author: JUSTICE LEWIS

text:
    ILLINOIS MUTUAL INSURANCE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Gerald VeVea, Appellee).
    Third District (Industrial Commission Division)
    No. 3-89-0709WC
    Opinion filed August 24, 1990.
    Rehearing denied October 2, 1990.

      David B. Mueller, of Cassidy & Mueller, of Peoria, for appellant.
    John Lesaganich and Mark Flannery, both of Goldfine & Bowles, P.C., of Peoria, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The employer, Illinois Mutual Insurance Company, appeals from the judgment of the circuit court confirming the decision of the Illinois Industrial Commission (hereinafter referred to as the Commission). Affirming the decision of the arbitrator, the Commission found the claimant, Gerald VeVea, permanently and totally disabled under section 8(f) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) (hereafter referred to as the Act). Following a hearing concluded on July 9, 1986, the arbitrator found the claimant entitled to receive the sum of $358.95 per week for life, commencing April 23, 1983, because of accidental injuries arising out of and in the course of his employment on November 4, 1980, which had caused his complete disability and had rendered him wholly and permanently incapable of work from April 23, 1983. The arbitrator found further that claimant was intermittently temporarily totally disabled from November 4, 1980, through April 22, 1983.

The employer presents two issues for review: whether the Commission erred in finding that the claimant was permanently and totally disabled under section 8(f) of the Act and whether the Commission erred in finding that the claimant suffered accidental injuries arising out of and in the course of his employment on November 4, 1980. We consider these issues together.

At the hearing before the arbitrator, the claimant testified that on November 4, 1980, when he was 43 years old, he had been employed by the respondent for eight years and was on that date serving in the capacity of vice-president of respondent’s benefits department. That afternoon he was driving alone from Peoria to Freeport in a company-owned car, assigned to him, to make a call upon an insured by the name of Russell Hyder, who claimed to be disabled but whose claim was questioned and was being investigated. The trip from Peoria to Freeport required 2 to 21k hours. Claimant said that he had left his office at about 11:15 or 11:30 a.m. and had stopped for lunch. After he had resumed his trip, in the area of Buda, about 40 miles from Peoria, he saw an animal in the road and “put the car in the ditch to avoid hitting the animal,” adding that he does not know what happened “other than I bounced around in the car.” His next recollection is of someone tapping on the window of the automobile, at which time he realized that his glasses were broken and that his head was sore “around my eyes or right above the forehead, above the eyes.” Although he needs his glasses to drive, he drove back to Peoria alone and arrived there, he thought, at about 3 p.m. He had gone straight to his home without returning to his office:

“I took some aspirins. I made myself a stiff drink, I called the office. And I laid down and by that time I was really starting to feel real bad. And I made another drink thinking maybe that would help. And my son came home and he took one look at me and suggested that we go to the hospital.”

During the drive back to Peoria he had noticed that his eyes were “pretty swollen shut, were almost closed, and I was awfully concerned about the traffic.” At home he noticed that one eye was “totally swollen shut, and the other eye was also puffy and swollen.”

Claimant was hospitalized for about 25 days. The final diagnosis stated by his physician on November 29, 1980, upon his discharge from Proctor Community Hospital in Peoria was as follows: right temporal lobe contusion and hemorrhage, fracture of the base of left frontal bone, possible cerebral concussion, and bilateral periorbital ecchymoses. While he was in the hospital, he said, he “could not get rid of the headache,” primarily in the area of his forehead.

In February of 1981 he returned to work. Upon his return he “noticed what I call thought processing, I expect there is a medical term for it, I call it thought processing, was slowed down. In order to be able to think or concentrate on something would exacerbate the headache.” He worked approximately half days from February until December of 1981 during which time he noticed “jjjust intense, just an intense headache, vomiting.” At the end of December, he testified, Robert McCord, respondent’s president, told him “at a meeting by the board of directors I either had the choice of resigning my position, or take some time off and come back at a reduced capacity.” He chose, he said, to return at a reduced capacity.

In April of 1982 he returned to work in the capacity of a benefits manager. He noticed upon his return to work:

“Again using my term the thought processing, it just, it just wasn’t there. It would take so much effort, so much concentration to do the most simple things, the routine things, the things that I would do automatically. And there was a lot of vomiting, a lot of nausea. A feeling of the left side of the body being cold.”

He had, he said, “[cjonstant and severe headaches, which would get worse as the day progressed.” He testified that he vomited between one and three to four times daily. Prior to vomiting “the headache would really start to get worse,” he said, and he would have a feeling of nausea. Prior to November 4, 1980, he had had none of these problems.

He worked eight-hour days in the reduced capacity of benefits manager for approximately one year, until April of 1983 when he was, he said, “just totally exhausted.” His job required a certain amount of travel:

“If it were, if it were rainy or if there were heavy traffic, the traffic coming at you, or the cross traffic as you wait at a stop sign or stop light or the windshield wipers would cause nausea and some type of dizziness. And, I would get lost. I would know where I would be going, and I would end up somewhere else.”

Since he left the respondent’s employ in April of 1983, he has had no other employment.

He testified at the hearing on October 16, 1985, that he still suffered from

“[cjonstant headache, again for an all purpose term, lack of thought processing, I go to one room, do something and by the time I get there I forget where, why I’m there. I’ll make myself lunch and I’ll put the milk in the bread box or put the bread in the refrigerator, it just, the thought processing is just all, it’s not very good.”

On cross-examination he testified that he had one bottle of beer with his lunch on the day of the incident. He had had a second drink at home, he stated, because he “thought maybe the alcohol would help numb the pain.” He had had no appointment with Russell Hyder because he was making what he described on redirect examination as a “surprise call.” On cross-examination he stated that he had told his immediate boss, the senior vice-president, C.S. Martin, now retired, where he was going. He described the animal he swerved to avoid as “a larger animal, like a pig or a horse or a deer or a large dog. I cannot tell you what it was. It happened rather fast.” He described the day as clear and sunny and the highway as two lane. Initially he swerved to the left but then to the right. The car stopped in the ditch beside the road. He described the ditch as being as wide as the car was and his approach to the ditch as being at a 45-degree angle. He had not required assistance to get the car out of the ditch. After having determined that the car was drivable, he was able simply to back it out of the ditch and to proceed. He stated that as a result of the incident the car had sustained minor damage “to either three of or all four corners of the automobile.” Also damaged, he said, were the “plastic strips between the grill and the bumper.” There was a dent on the rear fender of the driver’s side of the automobile. He testified that he had reported the damage to the car to respondent after he had returned to work in February of 1981. At the time of the repair, in September of 1981, the panel in back was starting to rust. He described the position of manager as one step below that of vice-president. He testified that in April of 1983 he had told Mr. Summers, the vice-president of the benefits department, that “I was unable to continue at the present time, I had to leave.” He has sought no employment elsewhere since that time.

Dr. Dennis Garwacki, a board-certified neurologist who treated the claimant, testified on his behalf by evidence deposition taken on May 15, 1984. Dr. Garwacki stated that he had first seen claimant on May 5, 1981, by referral because of a chronic headache. The claimant had told him that he had had chronic headaches since the automobile accident in November of 1980 and that he was having problems

“as far as what he called getting his act together, that is, trying to get his cognitive functions proper.
He was having problems with concentrating, being able to perform activities, because he couldn’t seem to put all the information together.”

The witness had reviewed claimant’s medical history and records prior to May 5,1981, obtaining the following information:

“Well, probably the most important part was the CT scans, which reports I have here, which were multiple, the first one being on the day of the apparent injury, 11/5/1980, which showed basically the intracerebral hematoma on the right side.
And the subsequent CT’s, one to two weeks for a series of four showing resolutions of these abnormalities on the scan itself.”

Interpreting these reports, the witness stated that they showed

“an area of hemorrhage in the right side of the brain that we call the frontal area, the front part of the brain, and measured about two centimeters by two centimeters.
And along with it, there was some brain swelling or what we call edema. There is also a slight shift of the structures due to the swelling of the brain that was present.”

The structures shifted from the right side to the left because of the swelling of the brain. These findings on the CT scan were, he said, consistent with the claimant’s history of an automobile accident on November 4, 1980.

The witness had also reviewed prior to May 5, 1981, a report of psychological testing that “helps substantiate the fact that the patient did have some problems with some of the cognitive functions, you know, some of his tasks with memory and things.” Dr. Garwacki observed, “And I thought that the psychological testing plus the CT findings and everything else would certainly — were severe enough and advanced enough to be able to give me some clue that this was an organic problem to some degree.” Asked whether the results of the psychological testing showed any neurological dysfunction, Dr. Garwacki answered that they showed a tendency toward “some problems with the immediate memory,” important because one of his main complaints was the inability to “organize his immediate memory to bring his thought processes to a good conclusion.” Dr. Garwacki considered the claimant’s memory problems to be a neurological dysfunction. Asked whether he had an opinion as to how the accident described by the claimant could result in this neurological dysfunction, the witness responded:

“Certainly showed with the findings of the CT that he certainly had enough of the injury to the brain to cause him to develop in a sense intracerebral hematoma, and also there was some bruising, contrecoup, so it showed not only a direct injury but also an injury to the opposite side to some degree, which meant that the, basically the impact would have had to be severe enough to cause distortion of the brain contents so that the opposite side was also affected.”

