the expert may not assign percentage values to the disability, although even that authority is dubious in view of Clifford-Jacobs Forging. Nonetheless, the Commission is statutorily charged with the duty of assigning percentages and with its presumed expertise in the area it needs no expert assistance.
In the instant case Dr. Ashbell made no attempt to assign percentages. Indeed, his report is in strict compliance with section 12 of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 47, par. 138.12), which requires the employee to submit to a medical examination “for the purpose of determining the nature, extent and probable duration of the injury.” The surgeon is required to submit a written report “of the condition and extent of the injury.”
Clearly, in my opinion, the report complied with these statutory mandates and I find no basis to strike from it the language as indicated in the principal opinion. This was competent evidence before the Commission.
As to the right-hand-versus-left-hand imbroglio, it is apparent to me that this is nothing more than a clerical error. While I award no encomiums to the Commission or the parties for their failure to observe and correct this pursuant to section 19(f) of the Act (Ill. Rev. Stat. 1985, ch. 47, par. 138.19(f)), I find no reason for the procrustean remedy of remand. The case load of the Commission is a well-known fact, and it should not be further burdened with this sort of thing.
All of the evidence before the arbitrator concerned the left hand; Commissioner Miller viewed the left; the entire case concerned the left hand. If the majority seeks to punish the Commission and the parties for sloppy practice, there are better ways of doing it.
Pursuant to this court’s power under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), I would alter the Commission’s decision to state “left hand” in lieu of “right hand” and be done with this case.
In sum, I would affirm the Commission’s decision as altered by us.