author: PRESIDING JUSTICE UNVERZAGT

text:
    SARAH J. RILEY, a/k/a Sally Riley, Plaintiff-Appellant and Cross-Appellee, v. PHYSICIANS WEIGHT LOSS CENTERS, INC., Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3—88—0806
    Opinion filed December 22, 1989.

      Burt L. Dancey, of Elliff, Keyser, Oberle & Davies, P.C., of Pekin, for appellant.
    Murvel Pretorius, Jr., and Paul P. Gilfillan, both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Sarah J. Riley, appeals from summary judgment in favor of the defendant, Physicians Weight Loss Centers, Inc. (the Center), on her five-count complaint claiming personal injury as a result of the Center’s negligence in failing to warn her of the potential health risks posed by its prescribed ketogenic diet or to adequately monitor her during the course of the diet so as to discover problems developing. The Center cross-appeals the court’s denial of its motion to strike plaintiff’s responsive affidavit. For the reasons set forth below, we dismiss the Center’s cross-appeal, reverse the court’s summary judgment and remand the cause for trial.

Plaintiff went to the Physicians Weight Loss Center in September 1984, after hearing its advertisement on a Peoria radio station. She was 42 years old at the time and weighed 251 pounds. She had tried several diet programs in the prior 10 years with intermittent success. The Center’s personnel explained to her its program which called for a reduced-calorie limited-carbohydrate ketogenic diet designed to induce a state of ketosis in the dieter. When in ketosis, fat is metabolized from stored fat in the body and weight loss occurs. A doctor performed a simple physical, and plaintiff started on the diet. Plaintiff apparently signed contracts with the Center in September 1984 and again in January 1985, but they are not included in the record on appeal. There was no discussion between the Center’s personnel and plaintiff about any health risks connected with the ketogenic diet; the diet was promoted to her as being completely safe. There were strict directions for her to follow as to the foods and caloric intake she was allowed. She was a very successful client on the program, achieving a loss of more than 70 pounds in a four-month period. Initially, she went to the Center daily and, later, weekly for weigh-in, urinalysis and blood-pressure checks.

In mid-December 1984, plaintiff experienced severe pain in her mid-epigastric area. She called her family doctor, Dr. Ameel Rashid, on December 17 and described her pain to him. On December 26, she again called Dr. Rashid’s office after suffering another attack of midepigastric pain. This time she talked to Dr. Donald Habecker, who arranged for a sonogram to be made on December 27. The sonogram revealed the presence of multiple gallstones. On New Year’s eve, Dr. Habecker called plaintiff and told her she should see a surgeon. She saw Dr. Stewart Roberts in January 1985. He told her her gallbladder should be removed and that it was up to her as to when to proceed with the surgery.

Plaintiff continued on the ketogenic diet and going to the Center in January 1985. She was admitted to the hospital in February on an emergency basis for surgery, but surgery was not performed then due to her abnormal liver function. At that time, Dr. Roberts told plaintiff he thought her gallbladder problems were due to her ketogenic diet. After that hospitalization, she continued to visit at the Center, but she was not on the diet. She changed her personal physician in March and began seeing Dr. R. Michael Gulley. Dr. Gulley also indicated to her he thought the ketogenic diet caused the gallstones. She had her gallbladder removed on March 11,1985.

Sometime after surgery, plaintiff started on a protein-sparing, modified fast diet, also a type of ketogenic diet, under Dr. Gulley’s supervision. Prior to embarking on the diet, Dr. Gulley gave the plaintiff a written warning form which he stated is used to impress upon the dieter the serious nature of the diet. In pertinent part, the form warned the dieter that the protein-sparing, modified fast diet is associated with rare side effects such as gout, kidney stones, anorexia, nausea, vomiting, restlessness, irritability/euphoria, faintness, syncope, cessation of menses and cardiac arrhythmias (including death). Further, the decrease in thyroid hormone utilization as a result of the diet can cause cold intolerance, dry skin, hair loss and muscle cramps. At the conclusion of the form the dieter indicated his/her understanding that the above problems could occur and that he/she understands the need for regular follow-up care.

Dr. Gulley took the plaintiff off the protein-sparing, modified fast diet when she continued to have stomach problems. Plaintiff started the protein-sparing, modified fast diet on her own again, however, in fall 1985. Thereafter, plaintiff and Dr. Gulley agreed she could follow a balanced deficit diet, that is, a nonketogenic reduced-calorie diet utilizing all the food groups. As of the date of plaintiff’s deposition on March 12, 1987, she stated she was still having the same type of midepigastric pain she had in December 1984 in addition to abdominal pain and spasm-type pain on her right side; she described the pain attacks as frequent and of varying duration. After plaintiff’s gallbladder surgery, she had chronic diarrhea necessitating hospitalization for tests, consultation with a gastroenterologist, and she was seen at the Mayo Clinic on three different occasions. Plaintiff had two surgeries subsequent to the gallbladder operation in connection with her stomach problems.

Plaintiff’s first amended five-count complaint alleged causes of action against the Center with respect to failure to warn her that the known possible consequences and hazards of the ketogenic diet include “gallstones, kidney stones, anorexia, death, and other serious health problems” (counts I (negligence) and II (wilful and wanton misconduct)) and failure to adequately monitor her while on the diet for possible and potential complications arising from the ketogenic diet (counts III (negligence) and IV (wilful and wanton misconduct)). Count V purported to set forth the cause of action for false advertising; it was dismissed on the Center’s motion to strike and dismiss counts II, IV and V of the plaintiff’s first amended complaint. The Center answered, denying plaintiff’s allegations and raising as a defense plaintiff’s comparative negligence in failing to follow instructions, to monitor her own condition and progress and to ask questions about the diet plan.

Following discovery, the Center filed a motion for summary judgment supported by Dr. R. Michael Gulley’s deposition. As to its failure to warn (counts I and II), the Center’s motion alleged that it was Dr. Gulley’s testimony that, assuming arguendo the standard of care applicable to physicians applied to it, that standard would not require warnings about the formation of gallstones on a ketogenic diet. Consequently, the Center’s motion concluded there was no genuine issue of material fact as to whether it breached the standard of care owed to plaintiff. As to its failure to monitor (counts III and IV), the Center’s motion alleged it was Dr. Gulley’s testimony that careful monitoring of the plaintiff while on the ketogenic diet would not have detected the development of the gallstones before they became a problem.

In opposition to the Center’s motion for summary judgment, plaintiff filed an affidavit of Dr. Gulley as her treating physician. Therein, Dr. Gulley acknowledged that although the standard of care would not require warnings about the formation of gallstones on a ketogenic diet, it was his further opinion that the standard of care “required warnings to anyone that there were serious risks, both known and unknown, in proceeding with a ketogenic diet, and that the risks included, but were not limited to, kidney stones, anorexia, and death, as well as other health problems.” Dr. Gulley stated further that the standard of care required disclosure that the potential for serious side effects and risks was much greater with a ketogenic diet than with more common diets.