Such distortion of the contents of the brain can be reflected, he said, in the neurological dysfunctions he had described. His diagnosis of the claimant’s condition on May 5, 1981, was a “severe head injury, closed head injury, with cerebral hematoma and contusions.” He noted that the claimant was both anxious and depressed “and I couldn’t tell if it was primary or secondary to the head injury and to the headaches he was having, and to the fact that he couldn’t function in his work.”

In approximately June of 1981 Dr. Garwacki obtained a repeat CT scan, which showed “[continuing resolution” of the “primary process” and was “normal.” The claimant continued to complain of headaches. In July of 1981, because of these complaints, Dr. Garwacki thought that the claimant would have difficulty “functioning adequately with the severity of the headaches, according to his subjective complaints.” In September of 1981 claimant had told him that he was working but was unable to work more than half a day because of his headache problems. Asked whether there was “medical justification” for the claimant’s comments about the headaches and their effect upon his ability to work more than half a day, the witness answered,

“I can only go on his complaints, and he had subjective complaints. But his complaints of headaches and the type they were and the severity, the fact that they were associated with severe nausea and vomiting, very frequently made me feel that he was having problems, preventing him from working.”

Dr. Garwacki testified that it would be possible for claimant to have organic damage that is not discernible by means of the medical tests now available.

Dr. Garwacki described a continuing series of approximately monthly visits to him by the claimant in which he complained of severe headaches. Apparently in January of 1982 claimant advised Dr. Garwacki that he “ ‘was being forced to quit his job as vice-president because he could not perform the work on a full-time basis.’ ” In March of 1982 claimant was not working, having stated that “he couldn’t function so he stopped working.” The witness had not made the recommendation that claimant stop working. Asked if he had an opinion as to whether there was a medical basis for claimant’s feelings that he could not perform his occupational duties, the witness responded, “I can only go on his, you know, his subjective complaints, the severity of his headaches. If they were as severe as he mentioned they were, and if he did have as much nausea and vomiting as he stated that he had, then he probably would have problems functioning in his capacity.” In September of 1982 claimant stated to Dr. Garwacki that he was having problems “actually working” because of the severity of the headaches, which were causing him to vomit two or three times a day. The witness testified that nausea and vomiting can follow a very severe headache.

On January 10, 1983, the witness saw the claimant again:

“Basically, at that time he had expressed the fact that he was continuing to work, although around that time, he was not doing the job he was used to doing. He was in a lesser capacity and seeming somewhat frustrated. He was angry that he couldn’t really do the job that he was used to doing before, and he was getting a lot of inward pressure about work. He was at that time still having a lot of symptoms with the headaches, and he was wondering if he would be able to continue working.”

In April of 1983 claimant reported to Dr. Garwacki that

“he had quit work about a week prior to seeing me. He didn’t feel, however, that his headaches were any better, but he apparently felt that he could cope with them better because he could lie down, could be a little more — have more relief symptomatically. He felt the headaches were more on the right side of his head at this time, and he continued to take the medicine that I prescribed.”

Concerning claimant’s ability to perform his job on April 27, 1983, Dr. Garwacki stated that “if he really indeed was having as many headaches as he said he had and was uncomfortable with nausea and vomiting, then it would be very hard to function in a job with that type of complaint.” He testified that he thought on May 13, 1983, the claimant could not work because of his complaints, the main ones being “severe headaches that were associated with nausea and projectile vomiting on occasion.” The doctor testified that these headaches were a “continuation of the same types of headaches that he had complained about since the accident.” With respect to causation the witness stated: “I can only say that his headaches have continued since the above mentioned injury, and that if they have continued since that time, I can only say that there seems to be a causative effect because of the time sequence.” The witness suggested that claimant go to the pain treatment center of the Scripps Medical Group because “[w]e tried all types of approaches, psychological, and I had tried various medications. And I didn’t think we were getting anywhere.” Dr. Garwacki last saw the claimant on May 14, 1984. Concerning claimant’s ability at that time to perform his job with the respondent, he stated, “Again, with his complaints, I did not feel he probably could work with those complaints.”

On cross-examination the witness testified that he understood that the claimant’s job was clerical when he last worked. He stated further:

“We had talked it over the time I had seen him prior to that about his ability to work, and he was basically having quite severe headaches. And he was not sure if he would be able to continue the work much longer because of the severity of his headaches. He felt he was not doing a good job. He felt somewhat frustrated. He felt like he was not the person he used to be. And with all this frustration with the severity of his headaches, he was not certain he could continue to work.”

He said that whether the claimant could perform his job would be dependent upon whether he was actually having the symptoms he had expressed “because he had no neurological abnormalities that would prevent him from working. Just the severity of the headaches which is a subjective complaint, of course.” Dr. Garwacki had performed 10 to 12 clinical neurological examinations of the claimant; on each examination there was an absence of any organic or pathological basis for the complaints he expressed. He had performed “many brain scans and CT scans and after the initial ones they merely showed resolution of his, you know, original hematoma or contusion.” Claimant had had a headache during several visits to Dr. Garwacki’s office and “looked very sick by looking at him.” As to whether claimant should seek less stressful employment Dr. Garwacki testified:

“If he was having headaches with the severity he was, I would certainly have to say that he should be under less — in a situation under less stress, although, after he stopped working, he still continued, to have very severe headaches and supposedly was not under stress at that point.”

Asked whether he would put any limitations upon the claimant’s ability to work, based upon organic findings alone, the witness responded,

“Basically, on a physical basis, the patient had nothing to limit his work. But I do know that in past experience, that subjective complaints of headaches can be very excruciating, and they can limit one’s ability to work if they indeed are present. And, they can be present without any, really organic findings being present.”

On redirect examination Dr. Garwacki testified that people do, in fact, have incapacitating headaches without the presence of any organic findings. He stated with respect to stress that “[b]asically, the picture that seemed to evolve from all the times we’ve talked was that whenever he would tend to be more active physically, that he would tend to have more complaints of more severe headaches.” Upon recross he stated, “I still thought that a lot of his problems were psychological, but I couldn’t explain why.” He said further that “we see headaches as a consequence of psychological problems.”

Dr. Dietra Teichmann, a psychologist employed by the Institute of Physical Medicine and Rehabilitation in Peoria, testified on claimant’s behalf by evidence deposition taken on July 24, 1985. Having first seen claimant in the spring of 1981, she had been in charge of certain neuropsychological tests given to him in order “[t]o clarify the effects of the head injury in terms of his behavior.” The tests that were administered were the Halstead-Reitan Neuropsychological Battery, the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale, and the Minnesota Multiphasic Personality Inventory. In summary, she said, “the results showed that there was some impaired functioning.” Concerning claimant’s test results that demonstrated abnormal functioning of the brain, she testified:

“Specifically, there was some evidence of frontal lobe impairment in terms of poor decision making, difficulty testing hypotheses, perseverating on incorrect responses, impaired short-term memory. There was also some evidence of difficulty with proprioception, knowledge of where the body is in space which may be related to impaired functioning of the cerebellum. Short-term memory, in addition to being related to impairment of the frontal lobe, can also be related to temporal lobe impairment, or hippocampal impairment or some of the subcortical structures.”

Concerning the claimant’s short-term memory problems shown by the tests, the witness said that he was one standard deviation below the average for a person of his age in terms of being able to remember relevant information from a paragraph. Another specific example of abnormality was displayed by the claimant in the categories test:

“[This] is a problem-solving test in which a slide was shown to Jerry, he was to respond to it in a manner to test a certain hypothesis, and if he was correct, then he would assume that he might work on the next slide. If he was incorrect, he’d have to remember what the hypothesis was, throw it out and try something different on succeeding slides.
Jerry was — had extreme difficulty even recalling what the previous slide was much less what hypothesis he had already tested out.”

The witness had never recommended that plaintiff not work or not return to his job as a vice-president.

She described the claimant as he appeared the week before the taking of her deposition:

“Not really much change from what I’ve been seeing all along. Difficulty expressing himself, trouble groping for words, decision-making problems, memory problems, not quite as depressed as when I had seen him earlier in the spring, at which point I was really concerned about the possibility of suicide.”

