author: JUSTICE GOLDENHERSH

text:
    JOSEPH CAMILLO, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 90—0254
    Opinion filed November 25, 1991.
    — Rehearing denied December 23, 1991.
    William C. Evers III, of Collinsville, for appellant.
    Stephen J. Maassen, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Joseph Gamillo, appeals from the judgment of the circuit court of Madison County for defendant, Wal-Mart Stores, Inc., entered after the jury returned a verdict against plaintiff finding that he was not entitled to a pro rata share of an assistant manager’s bonus following his termination from defendant’s employ. In this cause, the issue we are asked to consider is whether, as a matter of law, plaintiff is entitled to a pro rata share of an assistant manager’s bonus. We reverse.

Plaintiff began his employment with defendant on June 26, 1982, as an assistant manager trainee. Plaintiff was initially informed of the bonus program in question on that date. In January 1983, plaintiff was promoted to the position of assistant manager. He was transferred to Fulton, Kentucky, in June of 1983. After two years in Kentucky, plaintiff was transferred to a store in Collinsville at his request. Plaintiff worked at the Collinsville store until his termination on December 31, 1986. Initially, plaintiff earned a salary of $250 per week. At the time of his termination, plaintiff was earning $375 per week. Plaintiff claimed that he was always given small raises but was induced to work the requisite 54 hours per week or more by the promise of the bonus. Representatives for defendant stated that the bonus paid to assistant managers was based solely upon length of service coupled with defendant’s profits for the year as provided for in the management benefits program. Plaintiff received a bonus in all previous years of his employment.

The testimony showed that plaintiff experienced a series of reprimands regarding his work habits beginning in July 1986. Plaintiff was criticized on a number of occasions for sloppy housekeeping in his departments. Plaintiff was also criticized for not having his areas properly stocked. On one occasion, a regional vice-president observed plaintiff to be out of stock in a number of areas. In an attempt to motivate plaintiff, he was sent to another store for a week to learn office procedure in order to make him eligible to attend a regional management training seminar. Plaintiff took his scheduled day off during that week. The district manager, Curtis Morgan, was displeased that plaintiff took the day off and failed to work an entire week learning office procedure. Morgan felt it was one more indication of plaintiff’s lack of enthusiasm for his job. Due to this incident, and due to plaintiff’s overall lack of performance, plaintiff was given a decision-making day with pay for the purpose of deciding whether he wanted to continue his employment with defendant. The following day, plaintiff met with Curtis Morgan and stated that he wanted to continue working for defendant and would do all that was required of him. Plaintiff wrote a letter to this effect.

Plaintiff stated that he worked all his scheduled days in 1986. Plaintiff admitted, however, that there were days when he was asked to work extra but refused to do so. He took approximately two days off in order to attend his wife’s grandmother’s funeral. In order to do this, plaintiff traded time with other assistant managers and did not miss working the required number of hours. In early December 1986, plaintiff asked to be relieved of an assignment to Wisconsin because his wife was pregnant and due at any time. This request was granted. Plaintiff agreed that during 1986 he would not “go the extra mile for Wal-Mart.”

Plaintiff was given two written evaluations in 1986, one in March and one in October. Overall, both evaluations indicated that plaintiffs performance was “satisfactory.” Around the time of the October evaluation, plaintiff was told that he would not receive his usual pay raise for a period of 30 days. At the end of that 30 days, plaintiff’s performance was to be reevaluated to determine whether he was entitled to his pay raise. The pay-raise issue was never discussed again. The Christmas shopping season began and all parties worked additional hours, as defendant does 30% of its annual business during the Christmas shopping season.

On December 31, 1986, at approximately 5 p.m., plaintiff was called to the office by Dennis Tidwell, the store manager, and Curtis Morgan, the district manager, and was terminated. At that time, Morgan told plaintiff that he did not think retail was for plaintiff. Morgan believed that plaintiff needed to try some other field. After plaintiff was told he was terminated, he inquired as to whether he would receive his assistant manager’s bonus. According to plaintiff, he was told by Morgan and Tidwell that he would get a pro rata share. According to Tidwell and Morgan, plaintiff was told that he might be entitled to a pro rata share, but that they would have to check with the home office. It was later determined that plaintiff was not entitled to a pro rata share of the assistant manager’s bonus.

Plaintiff brought this action to recover “wages” or “final compensation” under the Illinois Wage Payment and Collection Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 1 et seq.). Plaintiff alleged at trial that he was entitled to a pro rata share of an assistant manager’s bonus which had been set out in the management benefits program established by defendant. That program provided:

“Our assistant managers are paid a bonus each year. The amount of the bonus is based on two things, corporate net profit and length of service. Length of service is determined from either your hire date as an assistant manager, or promotion date to Phase II trainee. The assistant manager or Phase II trainee must be hired or promoted by November 1st each year to qualify for any bonus. There are four categories of length of service for determining the amount of the bonus:
(a) Three months to six months;
(2) Six months to one year;
(3) One year to three years;
(4) Over three years.
The assistant manager’s bonus year is the same as the company’s fiscal year, February 1 through January 31. The assistant manager must be on the payroll and actively working on January 31, or they will forfeit their bonus.”

At trial, plaintiff did not allege that the termination was a breach of an employment contract, as plaintiff agreed that he was an at-will employee. Plaintiff claimed that he was entitled to a pro rata share of the assistant manager’s bonus. The parties stipulated that had plaintiff worked the entire 1986 fiscal year, from February 1, 1986, to January 31, 1987, plaintiff would have received a bonus of $6,045.22. Both plaintiff and defendant made motions for summary judgment which were denied. The jury found that plaintiff was not entitled to any portion of the assistant manager’s bonus. After the jury returned its verdict, plaintiff made a motion for judgment notwithstanding the verdict (judgment n.o.v.), which was denied.

On appeal, plaintiff contends that the trial court should have entered judgment for plaintiff as a matter of law because the bonus in question was an earned bonus to which he was entitled to a pro rata share under section 2 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 2). Section 2 of the Act states, in pertinent part:

“For all employees, other than separated employees, ‘wages’ shall be defined as any compensation owed an employee by an employer pursuant to an employment contract or agreement between the 2 parties, whether the amount is determined on a time, task, piece, or any other basis of calculation. Payments to separated employees shall be termed ‘final compensation’ and shall be defined as wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties.” (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 2.)

Section 5 of the Act provides, in pertinent part:

“Every employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee.” (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 5.)

Plaintiff further argues that public policy mandates payment of a pro rata share of the bonus. According to plaintiff, that provision of defendant’s program requiring employment on a specific date violates the requirements of good faith and fair dealing found in every contract. In support of his position, plaintiff cites Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 494 N.E.2d 581, in which two employees terminated from their positions were required to be compensated for earned vacation pay pro rata even though they had not worked the entire calendar year as required by an agreement between the parties. Plaintiff also cites Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d 520, 459 N.E.2d 1038, which held that severance pay is a form of deferred compensation, the right to which vests as much as the right to receive wages. Plaintiff argues that the bonus in question is analogous to vacation pay and severance pay and urges us to reverse the trial court’s decision, finding that as a matter of law the bonus in question was earned and that plaintiff is therefore entitled to a pro rata share.

Defendant responds that the trial court properly refused to enter judgment for plaintiff as a matter of law because the management benefits program specifies that bonus payments are to be made only to persons actually in defendant’s employ on January 31. Defendant contends that the language in the management benefits program is clear and unambiguous and contains a permissible condition precedent. Specifically, defendant contends that it is permissible to require an employee to be employed on a specific date in order to qualify for his bonus. In support thereof, defendant cites Wilson v. La Salle Manufacturing & Machine Co. (1978), 58 Ill. App. 3d 219, 374 N.E.2d 30. Moreover, defendant contends that the Act does not supersede or replace the provisions for compensation agreed upon by the parties in the management benefits program, as the Act merely is an instrument to be used to assist an employee in recovering wages. We find that while both parties’ arguments are intriguing and thought-provoking, we are persuaded by the precedents set forth by our colleagues in the first district in Golden Bear and Kulins.

Before trial, both parties moved for summary judgment. Summary judgment is only appropriate if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) Summary judgments are to be granted with great caution and only where the moving party’s right to such is clear and free from doubt. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496.) After the verdict was entered, plaintiff moved for a judgment n.o.v. In its order denying plaintiff’s motion for judgment n.o.v., the trial court stated:

“Basically, the plaintiff reargues his Motion for Summary Judgment which was heretofore denied by the Court. His argument for Summary Judgment is not so clear that he is entitled to judgment without trial. Certain fact issues remained for resolution and were resolved by the Jury herein. The Jury considered language of the statutes relied on by Plaintiff and decided against any recovery. The resolution of this legal argument is not so clear or apparent to the Court that the Jury’s verdict should be set aside ***.”

While we agree with the trial court that it was inappropriate to enter summary judgment, we do not agree with the trial court’s decision to deny plaintiff’s motion for judgment n.o.v. A plaintiff movant is entitled to a judgment n.o.v. only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Here, the evidence, when viewed in the light most favorable to defendant, so overwhelmingly favors plaintiff that the jury’s verdict cannot stand.