As to the standard of care applicable to monitoring, Dr. Gulley restated his prior deposition testimony that sonography could have shown the development of gallstones, but he could not state whether any of the information available to the Center or which it should have sought from the plaintiff would have indicated the need for sonography or other sophisticated monitoring and testing techniques. He stated the standard of care applicable to monitoring would have included weekly visits conducted by a nurse specialist or physician who would ask the dieter questions aimed at discovering problems that the dieter might be having but would not volunteer, and monthly blood tests with liver screenings. Dr. Gulley further stated it is possible that such monitoring might have indicated an abnormality further investigation of which, in turn, could have disclosed the presence of developing gallstones.

The Center filed a supplement to its motion for summary judgment supported by a supplemental deposition taken of Dr. Gulley and by plaintiff’s deposition. As to counts I and II, the Center argued that because there was no duty to warn specifically about the formation of gallstones, there could not have been a breach of the duty to warn, and warnings about other known risks were irrelevant. As to the causal connection between the Center’s failure to warn and plaintiff’s injury, the Center argued that even if warning of other potential health risks had been given the plaintiff, it is irrefutable that she continued on a ketogenic diet on two different occasions even after warning was given and after her gallbladder problem was detected.

As to counts III and IV, the Center argued there was no genuine issue of material fact as to whether monitoring would have detected plaintiff’s condition sooner. Pointing to the supplemental deposition, it was Dr. Gulley’s testimony that whether different monitoring by the Center would have discovered the plaintiff’s problem earlier depended on whether she was symptomatic. If she was not symptomatic, the usual monitoring practices would not have identified a problem, and sonography would not have been warranted in the absence of symptoms. Dr. Gulley testified that plaintiff’s gallstones may or may not have been present in November 1984, notwithstanding the fact the gallstones were present in December 1984. The Center argued plaintiff’s deposition made it clear she was not symptomatic until mid-December 1984 when she first called Dr. Rashid and, thus, different monitoring would not have discovered her problem sooner. The Center further argued the diet was not the proximate cause of the plaintiff’s injury in that Dr. Gulley could not state based on a reasonable degree of medical certainty that it was more probably true than not that the diet she began in September 1984 contributed to cause her symptomatic gallstones. The Center argued Dr. Gulley’s opinion that the ketogenic diet produced a physiological state of affairs that predisposed the plaintiff to develop gallstones which impacted in the biliary tract was insufficient to establish a nexus between the acts complained of and the plaintiff’s injury since the consequences shown were merely possible, not probable.

The Center later filed a second supplement to its summary judgment motion supported by the depositions of plaintiff’s former treating physicians, Dr. Ameel Rashid and Dr. Donald Habecker, and excerpts of the depositions of its expert witnesses, Dr. T. Edward Bynum and Dr. James Falko. The depositions of Doctors Rashid and Habecker confirmed that plaintiff’s first reported mid-epigastric pain was on December 17. Dr. Bynum stated in his deposition that obese people have a strikingly greater incidence of gallstones and that the plaintiff’s diet and gallbladder problems were merely coincidental. It was his opinion the ketogenic diet did not produce a physiological state that predisposed her to the development of the gallstones, but he could not say that the diet did not contribute to or aggravate the problem which plaintiff developed in the fall of 1984 and continues to experience. Dr. James Falko stated in his deposition excerpts that he believed plaintiff’s obesity caused the gallstones to form, that the diet did not cause or contribute to the gallstones, nor did it produce a physiological state that predisposed her to the development of the gallstones or her subsequent problems.

Subsequent to the Center’s second supplement to its motion for summary judgment, plaintiff filed a “Responsive Affidavit.” Therein she stated that no warnings were given to her by the Center that there was any health hazard or risk involved with the ketogenic diet. She was led to believe that, as advertised, the ketogenic diet was completely safe. Plaintiff stated that if she had been informed there were serious health risks in proceeding on such a diet, she would not have begun the diet. She stated she continued with another type of ketogenic diet after her gallbladder surgery in order to maintain her weight, if not lose more weight, and her surgery seemed to be successful at that time. She continued to believe in the safety of ketogenic diets due to the Center’s representations to her and based on her past success with the diet. She also had complete confidence in Dr. Gulley’s close supervision and monitoring of her while she was on the diet.

Plaintiff further stated in her responsive affidavit that in mid-November 1984 she experienced “some mild, frequent mid-epigastric pain on a regular, almost daily basis” which led her to believe that it was something in the nature of hunger pangs although not exactly of that nature. Plaintiff stated she was not questioned at the Center about any pain she might have been experiencing, nor was she told to report any and all pain or unusual problems she might be experiencing during the diet.

After hearing, the court granted the Center’s motion for summary judgment as supplemented, finding that plaintiff did not create a question of fact with respect to causation. The court later denied the plaintiff’s motion to reconsider and also denied the Center’s subsequent motion to strike the plaintiff’s responsive affidavit. The plaintiff appeals the denial of its motion to reconsider, and the Center cross-appeals the denial of its motion to strike plaintiff’s responsive affidavit.

Although the plaintiff has not raised the issue, this court’s well-settled duty to determine whether it has jurisdiction to entertain an appeal requires consideration of whether the Center has standing to cross-appeal. (Hanson v. Illinois Central Gulf R.R. Co. (1988), 174 Ill. App. 3d 723, 725-26; Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 818.) We conclude that it does not.

The right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree from which the appeal is taken. (Hanson, 174 Ill. App. 3d at 725.) A party who obtains by judgment all that he has requested cannot appeal from the judgment. (In re East Lake Fork Special Drainage District (1985), 137 Ill. App. 3d 473, 476.) It is the judgment of the trial court, and not whatever else may have been said by it, which is on appeal to the court of review. In re East Lake Fork Special Drainage District, 137 Ill. App. 3d at 476.

Notwithstanding the court’s denial of the Center’s motion to strike the plaintiff’s responsive affidavit, the court’s judgment here was not “in part” against the Center, and no cross-appeal was required. (Anderson v. Sutter (1983), 119 Ill. App. 3d 1070.) The Center’s argument as to the impropriety of the plaintiff’s responsive affidavit will be considered, however, insofar as that argument may sustain the court’s summary judgment. Davis, 167 Ill. App. 3d at 819; Wilcoxen v. Board of Education of Canton Union School District No. 66 (1983), 116 Ill. App. 3d 380, 383.

Turning to the plaintiff’s appeal, a claim of negligence requires a showing of three elements: a duty owed by the defendant to the plaintiff, a breach of that duty and an injury to the plaintiff proximately caused thereby. (Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76.) A count charging -wilful and wanton misconduct will include these same elements but will indicate that the defendant acted with intentional or conscious disregard of the duty owed to the plaintiff rather than that the defendant acted merely carelessly. (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018; Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484.) Before liability can be settled on the defendant, a nexus between the defendant's negligent act or omission and the injury suffered by the plaintiff must be shown. (Taylor v. Gerry’s Ridgewood Inc. (1986), 141 Ill. App. 3d 780.) Liability for negligence cannot be predicated upon surmise or conjecture as to the cause of the injury; cause in fact is established only when there is a reasonable certainty that the defendant’s conduct caused the injury. Moore v. Hill (1987), 155 Ill. App. 3d 1.