Abnormalities she observed at that time included decision-making problems, short-term memory problems, perseveration, impulsivity, and poor frustration tolerance. Asked whether these conditions could have been related to the accident described by him as having occurred in November of 1980, she responded, “To the best of my knowledge, that’s when it all started.” She gave as a diagnosis “[cjlosed head injury.” She indicated that head-injured persons have a typical behavior pattern that includes, for example, short-term memory problems, planning problems, difficulty dealing with abstract and complex concepts, verbal expression difficulties, verbal receptive difficulties, and difficulty understanding complex grammatical structures. The claimant, she said, exhibited all of these problems. Asked whether he could perform the duties of a vice-president of an insurance company, she answered, “I don’t think he could do it,” adding, “I would assume that an executive would have to be able to make decisions, and Jerry is not capable of doing that right now.” Another reason she gave for his inability so to perform was his memory problem: “If Jerry doesn’t have it written down on a piece of paper that he can refer to readily, he’s not going to remember it, whatever it might happen to be.” She expressed her view that “[o] ver all, [claimant’s condition] appears to be getting worse” and described his prognosis as “[v]ery poor at this point.” She expressed her doubt that, even if claimant were to participate in certain pain management or cognitive retraining programs, he would ever be able to return to his work as an insurance executive: “I think he could return to something, but I doubt that he would ever be employable at that level again, and that’s being optimistic.” She stated her opinion that claimant was not employable in the field of insurance claims or as vice-president of an insurance company, adding:

“During the first few months of treatment when he was under the care of Dr. Mermis, there was some hope that he would be able to return [to the job he was performing prior to his accident] and, in fact, he was encouraged to try to return to work. Following that trial — During the time that I have been actively involved with Jerry, since that time, no, I do not think he was ever able to go back.”

On cross-examination this witness testified that when claimant was retested in February or March of 1983 he improved “[i]n some ways” but “in many respects he did not.” She stated that she had been aware that he had returned to work but had been unaware that he had, in the words of counsel, “performed to the satisfaction of his employer.” Her understanding of the reason claimant terminated his employment was “that it was a combination of pain complaints and the impaired memory.” Asked, “And therefore were you aware that any evidence of organic brain damage that was demonstrable on either CT scan or EEG had cleared within one year of the original injury?” she answered, “Sure, but that’s a very typical picture.”

On redirect examination she described the limitations of some medical tests, such as the CT scan and electroencephalogram:

“The [CT] Scan specifically can only register gross changes in the brain. It cannot register micro changes that happen at the cellular level, or at the, whatever the next higher level is called. In a closed head injury, the way the brain is situated, it’s encased in a fluid inside the skull. And in Mr. Vevea’s [sic] case, he was moving forward. Something caused him to stop. The brain would rattle around causing a coup and a contrecoup, and that’s where you might be getting things like the frontal lobe injury and the cerebral injury. In addition though, a lot of shearing takes place in the brain, so it’s not just the two areas that are impaired. It affects the subcortical structures. It affects not just the two areas of impact, but it can affect — it can affect other parts of the brain. And in a closed head injury, the typical pattern is that we see this more diffused kind of pattern.”

The witness testified that there can be abnormalities in the brain that a CT scan or an electroencephalogram are unable to detect.

Dr. Bernie Mermis, another psychologist at the Institute of Physical Medicine and Rehabilitation, testified on behalf of the claimant by evidence deposition taken on October 5, 1984. This witness was in overall charge of claimant’s care and treatment at the institute. Dr. Teichmann, he said, was the supervisor in the area of neuropsychological testing. The witness had first seen claimant in the spring of 1981 upon referral, the purpose of which was to aid in a diagnosis. Claimant had two areas of difficulty: a headache since the accident.in November of 1980 and problems related to “functioning cognitively and intellectually.” The witness defined “functioning cognitively” as “[b]eing able to think, being able to problem solve, being able to remember readily various events that occurred.” The witness testified that, although claimant’s “impairment index was below the cutoff to indicate brain damage, other bits of evidence of his performance indicated that he, in fact, was experiencing some impairment in brain function.” The witness drew this conclusion because of the pattern of his complaints and the level of his “premorbid” functioning. Claimant’s functioning on the testing was inconsistent with what one would expect in light of his level of premorbid functioning, as indicated by his prior performance in school and in the workplace. Addressing some of these inconsistencies more specifically, the witness stated that on the portion of the Hal-stead-Reitan called the category test, which is a concept formation test and involves “a lot of very complicated thinking processes,” he showed “a great deal of difficulty,” unexpected from someone “as, assumed to be as bright as Mr. Vevea [sic], as capable cognitively, intellectually, as Mr. Vevea [sic]. That was one of the surprising areas of deficit.” The witness considered the testing to include both objective and subjective components.

The witness’ diagnosis of claimant’s condition was organic brain syndrome subsequent to closed head injury. Dr. Mermis’ judgment was that the condition was associated with the accident of November 4, 1980. With respect to the course of treatment initially planned for claimant, the witness testified that claimant had been “very much interested in” returning to work and that they had suggested he do so and see if he “was able to function,” using extensive note taking and tape recording to compensate for his difficulties with memory. Concerning the requirements of claimant’s job, the witness stated that claimant had reported “great difficulty in even carrying out the duties that he had done very readily in the past.” With reference to the effect of a condition like the claimant’s upon a person functioning at a high intellectual level, as opposed to one functioning at a lower intellectual level, Dr. Mermis explained,

“With brain injury, I think one sees the most dramatic impairments with people who have been very high in their level of functioning prior to injury. As an example, someone who is of average intellectual cognitive skills and is carrying out fairly routine kinds of job activities, after a minor brain injury can very often go back to that kind of a job and carry it out successfully because it really wasn’t requiring all that much of the individual to do the job in the first place. There’s enough left to be able to do the job.
When one deals with a highly technical job, one that requires a great deal of and facility in cognitive functioning, even minor impairments can be devastating. An example of that would be somebody in a job like my own where I need to be constantly attending to various cues, recollect a great deal of information about what’s being presented to me to be able to synthesize that into some conclusion. When you have a brain injury of some sort, even minor, those are the functions that get hit, that are impaired.
So I think that the individuals that we see here who have been very high level functioning individuals premorbidly are the ones who are both personally and functionally most devastated by the brain injury.”

Dr. Mermis saw the claimant about 60 times, seeing him for the last time in December of 1983. His final diagnosis was unchanged, that is, that claimant suffered from the sequelae of a closed head injury, from an organic brain syndrome, and from a chronic, continuous post-traumatic headache. He was of the opinion that the claimant’s condition was related to the accident and that he could not perform the duties of his job. He based this opinion “[bjasically, upon the self report of Mr. Vevea [sic] as to the difficulties he was having with the job and the impact that he was experiencing from trying to function on the job.”

Concerning claimant’s prognosis the witness testified, “I don’t think there’s any way to predict with certainty what’s going to happen with Jerry.” He explained that most of the improvement that is going to occur in brain-injured persons such as claimant will take place within the first 6 to 12 months after injury. Progress for such a patient after the first year is very slow and very small. Therefore, he concluded that claimant “will not make remarkable changes from where he is right now.” He stated that the claimant’s memory function had improved slightly over the cl1k years in which he saw him and that some of his cognitive functioning had improved slightly, but his “pain problem” remained unchanged and, in fact, had deteriorated. The witness testified that, with respect to claimant’s discontinuing work, he had recommended to him “[t]hat he discontinue his position to see whether it would be helpful for him in terms of both the headache and in terms of working more specifically on some of the cognitive intellectual deficits that he was experiencing.” He said that “[s]everal of the physicians seeing him and I suggested numerous times that he consider withdrawing from the job for a period of time to see if that would produce any improvement” and that claimant had done so for a time “with no improvement.” He described claimant as having continued “to push himself to be on the job.”

On cross-examination Dr. Mermis testified that the category test had been given to claimant originally on April 24, 1981, and had been repeated by Dr. Teichmann in March of 1983; upon retesting, the score was still within the impaired range. “The change that did occur,” he said, “according to Dr. Teichmann, was that Mr. Vevea [sic] was much less agitated on this occasion, calmer in dealing with the test materials than he had been on the first occasion.” On the first administration of the category test claimant made 60 errors; on the second he made 58 errors, “a very slight change,” according to Dr. Mermis, who testified that “[t]he impairment cut I believe occurs at approximately 50 errors.” Dr. Mermis stated that most of the results of claimant’s intelligence test were in the “superior” range but there were “some exceptions.” The “total summaries”' of the portions of the tests were all within the superior range, but there were subscales of tests that were not within that range. The result of the Wechsler Memory Scale fell within the “average” range.

Dr. Mermis testified further that, if a person has abnormal neuropsychological test results, one would not expect to have abnormal results from “objective” tests such as brain imaging, CT scan, and neuroencephalogram because such techniques depend upon structural findings. Although damage from bleeding and from a tumor, for example, shows up very readily with the use of such techniques, damage as a result of toxic conditions, for example, does not. “Closed head injury problems rarely show up on the testing techniques *** described,” he said, because such injury appears to cause multiple small injuries undetectable by these techniques.

Dr. Mermis stated that the claimant had become impaired, with respect to functioning in his job, “in having quick access” through his memory to information necessary for making decisions. Further, Dr. Mermis said,

“[h]is memory difficulties were quite significant in that he had to resort to extensive note taking and tape recording of phone conversations in order to be able to recall that he had spoken to a client.
He reported that he would at times have a phone conversation, and five minutes later would be unable to recall any components of that phone conversation.”