The real issue is what the General Assembly meant by the term “earned bonus.” The Act itself fails to define “earned bonus.” Likewise, the Act fails to define “earned vacation.” (See Ill. Rev. Stat. 1989, ch. 48, par. 38m — 1 et seq.) In Golden Bear Family Restaurants, Inc. v. Murray, a question arose as to the meaning of “earned vacation.” The plaintiffs in that case, a restaurant chain and a retail department store, sought declaratory judgments that the Department of Labor had unreasonably interpreted section 5 of the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1981, ch. 48, par. 39m — 5) by ruling that employees earned vacation pro rata. (Golden Bear Family Restaurants, Inc., 144 Ill. App. 3d at 625, 494 N.E.2d at 587.) The employers had maintained in written policies that their employees would not be entitled to any vacation unless they remained employed into the following calendar year. As a result, an employee of the restaurant who was discharged after lO1^ months of employment and an employee of the retail store who was discharged after ll3/4 months of employment received no compensation for their vacation time after discharge. Upon filing of wage claims with the Department of Labor, both employees were awarded accrued vacation wages. The trial court agreed with the Department of Labor’s interpretation of the statute, and its decision was affirmed by our colleagues in the first district, who stated:

“We conclude that [the Department of Labor’s] interpretation of the Illinois Wage Payment and Collection Act — that an employee earns vacation pay pro raía — was reasonable and consistent with Illinois law and the law of other jurisdictions. Giving the language of the Act its plain and ordinary meaning, we disagree with plaintiffs’ contentions that the statute looks to the employment contract or employment policy to define an earned vacation. The Act expressly includes the monetary equivalent of earned vacation as part of the final compensation to discharged employees (Ill. Rev. Stat. 1981, ch. 48, par. 39m — 2). Further, section 5 expressly forbids an employment contract or employment policy to forfeit an employee’s earned vacation pay upon separation. Ill. Rev. Stat. 1981, ch. 48, par. 39m — 5.
The vacation policies of plaintiffs do precisely this. Under both policies, Murray and Kilroy did not earn vacation pay pro rata; rather, their vacation pay depended on specific dates and was subject to forfeiture. Thus, plaintiffs’ vacation plans violate section 5 of the Act.
Section 5 of the Act is also consistent with Illinois law. Generally, a party to a contract may not take advantage of a condition precedent the performance of which he has rendered impossible. (Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 966-67, 419 N.E.2d 634, 639, citing Goldstein v. Rosenberg (1947), 331 Ill. App. 374, 375, 73 N.E.2d 171, 172.) Further, when an employee renders services to an employer, her right to receive the compensation that the employer promised vests as much as her right to receive wages or any other form of compensation. The lack of a promise to vest does not revoke the employer’s obligation to pay. The employer must return those benefits that he derives from the continued labor of the employee. (Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d 520, 526, 459 N.E.2d 1038, 1044.) Additionally, we have held that an employee earns severance pay, another form of compensation, in part each week that he or she works. 121 Ill. App. 3d 520, 525, 459 N.E.2d 1038.” Golden Bear, 144 Ill. App. 3d at 626-27, 494 N.E.2d at 589.

Kulins, cited in Golden Bear, was a class action suit brought by ex-employees of the defendant, a corporation, who moved for summary judgment as to their right to recover severance pay under the defendant’s original severance pay policy initiated in 1967 rather than the defendant’s 1975 modified policy which substantially decreased severance pay benefits. The trial court granted summary judgment for the plaintiffs and held that the 1975 policy terms were to be applied prospectively only and plaintiffs were entitled to severance pay earned under the 1967 policy. On appeal, the defendant argued that the plaintiffs did not have a vested right to severance pay under the 1967 policy. The First District Appellate Court held that severance pay is a benefit for which employees work as much as they work for any other benefit held out to them as compensation by the employer, and it accrues during each year that an employment agreement is in effect, not only on the date that it becomes payable. (Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d at 525-26, 459 N.E.2d at 1044.) When services are rendered, the right to receive the promised compensation is vested so that pursuant to the 1967 policy, for every year of service, an employee’s right to one week’s severance pay vested. (121 Ill. App. 3d at 526, 459 N.E.2d at 1044.) The Kulins court also found support for its conclusion that severance pay is a vested right incapable of retroactive modification in the doctrine of promissory estoppel. The Kulins court commented:

“Promissory estoppel, an equitable device invoked to prevent a person from being injured by a change in position made in reasonable reliance on another’s conduct, is comprised of the following elements: (1) a promise (2) which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promissee [sic], (3) which induces such action or forbearance, and (4) which must be enforced in order to avoid injustice. (Feinberg v. Pfeiffer Co. (Mo. App. 1959), 322 S.W.2d 163, 167-68; Hilton v. Alexander & Baldwin, Inc. (1965), 66 Wash. 2d 30, 31-32, 400 P.2d 772, 773-74.) In the present case, pursuant to the terms of the 1967 policy, Maleo promised to pay severance benefits to plaintiffs in return for their continued employment. This promise induced plaintiffs to forego their right to seek and accept other employment which resulted in the benefit to Maleo of industrial peace and avoidance of unrest on the part of its employees during a time of financial difficulty. Plaintiffs’ reliance is presumed from both the contractual nature of their employment and from the continuation of their employment. (See Anthony v. Jersey Central Power & Light Co. (1958), 51 N.J. Super. 139, 143 A.2d 762; Martin v. Mann Merchandising, Inc. (Tex. Civ. App. 1978), 570 S.W.2d 208.) To allow Maleo to retract its promise on the eve of termination, after years of reliance by plaintiffs would run counter to the fundamental principles of equity and justice, and raise a serious question as to Maleo’s compliance with the implied covenant of good faith, central to every contract. (See Rao v. Rao (7th Cir. 1983), 718 F.2d 219.)” 121 Ill. App. 3d at 527-28, 459 N.E.2d at 1045.

Applying the principles set forth in Golden Bear and Kulins to the case at bar, we find that “earned vacation” and “earned bonus” should be interpreted similarly and that the proper interpretation is that, with a bonus such as the one in question, the employee earns the bonus pro rata just as he earns vacation pay pro rata. The employer set forth a condition precedent, namely employment on January 31, the last day of its fiscal year, and then made it impossible for plaintiff to fulfill that condition by firing him on December 31, 1986. Plaintiff worked the entire Christmas season, a notoriously difficult time for retail employees, only to be discharged as the last of the holiday shoppers exited and the rush of the season came to an end. Plaintiffs written evaluations throughout the year all indicated that plaintiffs job performance was “satisfactory.” The last such evaluation was written in October 1986. The requirements of honesty and fair dealing require us to agree with plaintiff that he was entitled to a pro rata share of his bonus.

The principle of promissory estoppel is also applicable here. Defendant promised plaintiff a large bonus in return for his hard work during a minimum 54-hour work week. The bonus in question is not a mere pittance, but constitutes over 25% of plaintiff’s earnings for the year. The promise of such a large bonus induced plaintiff to stay at the job.

Defendant cites Wilson v. La Salle Manufacturing & Machine Co. (1978), 58 Ill. App. 3d 219, 374 N.E.2d 30, for support of its position that it is permissible to require an employee to be employed on a specific date in order to be eligible for a bonus. While Wilson does support defendant’s position, it is clearly distinguishable from the case at bar. First, Wilson was not brought to recover “wages” or “final compensation” under the Act (Ill. Rev. Stat. 1989, eh. 48, par. 39m — 1 et seq.), as was the instant case. Second, the bonus in question in the Wilson case differed from this bonus plan. In Wilson, the bonus payments were made only to employees employed as of the date of payment, but the additional funds resulting from nonqualification of former employees became part of the bonus pool for current employees at time of payment of the bonus. (Wilson, 58 Ill. App. 3d at 220, 374 N.E.2d at 31.) In the instant case, plaintiff’s uncollected bonus was not redistributed by defendant to its current employees, but was retained by defendant as profit. Wilson is distinguishable.

We are mindful of the latitude employers must have in operating their businesses and that intrusion into the business affairs of a corporation is not always desirable. (See Kulins, 121 Ill. App. 3d at 528, 459 N.E.2d at 1045.) We would not want this opinion to serve as a chilling effect on true “bonuses” given by employers to employees. Black’s Law Dictionary defines a “bonus” as “[a] consideration or premium paid in addition to what is strictly due. A gratuity to which the recipient has no right to make a demand.” (Black’s Law Dictionary 182 (6th ed. 1990).) However, the bonus in question is clearly compensation to which defendant was entitled to a pro rata share. Black’s Law Dictionary does not give a separate definition for earned bonus, but does give the following definition for the word “earn”: “To acquire by labor, service or performance *** to merit or deserve ***.” (Black’s Law Dictionary 508 (6th ed. 1990).) Plaintiff’s service to defendant for 11 months of defendant’s 1986 fiscal year entitles him to a pro rata share of the assistant manager’s bonus.