The purpose of summary judgment is to determine the presence or absence of triable issues of fact, and in determining whether the moving party is entitled to summary judgment, the pleadings, depositions, admissions and affidavits should be construed strictly against the movant and liberally in favor of the opponent. (Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847; Vincent DiVito, Inc. v. Vollmer Clay Products Co. (1989), 179 Ill. App. 3d 325.) Although a party against whom a motion for summary judgment has been filed need not prove the case at the preliminary stage, some factual basis must be presented that would arguably warrant judgment in the nonmovant’s favor. Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864.

A motion for summary judgment must be denied and the resolution of facts and inferences must be made at trial if any facts upon which reasonable persons could disagree are identified, or if inferences leading to different conclusions fairly could be drawn from the facts. (Diamond Headache Clinic, Ltd. v. Loeber Motors, Inc. (1988), 172 Ill. App. 3d 364.) Summary judgment for the defendant is proper if, from the papers on file, the plaintiff fails to establish an element of the cause of action. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) Although the question of proximate cause is ordinarily one for the trier of fact, where it is apparent from the undisputed facts that only one conclusion can be drawn, the question then becomes one for the court to resolve as a matter of law. (Lindenmeier, 156 Ill. App. 3d at 76.) On appeal, the court will reverse an order granting summary judgment if it determines that a material question of fact exists and that the moving party is not entitled to judgment as a matter of law. Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789.

Relying primarily on her responsive affidavit, plaintiff argues that summary judgment should not have been granted where there were disputed issues of material fact as to whether the Center’s breach of its duty to warn and to monitor proximately caused her injury. The defendant argues there were no genuine issues of material fact and, further, that the plaintiff’s responsive affidavit directly contradicted her deposition testimony and, as such, it should have been stricken by the trial court and should not be considered by this court.

It is well settled that a party cannot create a factual dispute by contradicting a previously made judicial admission. (Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 348; Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480.) A judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge. (Hansen, 155 Ill. App. 3d at 480; Schmahl v. A.V.C. Enterprises, Inc. (1986), 148 Ill. App. 3d 324.) The equivocalness of a statement is a question of law (Hansen, 155 Ill. App. 3d at 480; Tom Olesker’s Exciting World of Fashion, Inc. v. Dunn & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562) to be determined by reference to the entirety of the statement and not merely portions of it (Schmall, 171 Ill. App. 3d at 348).

Among other points, plaintiff argues that a genuine issue of material fact exists as to whether she would have proceeded on the Center’s diet had she been warned of the serious health risks posed by such a diet. The Center argues plaintiff’s subjective assertion that she would not have proceeded with the diet stands in direct contradiction to the undisputed objective fact shown by her deposition testimony, which was corroborated by Dr. Gulley’s deposition, that she continued with a ketogenic diet even after her gallbladder surgery and after she had been informed of the health risks posed by a ketogenic diet. The Center relies on Marshall v. University of Chicago Hospitals & Clinics (1987), 165 Ill. App. 3d 754, in support of its position that its failure to warn was not the proximate cause of the plaintiff’s injury where it is clear she proceeded with a ketogenic diet even after warning had been given.

In Marshall, the plaintiff failed to prove that the defendants’ failure to meet the standard of care was the proximate cause of her injury. Plaintiff there became pregnant with her fifth child after elective surgical sterilization by tubal ligation. After she delivered the child, tubal ligation was performed again. Her amended complaint for malpractice alleged the defendants failed to inform her that there was 1% chance of failure of tubal ligation to prevent future pregnancies. It was further alleged that had she known the failure rate of 1%, she would not have undergone that procedure. The jury found for the plaintiff, and the defendants appealed denial of their post-trial motion for judgment n.o.v. or for a new trial.

On appeal, the court found that judgment n.o.v. should have been entered in favor of the defendants on the issue of proximate cause. The court stated that it was not enough for the plaintiff to subjectively assert at trial that, had she known that tubal ligation was only 99% effective, she would have chosen instead the 90% effective birth control pills even though they made her sick. The court held plaintiff was required to show by objective evidence that a reasonable person in possession of the allegedly omitted information would have rejected the tubal ligation procedure. In view of the irrefutable evidence there that the plaintiff underwent a second tubal ligation after the birth of her child, the only reasonable inference that could be drawn from that objective evidence was that a reasonable person in the plaintiff’s position would not have refused the tubal ligation.

We find Marshall distinguishable from the instant cause. Although the objective evidence here shows plaintiff did resume a ketogenic diet even after Dr. Gulley warned her of the health risks, gallstones were not included as one of the specific “known” risks, and plaintiff believed that her gallbladder surgery had been successful. Moreover, she stated she continued to believe in the complete safety of a ketogenic diet as it had been promoted to her by the Center. Dr. Gulley testified in his deposition that he had problems explaining to the plaintiff that ketogenic diets were not as safe as she had previously been led to believe. Significantly, also, she had been tremendously successful in losing weight while on the ketogenic diet where other diets had failed.

Consequently, and despite the fact gallstones were not one of the known risks, we believe a genuine issue of material fact exists as to whether plaintiff would have undertaken the diet in the first instance had the Center warned her of any of the known possible health risks rather than promoting the diet as completely safe. Unlike Marshall, where a trial had already taken place, plaintiff here did not need to prove her case at the summary judgment stage. Rather, she needed only to present a sufficient factual basis which would entitle her to recover under the law. Kenner v. Northern Illinois Medical Center (1987), 164 Ill. App. 3d 366.

As to whether plaintiff presented a sufficient factual basis to show the ketogenic diet was the proximate cause of her injury, plaintiff’s treating physician, Dr. R. Michael Gulley, testified within a reasonable degree of medical certainty that the ketogenic diet produced a physiological state of affairs that predisposed her to the development of gallstones and that those gallstones impacted in the biliary tract, causing her biliary colic. The Center’s expert witnesses, Drs. Bynum and Falko, concluded in their deposition testimony that there was no causal connection between the ketogenic diet and the plaintiff’s development of gallstones, although Dr. Bynum testified he could not say that the diet did not contribute to or aggravate the problem the plaintiff developed in the fall of 1984. The Center argues that no genuine issue of material fact exists in light of the following deposition testimony given by Dr. Gulley:

“Q. [Counsel for the Center] Is it your opinion based upon a reasonable degree of medical certainty that it’s more probably true than not that the diet that [plaintiff] started on in the fall of 1984 contributed to cause her gallstones — let me change that to say symptomatic gallstones?
A. [Dr. Gulley] I think that’s an unanswerable question.
Q. No opinion?
A. I have no opinion.”