The claimant had two areas of difficulty: “Memory and also the problem solving component of the job. That is, being able to put bits of information together to form conclusions about specific questions.” The claimant has, he said, problems with both “retrieval” and “storage”: “He tended to have a great deal of difficulty incorporating new information, so he was unable to build new information into his system that would help him out. To put it in simpler terms, he wasn’t learning the material very well at all when he tried to.” Dr. Mermis expressed the view that the claimant was able to function cognitively “at some level, but it’s my opinion that he’s not able to function the way he did before the injury.” Asked whether claimant would be suited to employment of a routine, repetitive nature requiring little application of the cognitive functions, the witness answered, “I think he would be able to handle that from the perspective of cognitive intellectual demands. What would impair him would be the headache ***.” He described the headache as “a significant impediment to his job performance at Illinois Mutual” and something that “would present a problem in almost any kind of employment for him.” Dr. Mermis testified that there was “no way” of knowing whether the claimant actually suffered from the complaints he described.

Admitted as one of claimant’s exhibits is a Vocational Information Systems Evaluation Report, dated July 31, 1985, and prepared for the employer. The evaluator of this report about claimant was Thomas Frederick, who stated that the report was a continuation of an assessment made by him on August 22, 1984, at the request of respondent’s counsel. Mr. Frederick stated further:

“The first report concluded that, based on his work history, he has many skills which would easily make him employable, but considering his reactions to simple stresses, the headaches, the memory problems, and the psychological implications, he was seen as unemployable.”

Counsel for the employer had requested, Mr. Frederick said, “a second job title search to determine what jobs would be available to Mr. Vevea [sic] assuming the considerations mentioned above are not present or have been overcome.”

Dr. Alex J. Arieff, board certified in the specialties of both neurology and psychiatry, testified on behalf of the employer by evidence deposition taken on October 3, 1985. This witness had examined claimant on October 3, 1983, at the request of the employer. He stated that he had not found a reason for claimant’s headache either “organically or objectively.” Asked whether he had found any organic or objective basis for his complaints concerning a lack of concentration, the witness answered, “Not on my examination except for his mood disturbance, which can produce symptoms of lack of concentration.” He testified that he had found no basis “in an objective or organic sense” of his complaints of memory loss. He said further that “[i]n a purely objective sense” he had found no residuals of a closed head injury, with the exception of things like arm swinging that Dr. Arieff thought were voluntary on claimant’s part. This witness had recommended that claimant have a “good psychological evaluation,” apparently by Dr. Jack Ar-bit, with whom the witness “usually work[s].” The witness concluded that claimant needed psychiatric therapy.

On cross-examination Dr. Arieff testified that organic brain damage “may” affect the brain’s powers in the role of regulating chemicals which, when imbalanced, can cause depression. He expressed the view that claimant’s symptoms were due to a depression for which he was not receiving “proper treatment.” He stated that claimant had suffered organic brain damage “originally after the injury; but people do recover.” Difficulty in concentration is, he admitted, a “[possible” symptom of organic brain damage, but usually a person with organic memory deficit is not aware of it and rarely complains about it. “It may be,” he said, “but it’s rare.”

Testifying on behalf of the employer by evidence deposition taken on October 3, 1985, was Dr. Jack Arbit, a psychologist, who had examined and tested claimant on June 12, 1985, at the employer’s request. He had administered to claimant the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale Form I, the Bender Visual Motor Gestalt Designs test, the Memory for Designs test, and the Halstead-Wepman Aphasia Screening test. He testified that the findings with respect to the test results did not appear to be consistent with a diagnosis of an organic brain disturbance. The claimant’s scores on the Wechsler Adult Intelligence Scale were in the “bright normal” range. Concerning the results of this test, the witness stated further:

“While [claimant] had difficulty with some of the organic sensitive tasks and while this score seemed to be reduced from what had been obtained at prior evaluations, the particular discrepancies noted were not of a pattern that would consistently bespeak a meaningful organic brain disturbance, in that while he obtained lower scores on immediate memory and one of the visual motor tasks, he obtained his highest scores on other tests that are equally sensitive to the presence of an organic brain disturbance.”

In his opinion, if an organic brain disturbance were, in fact, present, there would have been a “correlation or consistency.” The witness stated that, “[i]n terms of the associate learning subtest of the Memory Scale, the pattern of results also seems inconsistent in terms of an organic brain disturbance, since he does not perform in the way one generally finds and comes to expect of people with an organic brain involvement.” He observed that claimant “performs slowly, and to some extent his difficulties seem related to that,” adding:

“Based upon the slowness and this inconsistent function on the associate learning subtest, it was my opinion that the seeming reduction in the memory quotient was not related to an organic problem but to a conscious control of his functions with this instrument.”

By “conscious control,” he said, he meant “volitional” control by the claimant.

Dr. Arbit testified that the Rorschach Psychodiagnostic test, that is, the “inkblot” test, was also administered, the results of which provided “a reasonable and viable alternative explanation for the symptoms and complaints reported by Mr. VeVea.” This alternative explanation, as opposed to one based upon organic brain dysfunction, was “functional,” he said, “meaning that there is a conscious component to the focus upon the somatic complaints that he subjectively reports.” The results of the Minnesota Multiphasic Personality Inventory, also administered, “were a very marked preoccupation with endorsing items that would indicate a most notable agitated depression and fixation upon a rather extensive array of unrelated and inconsistent complaints as to body functions.” Although the witness could give no examples of the complaints about body functions to which he referred, he testified,

“But clearly, in order to get the scores as high as he does on the scales of hypochondriasis and hysteria, he must endorse an inordinate number of items as to bodily ailments, complaints, disturbances, distress that seem to involve an awesome host of physical systems, none of which seem particularly related to each other or consistently present, and none likely to be a manifestation — I’m sorry, and few a manifestation of the kind of injury which he purported to have.”

The terms “hypochondriasis” and “hysteria” he said “[i]n the current instance, *** refer to a fixation and preoccupation with somatic complaints that would seem to bespeak the presence of some need to enhance, to overelaborate, to become obsessed and preoccupied with his physical functioning to an extent greater than would seem objectively reasonable.” He indicated that these test results with respect to hypochondriasis and hysteria support the opinion that from a psychological perspective there is not consistent evidence of organic brain dysfunction because “they show a man who takes great pains and care to elaborate symptoms and complaints that simply don’t fit together in a meaningful fashion.”

On cross-examination Dr. Arbit testified that claimant’s test results showed some overall reduction and some specific difficulty with some of the more organic sensitive material which would “[n]ot necessarily” but “could be” evidence of some organic problem in the brain. He testified further that, assuming that prior intellectual test scores were in the superior range, his own finding indicated a lessening of abilities; he stated that these types of test scores would decrease if a person suffered from organic brain disturbance “[ajmong other things.” Assuming such a decline in an individual’s intellectual test scores, the witness stated that “[a]s a hypothetical instance,” it is “always a possibility” that such a decline would indicate a problem affecting that individual’s learning capability. However, a person’s intellectual test scores can decline in the absence of a problem affecting his learning capability “[w]hen the person is either malingering or consciously distorting so that his performance does not reveal the maximum that he is capable or she is capable of doing.” The witness stated that, based upon his review of the claimant’s records and examinations, he could not rule out the presence of some residual organic brain disturbance.

On redirect examination he testified that the significance he ascribed to claimant’s difficulty with “some organic brain sensitive material” was “[t]hat it was the result of his efforts to enhance the degree of difficulties he was experiencing.” He stated that, if there were, in fact, “evidences” of mild organic brain disturbance, they could not account for the extensive array of complaints manifested by claimant on the Minnesota Multiphasic Personality Inventory and during the conduct of the witness’ examination of him.

The employer called as a witness Lloyd Reed, who is the respondent’s senior vice-president, responsible for, among other things, company property, including the acquisition, sale, and use of automobiles. He stated that he and a subordinate, Charles Kellogg, had inspected the automobile issued to claimant for physical damage shortly after claimant’s return to work in about February of 1981. He testified that upon his inspection he had observed no damage “whatsoever” of any kind to either the exterior or the interior of the vehicle. On cross-examination he testified that this automobile was repaired on September 15, 1981. The witness indicated that he had no knowledge of any damage to this vehicle reported as having occurred after the time of his inspection of it. Although the invoice for these repairs was admitted into evidence as claimant’s exhibit No. 25, it does not appear to be included in the record for review. Testifying about this exhibit, the witness indicated that the repairs that were made to the vehicle on that date by Ron’s Autobody, which regularly serviced the respondent’s vehicles, included repairs to the left door, a taillight, and a park lamp assembly, which is, he said, “part of the corner of the vehicle.” Other repairs made to the vehicle on that date about which the witness testified include aligning and touching up the front bumper fillers, painting the right front fender, and “STR left quarter,” which he stated meant probably to “straighten corner.” The cost of the repairs paid by the respondent was, he said, $350. He testified that he had no information concerning the vehicle’s having been involved in any other incident or accident.

Also testifying on behalf of the respondent was Charles Kellogg, Jr., respondent’s manager of the home office services department in charge of transportation and communications. He stated that in 1980 and 1981 claimant had had a company car issued to him. This witness said that on February 1, 1981, he had had occasion to inspect claimant’s company car with “Bill Reed.” He testified that at that time he found no interior or exterior damage, including any of the four corners of the car and the fenders or quarter panels. He testified further that when he examined the automobile in February of 1981 none of the “matters” shown on claimant’s exhibit No. 25, which is the invoice for repairs made by Ron’s Autobody, were present on the car. He described Ron’s Autobody as “our autobody specialist. Up where we have all our work done on all of our company cars.”