We find that the trial court erred in refusing to enter a judgment n.o.v. for plaintiff. As the parties agree that $6,045.22 would have been plaintiff’s bonus had he been employed by defendant on January 31, plaintiff is entitled to eleven-twelfths of that amount. We therefore enter judgment for plaintiff in the amount of $5,541.45.

For the foregoing reasons, the order of the circuit court of Madison County is reversed.

Reversed.

LEWIS and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE CHAPMAN,

license: Public Domain

text:
    JAMES NEIL LOWRANCE, Plaintiff-Appellant, v. MARION PEPSI-COLA BOTTLING COMPANY, Defendant-Appellee.
    Fifth District
    No. 5-90-0775
    Opinion filed November 7, 1991.
    — Rehearing denied December 18, 1991.

      CHAPMAN, J., specially concurring.
    Paul Thomas Austin, of Marion, for appellant.
    Elizabeth J. Dibble, of Marion, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, James Neil Lowrance, brought an action in the circuit court of Williamson County to recover damages from defendant, Marion Pepsi-Cola Bottling Company (the Company). Plaintiff’s complaint was in two counts. Count I alleged that the Company had discharged plaintiff in retaliation for filing a workers’ compensation claim. Count II claimed that the Company had wrongfully refused to award him an all-expense-paid Hawaiian vacation he had won as part of a company sales promotion. On the Company’s motion, the circuit court entered summary judgment against plaintiff on count I of his complaint. The circuit court made an express written finding that there was “no just reason for delaying enforcement or appeal,” and this appeal followed. (134 Ill. 2d R. 304(a).) We reverse and remand for further proceedings.

As grounds for its summary judgment motion, the Company argued that plaintiff was precluded from bringing a civil action for retaliatory discharge because of the res judicata effect of an earlier administrative decision which had denied plaintiff unemployment benefits on the grounds that he had actually left the Company’s employ voluntarily. In support of its res judicata claim, the Company submitted six documents that the Illinois Department of Employment Security had sent to it. These included a notice that plaintiff had filed an unemployment claim; a statement from the Illinois Department of Labor, Bureau of Employment Security, Division of Unemployment Insurance, that plaintiff had not received a waiting-period credit or benefits for “any week of unemployment including or subsequent to 12-21-86”; a “Notice of Claims Adjudicator’s Determination”; a “Notice of Reconsideration and Appeal” from the Division of Unemployment Insurance; a “Notice of Appeal and Hearing” from the Department of Employment Security; and a “Referee’s Decision” from the Benefit Appeals Subdivision of the Department of Employment Security which dismissed the plaintiff's appeal on the grounds that he had failed to appear at the hearing for that appeal.

These documents indicated that plaintiff was ineligible for unemployment benefits because he had “left work voluntarily” within the meaning of section 601 of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 431). Although plaintiff did not seek judicial review of this determination, the circuit court agreed with the Company that it had preclusive effect and prevented plaintiff from now attempting to assert that he was a victim of a retaliatory discharge. In support of its position, the circuit court cited Martinez v. Admiral Maintenance Service (1987), 157 Ill. App. 3d 682, 510 N.E.2d 1122, which found that a plaintiff could not bring an action for retaliatory discharge where the Board of Review of the Illinois Department of Labor had upheld a decision denying plaintiff unemployment benefits on the grounds that she had been discharged for misconduct connected with her work. Subsequent to the circuit court’s ruling, a similar result was reached in Osborne v. Kelly (1991), 207 Ill. App. 3d 488, 565 N.E.2d 1340, which affirmed summary judgment against an employee in a retaliatory discharge case where the employee had previously been denied unemployment benefits on the grounds that he had voluntarily left his employment without good cause attributable to the employer.

Plaintiff argues that this precedent was incorrectly decided and should be rejected. We need not reach this issue, however, for plaintiff raises a more fundamental objection to the trial court’s decision. He asserts, as he did before the trial court, that under the express language of section 1900 of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 640), the documents related to his unemployment compensation claim were inadmissible and could not be used in any fashion in his civil action. This argument was not raised in either Martinez or Osborne, but we believe that it is dispositive. Section 1900 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 640) expressly states:

“Except as provided in this Section, information obtained from any individual or employing unit during the administration of this Act shall:
1. be confidential,
2. not be published or open to public inspection,
3. not be used in any court in any pending action or proceeding,
4. not be admissible in evidence in any action or proceeding other than one arising out of this Act.”

The cloak of confidentiality created by this statute is not limited to the actual information provided by the claimant or the employing unit. It embraces all evidence concerning whether an individual is or is not receiving unemployment benefits. Accordingly, it has been held that in a civil action unrelated to the Unemployment Insurance Act, the fact that the plaintiff received unemployment cannot be disclosed even where it is based not on Department records, but on testimony by a Department employee based on his own knowledge and recollection. (Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 320, 156 N.E.2d 361, 365.) The statute has also been construed to bar a grand jury from considering evidence that an individual has received unemployment compensation benefits even where the very target of the grand jury’s investigation was whether the individual’s receipt of those benefits was fraudulent and constituted theft in violation of section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1). People v. Ellis (1984), 128 Ill. App. 3d 180, 470 N.E.2d 524.

A contrary position was recently taken by a panel of the Appellate Court, First District, in Colvett v. L. Karp & Sons, Inc. (1991), 211 Ill. App. 3d 731, 570 N.E.2d 611, but that case was able to reach the result it did only by ignoring the foregoing precedent. Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 156 N.E.2d 361, and People v. Ellis (1984), 128 Ill. App. 3d 180, 470 N.E.2d 524, were not even mentioned. Instead, the court relied on the language of section 1900.1 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 640.1). By its terms, however, that provision is only concerned with protecting employers and others from being sued for slander and libel based on communications made in the administration of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.). It has nothing whatever to do with the situation now before us.

The Company protests that it would be unfair to permit plaintiff to take advantage of the confidentiality rule of section 1900 of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 640) in his civil action for retaliatory discharge. Our dictum in McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 224, 481 N.E.2d 787, 796, notwithstanding, we find this argument unpersuasive. Section 1900 of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 640) enumerates specific situations where information ob-tamed during the administration of the Act can be disclosed. Civil actions for retaliatory discharge are not among them. The legislative mandate as expressed in the Act is clear and unambiguous. Information obtained in accordance with the Act cannot be used in any court in any collateral litigation. Just as a court cannot create an exception under the Act for situations involving malice or fraud (see People v. Ellis (1984), 128 Ill. App. 3d 180, 183, 470 N.E.2d 524, 526), we will recognize no exception for unfairness. If the question of disclosure should be based on a weighing of equities, that is something which the legislature must address.

For the foregoing reasons, the Company should not have been permitted to adduce the various documents related to plaintiff’s unemployment compensation claim. As those documents were central to the circuit court’s entry of summary judgment, the circuit court's decision cannot stand. Accordingly, the order of the circuit court of Williamson County granting summary judgment in favor of the Company on count I of plaintiff’s complaint is reversed, and this cause is remanded for further proceedings consistent with our opinion.

Reversed and remanded.

GOLDENHERSH, J., concurs.

JUSTICE CHAPMAN,

specially concurring:

While I concur with the result reached by the majority, I cannot agree "with its reasoning in its entirety. The case must be reversed and remanded as the admission of defendant’s exhibit B, the “Reason for Separation-Explanation” form, which was filled out by the plaintiff himself, was a clear violation of section 1900 of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 640). However, I find the opinion of the majority too sweeping, in its claim that section 1900 “embraces all evidence concerning whether an individual is or is not receiving unemployment benefits” (221 Ill. App. 3d at 626). This is untenable. Such a broad assertion flies in the face of the plain language of the statute and creates a dilemma where none need exist. The evidence found privileged in Smith and Ellis involved a statement and questionnaires provided by an employee and employer, respectively, to the Department of Labor (Department). These are clearly examples of “information obtained from any individual or employing unit” (emphasis added) (Ill. Rev. Stat. 1989, ch. 48, par. 640) and, as such, were properly found privileged under the statute. But Smith clearly states that “the prohibition of the statute is not directed to records of the Department of Labor, but rather *** the disclosure of ‘information obtained from any individual.’ ” (Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 320, 156 N.E.2d 361, 365.) These decisions are not factually inconsistent with McMahon or Colvett, both of which dealt with the use of Department records and final decisions, not information obtained from any claimant or employer.

My disagreement is with the majority’s broad language. It may be that Department records and decisions are so intertwined with the “information obtained” that not even the final decision should be used, or it may be that the Department’s final decision could be reviewed independently of the information obtained. This question, however, was not addressed by the trial court. I would not hold, as does the majority, that all documents in the file are inadmissible. I would reverse so that the trial court could examine the documents to determine whether the “information obtained” is so intertwined with the final decision as to preclude the latter’s admissibility.

