dissenting:
I must respectfully dissent.
That the petitioner’s unrebutted testimony established the accident of September 20, 1982, and that the foreman was not produced to rebut the incident occurred was found by the arbitrator.
It is not contested that upon recovering from a continuing bout with the flu, on October 18, the petitioner had Dr. Jacula look at his left arm and the doctor referred him to the employer’s medical department for treatment.
That the incident was reported to the employer is unquestioned. On October 19 the petitioner saw Dr. Mitchell, the employer’s physician, for treatment.
That there was evidence of trauma to the petitioner’s left biceps was verified by Dr. Jacula, as aforesaid, and by Dr. Mitchell, who noted “a pecan-size mass.”
That there was a rupture of the long head of the left biceps was verified by Dr. Wojcik on November 19 and in 1983 by the operating surgeon, Dr. Brackett.
Dr. Brackett performed corrective surgery in June of 1983, and he felt the surgical result was a good one. Dr. Fischer, the petitioner’s examining physician, found “residual atrophy and loss of use.” The employer’s examining physician, Dr. Marquardt, acknowledged “muscle belly not normal in contour,” but nonetheless indicated that the petitioner could work without restriction. The petitioner is a left-handed painter who was employed by the respondent employer for about 20 years and may have been suffering from chronic tendonitis in his left shoulder.
The question left to be answered by my view is whether the Commission could draw its conclusions and inferences from evidence and facts in the record to reverse the arbitrator. It is worthy of note that as the trial court affirmed the Commission, the court did so while adding, “[djespite some partially erroneous and preliminary findings by the Commission.”
The Commission found that the petitioner failed to report an accident, which was contrary to the employer’s doctor’s report — the report of Dr. Mitchell. Of more significance is the conclusion of the Commission that “[t]he tear could have developed spontaneously without any type of trauma,” basing its decision upon the opinions of Drs. Wojcik and Marquardt, and that Dr. Wojcik “reported that tendon injuries can rupture -without a trauma or injury where there is chronic bursitis of the shoulder.” (Emphasis added.)
Dr. Wojcik reported:
“11-18-82 [Petitioner] said about two months ago he bumped himself in the left arm at work and it was all black and blue. He then noticed a mass in the left arm. His wife said that he has complained of pain in his shoulders before *** even before the injury. The patient then said it was his arthritis. [Emphasis added.]
P.E. revealed that the patient seemed to have essentially a full ROM of both shoulders, but the biceps’ belly on the left arm has slipped distally. [Emphasis added.]
X-RAYS [s]oft tissue shadow of the biceps did appear on the x-rays of the humerous [s-ic] more distally than normal.
IMPRESSION probably a chronic tendonitis of the left shoulder with a rupture of the long head of the biceps tendon and subsequent distal migration of the biceps’ belly. [Emphasis added.]
REG. [I] explained to him *** that sometimes we do operate on it to bring the muscle belly up but I can’t guarantee that this would give his arm more strength. He didn’t seem too interested in surgery at this time.”
“5-5-83 TELEPHONE CONVERSATION WITH WIFE OF ELWOOD GIBSON. The wife called complaining of my report to the Company. *** I explained to her that I put down in the report that the injury that the patient sustained at work may have aggravated this pre-existing condition. *** I simply told her that I tried to put down all that I knew about the patient. I emphasized to her that the injury I acknowledged did occur and that it could have aggravated his pre-existing condition that he had with his shoulders. I told her that very often the tendon can rupture without any injury when there is chronic bursitis about the shoulder.”
Dr. Wojcik, reporting to company’s physician, Dr. Miller, on April 9, 1983.
“DIAGNOSIS: The patient probably has a chronic tendonitis of the left shoulder with a rupture of the long head of the biceps’ tendon and subsequent distal migration of the biceps’ belly. This condition could have been aggravated by the apparent contusion of the patient sustained at work.”
Dr. Marquardt reported:
“IMPRESSION & RECOMMENDATION:
By history this gentlemen [sic] suffered a direct blow to the anterior aspect of the left upper arm. This could, in fact, have caused a rupture of the long head of the biceps tendon and/or a portion of the muscle belly itself. However, it is also important to note that the great majority of the long head of the biceps tendon ruptures occur spontaneously. *** I feel he could be working at the present time without restriction.”
By my view, that the tendon can rupture without any injury is all but irrelevant given the evidence and facts here presented. And, of note is that neither Dr. Wojcik nor Dr. Marquardt testified that trauma cannot be the cause of such a rupture of the biceps. In fact, as indicated above, the examining physician for the company, Dr. Marquardt, quoted above, indicated such, that trauma could cause such a rupture of the tendon or the muscle belly itself.
Clearly the Commission had only two choices here: (1) to determine that the biceps rupture was caused by trauma; or (2) to infer, at best, from all the medical evidence that the trauma aggravated any chronic tendonitis or bursitis in the shoulder. I submit that the Commission instead based its conclusion upon false premises or presumptions, upon supposition rather than the facts in evidence clearly established. There was a trauma. It was reported, and there was testimony by both Dr. Marquardt and Dr. Fischer that the accident could or may have been the cause.
By my view the Commission’s decision is tainted by error of law and does not comport with the manifest weight of evidence presented herein.
CALVO, J., joins in the dissent.