On cross-examination he testified that it is “possible” that he could have overlooked the dent requiring straightening of the quarter panel. He stated that he did not work on Saturdays or Sundays. He said that he knew of no indication in the respondent’s file that the car was involved in any accident or incident after February of 1981 and before the September date of the invoice.

The arbitrator noted in his highly detailed decision that the Commission was taking judicial notice that February 1, 1981, was a Sunday, when Mr. Kellogg would not, according to his testimony, have been working. The arbitrator found that such testimony undermined this witness’ credibility.

Upon review the Commission made the following findings of fact:

“1. [Claimant’s] testimony as to the accident is unrebutted and is corroborated by histories given to Respondent’s claims examiner and to treating medical providers, and is found by the Commission to be credible. The Commission therefore finds that while travelling on November 4, 1980[,] to investigate a claim, [claimant] drove into a ditch to avoid hitting an animal in the roadway, and struck his head, sustaining a fracture of the frontal bone, contusions to the head and eye area with intracerebral hematoma.
2. The Commission relies on [claimant’s] testimony and that of his treating physicians, Drs. Garwacki, Teichmann and Mermis[,] in finding that as a result of the accident [claimant] suffers from headaches, impaired memory and ability to concentrate, such that he is unemployable. Respondent’s vocational evaluation of [claimant] by Thomas Frederick confirms that given the presence of these conditions [claimant] is unemployable.”

It is the function of the Commission to resolve disputed questions of fact, including those of causal connection, to decide which of conflicting medical views is to be accepted, and to draw permissible inferences. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) In the presence of conflicting medical opinion, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. (Material Service Corp., 97 Ill. 2d 382, 454 N.E.2d 655.) The Commission is the judge of the credibility of witnesses. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 454 N.E.2d 252.) It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963; Dunker v. Industrial Comm’n (1984), 126 Ill. App. 3d 349, 466 N.E.2d 1255.) A reviewing court should neither overturn the Commission’s findings simply because a different inference could be drawn nor otherwise substitute its judgment for that of the Commission. Hoegger v. Industrial Comm’n (1987), 158 Ill. App. 3d 1025, 512 N.E.2d 10.

An employee is totally and permanently disabled when he is unable to make some contribution sufficient to justify payment of wages. (Continental Drilling Co. v. Industrial Comm’n (1987), 155 Ill. App. 3d 1031, 508 N.E.2d 1246.) For purposes of section 8(f) of the Act, a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists; conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not totally and permanently disabled. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) A claimant has the burden to prove that no employment is available for a person with his disability unless he is obviously unemployable or unless there is medical evidence to support a claim of total disability; if the employee can establish that although he is not altogether incapacitated for work, he is so handicapped that he cannot be employed regularly in a well-known branch of the labor market, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the employee. (Reynolds v. Industrial Comm’n (1986), 151 Ill. App. 3d 695, 502 N.E.2d 1178.) Causation and the permanency and degree of disability are issues of fact for the Commission, and its award will be set aside only if it is against the manifest weight of the evidence. Continental Drilling Co., 155 Ill. App. 3d 1031, 508 N.E.2d 1246.

In the instant case the Commission expressly found the claimant’s testimony to be credible. As a consequence, it found that the unwitnessed accident occurred under the circumstances described by the claimant. In consequence of its finding that claimant’s testimony was credible and of its reliance upon the testimony of his treating doctors, Drs. Garwacki, Teichmann, and Mermis, the Commission found that he did, in fact, suffer from headaches and impaired memory and ability to concentrate so that he is unemployable. Although the medical opinions were conflicting, there was abundant evidence in the testimony of these three witnesses in particular and the record as a whole to support these findings of the Commission. It was not against the manifest weight of the evidence for the Commission to find that claimant was permanently and totally disabled under section 8(f) of the Act and that claimant suffered accidental injuries arising out of and in the course of his employment on November 4, 1980.

The claimant’s motion to strike the employer’s statement of facts, taken with the case, is hereby denied, and the judgment of the circuit court confirming the decision of the Commission is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    LOCAL 1894, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Plaintiffs-Appellants, v. LEE HOLSAPPLE, Sheriff of Macon County, Defendant-Appellee.
    Fourth District
    No. 4-89-0989
    Opinion filed August 30, 1990.
    Rehearing denied September 24, 1990.

      Stephen A. Yokich, of Cornfield & Feldman, of Chicago, for appellants.
    Lawrence R. Fichter, State’s Attorney, of Decatur, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal involves a complaint for declaratory judgment and for a judgment enjoining defendant, Lee Holsapple, sheriff of Macon County, from using auxiliary deputies for duties that should be performed by regular deputies. The trial court dismissed the original complaint on the basis that the plaintiff union, Local 1894, American Federation of State, County, and Municipal Employees, AFL-CIO (Local 1894), which was the representative of the regular deputies, had no standing to bring the injunction. Plaintiff was allowed to refile its complaint and added John Kendall, a resident taxpayer and deputy sheriff of Macon County, as co-plaintiff. The trial court dismissed the amended complaint on the basis that it merely stated conclusions of fact and law, but allowed plaintiffs the opportunity to replead. Instead, plaintiffs elected to appeal, disputing the trial court’s conclusion that plaintiff’s amended complaint failed to state a cause of action.

We reverse and remand.

I

In January 1989, Local 1894, a voluntary association of deputy sheriffs of Macon County, existing for the purpose of safeguarding the working conditions of its members and for maintaining the professional status of deputy sheriffs, filed a complaint against Holsapple, seeking declaratory and injunctive relief to restrain him from employing auxiliary deputies in violation of section 10.2 of “An Act to revise the law in relation to sheriffs” (Act) (Ill. Rev. Stat. 1987, ch. 125, par. 10.2, now see Ill. Rev. Stat. 1989, ch. 34, par. 3 — 6013). That statute authorizes a county sheriff to employ auxiliary deputies, but prohibits the use of such deputies to perform the duties of regular deputy sheriffs (Ill. Rev. Stat. 1987, ch. 125, par. 10.2).

Among other things, the complaint alleged that Holsapple employed such auxiliary deputies to guard and transport prisoners, to perform routine police patrols, and to provide security at county events. The complaint also alleged that 18 such auxiliary deputies were regularly employed, some for 85 hours per month. Further, the complaint stated that the extensive use of auxiliary deputies was contrary to the public policy set forth in section 10.2 of the Act and endangered public safety. Finally, the complaint stated that the sheriff refused to comply with the statute, despite complaints of regular deputies, and that an injunction was needed to enforce the law.

Defendant moved to dismiss the complaint on various grounds. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) Attached to the motion was the working agreement for 1987-1988 between Macon County, the sheriff of Macon County, and Local 1894. This agreement recognized Local 1894 as the sole and exclusive bargaining representative in all matters establishing and pertaining to wages and salaries, hours, working conditions, and other conditions of employment for all deputy sheriffs. The agreement also provided for certain management rights, including, inter alia, but not limited to the following: to direct all operations of the department; to establish reasonable work rules and schedules of work; to schedule and assign employees in positions within the department; to maintain efficiency of departmental operations; to take whatever action is necessary to comply with State and Federal law, and to determine the methods, means, and personnel by which department operations are to be conducted. Further, the agreement provided for a grievance procedure as follows:

“Definition of a Grievance: A grievance is defined as any difference, complaint or dispute between the Employer and the Union or any Employee regarding the application, meaning or interpretation of this Agreement. This grievance procedure is subject to and shall not conflict with any provisions of the Illinois Public Labor Relations Act.”

The agreement contained no provision for “manning.”

After a hearing, the court granted the motion to dismiss the initial complaint, holding that Local 1894 could not assert the interest of its members without exhausting administrative and contractual remedies. Further, the court held that Local 1894 did not have standing to assert the interests of the general public. The court, did, however, grant leave to replead.

In April 1989, Local 1894 filed an amended complaint. Added to the complaint as plaintiff was Kendall, a resident taxpayer and deputy sheriff of Macon County. Count I of the amended complaint was brought by Kendall and asserted the interests of Macon County residents in the existence of a professional county law-enforcement system and in public safety. Count II of the complaint was brought by Local 1894 and asserted the interests of deputy sheriffs with respect to the terms and conditions of their employment. Defendant again filed a motion to dismiss plaintiffs’ complaint. The court granted the motion.

In its opinion dated August 25, 1989, the court noted that plaintiffs had standing to obtain injunctive relief against violations of the law by defendant. However, the amended complaint was dismissed on the basis that it consisted almost entirely of conclusions of fact and law. The court granted plaintiffs 28 days to file a new pleading.

On October 13, 1989, defendant filed a motion for an order of dismissal. The court granted this motion on November 2, 1989. Plaintiffs appeal from these orders.