As the trial court’s ruling on the issue I have addressed could eliminate the issue of res judicata, I will not address it further other than to note that I have serious misgivings about its application in cases of this type. To impose an administrative tribunal’s finding on either the employee or the employer in a future retaliatory discharge action may not be fair to either. The administrative hearing may be concerned with only a few hundred dollars while the retaliatory discharge suit may involve a claim of several hundred thousand dollars and may be accompanied by a punitive damages count. I point this out not to suggest that smaller claims do not merit the consideration that larger claims do, but to emphasize that either side might treat the smaller claim more lightly. This rationale is evidenced by the exclusion of prior traffic court convictions. (Smith v. Andrews (1965), 54 Ill. App. 2d 51, 62, 203 N.E.2d 160, 166.) These convictions often result from expediency, convenience or compromise. Such rulings often lack the adequate assurances of reliability and constitutional safeguards to warrant admission, much less grant res judicata effect. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 910, 469 N.E.2d 708, 721.) Likewise, the automatic imposition of res judicata effect under the instant circumstances may not be appropriate.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JOE GAITHER, Defendant-Appellant.
    Fifth District
    No. 5-89-0783
    Opinion filed December 4, 1991.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles C. Roberts, State’s Attorney, of Olney, for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, William Joe Gaither, was found guilty of battery in violation of section 12 — 3(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)) and was sentenced to 364 days in the county jail. In this cause defendant raises the following contentions: (1) that he was not proven guilty of battery beyond a reasonable doubt, (2) that the trial court erred in admitting evidence regarding other acts of abuse, and (3) that the penalty provided for the offense of battery as applied to this case violates the constitutional assurances of proportionate penalties and due process. We affirm.

Defendant was charged with aggravated battery of a child in violation of section 12 — 4.3(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.3(a)). The charge alleged that on March 8 or 9, 1989, defendant “lifted Kelly Gomes upside down by the leg thereby breaking both bones in the lower leg (right) of Kelly Gomes.” The case went to trial on September 20 through 22, 1989. At that time, the following evidence was adduced.

The victim, Kelly Gomes, was born on August 4, 1988. Kelly’s mother is Dustie Gomes. Dustie Gomes and defendant, who was not Kelly’s natural father, were living together at 926 West Elm Street, Olney, on March 8 and 9. During questioning by the Olney police department, defendant told Officer Rich Chaplin that Kelly came before him as far as Dustie was concerned. However, defendant told Officer Chaplin that this did not bother him. Defendant also told Officer Chaplin that he never mistreated Kelly. Defendant was also questioned by Officer Fyffe. According to Officer Fyffe’s testimony, defendant initially denied that he abused Kelly, but upon further questioning, defendant admitted that he hurt Kelly because he was angry at Kelly. He told Officer Fyffe that Kelly was not his child, but that he cared for Kelly’s mother. During this questioning, defendant initially denied ever holding Kelly suspended by his foot or feet, but later admitted to suspending Kelly in the air by his feet. Defendant stated that while doing this he had supported Kelly’s head and had jerked him up and down in order to play with him. Defendant also advised Officer Fyffe that on April 20, he had picked Kelly up by the skin on his neck without supporting his body. Defendant admitted to Officer Fyffe that he had put his hand over Kelly’s mouth and had pinched Kelly’s nose, thereby cutting off the infant’s air supply. Later, defendant denied he had ever shut off Kelly’s air supply.

Sheila Linxwiler and her son, Eric Degroot, also lived at 926 West Elm with defendant, Dustie Gomes, and Kelly Gomes. The two had moved into the home on March 7, 1989. Sheila Linxwiler testified that a few days after she moved in, she saw defendant dangling Kelly by his right ankle. Sheila Linxwiler was sitting at the kitchen table with Eric and Dustie. She heard Kelly crying, and when she looked up, she saw defendant dangling Kelly by his right ankle. She also saw defendant give Kelly four or five quick jerks by the ankle. Ms. Linxwiler described Kelly’s cry on this occasion as an “alarming” cry and as a “shriek.” She stated that Kelly cried for approximately 10 to 15 minutes after this incident. She also testified that during the five weeks she lived at 926 West Elm, she saw defendant mistreat Kelly on other occasions. Specifically, she described at least two incidents after the dangling incident wherein she saw defendant set Kelly on either a table or on the sink and poke Kelly in the chest with his index finger. When questioned about why she failed to tell a worker for the Department of Children and Family Services (DCFS), Brad Leckey, who visited the house in late March, about any of these incidents, Sheila Linxwiler testified that she was trying to protect Dustie Gomes. She did not want DCFS to take Kelly away from Dustie.

Eric Degroot, who was 16 years old at the time of trial, moved into 926 West Elm on March 7, 1989, along with his mother, Sheila Linxwiler. He also stated that one or two days after they moved to this location, he saw defendant holding Kelly by his right leg and shaking or jerking him. Eric stated that he saw defendant shake Kelly up and down approximately 10 times, which caused Kelly to cry for a “couple” of minutes. Eric testified about other times when he saw defendant mistreat Kelly. Eric stated that he saw defendant “flip” the baby in the face hard enough to make the baby cry. On the 19th or 20th of April he heard Kelly crying, and upon checking to see why Kelly was crying, he witnessed defendant holding Kelly by the skin around his throat and shaking him. Kelly’s head was going back and forth, and the infant was screaming. Sometime in April, Eric saw defendant put his hand over Kelly’s nose and mouth long enough to make Kelly gasp for air, approximately 5 to 10 seconds. He saw defendant do this about four or five times. In March, Eric saw defendant put a three- or four-inch-long syringe filled with a liquid, which at the time defendant described as “piss,” into Kelly’s mouth and push it down his throat. Eric admitted that he did not tell Brad Leckey from DCFS about these incidents even though Leckey questioned him concerning incidents of abuse. After Eric’s direct examination, defendant made a motion for mistrial, arguing that the probative value of the testimony concerning defendant’s forcing urine down Kelly’s throat did not outweigh the prejudice of this testimony. Defendant’s motion for mistrial was denied.

Sherry Brauer of DCFS testified about her interviews conducted on April 20 and 21, 1989, with those living at 926 West Elm. During her interviews, Ms. Brauer became concerned about Kelly’s condition and took him to the emergency room. She noticed a swelling of his right extremity. On April 21, 1989, Kelly was admitted to the hospital and examined first by Dr. Rodriguez, the emergency room physician.

Dr. Rodriguez found Kelly to be withdrawn and unresponsive to stimulation. He noticed some bruises on Kelly’s face and an abrasion or some discharge on the left side of Kelly’s neck. Dr. Rodriguez ordered X rays of Kelly’s lower extremities. The X rays showed the presence of a “green-stick” fracture on both the right tibia and right fibula located approximately one centimeter from the ankle joint. A green-stick fracture occurs in children because their bones are not yet completely developed and do not snap like the bones of an adult. Green stick refers to a piece of young wood that does not snap but rather bends and leaves a crease where the stress has been applied.

Dr. David Benson, a pediatrician, also treated Kelly. Dr. Benson noticed that both of Kelly’s ankles were swollen. He confirmed a green-stick fracture, but he stated that the fracture would not be expected to come from a trauma occurring as much as six weeks earlier but rather was the result of a more recent trauma. Dr. Peter Weber, an orthopedic surgeon, reviewed Kelly’s X rays. He confirmed a green-stick fracture of the distal tibia and probably fibula. Dr. Weber opined that this injury could have been the result of Kelly having been held upside down by his ankle and jerked. In Dr. Benson’s opinion, the fracture occurred within one week of the time the X ray was taken.

Several witnesses testified for the defense. Dustie Gomes testified concerning the incident in question. She stated that she saw defendant hold Kelly with his hands around Kelly’s ankles and behind Kelly’s neck. She did not see defendant shake Kelly. Dustie Gomes admitted she made the statements at the Olney police department that she believed defendant wanted her son dead; however, upon redirect examination, she stated that when making that statement on April 21, 1989, she believed defendant had broken Kelly’s leg. Since that time, Dustie Gomes stated that she has changed her mind and no longer believes that defendant broke Kelly’s leg.

Velma Zimmerle, defendant’s mother, testified that her son did not mistreat Kelly. She did not see defendant poke or squeeze Kelly. However, Ms. Zimmerle admitted that she did not see defendant or Kelly after January 1989.

Defendant testified on his own behalf. He denied picking Kelly up by his ankle on March 8 or 9. During cross-examination, defendant stated that he remembered talking to Officer Fyffe on April 21 and admitting to Officer Fyffe that he had picked Kelly up by one foot and then both feet and turning him upside down in the air; however, later in the cross-examination, defendant stated that he told Officer Fyffe that he had picked Kelly up by the calves. Defendant demonstrated to the jury the way in which he had held Kelly. The record describes this demonstration as defendant having his right hand under Kelly’s calves and his left hand under Kelly’s back or neck area. Defendant stated that he rocked Kelly in this position. Defendant did not recall telling Officer Fyffe that his actions toward Kelly were mean rather than playful. Defendant stated he was not angry or jealous of Kelly.