Plaintiff suggests, and we agree, that this apparent inconsistency in Dr. Gulley’s testimony is grounded in a distinction drawn by him between symptomatic and asymptomatic gallstones. Dr. Gulley testified that the gallstones themselves, unless they are impacted in the common bile duct or the cystic duct, do not cause pain. Consequently, although he testified he believed the diet predisposed the plaintiff to develop gallstones, he could not testify that the diet caused her gallstones to become symptomatic.

Given the testimony of the three doctors, we believe a genuine issue of material fact exists as to whether the ketogenic diet was the proximate cause of the plaintiff’s injury. The Center correctly notes that liability is not imposed for consequences which are merely •possible but, rather, only for those consequences which are probable according to ordinary and usual experience. (Gray v. Pflanz (1950), 341 Ill. App. 527, 533.) It argues, therefore, that the diet’s mere “predisposition” of the plaintiff to develop gallstones precludes it from being the proximate cause of her injury.

We agree with the plaintiff that Dr. Gulley’s deposition testimony, construed most favorably for her as the nonmovant, was that the diet “set in motion” a process which led to the development of gallstones and, as such, it was an active cause of plaintiff’s injury and not merely a passive, possible cause. It is well established that there can be more than one proximate cause of an injury. (Countryman v. County of Winnebago (1985), 135 Ill. App. 3d 384.) “A proximate cause of an injury is any cause which, in natural or probable sequence, produced the injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, 128, appeal allowed (1988), 123 Ill. 2d 556.

Inasmuch as we find from our examination of the record that there are genuine issues of material fact presented as to the plaintiff’s claim that the Center’s breach of its duty to warn proximately caused her injury, we must reverse the trial court’s summary judgment as to counts I and II of the complaint and remand the cause for trial.

We do not find a genuine issue of fact exists, however, as to whether the Center’s failure to monitor her adequately while she was on the diet was the proximate cause of her injury. Plaintiff argues a genuine issue of material fact exists, and, in support, she points to her responsive affidavit in which she stated she experienced “some mild, frequent mid-epigastric pain on a regular, almost daily basis” in mid-November of 1984 which continued until mid-December 1984 when she suffered her first attack of excruciating pain. She then points to Dr. Gulley’s deposition testimony which, given the assumption that she was experiencing out-of-the-ordinary mid-epigastric pain in mid-November, concluded that adequate monitoring would have picked up on this and further investigation would have been triggered. It was Dr. Gulley’s opinion that further investigation, in turn, although perhaps not preventing the gallbladder surgery, may have allayed the severity or seriousness of her subsequent problems.

Plaintiff’s two references to pain in her deposition testimony were both about the pain she first experienced in mid-December:

“Q. [Counsel for the Center] Now, you apparently, or is it your understanding you were diagnosed with gall bladder problems in ’85, February?
A. [Plaintiff] Yes — no, in December, late December of ’84.
Q. Is that the first you ever had gall bladder problems?
A. Yes.
Q. That’s the first you ever had symptoms like that?
A. Yes.
Q. What symptoms did you have in December, 1984?
A. Severe pain in the mid epigastric area.
Q. By mid epigastric, what do you mean?
A. Where the ribs come together, dead center, excruciating pain.
Q. In layman’s terms, maybe the high stomach area?
A. That would describe it.
Q. Yes.
Q. [Counsel for the Center] Did you see a physician at any time during this period?
A. No, I had just seen Dr. Rashid around Labor Day of ’84 and had a complete exam.
Q. You didn’t see him at all between the time you started this diet, and the end of 1984?
A. No.
Q. You started having stomach problems then?
A. Yes.
Q. When was that again?
A. It was mid December.
Q. And you had upper stomach pains?
A. Yes.”

Plaintiff argues her responsive affidavit is not improperly contradictory of her deposition testimony because counsel never asked during the deposition about other, less severe problems she might have experienced during the course of the diet which did not cause her to seek a doctor’s care. Taking plaintiff’s deposition testimony in its entirety as required, however (Schmall, 171 Ill. App. 3d at 348), it shows she “felt fine” until she suffered the attack in mid-December. She testified in her deposition as follows:

“Q. [Counsel for the Center] What was your rate of weight loss with Physicians Weight Loss?
A. [Plaintiff] It was rapid.
Q. How much per week?
A. I don’t have the chart in front of me, I know I weighed 251 when I started, and in January I was down to 180, but when you first start a diet the weight loss is more rapid, of course.
Q. Did you discuss the rate of weight loss with Physicians’ people?
A. They were thrilled, so was I.”

She further testified:

“Q. [Counsel for the Center] Was the program designed for you to accomplish a 50 pound weight loss in the first seventeen weeks?
A. [Plaintiff When I had my initial conference with the counselor, they projected how much I could lose in a certain period and I don’t have it in front of me, the contract, so I couldn’t tell you what they projected.
Q. You were under the impression you were ahead of schedule or behind schedule?
A. I felt fine, I was doing beautifully.”

Taken in its entirety, the plaintiff’s deposition testimony unequivocally shows that she first became symptomatic in mid-December 1984. Her responsive affidavit stating she experienced mild, almost daily mid-epigastric pain from mid-November to mid-December stands in direct contradiction to her testimony that she “felt fine,” was “doing beautifully” and was “thrilled” with her weight loss program. Inasmuch as this portion of plaintiff’s responsive affidavit contradicts her previously made judicial admissions, it should have been stricken, and it cannot be viewed as having created a genuine issue of material fact. Further, Dr. Gulley’s opinion that adequate monitoring would have picked up on her pain in mid-November based on this faulty assumption should not be considered. Cf. Myers v. Williams (1987), 160 Ill. App. 3d 707, 712-13 (where the court found it was not reversible error for the trial court to have refused to allow into evidence the response of an expert witness to a hypothetical question which assumed facts not in evidence).

Disregarding Dr. Gulley’s testimony based on this improper assumption, it was Dr. Gulley’s undisputed testimony that if plaintiff was not symptomatic prior to mid-December 1984, the accepted routine monitoring of ketogenic dieters would probably not identify gallstones since sonography or other sophisticated testing techniques would not have been undertaken in the absence of symptoms. Excerpts from the depositions of the Center’s expert witnesses, Drs. Bynum and Falko, did not include any relevant testimony as to this monitoring issue. Consequently, the only inference to be drawn from the undisputed facts is that the Center’s alleged breach of its duty to monitor plaintiff was not the proximate cause of her injury.

For the reasons above, the circuit court’s summary judgment as to counts I and II is reversed and the cause remanded for trial. The circuit court’s summary judgment as to counts III and IV is affirmed.

Judgment affirmed in part and reversed and remanded in part.

WOODWARD and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    BIRDSLEY TRUCKING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Steven Philhower, Appellee).
    Third District (Industrial Commission Division)
    No. 3—89—0218WC
    Opinion filed December 20, 1989.