II

On appeal, plaintiffs argue that their amended complaint should not have been dismissed because it set forth sufficient factual allegations to state a claim for injunctive relief. Specifically, plaintiffs argue that their amended complaint sets out the terms of the statute limiting the use of auxiliary deputies, and then alleges violations of that statute. Further, plaintiffs argue that their amended complaint sets forth the reasons they seek enforcement of the statute and that Holsapple has continued to employ the auxiliary deputies in violation of that statute despite complaints. In response, defendant argues that plaintiffs have shown none of the elements necessary to entitle them to an injunction.

A

For the purposes of ruling on a motion to dismiss, all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1030, 439 N.E.2d 1319, 1320-21.) Further, a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs the defendants of a valid claim under a general class of cases. Teter v. Clemens (1986), 112 Ill. 2d 252, 256-57, 492 N.E.2d 1340, 1342.

B

Generally, a party seeking an injunction must allege in its complaint (a) possession of a certain and clearly ascertained right which requires protection; (b) irreparable injury if the injunctive relief is denied; and (c) lack of an adequate remedy at law. See Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 377-78, 444 N.E.2d 205, 209.

With regard to the question of possession of a certain and clearly ascertained right which requires protection, plaintiffs have set forth in their complaint the statute under which they are asserting their rights. Under section 10.2 of the Act, the activities of regular deputies may be supplemented by auxiliary deputies as follows:

“Such auxiliary deputies shall not supplement members of the regular county police department or regular deputies in the performance of their assigned and normal duties, except as provided herein. Such auxiliary deputies may be assigned and directed by the sheriff to perform the following duties in the county:
To aid or direct traffic within the county, to aid in control of natural or human made disasters, to aid in case of civil disorder as assigned and directed by the sheriff, provided, that in emergency cases which render it impractical for members of the regular county police department or regular deputies to perform their assigned and normal duties, the sheriff is hereby authorized to assign and direct auxiliary deputies to perform such regular and normal duties. *** Such auxiliary deputies shall at all times during the performance of their duties be subject to the direction and control of the sheriff of the county. Such auxiliary deputies shall not carry firearms, except with the permission of the sheriff, and only while in uniform and in the performance of their assigned duties.
Auxiliary deputies, prior to entering upon any of their duties, shall receive a course of training in the use of weapons and other police procedures as shall be appropriate in the exercise of the powers conferred upon them under this Act, which training and course of study shall be determined and provided by the sheriff of each county utilizing auxiliary deputies, provided that, before being permitted to carry a firearm an auxiliary deputy must have the same course of training as required of peace officers in Section 2 of ‘An Act in relation to firearms training for peace officers.’ ***
Auxiliary deputies may not be paid a salary, except as provided in Section 2 of ‘An Act in relation to the regulation of motor vehicle traffic and the promotion of safety on public highways in counties,’ but may be reimbursed for actual expenses incurred in performing their assigned duty. The County Board must approve such actual expenses and arrange for payment.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 125, par. 10.2.

The complaint filed in January 1989 by Local 1894 against Holsapple alleged, in pertinent part, the following: (1) Local 1894 was the voluntary association of deputy sheriffs of Macon County, existing for the purpose of safeguarding the working conditions of its members and for maintaining the professional status of deputy sheriffs; (2) Local 1894 sought declaratory and injunctive relief to restrain Holsapple from employing auxiliary deputies in violation of section 10.2 of the Act; (3) section 10.2 of the Act authorizes a county sheriff to employ auxiliary deputies, but prohibits the use of such deputies to perform the regular duties of regular deputy sheriffs; (4) Holsapple employed such auxiliary deputies to guard and transport prisoners, to perform regular police patrols, and to provide security at county events; (5) 18 such auxiliary deputies were regularly employed, some for 85 hours per month; (6) the extensive use of auxiliary deputies was contrary to the public policy set forth in section 10.2 of the Act and endangered public safety; and (7) Holsapple refused to comply with the statute, despite complaints of regular deputies. The complaint concluded that an injunction was needed to enforce the law.

The amended complaint filed in April 1989, adding Kendall as co-plaintiff, asserted essentially the same facts. However, Kendall brought count I of the amended complaint and asserted the interests of Macon County residents in the existence of a professional county law-enforcement system and in public safety, and Local 1894 brought count II of the amended complaint and asserted the interests of regular deputy sheriffs with respect to the terms and conditions of their employment.

We conclude that plaintiffs alleged in their amended complaint the possession of a certain and clearly ascertained right which requires protection.

With regard to the question of irreparable injury, plaintiffs allege in count I of their amended complaint that an injunction is necessary to ensure the existence of a professional county law-enforcement system and to protect public safety. In count II of their complaint, plaintiffs allege that section 10.2 of the Act, in providing limited authority to a sheriff to appoint and employ auxiliary deputies, was not intended to permit the sheriff thereby to supplement the members of or the duties of regular county deputy forces. Plaintiffs contend that section 10.2 was intended to preserve the terms and conditions of employment for regular deputies. Thus, plaintiffs assert that the continuing actions of Holsapple, despite their complaints, are in contravention of the prescribed limitations of work functions for auxiliary deputies and are intended to and have the effect of providing a nonsalaried, amateur, supplementary county police force, contrary to public policy and the professional interest of the regular deputies.

In SSA Foods, Inc. v. Giannotti (1982), 105 Ill. App. 3d 424, 426-27, 434 N.E.2d 460, 463, plaintiff alleged in its complaint that (1) defendants breached their contract by opening a restaurant under the name “Vic Giannotti in Franklin Park”; (2) defendants persisted in their use of that name despite repeated requests by SSA to discontinue its use; (3) defendants were in direct competition with SSA; and (4) defendants’ continuous use of the name caused confusion to SSA’s customers and injured SSA’s reputation and business. The trial court granted the injunction.

On appeal, the defendants contended that the injunction was improperly issued because it was based upon an insufficient complaint. Defendants argued that the complaint was based upon plaintiff’s conclusion that it suffered irreparable harm and that no facts were alleged to substantiate this claim. The court found, however, that an allegation of loss of business alone was a sufficiently specific factual allegation of irreparable injury. The court found that for purposes of establishing a right to injunctive relief, irreparable harm did not mean injury that was beyond repair or beyond compensation in damages. Rather, it denoted transgressions of a continuing nature. SSA Foods, 105 Ill. App. 3d at 427-28, 434 N.E.2d at 463-64.

Likewise, in Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 473 N.E.2d 78, this court held that injunction was proper even though the plaintiff failed to state in his complaint that he had requested defendants to remove a barrier; that defendant had acted in violation of his rights; and that any damage or injury would be sustained by him if injunctive relief was not granted. Bond, 129 Ill. App. 3d at 803, 473 N.E.2d at 83-84.

Based upon the foregoing cases, we conclude plaintiffs alleged sufficient facts in their amended complaint to indicate irreparable injury.

With regard to the question of the lack of an adequate remedy at law, plaintiffs allege in their complaint that prior to the filing of their lawsuit, Holsapple had full knowledge of plaintiffs’ complaints that he was using auxiliary deputies in violation of State law. Plaintiffs claim that the continued failure of Holsapple to comply with the law demonstrates that the unlawful conduct will continue unless and until the court issues injunctive relief. Plaintiffs then assert that said continuing conduct means that Kendall has no remedy at law. In response, defendant contends that plaintiffs have failed to exhaust their administrative remedies before seeking injunctive relief.

It is true that when a matter can be decided by an administrative agency, courts are generally required to defer to the appropriate agency. The purpose of this rule is to enable matters which require specialized or technical expertise to be decided by a tribunal possessing those qualities. (Semmens v. Board of Education of Pontiac Community Consolidated School District No. 429 (1989), 190 Ill. App. 3d 174, 178, 546 N.E.2d 746, 748.) There are, however, exceptions to this rule.

In Semmens, this court concluded that the broad reach of the Illinois Educational Labor Relations Act (Educational Labor Relations Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.) did not cover that case. The school district, realizing the problems arising by the lack of verification in regard to its motion to dismiss, maintained the face of the complaint showed a dispute over which only the Illinois Educational Labor Relations Board had jurisdiction. The complaint, however, merely alleged the existence of an educational employer and educational employees and the failure of the employer to comply with section 24 — 9 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 9). No mention was made of a collective-bargaining agreement requiring arbitration or providing for a grievance procedure. (Semmens, 190 Ill. App. 3d at 179, 546 N.E.2d at 749.) Thus, the court held that the sole remedy given by the Educational Labor Relations Act to employees, where no collective-bargaining agreement was shown to be in force, was to seek a determination under section 15 of the Educational Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1715). (Semmens, 190 Ill. App. 3d at 179, 546 N.E.2d at 749.) No indication was given that plaintiffs should have grieved the issue of which they complained or requested the education association to submit it to arbitration because the question of a free lunch period was not covered by the collective-bargaining agreement. Semmens, 190 Ill. App. 3d at 181, 546 N.E.2d at 750.