Defendant’s father, William Gaither, Sr., testified for his son. William Gaither, Sr., was involved in an affair with Sheila Linxwiler during March and April of 1989. When William Gaither visited the home at 926 West Elm to see Ms. Linxwiler, he never saw defendant pinching or poking Kelly.

The stipulated testimony of DCFS worker Brad Leckey was admitted, as Leckey was unavailable for trial. Leckey conducted an investigation on March 29, 1989, concerning the alleged child abuse of Kelly Gomes. At that time, Eric Degroot told Brad Leckey that no one was mean to Kelly. Leckey’s records do not indicate that he observed any bruising or swelling of Kelly’s right ankle.

During rebuttal, the State offered testimony of two officers from the Olney police department who had interviewed Dustie Gomes. Both officers testified that Dustie told them that both she and defendant had wished they did not have Kelly and at times wished Kelly was dead.

At the close of the evidence, defense counsel moved for directed verdict on the grounds that the State had failed to prove Kelly had suffered any physical harm. Defendant also argued that there was no evidence in the record to support the charge that defendant did anything to Kelly on March 8 or 9, 1989, the dates in the charging instrument, that would have caused great bodily harm. The court directed a verdict for defendant as to the aggravated battery but submitted the case to the jury on the lesser-included offense of battery. After deliberation, the jury found defendant guilty of battery, and defendant was sentenced to 364 days in the county jail.

The first issue is whether defendant was proven guilty of battery beyond a reasonable doubt. Defendant argues the State failed to prove that Kelly Gomes suffered bodily harm as a result of any actions by defendant on either March 8 or 9, 1989, and therefore, the battery conviction should be reversed.

There need not be direct evidence of injury to sustain a conviction of battery based upon bodily harm. (People v. Rotuno (1987), 156 Ill. App. 3d 989, 992, 510 N.E.2d 463, 465.) Our supreme court has said that “[although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required.” (People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633, 635-36.) Basically, evidence of contact between a defendant and the victim, combined with the jury’s common knowledge, is sufficient to establish that a defendant’s conduct has caused bodily harm. (Rotuno, 156 Ill. App. 3d at 992, 510 N.E.2d at 465.) For example, in Rotuno, this court found that evidence that the defendant kicked a police officer in his legs and midsection while the officer was trying to push the defendant into a police car with the assistance of another officer and that such attempts were unsuccessful until a citizen stopped to assist both officers was sufficient to prove by circumstantial evidence that the officer who was kicked suffered some physical pain. (156 Ill. App. 3d at 992-93, 510 N.E.2d at 465-66.) Likewise, in People v. Claudio (1973), 13 Ill. App. 3d 537, 300 N.E.2d 791, it was found that kicking of police officers was in and of itself “causing bodily harm” within the meaning of section 12 — 3 of the Code (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3) even though both police officers in that case testified that they did not sustain any injuries. Claudio, 13 Ill. App. 3d at 540, 300 N.E.2d at 793.

In the present case, Eric Degroot and his mother, Sheila Linxwiler, both testified that defendant had Kelly suspended in the air, upside down, dangling by his right ankle. In this position, defendant jerked Kelly a minimum of four times according to both witnesses’ testimony. Both testified that Kelly cried after this incident. The cry was described as a “shriek” or “an alarming cry” and was said to have continued for some time afterward. While defendant and Dustie Gomes related different versions of this event, both admitted that Kelly was crying, and defendant admitted that he was not holding Kelly in the proper manner in which a baby should be held. The trial court directed a verdict on the aggravated battery charge because the State did not prove beyond a reasonable doubt that the “green-stick” fracture suffered by Kelly and diagnosed on April 21, 1989, was attributable to the incident on March 8 or 9. Even though the green-stick fracture may not have been caused by defendant’s actions some six weeks earlier, the evidence was sufficient for the jury to conclude that defendant did, indeed, cause physical pain necessary to constitute physical harm within the meaning of section 12— 3(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)). As stated in People v. Garrett (1973), 11 Ill. App. 3d 142, 296 N.E.2d 44, where the defendant challenged the sufficiency of the evidence as to bodily harm inflicted:

“As to each of these contentions we are inclined to hold that there are questions of fact to be resolved by the trier of fact. It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of the disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. [Citations.] We will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt. [Citation.] We do not find the evidence in this case to be so improbable as to raise a doubt as to the defendant’s guilt.” (11 Ill. App. 3d at 145, 296 N.E.2d at 46.)

Likewise, in the case at bar, we find that there was sufficient evidence to sustain the conviction for battery.

The second issue we are asked to consider is whether the trial court erred in admitting evidence of other acts of abuse to Kelly Go-mes by defendant. Defendant contends that these other incidents were irrelevant to the issue whether defendant had committed the battery charged in the information and prejudicial in that the evidence of other incidents suggested that other crimes of violence had been committed against Kelly Gomes by defendant. The State responds that these other incidents were relevant and that the probative value of these other incidents outweighed their prejudice. We agree with the State.

Generally, evidence of other crimes is inadmissible if relevant only to establish the defendant’s propensity to commit crimes. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Evidence of another crime may be used only when the other crime has some threshold similarity to the crime charged, since it is the similarity which increases the relevance of the evidence and ensures that it is not being used only to establish the defendant’s criminal propensities. (People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59, 66.) Evidence of the commission of another crime is admissible when such evidence is relevant to prove motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, citing People v. Lehman (1955), 5 Ill. 2d 337, 342-43, 125 N.E.2d 506, 509.) Moreover, the admission of evidence is within the sound discretion of the trial court, and its ruling will not be disturbed absent a clear showing of abuse. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

In the instant case, the battery by defendant to Kelly Gomes on March 8 or 9 was established by the testimony of Eric Degroot and Sheila Linxwiler. Defendant’s own testimony concerning this incident, that he held Kelly by his calves, seems unconvincing. Had defendant not committed this battery, he most likely would not remember how he held Kelly on the dates in question, as nothing would have been out of the ordinary. Defendant’s testimony in this regard, along with Dustie Gomes’ testimony concerning the incident in question, was disjointed. The jury could certainly have deduced that both were not telling the truth. However, we believe that the additional testimony allowed by the trial court concerning other acts of abuse was relevant to the issue whether defendant committed this particular battery. The evidence of other crimes against Kelly Gomes by defendant was relevant to show defendant’s intent and absence of an innocent frame of mind. When evidence of other crimes is offered to prove the absence of an innocent frame of mind or presence of criminal intent, general areas of similarity between the crimes will suffice. (People v. McKibbins (1983), 96 Ill. 2d at 185-86, 449 N.E.2d at 825; see also People v. Bartall (1983), 98 Ill. 2d 298, 456 N.E.2d 59.) We believe the testimony that defendant poked Kelly, “flipped” Kelly’s face with his finger, held Kelly by the skin of his throat with his thumb and forefinger, held his hand over Kelly’s mouth and nose for 5 to 10 seconds, and pushed urine in a syringe down Kelly’s throat showed sufficiently similar incidents, in that they all involved incidents of abuse against Kelly Gomes by defendant, to make the testimony admissible on the issue of intent. Moreover, these other incidents tended to show that defendant’s conduct on March 8 or 9 was not a mistake — that defendant did not inadvertently pick Kelly up incorrectly or play with him too roughly. Rather, these incidents tend to show that defendant was pursuing a course of conduct consisting of similar acts. This raises an inference that during the incident in question defendant had the requisite intent and was not acting under a mistake. See generally 2 J. Wigmore, Evidence §302 (Chadbourn rev. ed. 1979).

In further support of our decision that the trial court did not abuse its discretion in allowing testimony concerning other incidents of abuse, we note that the trial court did not allow the State to introduce all incidents of abuse by defendant to Kelly. For example, the trial court granted defendant’s motion in limine to exclude evidence that defendant had blown marijuana smoke in Kelly’s face. In considering the relevancy of that evidence, the trial court found that the probative value did not outweigh the prejudice to defendant. The trial court found that defendant would be severely prejudiced by the jury learning of defendant’s illicit drug use. We also note that the jury was given a limiting instruction concerning how to consider the evidence of other acts of abuse committed against Kelly Gomes by defendant. The following instruction was tendered by the State and given without objection:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the information. This evidence has been received solely on the issue of defendant’s intent or design. This evidence may be considered by you only for the limited purpose for which it was received.”

Defendant contends that this limiting instruction was insufficient to overcome the prejudicial effect of the evidence of other crimes. We disagree.

As previously stated, we find that the trial court was within its discretion to allow the evidence of similar acts of abuse to Kelly Go-mes by defendant to be admitted. The trial court properly instructed the jury as to why this evidence of other offenses had been introduced, and we believe that the probative value of this evidence outweighed its prejudicial effect.

The final issue raised by defendant is whether the penalty provided for the offense of battery as applied to this case violates the constitutional assurances of proportionate penalties and due process. We find that it does not.