      Pamela K. Harman, of Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago, for appellant.
    Donna Engels, of Henry S. Dixon, Ltd., of Dixon, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Steven Philhower, suffered injuries in a car accident while allegedly driving on a work errand for his employer, Birdsley Trucking Company. Claimant’s mother, a passenger in the car, was killed in the accident. An arbitrator awarded claimant $216.39 per week for life, plus interest, and medical expenses of $37,000 for total and permanent disabilities which arose out of and in the course of the employment. The Industrial Commission (Commission) heard additional evidence, and later summarily affirmed the arbitrator’s decision, declining to review the record based on the employer’s failure to timely file the required written summary of its position. The circuit court of Bureau County confirmed the Commission’s decision, and the employer filed an appeal to this court. This court remanded the case to the Commission with directions, and the case came to the Commission for a review on the merits.

The Commission again affirmed the decision of the arbitrator, and the circuit court confirmed the Commission’s decision. The employer appeals, contending that the Commission’s finding that claimant’s injuries arose out of and in the course of his employment is against the manifest weight of the evidence; that the Commission incorrectly computed his average weekly wage; that the Commission erred in awarding benefits for injuries stemming from the personal, and not the business, portion of the trip; that the Commission’s award of certain medical benefits is not supported by the record; that one witness’ testimony should be stricken in its entirety; that the Commission’s alleged loss of certain films inhibits the appeal process; and that the Commission failed to provide a full and complete record for this appeal.

On March 20, 1979, claimant began working for Birdsley Trucking as an over-the-road truck driver/mechanic near Princeton, Illinois. On May 5, 1979, the automobile accident occurred. Claimant was driving his automobile from nearby Ladd, Illinois, where, he testified, he picked up a fuel gauge at Rnauf Implements for the truck he drove for respondent. Another car broadsided the passenger side of claimant’s car. His mother was killed, and he suffered fractures to the right humerous and left tibial plateau, and a severe closed head injury. He remained in a coma for nearly two months. Subsequently, he has not worked and has been diagnosed as having neurological problems which prevent him from working, and which have resulted in total and permanent disabilities manifested both in neurological problems and gross motor problems.

Claimant introduced numerous medical records into evidence. A June 11, 1979, EEG showed a “markedly abnormal EEG” with “severe generalized cerebral depression and/or damage indicating the presence of diffuse cerebral dysfunction.” A June 27, 1979, EEG showed only slight improvement. A July 10, 1979, discharge summary from one hospital showed a final diagnosis of closed head injury; cerebral contusion and concussion, moderate in intensity; and expressive dysphasia, secondary to the cerebral injuries. Claimant remained hospitalized until August 8,1979.

Claimant offered an October 14, 1982, report from Dr. James V. Magnuson, a psychiatrist. Dr. Magnuson treated claimant from October 9, 1981, through May 7, 1982. He also reviewed all relevant medical records. Claimant initially complained of disinterest in all activity, mixed sleep disorder, and a sense of being greatly slowed down. He manifested marked psychomotor retardation and difficulty concentrating, and described an intense sense of anhedonia, decreased appetite, and compulsive eating habits. These symptoms began in the summer of 1979.

Dr. Magnuson explained that of particular significance were the closed head injury and prolonged comatose state; his mother’s death; and the neurological injury, which was the most enduring factor. Dr. Magnuson noted further that the movement disorder was asymmetrical. A neurological evaluation revealed “increased muscle tone in both upper and lower extremities with the left side being more affected than the right and a decrease in the coordination of muscular actions. These findings do not have localizing significance and therefore stem from a diffuse injury to the central and right sided regions of the brain. Because the brain scan was normal and the injury occurred approximately three years ago, it can be said with confidence that the above described residual from the brain injury is chronic and unredeemable.”

Dr. Magnuson reported further that the “functional effects of the neurological damage is [sic] that [claimant] will be unable to operate motor vehicles of the type that had formerly provided his livelihood. In addition, his coordination is interfered with in such a way that he would be prevented from functioning as an effective mechanic even though he appears to retain the knowledge necessary to be a mechanic. Because the deficits are pervasive, he would also be prevented from availing himself of retraining since his performance in all jobs requiring motor coordination would be adversely affected.” The neurological and psychiatric disorders would affect claimant adversely for the rest of his life. “In my view, rehabilitation offers [claimant] little hope since his disorders are pervasivef,] affecting his entire person rather than a single body part or isolated function.”

Claimant offered into evidence a November 11, 1980, report from Dr. John H. Van Landingham, a neurosurgeon, who examined claimant on October 31, 1980, and reviewed his medical records. He described the examination: “[Claimant] is obese, unkempt, and unshaven. He has not washed for at least a number of weeks judging by the state of his skin. He walks with a very slow gait with impairment of the normal right arm swing, and he carries his right hand with the fingers somewhat flexed.” His neurological examination was normal. Dr. Van Landingham concluded that claimant “suffered a rather severe closed head injury with contusion of the left cerebral hemisphere. In view of my neurological examination at the present time, I am at somewhat of a loss to explain his complaints of inability to walk well and poor motor control of his legs and right arm. On the other hand, I think that these are real symptoms and not due to either a functional disturbance or to malingering, and I suppose are compatible with diffuse cerebral damage.”

Claimant offered the May 14, 1985, evidence deposition of Dr. David K. Deets before the Commission. Dr. Deets, a surgeon, testified that he examined claimant four times over a course of four months in 1985. Claimant consistently displayed a degree of expressive aphasia, a slowness in speech. The examinations were normal in most respects. His gait was observed, and claimant was “quite uncertain of walking.” He was unsteady. “When he would walk, his right foot would drag just ever so slightly as if he was using it to find his way as someone that had suffered a stroke.” He seemed generally uncertain about the right side of his body. He was unclean. Claimant demonstrated a quite labile blood pressure, which is sometimes the result of central nervous system malfunction. He complained of daily headaches and dizziness.

Dr. Deets opined that “because of his apparent problems of expressing himself, of his seeming inability to concentrate at certain times, his generalized depression *** I think the only type of employment *** that I could see [claimant] in would be in a sheltered workshop type of facility perhaps with constant supervision as to details and which would not require any physical stress or fine manipulations.” Dr. Deets had “severe reservations” about whether claimant should possess a driver’s license at all. To a reasonable degree of medical certainty, claimant could not function as a truck driver or automobile mechanic.

Dr. Deets questioned both claimant’s ability to physically exert himself and his mental capabilities to diagnose and repair things. He could not climb ladders or do general physical labor because of his dizziness. He could not operate farm equipment because of his inability to react or make judgments quickly.

Dr. Deets was shown two films of claimant which were taken by a covert photographer for the employer. As to part of the first film, he did not see claimant walk in that manner in the office. He observed in the film, however, that the “[rjight arm doesn’t seem to swing as much as the left arm does.” In regard to the second film, Dr. Deets stated: “That’s the way that he walks more often in the office than he did on the other film.” The fact that claimant may have worked on cars, driven a pickup for a short distance, or helped out with errands around a farm would not alter Dr. Deets’ opinion because “of the sporadic nature of what’s been demonstrated *** [that is,] whether he has the endurance to do it day in and day out.”