Here, we have a somewhat similar situation. Defendant’s latest motion to dismiss set forth the collective-bargaining agreement between the parties, but that agreement does not cover the subject of “manning.” Thus, the instant dispute is not subject to arbitration under the provisions of section 8 of the Illinois Public Labor Relations Act (Public Labor Relations Act), which provides for “arbitration of disputes concerning the administration or interpretation of the agreement.” (Ill. Rev. Stat. 1987, ch. 48, par. 1608.) Further, the instant dispute does not involve an unfair labor practice under the provisions of section 10 of the Public Labor Relations Act. (Ill. Rev. Stat. 1987, ch. 48, par. 1610.) Thus, here, as in Semmens, the instant dispute concerns alleged violations by the employer of a statute enacted for the benefit of the employees.

The dispute before us does not fall within the scope of the Public Labor Relations Act. Nonetheless, public policy requires the existence of an adequate avenue of resolution when a dispute arises between a union of public employees and management. Because the Illinois Public Labor Relations Board in County of Kane v. Randall (1990), 194 Ill. App. 3d 1029, 1034-35, 551 N.E.2d 1117, 1120-21, lacked jurisdiction in a labor dispute involving an employer and an official, the appellate court found that the circuit court was the only body capable of legally resolving that labor dispute. The same holds here.

Injunctive relief will be granted when a public official’s acts are arbitrary and capricious and he abuses his discretion, or if fraud, corruption, or gross injustice are shown to underlie his discretionary actions, a court may provide injunctive relief. (Arnold v. Engelbrecht (1987), 164 Ill. App. 3d 704, 707, 518 N.E.2d 237, 239.) Additionally, injunctive relief will be granted against public officials with respect to their official acts if those acts are either outside their authority or unlawful. (Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 422, 468 N.E.2d 1019, 1026.) An employer’s action which is in contravention of a clearly mandated public policy gives rise to a cause of action, which is independent of any contract remedy that the employee may have. (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 149, 473 N.E.2d 1280, 1283.) In such circumstances, a plaintiff need not plead the exhaustion of grievance procedures to sustain a cause of action. Midgett, 105 Ill. 2d at 152, 473 N.E.2d at 1285.

Because, in the present case, plaintiffs’ amended complaint clearly shows the lack of any other remedies, the exhaustion requirement is fully complied with.

C

As a last matter, we note that plaintiffs have not addressed before this court that part of the trial court’s order that dismisses plaintiffs’ cause of action for declaratory judgment. Because we find that plaintiffs’ request for declaratory relief is so intertwined with plaintiffs’ request for injunctive relief, we find it necessary to discuss this issue also.

A complaint for a declaratory judgment must meet the requirements of section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701). The essentials of a declaratory judgment are (1) a plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests, though there need not be any act in violation of such interest. See Griffin v. County of Cook (1938), 369 Ill. 380, 398, 16 N.E.2d 906, 915 (Stone, J., specially concurring).

In the present case, we find that plaintiffs have satisfied these three requirements. As we discussed in part II B of this opinion, plaintiffs alleged in their amended complaint the possession of a certain and clearly ascertained right which was provided to them by section 10.2 of the Act. This right is the equivalent of a “legal tangible interest.” Plaintiffs also alleged in their amended complaint that defendant employed auxiliary deputies contrary to this interest. Thus, we conclude that the second and third requirements of section 2 — 701 of the Code of Civil Procedure have likewise been met.

Ill

Accordingly, we hold that the trial court erred when it stated that plaintiffs’ amended complaint consisted almost entirely of conclusions of fact and law. The order dismissing plaintiffs’ amended complaint is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

LUND and GREEN, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    NOMA WEST, Plaintiff-Appellant, v. PERRY M. KIRKHAM et al., Defendants (The City of Urbana, Defendant-Appellee).
    Fourth District
    No. 4-89-0840
    Opinion filed July 26, 1990.
    Modified on denial of rehearing September 25, 1990.
    Andrew J. Kleczek, of Kelly & Kleczek, of Joliet, for appellant.
    Anne C. Burr and Howard W. Small, both of Thomas, Mamer & Haughey, of Champaign, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Noma West filed a damage action against defendant City of Urbana (City) to recover for injuries sustained in an automobile accident on June 9, 1988. The City responded with a motion for summary judgment. The trial court granted that motion, citing the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104). Plaintiff now appeals, arguing the trial court erred in granting summary judgment in favor of the City. We reverse.

Plaintiff originally filed a two-count complaint for damages against defendants Perry M. Kirkham (Kirkham) and Wheels, Inc., on October 12, 1988. She subsequently filed an amended four-count complaint naming Pfizer, Inc., and the City as additional defendants on January 3, 1989. This appeal concerns only count IV directed against the City.

The complaint alleged the automobiles driven by plaintiff and Kirkham collided at the southeast corner of the Lincoln Avenue-Bradley Street intersection in Urbana, Hlinois. She was driving south on Lincoln, attempting to turn left onto Bradley, at the same time Kirkham was driving north through the intersection.

Plaintiff asserts her view of the Kirkham automobile was blocked by two vehicles stopped in the northbound left-turn lane on Lincoln Avenue. She further asserts her view was obstructed by the fact the Kirkham automobile was hidden in the dip of the Lincoln roadway south of the intersection. Plaintiff was not able to observe the Kirkham automobile until after she proceeded past the northbound left-turning traffic and Kirkham had passed through the dip into the Lincoln-Bradley intersection. See map attached as appendix.

Traffic is controlled with lights for both northbound and southbound lanes at the intersection of Lincoln Avenue and Bradley Street. In contrast with its northbound lanes, the southbound lanes on Lincoln Avenue do not have either a separate left-turn lane or a left-turn arrow on the control light for traffic turning onto Bradley Street. Southbound traffic is only permitted to turn left at the intersection when the control light is green for northbound traffic. Northbound traffic is not permitted to turn left onto Bradley at that time. Reversing the pattern, southbound traffic is stopped at the intersection when the left-turn arrow on the control light is green for northbound traffic. The speed limit on Lincoln Avenue is 30 miles per hour.

Based on the foregoing factual allegations, plaintiff asserted the City is guilty of negligence for the following three reasons: (1) failure to provide southbound Lincoln traffic with a left-turn arrow on the control light at the intersection; (2) failure to provide a sign warning of the dip in the Lincoln roadway south of the intersection; and (3) failure to provide northbound Lincoln traffic with a speed-control sign at the dip in the roadway. The City denied these assertions in its answer to the amended complaint.

On August 14, 1989, the City filed a motion for summary judgment in the cause. Relying on the Act to support its motion, the City alleged plaintiff’s complaint failed to state a cause of action as a matter of law. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) The City asserted it had no duty as a municipality to initially provide traffic-control lights at the intersection in question under Illinois law. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) Moreover, the City next asserted Kirkham’s testimony established the lights it had provided at the intersection were fully operational at the time of the accident. (Ill. Rev. Stat. 1987, ch. 85, par. 3— 102.) Finally, even assuming it had a duty to warn, the City asserted that testimony also established the accident was not proximately caused by the alleged dip in the Lincoln roadway.

The cause proceeded to hearing on September 27, 1989. After hearing arguments of counsel, the trial court granted summary judgment in favor of the City as to count IV of the amended complaint. The court cited the Act as controlling law in the cause. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) Ultimately, the trial court ruled the City did not owe any duty to provide either traffic-control lights or signs at the intersection as a matter of law under the Act. The court then allowed this immediate appeal. 107 Ill. 2d R. 304(a).

Plaintiff argues the trial court erred in citing the Act as controlling law in the cause.

The Act provides:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.

This cause is factually analogous to Smith v. County of White (1989), 191 Ill. App. 3d 569, 548 N.E.2d 19. In Smith, the plaintiff was injured when the car she was riding in as a passenger failed to negotiate a curve and collided with an oncoming vehicle. The driver of the former car was given no warning of the curve. In direct contrast, however, the driver of the latter vehicle was provided with both a curve warning sign and a reduced-speed-limit sign.

In its analysis, the Smith court noted the Act provides a municipality with immunity from tort liability for only the initial failure to provide traffic-control signs. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) Under the facts presented, the defendant had actually engaged in partial regulation of traffic on the roadway. Accordingly, the court remanded the cause for determination of whether the defendant owed a duty to warn of a hazardous roadway condition. Smith, 191 Ill. App. 3d at 575-77, 548 N.E.2d at 23-24.

Under the Smith analysis, the Act does not control in this case. The facts here show the City had provided traffic-control lights in an asymmetric manner at the Lincoln Avenue-Bradley Street intersection. The City provided a separate left-turn lane and a left-turn arrow on the control light for northbound Lincoln traffic turning on to Bradley, without like provision for southbound traffic, even though the approach through the intersection is identical for both directions of traffic. The City has thus chosen to provide a regulatory traffic control device for northbound motorists but not for southbound motorists. Such a showing precludes the City from tort liability immunity under the Act. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) It is also alleged the City did not warn motorists of the dip in the Lincoln roadway immediately south of the intersection. Plaintiff alleges traffic passing through the dip toward the intersection drops momentarily from the view of oncoming motorists. In our view, under the Act, the City has no obligation to warn of the dip in the roadway. The Act has been amended since the occurrence in Smith, and the trial court was correct in concluding the City did not owe a duty to provide any warning of the dip or a speed-control sign at the dip. Ill. Rev. Stat. 1987, ch. 85, par. 3— 104.