Defendant was convicted of battery, a misdemeanor, and was sentenced to 364 days in the county jail, the maximum sentence allowed. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—3(a)(1).) Because the offense involved physical harm, defendant is denied the misdemeanant good-behavior allowance. (See Ill. Rev. Stat. 1989, ch. 75, par. 32.) Defendant argues, however, that he could have been convicted of cruelty to a child (Ill. Rev. Stat. 1989, ch. 23, par. 2368), a Class 4 felony. Had defendant been convicted of cruelty to a child rather than a misdemeanor battery, and had defendant been sentenced to the maximum nonextended term for a Class 4 felony, which is three years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(7)), he would have been eligible for day-for-day good-behavior credit (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 6—3(a)(2)) and up to 90 days’ additional good-behavior credit for meritorious service (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 6— 3(a)(3)), thereby reducing a three-year sentence to one year and three months. Therefore, defendant would serve three months and one day more on the cruelty-to-a-child felony conviction than he would for serving the maximum sentence for his battery conviction. However, defendant contends that he would only have been required to serve a one-year sentence on a conviction for cruelty to a child because he would have been eligible for 180 days’ additional good-conduct credit for meritorious service rather than only 90 days of such good-conduct credit, since defendant contends that section 3 — 6—3(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 6— 3(a)(3)), as amended, is unconstitutional. Defendant argues that section 3 — 6—3(a)(3) treats similarly situated persons, those who are serving sentences of imprisonment for offenses involving actual or physical harm, differently than others in that section 3 — 6—3(a)(3) denies the additional 90 days’ meritorious-conduct credit for particular offenses but allows the additional credit for what defendant claims are comparable and, in some instances, more serious offenses.

In answer to defendant’s argument, we note first that we are not dealing with section 3 — 6—3(a)(3) of the Unified Code of Corrections, as defendant was not convicted of cruelty to a child. One cannot question the constitutionality of a statute unless he is injuriously affected by the alleged unconstitutional provision. (Liberty National Bank v. Collins (1944), 388 Ill. 549, 559, 58 N.E.2d 610, 614.) We need only consider whether the penalty scheme now in place is in violation of our constitution.

Article I, section 11, of our constitution requires “the legislature, in defining crimes and their penalties, to consider the constitutional goals of restoring an offender to useful citizenship and of providing a penalty according to the seriousness of the offense.” (People v. Taylor (1984), 102 Ill. 2d 201, 206, 464 N.E.2d 1059, 1062.) Under the State’s police power, the legislature has wide discretion to prescribe penalties for defined offenses. (People v. Morris (1990), 136 Ill. 2d 157, 161, 554 N.E.2d 235, 236.) The standard of review under the proportionate-penalties provision has been stated in People v. Gonzales (1962), 25 Ill. 2d 235, 184 N.E.2d 833:

“This court has traditionally been reluctant to override the judgment of the General Assembly with respect to criminal penalties. It indicated at an early date that the constitutional command that ‘penalties shall be proportioned to the nature of the offense’ would justify interference with the legislative judgment only if the punishment was ‘cruel,’ ‘degrading’ or ‘so wholly disproportionate to the offense committed as to shock the moral sense of the community.’ ” 25 Ill. 2d at 240, 184 N.E.2d at 835.

Initially, defendant herein was charged with a felony, aggravated battery of a child (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.3(a)), but because the evidence adduced at trial did not establish that defendant had caused great bodily harm to Kelly, the case was submitted to the jury on the lesser-included offense of battery. Had defendant been charged and convicted of cruelty to a child rather than the resulting misdemeanor battery, the fact remains that defendant committed the same act of abuse and Kelly Gomes suffered the same pain regardless of what label is attached. But had defendant been convicted of cruelty to a child, a felony, and served only 91 more days than he was sentenced to serve for his misdemeanor battery conviction, defendant would still have had additional penalties besides a longer sentence imposed as the result of being convicted of a felony. Those convicted of a felony become ineligible to hold public office. (Ill. Const. 1970, art. XIII, §1.) Additionally, even if a felon is released early due to the accumulation of good-time credits, a felon can be reincarcerated for an act which would constitute a violation of parole. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3—9(a)(3)(i)(B).) On the other hand, a misdemeanant’s early release is unconditional. (For a discussion of the distinctions between felons and misdemeanants see People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625.) Assuming, arguendo, that defendant could have been charged and convicted of cruelty to a child, we are not shocked or morally outraged by the penalties provided for battery versus cruelty to a child, nor do we find the punishment imposed on defendant to be “cruel” or “degrading.”

When determining whether a statute violates the due process provision of the Illinois Constitution (Ill. Const. 1970, art. I, §2), a court must determine “whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159, 128 N.E.2d 691, 695.) For example, in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, our supreme court addressed the issue whether possession of a stolen motor vehicle is a lesser-included offense of theft. The defendant argued that possession of a stolen motor vehicle was a lesser-included offense of theft and because possession of a stolen motor vehicle carried a greater penalty than theft, there was a violation of the due process and proportionate-penalty clauses of the Illinois Constitution. (Ill. Const. 1970, art. I, §§2, 11.) The Bryant court disagreed and found that the steady increase in the penalty for possession of a stolen motor vehicle was “indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft.” (Bryant, 128 Ill. 2d at 457, 539 N.E.2d at 1225.) The Bryant court found that the General Assembly was attempting to protect the public from the evils of possession of a stolen motor vehicle and its related activities, commonly referred to as “chop shops,” so the statutory scheme in place was not a violation of either section 2 or section 11 of article I of the Illinois Constitution. 128 Ill. 2d at 456, 539 N.E.2d at 1226.

In the instant case, the good-time provision for misdemeanants does not allow those convicted of inflicting physical harm upon another, including children, to receive the good-behavior allowance. (Ill. Rev. Stat. 1989, ch. 75, par. 32.) The good-time provision provided for felons does not prohibit the allowance of good-time credit for those convicted of inflicting physical harm upon another but does limit to 90 days rather than 180 days the good-conduct credit for meritorious service for those convicted of various offenses involving the infliction of physical harm, including the offense of cruelty to a child. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1003 — 6—3(a)(2), (a)(3).) Thus, both the County Jail Good Behavior Allowance Act (the Act) (Ill. Rev. Stat. 1989, ch. 75, par. 30 et seq.) and the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1—1 et seq.) provide for less good-time accumulation for those prisoners convicted of acts involving the infliction of physical harm to children. We believe that the General Assembly’s decision to disallow good-time credit for those convicted of acts involving physical harm to all persons, including children, is in response to the increase in violent crime, especially abuse directed toward children. The statutory scheme set in place by section 3 of the Act (Ill. Rev. Stat. 1989, ch. 75, par. 32) is reasonably designed to remedy this evil. As such, section 3 of the Act does not violate either section 2 or section 11 of article I of the Illinois Constitution.

For the foregoing reasons, the judgment of the circuit court of Richland County is affirmed.

Affirmed.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE STOUDER

text:
    GENERAL TIRE AND RUBBER COMPANY, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Aaron Harris, Appellee and Cross-Appellant).
    Fifth District (Industrial Commission Division)
    No. 5 — 91—0117WC
    Opinion filed December 4, 1991.

      Harry E. Kinzie III, of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellant.
    William D. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Aaron Harris, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). He sought to recover for alleged injuries arising from his employment with the respondent, General Tire & Rubber Company. He also sought to recover penalties against the respondent for instituting a proceeding he claimed was frivolous. The arbitrator found in favor of the petitioner and awarded him 1352/v weeks of temporary total disability benefits (TTD) and $50,257 in medical expenses. The arbitrator denied the petitioner’s claim for assessment of penalties. The Industrial Commission (Commission) affirmed the arbitrator’s decision. The circuit court confirmed the Commission’s decision. The respondent appeals, and the petitioner cross-appeals.

The record shows that this case involves two work-related injuries and three surgeries. The petitioner testified that on April 17, 1984, he was working as a lubricator for the respondent. He bent over to pick up a grease bucket but was unable to do so because it had become stuck to the floor by hardened rubber. As a result, he twisted his back and experienced a sharp burning pain down it.

He reported the occurrence to his boss and went to the nurse’s station. Thereafter, he saw Dr. James Filberth, who examined him and treated him conservatively with heat, massages, and ultrasounds. Dr. Filberth later referred the petitioner to Dr. Anthony Marrese, an orthopedic surgeon. The petitioner stated that he lost no time from work as a result of this injury.

The petitioner also testified that on July 11, 1986, he was working in the respondent’s quality control laboratory when he slipped on some hydraulic oil on the floor and fell backwards over a piece of sheet metal. He struck his head on a pipe and struck his neck and shoulders on additional pipes lying on the floor. He was unable to get up due to the pain in his neck and low back and because when he attempted to use his arm to pull himself up it would strike a hot steam pipe.

The petitioner yelled for help and was eventually found by someone. He was put on a stretcher and taken to Good Samaritan Hospital. Thereafter, he was transferred to Wood River Township Hospital, where he was treated by Dr. Marrese. He stated that he had not worked since the July 11 accident, although he at one time requested light work from the respondent, which was denied.