Floyd Philhower, claimant’s father, testified that he saw his son at the gas station on May 5, 1979, and claimant mentioned that he was going to Ladd. He did not state the purpose of the trip or that he was taking his mother. After the accident, claimant's father saw Harold Birdsley, claimant’s boss, at the hospital. Philhower and his daughter, with Birdsley and his wife following, drove to where claimant’s car had been parked. Philhower was retrieving claimant’s tools from the car when he found an object and told Birdsley, “I don’t know what this piece is.” Birdsley replied, “That is what Steve [claimant] was to go after for the truck ***.” Birdsley said that he would take the object home with him.

Claimant presently lives with his father. Philhower observed that claimant has trouble performing even small tasks, and can do no heavy work. He has not returned to work. Until shortly before the arbitration hearing, four years after the accident, Philhower always washed and dressed claimant. Claimant was unable to feed himself very well. Philhower prepared all claimant’s meals and handled his financial and insurance matters.

Betty Mecum, claimant’s sister, testified that in May 1979 she lived at home with her parents and claimant. On the morning of May 5, 1979, she was with her father and Birdsley at the garage where claimant’s wrecked car was parked. She heard her father say he did not know what something was, that it was not one of claimant’s tools, and Birdsley replied, “This must be what — it looks like something Steve got for the truck.” Earlier, Birdsley had telephoned Mecum and said that he expected claimant to work on the truck that morning.

At the arbitration hearing, the 36-year-old claimant testified that when he was hired, he understood that he was to drive Birdsley’s truck and maintain it in good repair. In respect to obtaining parts for the truck, claimant would sometimes drive alone to another city, once to Chicago, and once to Peru, to pick up a part. At other times, claimant and Birdsley drove together to pick up a part. For long-distance trips, claimant would either go in Birdsley’s pickup or personal automobile. Birdsley paid for the parts. If claimant “had enough money to possibly pay for the part, I would go without getting money from [Birdsley].” Most of the time, he discussed it with Birdsley first. But usually it was apparent to Birdsley that a part was needed, and Birdsley did not give claimant a direct order to get the part.

Claimant recalled going to the Knauf dealership in Ladd three or four times to pick up something for the truck. Each time, claimant paid for the parts himself. “I would take the receipt back to Harold, show it to him, and his wife would take it as a copy and would give me the money for the amount paid.”

On May 3, 1979, claimant returned from delivering a load in Missouri, and Birdsley told claimant he did not have a “job for me to do the next day. And at that rate, I was off the Friday — I think that was May 4th.”

On Saturday, May 5, 1979, claimant went for a fuel gauge for the truck. Claimant drove to Knauf’s in Ladd. He left home at about 8 a.m., drove to get gasoline, and then returned home, where he lived with his parents, and “picked up my mother to ride along.” His mother had no business to do in Ladd.

Claimant recalled driving to Knauf’s on County Road M, commonly called the “angling road.” Claimant had no recollection of leaving Knauf’s. The next thing he remembers is waking up in a hospital bed, five to eight weeks after the accident.

In June 1983, claimant testified before the arbitrator that he was unemployed. He lived with his father, received no benefits from any agency, and had no income. His inability to function as a mechanic had not changed.

In July 1985, claimant testified before the Commission that he remained unemployed. Following this testimony, the Commissioner noted that he observed claimant’s sluggishness in speech and gait problems, but stated that he intended to rely more on the medical opinion than his own observation.

Joseph Backes, a truck driver, testified for claimant that he is a truck driver and saw the May 5, 1979, accident occur on the “angling road” to Ladd. Backes approached claimant’s car and saw claimant unconscious and convulsing. After the police arrived, Backes went on to his destination, Knauf Implements, in Ladd, to have his truck repaired. He told Knauf Employees that he had witnessed the accident. A mechanic commented that claimant “was just over here.”

In June 1983, Dr. Jack Skeels testified for claimant as an expert in the field of labor and comparative economics. Using government documents containing information regarding trucking incomes at a variety of levels, he developed and offered an average income in the trucking industry in the Princeton-Peru area. He also used hourly, weekly and annual earnings for trucking companies as reported by the United States Bureau of Labor Statistics through its Chicago office, to develop different annual figures and determine the consistency among them.

Richard Eckohhe, a neighbor, testified for claimant before the Commission that since the June 1983 hearing, claimant’s walk had improved. “He used to walk with a shuffle. Now he walks normally but slow and everything he does is slow.” Otherwise, Eckohhe had seen no change. He did not believe claimant was employed. Usually he is seen “just walking up and down the street or getting into his old truck, driving away. Very seldom do I see him do that — He is in the house most of the time.” Eckohhe observed that in the film shown to him, claimant drove slowly, and there was very little traffic. The films were accurate in their depiction of how claimant moves. When he is on ground that is not level, however, he staggers. Eckohhe has not seen claimant operate his motorcycle at all. Claimant has not tuned his car engine in the last two years.

Greg Steele testified for claimant before the Commission. He is a farm manager, and in December 1983 he very briefly employed claimant to work in the farm shop. Steele noticed slurred speech and slowness in physical movement. There was no job in his farming operation that claimant could handle full time. Only “[v]ery part time, very short period. *** A couple of hours a day, at best, not routine and not every day.” He did not possess the physical stamina necessary to function with the livestock.

Janet Sebben testified for the employer that she was employed by Knauf Implement as a bookkeeper, entering billing, invoices and accounts receivable. After the accident she was contacted by an investigator working for Philhower in regard to whether claimant purchased a part on or near May 5, 1979. The investigator went through Knauf receipts and found nothing recording a sale.

Harold Birdsley testified that he hired claimant as a mechanic/ driver for Birdsley Trucking, and paid him 25% of the total freight bill. Thus, the “more you keep the truck hauling freight and the less down time, the more money he is going to make.” Birdsley also stated, “The driver has total control of the truck that he drives.” If a driver needed expense money while on the road for fuel, tires and lights on the truck, either Birdsley or his wife would give the driver an advance check for expense money.

In regard to the procedure when a repair needed to be done once the truck returned to the terminal, Birdsley stated: “Sometimes I helped the drivers. It was kind of a standard procedure that the drivers maintain their own trucks.” Birdsley paid the drivers by the hour for making such repairs. Birdsley “occasionally” sent a driver to pick up a part. Sometimes, but “very seldom,” the driver picked up a part using his own automobile. When a driver picked up a repair part, he generally returned with a receipt, which was given to Birdsley for reimbursement and recordkeeping purposes. Claimant had an excellent reputation as a mechanic. Birdsley “very seldom” supervised claimant. He was generally responsible for his own mechanical work.

Birdsley testified further that on May 5, 1979, claimant was supposed to meet him at 9:30 a.m. After stopping at the hospital following the accident, Birdsley accompanied Philhower to the car wreck. Birdsley denied finding or discussing a part with Philhower and denied taking anything away from the car. Birdsley described a fuel gauge as copper, not gray like the object Philhower described. Later, Birdsley worked on the truck which claimant drove for him and concluded it did not need a fuel gauge.