The purpose of summary judgment is to determine whether any genuine issue of material fact exists in an action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(d).) Summary judgment benefits both individual litigants and the community at large by disposing of those actions which lack material factual disputes to avoid the congestion of court dockets and the expense of unnecessary litigation. (Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 192, 405 N.E.2d 453, 455.) Despite these benefits, summary judgment is a remedy to be awarded with caution so as not to preempt any litigant from presenting the full factual basis for her cause of action. Accordingly, a litigant’s right to summary judgment must be clear beyond question in an action. Perlman v. Times, Inc. (1978), 64 Ill. App. 3d 190, 194, 380 N.E.2d 1040, 1044.

Applying these principles here, we find the trial court erred in granting summary judgment in favor of the City. A municipality has a duty to maintain public roads within its boundaries in a reasonably safe •condition. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102.) The circumstances of this case present a genuine issue of material fact whether the City’s failure to provide a turn arrow for southbound Lincoln traffic turning onto Bradley after it had chosen to initially provide such an arrow for northbound traffic made the roadway dangerous at this intersection.

We reverse the order of summary judgment and remand the cause for further proceedings.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.

APPENDIX


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM H. NOBLE, Defendant-Appellant.
    Fourth District
    No. 4-90-0001
    Opinion filed September 5, 1990.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Donna Dagnall, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in McLean County, defendant, William Noble, was convicted of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and sentenced to eight years’ imprisonment. On appeal, defendant contends the trial court abused its discretion when, after defendant declined his right of allocution, the court asked him questions and considered his responses when determining the sentence. We affirm.

On August 31, 1988, defendant was charged by information with residential burglary. (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3.) The charges brought against defendant arose out of an incident where defendant drove two juveniles to the target of the burglary and stored stolen items in his residence.

On September 11, 1989, this case was tried before a jury. At trial, defendant argued he unwittingly drove the two juveniles to the target of the burglary and, at most, unknowingly stored some of the stolen items. After hearing the evidence and being instructed under an accountability theory, the jury found defendant guilty of the offense of residential burglary.

On November 2, 1989, a sentencing hearing was held. The trial judge took judicial notice of both the presentence investigation report, filed on October 30, 1989, and the facts adduced at trial. The report was admitted into evidence. The State recommended the defendant be sentenced to a term of six to eight years with credit for time served. Counsel for defendant requested a minimum term. Following recommendations from both attorneys, the trial court asked defendant if he wished to make any comments. The defendant responded, “No, sir,” thereby declining his right of allocution. The court then asked defendant questions regarding information within the presentence investigation report such as prior convictions and admitted heavy use of drugs and alcohol. After a series of questions, the court, while still referring to the report, summarized the factors considered and sentenced defendant to eight years’ imprisonment. Defendant insists he is entitled to a new sentencing hearing.

The sole issue presented for review is whether the trial court abused its discretion at the sentencing hearing when, after defendant declined to exercise his right of allocution, the court asked questions and considered defendant’s responses when determining the sentence.

The State initially argues waiver since defendant failed to make a timely objection below, and did not file a post-trial motion, raising the issue for the first time on appeal. People v. Compton (1990), 193 Ill. App. 3d 896, 899, 550 N.E.2d 640, 642; People v. Jolliff (1989), 183 Ill. App. 3d 962, 970, 539 N.E.2d 913, 918.

We need not resolve the question whether waiver applies to alleged trial court errors committed during the sentencing hearing since we disagree with defendant’s contentions on the merits. The trial court is in a better position to assess the proper sentence to be imposed than a court of review. Absent an abuse of discretion on the part of the trial court (People v. Andrews (1989), 132 Ill. 2d 451, 464, 548 N.E.2d 1025, 1031), a sentence imposed within the statutory limits will not be disturbed on review (People v. Clark (1989), 191 Ill. App. 3d 505, 507, 548 N.E.2d 120, 122).

Residential burglary is a Class 1, nonprobationable felony, and carries a sentence of imprisonment not less than 4 years and not more than 15 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 3(b), 1005 — 5—3(c)(2)(G), 1005 — 8—1(4).) Defendant’s sentence of eight years’ imprisonment is within the statutory limits.

Both the United States Supreme Court and the Illinois Supreme Court have held when determining an appropriate sentence, a court should have possession of the most information possible concerning the defendant’s life and characteristics. Williams v. New York (1949), 337 U.S. 241, 247, 93 L. Ed. 1337, 1342, 69 S. Ct. 1079, 1083; People v. Meeks (1980), 81 Ill. 2d 524, 535, 411 N.E.2d 9, 15.

Factors a court may consider when determining an appropriate sentence include the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, abnormal or subnormal tendencies, natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and something of his life, family, occupation, and criminal record. (People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 590, 601; People v. Heredia (1989), 193 Ill. App. 3d 1073, 1083, 550 N.E.2d 1023, 1029.) Both the Illinois Supreme Court and this court have approved trial courts’ consideration of the defendant’s attitude when determining an appropriate sentence. (People v. Morgan (1974), 59 Ill. 2d 276, 281-82, 319 N.E.2d 764, 767-68; People v. Oravis (1980), 81 Ill. App. 3d 717, 719, 402 N.E.2d 297, 299.) A trial court may also consider the lack of penitent spirit or remorse shown by the defendant. Morgan, 59 Ill. 2d at 282, 319 N.E.2d at 768; People v. Mosley (1980), 87 Ill. App. 3d 903, 905-06, 409 N.E.2d 381, 383.

A trial court is not confined to the evidence presented at trial when determining an appropriate sentence. The court may search anywhere, within reason, for facts which will assist in the sentencing process. (People v. Ely (1982), 107 Ill. App. 3d 102, 107, 437 N.E.2d 353, 357.) The only limitation to such inquiry is the information considered must be accurate and reliable. Meeks, 81 Ill. 2d at 535, 411 N.E.2d at 15.

The areas covered in the court’s inquiry were defendant’s prior criminal record and admitted prior drug use. Both issues were included in the presentence investigation report which the court referred to while determining an appropriate sentence. The defendant himself furnished the probation officer with the information on his use of drugs and alcohol. As the State argues, if a court may search anywhere within reason for information pertinent to defendant’s sentence, certainly the presentence investigation report is a legitimate source. No case law supports defendant’s contention this line of inquiry is improper at a sentencing hearing. In fact, every factor considered has been expressly held to be appropriate. Dukett, 56 Ill. 2d at 452, 308 N.E.2d at 601; Heredia, 193 Ill. App. 3d at 1083, 550 N.E.2d at 1029.

The fact the questioning at issue began after defendant declined to exercise his right of allocution is irrelevant. The right of allocution affords defendant “the opportunity to make a statement in his own behalf.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 4—1(a)(5).) Defendant contends the questioning after he declined his right of allocution could only hurt him. We disagree. The trial court already had before it the presentence investigation report which indicated a history of damaging information. The court did not inquire into additional information, but merely sought to insure the accuracy of the information already available. If defendant’s sentence was aggravated because of this line of inquiry, it is only because of his evasive responses and attitude when answering questions the court was justified in asking. The right of allocution does not give defendant a right to deny the court access to accurate information needed for sentencing.

Other factors made this inquiry essential to a proper sentence. During sentencing recommendations from the attorneys, it became apparent the State and defense counsel disagreed on how many prior convictions defendant had as well as the nature of these convictions. Given the court’s constitutional duty to determine an appropriate sentence by weighing the seriousness of the crime against defendant’s potential for rehabilitation (Ill. Const. 1970, art. I, §11), along with the court’s interest in verifying the accuracy of all information furnished which may affect defendant’s sentence (Ely, 107 Ill. App. 3d at 107, 437 N.E.2d at 357), the inquiry was appropriate and necessary.

The trial court was ready to impose a sentence immediately following the attorneys’ recommendations. Certainly, there was enough information in the presentence investigation report to do so. However, the judge, hearing the disagreement regarding defendant’s prior convictions, apparently felt it was in order to explore the accuracy of this information before sentencing defendant. The best way to resolve such disputes regarding the life of the defendant may be to ask the defendant himself.

While questioning defendant on his prior convictions, defendant could not seem to remember even the most obvious details. The court then asked defendant about his prior drug and alcohol use listed in the presentence investigation report. The trial court noted many of defendant’s responses to these questions were evasive and inconsistent.

In an attempt to determine defendant’s potential for rehabilitation, the court considered the presentence investigation report, the defendant’s criminal history, habits, age, credibility, character, demeanor, mentality, and lack of remorse. Consideration of any and every one of these factors is permissible. (Dukett, 56 Ill. 2d at 452, 308 N.E.2d at 601.) The court then sentenced defendant to eight years’ imprisonment. As required by statute, the court gave its reasons for imposing this sentence (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(b)) and emphasized the lack of remorse exhibited by defendant.

The trial court’s sentencing procedures were not only within the boundaries of the law, but thorough as well. Even if defendant had not waived this issue for review, there was no abuse of discretion by the trial court. Accordingly, defendant’s request for a new sentencing hearing is denied.

Affirmed.

GREEN and STEIGMANN, JJ., concur.