The petitioner further testified that he had had continual pain in his lower back and legs since the July 1986 incident. In addition, he stated that he had pain in his neck and arms and that he had a loss of grip in both hands. On several occasions he dropped glasses and teacups due to the weakness in his arms and hands. Finally, he testified that he was unable to sit, stand, or walk for any appreciable period of time and had to alternate between these activities and lying down. The petitioner’s wife testified that she helped the petitioner dress and undress.

The record also shows that the arbitrator specifically found the testimony of both the petitioner and his wife to be believable and credible. In addition, it shows that no evidence was presented by the respondent disputing the petitioner’s testimony that the two incidents in question occurred.

The medical records regarding the two incidents show that Dr. Marrese was the petitioner’s treating physician since 1984. The records also show that the petitioner underwent cervical surgery on August 13, 1986. In addition, he had surgery performed on his lower back in January of 1987, and again in November of 1988. All of the surgeries were performed by Dr. Marrese.

Dr. Marrese testified that based upon the various clinical studies, tests, myelograms, CT scans, a discography, and actual observation during surgery, the injuries of which the petitioner complained were confirmed. Furthermore, in his opinion the petitioner’s disability was causally related to the injuries he suffered in 1984 and 1986 and particularly related to the injuries he suffered on July 11, 1986.

Regarding the cervical surgery, Dr. Marrese testified that the surgery consisted of a microscopic anterior cervical discectomy and interbody fusion at C4-5 and C5-6, with removal of posterior osteophytes and bone spurs from both those levels. In his opinion, the disc material was herniated and the nerve root was compressed. It was also his opinion that the surgery was necessary to both relieve the petitioner’s pain and to prevent the risk of cord damage during low back surgery.

Dr. David Lange testified on behalf of the respondent regarding the petitioner’s cervical injury. He stated that he had examined the petitioner on one occasion about three weeks after the July incident. At that time the petitioner did not appear to be in any distress.

Thereafter, he examined all the radiographic and hospital records. He testified that the petitioner had a degenerative disc between the fifth and sixth cervical vertebrae and degenerative changes at C6-7. Further, he found that a cervical myelogram showed a decreased filling of the C6 nerve roots. He stated that the petitioner’s complaints, if related to nerve root involvement, would correspond to the C7 or C8 nerve root, not the C6 nerve root. As such, he did not think surgery was warranted to fuse the part of the cervical spine that Dr. Marrese had fused.

On cross-examination, he testified that the petitioner’s complaint of bilateral weakness of grip could be the result of an injury to the cervical area. He also stated that if a disc or an osteophyte protrudes centrally, it could cause problems at a nerve root that comes out at a lower level. Finally, he stated that a significant neurological compression would be indicated if there was a diminished reflex and grip of both hands, and that a treating doctor who is aware of his patient’s complaints is in the best position to assess the need for surgery.

Dr. Alan Froehling also testified on behalf of the respondent. He examined the medical records and found only a mild impression on the thecal sac at C5-6. He also found some bony spur formation and thinning of the disc at C5-6, suggesting a degenerative change at that level. He was unable to say with any certainty that there was any nerve root compression. In his opinion, there was no urgent need for cervical surgery.

However, he admitted that the X rays confirmed that the petitioner had evidence of degenerative disc disease. He also admitted that a central disc herniation at C5-6 could very well give symptoms of a nerve root injury at a lower cervical level. Furthermore, he testified that the respondent had not furnished him with the CT scans of the C5-6 and C6-7 levels until the day of his deposition, and that such information would have been helpful to him in reaching a diagnosis. Finally, he concluded that the stabbing pain in the petitioner’s arms was consistent with a cervical disc injury.

Regarding the petitioner’s first back surgery, Dr. Marrese testified that he first saw the petitioner on June 18, 1984, following the incident in March of 1984. At that time, the petitioner told him that he had injured his back while attempting to lift a bucket at work. He stated that he performed a lumbar thermogram on the petitioner and that the results of that test corroborated the petitioner’s complaints of numbness in his lower back. Thereafter, he ordered the petitioner to undergo a CT scan and an EMG test.

Dr. Marrese testified that the results of these tests showed spinal stenosis and disc herniation at L4-L5. Radiologist Vest viewed the CT scan and found a bulging disc at L5-S1 with bilateral fora-men stenosis, and mild bulging of the disc at L4-L5. Dr. Chomirun, an electromyographer, viewed the EMG test and found bilateral radiculopathy at L5 and SI. The petitioner continued conservative treatment with Dr. Marrese throughout 1984 and 1985. In May of 1986, Marrese ordered another thermogram and found nerve defects along the L5 and SI dermatomes.

Thereafter, the petitioner suffered an injury at work on July 11, 1986. He was taken to Wood River Township Hospital and treated by Dr. Marrese for arm burns and back and neck injuries. Marrese testified that he ordered a lumbar CT scan, which showed projection of the L5-S1 disc into the neural foramen with lateral recessed stenosis. In August of 1986, he also had the petitioner undergo a lumbar discogram, which showed dye escaping from the confines of L4-5. He stated that this was abnormal.

Dr. Marrese testified that he readmitted the petitioner to Wood River on January 27, 1987, and performed a bilateral partial laminectomy on him at L4-5 and an excision of the herniated disc at the same level. Following this surgery, the petitioner began to experience some relief from the pain in his back. Marrese also testified that the July 11, 1986, incident aggravated the petitioner’s lower back condition.

Both Drs. Lange and Froehling were of the opinion that the back surgery performed in January of 1986 was not necessary at that time. However, Dr. Lange admitted that some of the tests indicated that there could very well be a lateral herniation at L4-5. In addition, he felt that the petitioner’s problems were most severe at L4-5. Furthermore, he stated that based on his single examination in August of 1986, he would not have concluded that the petitioner’s condition was stable. Finally, he testified that degenerative discs can be aggravated as a result of trauma.

Dr. Froehling admitted that the petitioner’s pain in his lower back was consistent with a bilateral lumbar disc injury. Furthermore, he testified that some of the test results could indicate that the petitioner had a herniated disc, which could have been aggravated by trauma.

Regarding the surgery in November of 1988, the evidence showed that in October of 1988, without any intervening injury, the petitioner suffered sharp pains in his back. He went to Dr. Marrese, who ordered a myelography, the results of which showed further herniation at L4-5 and a slight bulge at L3-4 and L5-S1. Prior to surgical intervention, an attempt was made to use lumbar epidural blocks, which failed to relieve the petitioner’s pain.

Thereafter, the petitioner underwent a reexcision of a recurring herniation of the disc at L4-5, with fusion. Dr. Marrese testified that ruptured discs can and do reherniate without any particular sort of stress. Dr. Froehling agreed that such discs can reherniate without any intervening cause.

From the foregoing, the arbitrator found that the petitioner had sustained injuries arising out of and in the course of his employment on April 17, 1984, and July 11, 1986. He awarded the petitioner 1352/t weeks of TTD benefits and $50,000 in medical expenses. The Industrial Commission affirmed the arbitrator’s decision. The circuit court confirmed the Commission’s decision.

The respondent first argues on appeal that the Commission erred in finding that the medical care provided by Dr. Marrese was necessary for the treatment of the petitioner’s injuries. Specifically, it contends that the cervical and lumbar surgeries were unnecessary.

Under the Workers’ Compensation Act, a respondent may only be ordered to pay for treatment which was reasonably required to cure or relieve the petitioner of the effects of his injury. (Quality Wood Products Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 417, 454 N.E.2d 668.) It is the Commission’s function to resolve disputed questions of fact, to draw permissible inferences and to decide which of conflicting medical views is to be accepted. In the presence of conflicting medical opinions, 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. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.

Here, the Commission found that the surgeries performed on the petitioner were necessary to relieve him of the effects of his injuries. The record showed that at the time of the cervical surgery, the petitioner was still suffering from back pain caused by the 1984 incident and that his back condition was not getting any better through the use of conservative treatment. In addition, he was suffering from pain in his neck and a loss of grip in both hands. Therefore, Dr. Marrese concluded that the cervical surgery was necessary to relieve the petitioner’s pain and to prevent the risk of cord damage during low back surgery.

Marrese also concluded that the lumbar surgeries were necessary to relieve the petitioner’s pain. The petitioner suffered from a herniated disc, and the long-term use (1984-1986) of conservative treatment was not correcting or relieving the problem. As such, in Dr. Marrese’s opinion surgery was needed to help the petitioner. Regarding the second surgery, he stated that it was necessary to repair a reherniated disc.

Although two other doctors gave conflicting medical opinions as to the need for the surgeries, this merely created questions of fact best left to the determination of the Commission. Based on the evidence, we find that the Commission’s decision was not against the manifest weight of the evidence.

The respondent next argues that the Commission erred in finding a causal relationship between the petitioner’s condition and any work accident. Specifically, it contends that no evidence was presented showing that the second lumbar surgery was causally related to the petitioner’s claimed work injuries. In addition, it argues that since the first two surgeries were unnecessary, the petitioner’s condition which resulted from the surgeries cannot be said to be causally related to any work injuries.