The most direct route between Ladd and Birdsley’s place of business was Interstate 80. Birdsley would not consider any secondary road to be more direct. Birdsley was not familiar with the “angling road.”

The May 13, 1985, evidence deposition of Dr. James F. Dupre, a neurosurgeon, was offered into evidence before the Commission by the employer. Dr. Dupre testified that at the employer’s request he examined claimant. He took claimant’s history from his father and reviewed relevant medical records. The examination lasted 30 to 45 minutes. Claimant denied any specific complaints or a change in mentation. His father, however, noted a significant change in mentation since the injury, including being slower mentally and acting slow and sluggish. The neurological examination was normal. Some answers to questions were sluggish. Claimant’s gait displayed a slight swaying back and forth without losing his balance, but this was not indicative of anything. Dr. Dupre did not believe it could be accounted for by the injury because he would have expected to find certain objective signs.

During the deposition, Dr. Dupre was shown several films of claimant. Dr. Dupre thought claimant’s gait was normal. In viewing claimant get into a truck and drive away, Dr. Dupre thought that claimant entered the car without difficulty and drove away rapidly.

Dr. Dupre concluded from his examination and review of the records that claimant showed nothing to indicate there was any residual physical or neurological impairment. He believed claimant was capable of “primarily physical rather than mental labor.” He could probably climb ladders, paint buildings, work with tools, and drive farm machinery.

Dr. Dupre testified on cross-examination that the abnormal EEGs and the history of unconsciousness for a prolonged period of time indicated the head injury was severe. However, just because “an EEG is abnormal doesn’t necessarily mean that that’s indicative of something that has recently happened to an individual.” Because the second EEG changed only minimally, “that may simply be an indication of the amount of cerebral injury that’s been incurred by the injury but it may also be that that is this individual’s EEG on a normal basis.”

Donald Welter testified before the Commission for the employer that he was employed by an insurance company in March 1985 to place claimant under surveillance and document any physical activities on motion picture film. He took 16 films of claimant. Claimant was observed a total of four days, 8 to 12 hours each day, in March and May 1985. Several films were shown to the Commissioner. In one film, claimant worked under a car, lifted a tail pipe, and tried to wiggle it loose from the muffler itself. Claimant then carried a toolbox and carried a segment of the tail pipe a short distance. Welter did not see claimant perform any other physical activities. In another film, claimant was seen driving an old pickup truck alone. Claimant was never observed doing anything else that was “filmable.”

The employer contends that the primary issue is whether the Commission’s finding that claimant’s accident arose out of or in the course of his employment is against the manifest weight of the evidence. We will not disturb the Commission’s findings unless they are against the manifest weight of the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963.) A reviewing court will not discard permissible inferences drawn from the facts merely because it might have drawn other inferences. Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.

The employer correctly recites the rule that a traveling employee who is injured while on a work errand for his employer is compensated only where the errand or trip is both reasonable and foreseeable to the employer. Hoffman v. Industrial Comm’n (1985), 109 Ill. 2d 194, 486 N.E.2d 889; Wright v. Industrial Comm’n (1975), 62 Ill. 2d 65, 338 N.E.2d 379; Bradley Printing Co. v. Industrial Comm’n (1989), 187 Ill. App. 3d 98, 543 N.E.2d 116.

Claimant testified that he was responsible for maintaining the truck in good repair and that due to his working on a commission, he had an interest in how the truck ran. Similarly, Birdsley testified it was standard procedure for the drivers to maintain their own trucks. Birdsley trusted claimant, who had an excellent reputation as a mechanic/driver, and he did not supervise claimant’s every step. Claimant testified he had often gone to other towns to pick up a part for the truck and had been to Knauf’s about four times while working for Birdsley. On May 5, 1979, he “went for a fuel gauge because on the truck at that time the only thing that was not working in — was that was not in reasonable working order was a fuel gauge. Because I would have to keep checking the tank with a stick or just looking in to see how much fuel I had.” He recalled stopping at Knauf’s. Backes testified that after the accident, a Knauf employee reported claimant had just been there. Claimant’s father and sister both testified that Birdsley removed a part from the back of claimant’s wrecked car and stated that it was the truck part which claimant had gone to get.

Thus, the evidence supports the Commission’s finding that claimant was engaged in a work-related errand at the time of the accident because claimant drove to buy or inquire about a truck part and was injured on his way back to meet Birdsley.

The employer argues, however, that the trip to Ladd was neither reasonable nor foreseeable because there was a “rule against taking riders on either the truck or any vehicle that was being used to obtain parts.” On the contrary, Birdsley only testified that on the road, riders were generally not allowed in the truck. While he had not “authorized” a driver to take a rider in any other vehicle, apparently the situation had never arisen. Certainly claimant would be unlikely to ask for permission to let his mother ride in his own car, especially since he was driving a very short distance at 8:30 a.m. to pick up a part before meeting Birdsley at 9:30 a.m. to work on the truck.

The employer argues the trip was not foreseeable because claimant had not discussed the need for the part in advance with Birdsley. Birdsley, however, testified that the driver was responsible for maintaining the vehicle in good repair, that he trusted claimant and did not supervise him. Birdsley only testified that “normally” he might “call around to dealers” to find a part. Apparently the drivers often bought the parts themselves and simply received reimbursement from Birdsley later.

Birdsley only “occasionally” sent a driver for a part. Sometimes a driver went in his own car, although “normally” Birdsley would offer his car or pickup so he could furnish gas expenses. The Commission could find that the short trip to Ladd, however, was not the equivalent of a trip out of State or to Chicago for a repair part, and the need for gas expense money was minimal or not applicable.

The employer also points out that Sebben, Knauf’s employee, could find no receipt for a sale to claimant. If in fact a part was bought, and not just inquired about, there is nothing requiring proof that the wreckage held this slip of paper, or that anyone even looked for the paper. As to Knauf’s records of a sale, there is no testimony as to whether the records searched actually identified each purchase by the buyer’s name, company he represented, and time and item of purchase.

The employer’s contention that this case differs significantly from Bradley Printing Co. is not persuasive. In that case, we found that despite the employee’s personal deviation by dropping a friend at the airport, it did not alter the overall character of the trip. Similarly, we find here that notwithstanding the presence of another person in the car, the overall character of the trip was clearly for business purposes. We hold, as in Bradley Printing, that claimant here was engaged in an activity which he reasonably might be expected to do as part of his employment, and that he was where he reasonably might be expected to be driving, at the time of the accident. There is no evidence indicating claimant veered off onto a course incompatible with his work at any time before the accident. See Bradley Printing Co., 187 Ill. App. 3d 98, 543 N.E.2d 116.

The fact that the employee in Bradley Printing Co. had completed the personal aspect of his trip by dropping off a friend at the airport, while claimant here had not dropped off his mother prior to the accident, does not alter our decision. That was merely one factor which the Commission took into consideration when reviewing evidence of reasonable and foreseeable conduct related to the trip. Many additional factors are present in this case which were absent in Bradley Printing Co., and the Commission was entitled to rely upon those factors.