For an injury to arise out of one’s employment, the injury must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) The Commission’s findings will not be reversed on appeal unless they are contrary to the manifest weight of the evidence. Glover v. Industrial Comm’n (1985), 140 Ill. App. 3d 361, 485 N.E.2d 605.

Here, the petitioner testified that he was injured while working on both April 17, 1984, and July 11, 1986. No evidence was presented disputing the fact that the incidents occurred and that the petitioner suffered injuries as a result of the incidents. Instead, the respondent disputes the causal connection between the surgeries performed to help correct the problems associated with the injuries and any work-related incident.

Regarding the respondent’s claim that no causal connection existed between the second lumbar surgery and a work-related incident, we note that the evidence does not support its contention. Here, the petitioner suffered from a recurring herniation of the disc at L4-5. Both Drs. Marrese and Froehling testified that previously ruptured discs can and do reherniate without any particular sort of stress.

Based on this evidence, the Commission found that the petitioner had shown a causal connection between work-related injuries and the need for further surgery to correct all the effects of those injuries. We hold that the Commission’s finding on this fact was not against the manifest weight of the evidence.

Regarding the respondent’s claim that no causal connection existed between the need for the other two surgeries and a work-related injury, we note, as previously discussed, that the evidence supports the finding that the surgeries performed on the petitioner were necessary to help his condition. In addition, Dr. Marrese testified that the petitioner’s disability was causally related to the injuries he suffered while working for the respondent.

Once again, even though conflicting medical evidence was presented disputing Marrese’s opinion as to the need for the first two surgeries, we find that this merely raised questions of fact best left to the determination of the Commission. Based on the record, we find that the Commission’s decision was not against the manifest weight of the evidence.

Next, the respondent argues that Marrese’s charges for his services were unreasonable. Specifically, it contends that his charges were substantially higher than the usual and customary charges for the same surgical procedures in the Mt. Vernon area.

We note that this issue appears to be one of first impression. However, we find support for the respondent’s position regarding the use of a reasonableness standard, in section 8(a) of the Act: “The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a).

Further, analogous support is found in Mathieu v. Venture Stores, Inc. (1986), 144 Ill. App. 3d 783, 494 N.E.2d 806. We note that while Mathieu is not directly on point, since it dealt with the Illinois Structural Work Act, it nonetheless is helpful. In that case, the court set out the following jury instruction to be used on the issue of damages: “The reasonable expense of necessary medical care, treatment, and services received ***.” 144 Ill. App. 3d at 798.

Additional support for this standard can be found in Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 424 N.E.2d 1302, where the court held that in Illinois, when there is a contract, express or implied, under which one party supplies services to another and there is no provision setting out the amount the supplier is to be compensated, the law implies that there is an agreement to pay a reasonable price for the services.

As such, we find that the Act and the above-cited case law indicate that a standard of reasonableness should be applied to issues regarding the amount a respondent is required to pay for medical expenses. This brings us to the next issue of what standard should be applied in determining what is reasonable.

We find that the proper standard is that which is usual and customary for similar services in the community where the services were rendered. Although there are no cases on point, we find support for this position in Sullivan v. Fawver (1965), 58 Ill. App. 2d 37, 206 N.E.2d 492. There, the court held that when the parties have no explicit agreement concerning the amount to be charged for services, the law implies that the amount shall be what is usual and customary for similar services in the same community.

In the case at hand, the Commission found that while other doctors’ charges were somewhat lower, there was no clear evidence that Dr. Marrese’s charges were unreasonable. The record showed that during the relevant period involved in this case, Marrese practiced in Evansville, Indiana, and Wood River, Illinois. It also showed that Marrese charged $5,500 for the cervical surgery, $3,375 for the first lumbar surgery, and $4,670 for the second lumbar surgery. Marrese testified that all of his charges were reasonable. We note that no evidence was introduced showing that Marrese’s charges were unreasonable with respect to what other surgeons in Evansville, Indiana, and Wood River, Illinois, would have charged. As such, we find that the Commission’s decision was not against the manifest weight of the evidence.

The respondent next argues that the Commission erred in awarding $1,588 in travel expenses to the petitioner. Specifically, it contends that the petitioner failed to show the “reasonable necessity” of traveling outside the Mt. Vernon area for medical treatment since such treatment was available in Mt. Vernon.

We note that this issue also appears to be one of first impression. However, we find that the same reasonableness standard set forth above applies here.

The record shows that the petitioner lived in the Mt. Vernon area and sought treatment from Dr. Marrese, who practiced first in Evansville, Indiana, and then in Wood River, Illinois. Evansville is approximately 100 miles from the petitioner’s home and Wood River is approximately 90 miles away. The record also shows that Marrese had been the petitioner’s treating physician since 1984.

The Commission found that it was reasonably necessary for the petitioner to travel to and from Dr. Marrese’s office and to and from the Wood River Hospital. As such, it included $1,588 in the petitioner’s medical expenses award for travel. We find that the Commission’s decision was not against the manifest weight of the evidence.

The evidence showed that Marrese was the petitioner’s treating physician since 1984. As such, he was the doctor most familiar with the petitioner’s condition and medical history. It would seem to be only reasonable for the petitioner to seek the medical care of someone he knew and trusted. In addition, while the evidence showed that Dr. Froehling was an orthopedic surgeon in the area, no evidence was presented showing that there were any other such surgeons in the area. Given Froehling’s testimony that surgery was not necessary in this case, we find that it was reasonable for the petitioner to seek the treatment of someone who was willing to perform surgery to relieve his pain.

The respondent next argues that the Commission erred in its determination of the petitioner’s average weekly wage. The Commission found that the petitioner had been disabled since July of 1986 and awarded him $532.22 per week for that period. It specifically found that vacation pay was to be included in determining the average weekly wage. The respondent argues that the petitioner is not entitled to $532.22 a week due to the fact that the Commission erroneously included vacation and overtime pay in its calculation.

The record shows that the parties agreed that the petitioner’s average weekly wage, including vacation time, was $517.73. This calculation excluded overtime pay. The Commission nonetheless found that the petitioner’s average weekly wage was $532.22. This was based on its finding that the petitioner’s yearly income was $27,675.30. The Commission then divided that amount by 52 and arrived at its figure. However, the evidence also showed that the $27,675.30 figure included overtime and vacation pay.

The basis for computing the compensation provided for in the Act shall be as follows: “The compensation shall be computed on the basis of the ‘Average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52 ***.” Ill. Rev. Stat. 1989, ch. 48, par. 138.10.

In the case at hand, we hold that the Commission’s finding that the petitioner’s average weekly wage was $532.22 was against the manifest weight of the evidence. The evidence showed that the $27,675.30 figure included overtime pay. However, the Act clearly prohibits this pay from being included in the calculation of an employee’s average weekly wage.

Regarding the respondent’s contention that vacation pay should also be excluded from the calculation, we note that the respondent has failed to cite any case law supporting its position.

As such, we find that vacation pay should be included as part of an employee’s average weekly wage. While the Act does not exclude vacation pay, it does specifically exclude overtime pay. Therefore, it can be inferred that if the legislature intended to exclude vacation pay it would have specifically excluded it. In addition, we note there is no contention this case involves a duplication of pay inasmuch as the parties agree the employee did not work during his vacation period.

Accordingly, we hold that the Commission’s finding that vacation pay should be included was not erroneous. However, the Commission’s calculation was erroneous since it included overtime pay. We therefore reduce the average weekly wage to $517.73, that being the amount the parties agreed was the average weekly wage when vacation pay was included.

On cross-appeal, the petitioner argues that he is entitled to penalty damages due to the respondent’s bad faith in carrying on proceedings which did not present a real controversy and due to its failure to pay him TTD benefits. The record shows that the petitioner argued before the arbitrator, the Commission, and the circuit court that the respondent should be subject to penalties for its delay in paying him TTD.

The arbitrator denied his claim, finding that there was sufficient diversity of medical opinions to justify the respondent’s delay in paying benefits. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision.

In cases where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation which do not present a real controversy but are merely frivolous or for delay, the Commission may award compensation additional to that otherwise payable under the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k).) However, the courts have refused to assess penalties under this section where the evidence indicates the employer reasonably could have believed that the employee was not entitled to the withheld compensation. The standard an employer is held to is one of objective reasonableness in its belief. That is, the facts must show that a reasonable person in the employer’s position would believe that the employee was not entitled to the benefits. Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 442 N.E.2d 861.

In the case at hand, we find that the Commission did not abuse its discretion when it denied the petitioner’s request for penalties. The record shows that the medical evidence in this case was conflicting. As such, a reasonable person in the respondent’s position could have believed that the petitioner was not entitled to the withheld benefits.

The judgment of the circuit court of Jefferson County is affirmed as modified, and the cause is remanded to the Commission with directions to enter an order amending its decision, to reflect petitioner’s correct average weekly wage of $517.73.

Affirmed as modified and remanded.

McCULLOUGH, P.J., and WOODWARD, LEWIS, and RAKOWSKI, JJ., concur.