In the alternative, the employer argues that even if it was a “dual purpose trip,” the return trip was purely personal, i.e., to return claimant’s mother to her home before claimant went on to work. No witness was able to explain the presence of claimant’s mother on the trip to Ladd. There is no way of knowing whether claimant was driving her home before going on to meet Birdsley. Regardless, the record supports the Commission’s finding that claimant did not leave the course of his employment by taking his mother along, that the mixed personal and business elements of the trip were reasonable and foreseeable, and that County Road M was only a slight deviation from the more direct route. See Robinson v. Industrial Comm’n (1983), 96 Ill. 2d 87, 449 N.E.2d 106.

The employer next contends that, if claimant sustained a compensable accident, the Commission erred in computing his average weekly wage. Under section 10 of the Act, compensation shall be computed on the basis of annual earnings if employed continuously during the year preceding the injury by the same employer. But if not employed for a full year, the compensation shall be computed “according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during such period.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(c).) The employer argues the Commission should only use the salaries of two persons in the same class working at its company. The Act does not require the Commission to use the income of co-workers as a basis for determining claimant’s average weekly rate. Dr. Skeels’ testimony was admitted without objection. Moreover, claimant’s average weekly earnings for his six weeks of employment were only 64 cents different from Dr. Skeels’ figure.

The employer next contends that the Commission erred in awarding benefits resulting solely from the personal portion of the accident. The employer separates the closed head injury and neurological problems from the depression relating to his mother’s death. His mother’s “presence in the car and her resulting death are strictly risks personal to” claimant and a “substantial amount of [claimant’s] disability appears to stem from depressive illness resulting from his reaction to his mother’s death.” The employer therefore suggests that temporary disability be awarded from May 5, 1979, up until October 9, 1981, and that permanent disability be confined to “fractures, scarring and any cerebral injury which can be proved.”

Minutes after the accident, claimant was found unconscious and convulsing. He remained in a coma for nearly two months. Dr. Magnuson connected the depressive illness directly to the closed head injury and prolonged comatose state, along with claimant’s mother’s death. The neurological injury, however, was “the most enduring factor.” The neurological disturbance would “persist throughout his life and prevent him from realizing his current ambitions to return to a fully normal life style.” Drs. Magnuson, Van Landingham and Deets all found an asymmetrical disorder. Dr. Magnuson explained that the disorder stemmed from a diffuse injury to the central and right-sided regions of the brain. He offered a strong opinion that these residual effects of the brain injury would be “chronic and unredeemable.” Similarly, Dr. Van Landingham concluded that the poor motor control and gait problems were “real symptoms and not due to either a functional disturbance or to malingering, and I suppose are compatible with diffuse cerebral damage.” Dr. Deets found the neurological injuries resulted in a permanent disability. Eckohhe, Steele, and Mr. Philhower also testified regarding claimant’s daily physical manifestations of the neurological problems diagnosed by the physicians.

While Dr. Dupre saw no physical problems while viewing the films, Dr. Deets described in detail the abnormal gait and arm movements seen in the film, noting that it was not as obvious when claimant walked toward a person. Furthermore, Dr. Dupre did observe the sluggish speech and gait problems. Dr. Dupre also testified that the abnormal EEGs and history of unconsciousness for a prolonged period of time indicated the head injury was severe. There is nothing in the record to support his assertion that the EEGs might have always been abnormal in claimant.

Unlike the other doctors, Dr. Dupre found no asymmetrical increased muscle tone, but he acknowledged that such a finding would indicate central nervous system lesion. Although Dr. Dupre found no hygiene problem, he acknowledged that “someone who has a significant change in mentation after a major head injury, may, indeed, lose some of his normal awareness of his body and concern with his body hygiene.”

Dr. Dupre testified that he thought in the film claimant moved quickly, walked around a corner rapidly, and drove away quickly. The Commissioner watched the same film and noted that at some points claimant was “walking slowly and the track went away, it was slower than you see a track pull out. Those are the clues.” In regard to his ability to drive, the Commission was not required to give much significance to claimant’s driving an old pickup track 15 miles an hour for a few miles just outside a rural area of 175 people, and then turning around and going home.

The lengthy surveillance of claimant produced few filmable .events. For example, one 12-hour surveillance resulted in one-half hour of filming. The filmmakers saw no one helping claimant wiggle a tail pipe around and carry it away. Yet claimant’s sister and niece testified that the niece helped him, and the Commissioner noted her presence in the film. Moreover, the filmmakers remembered little or nothing about the surveillance and apparently made no notes of their observations. There was ample evidence to support the Commission’s award of benefits to claimant.

The employer next argues that the medical award was against the manifest weight of the evidence. It complains that the “Commission has neither enthusiastically nor carefully looked at the medical evidence here. The first appeal to this court was based upon the Industrial Commission’s decision to avoid reviewing the record and issue a summary affirmation because the respondent’s brief was one day late.” Any occurrence which took place in the first appeal is not before us at this time. Moreover, the record belies the employer’s assertions. The Commission not only reviewed the evidence thoroughly, but it heard considerable additional evidence, some of which was expressly requested by the Commission.

The employer objects to bills of $60 for Dr. Subbiah because the referral to him was by a psychiatrist treating claimant for depression, and $550 for Dr. Magnuson because it was only treatment for depression. We have already rejected the contention that the 10 years of intermittently incapacitating depression are related only to Mrs. Philhower’s death and therefore not compensable. The employer also objects to bills of $108 from Bethea Hospital, $55 from Gonstead Clinic, $575 from a chiropractor, and $120 from Princeton Medical because no supporting medical records were offered. We believe the bills from the medical service providers sufficiently support the Commission’s award of this $858 portion of the total $37,016 in medical costs.

The employer raises four procedural issues.

It argues that Dr. Deets’ testimony should be stricken in its entirety because he had papers in front of him during the deposition which he said were unrelated to the case, and which he refused to show the employer’s counsel. A great amount of time was spent by the employer arguing this issue at the deposition, before the Commission, and in subsequent proceedings. Dr. Deets’ affidavit described the employer’s attorney’s attempts to physically grab the papers: a personal bank deposit slip, checks, a trust deed to be given to his banker, and a bank foundation report. We find no abuse of the Commission’s discretion in making this evidentiary ruling.

The employer also contends that the Commission’s loss of seven canisters of film inhibits the appeal process because it impacts upon claimant’s credibility. The employer asserts: “However, in considering whether the Industrial Commission has issued its Decision based on the manifest weight of the evidence, Birdsley Truck asks this Court to consider the following factors: that the Commission apparently has misplaced seven canisters of film, that Commissioner Tansor has failed to give a summary of his recorded observations of the film, if any; that in the deposition transcripts of both Dr. Deets and Dr. Dupre the Commissioner has failed to rule on any of the evidentiary objections made within the body of those transcripts; that the Commissioner failed to send the entire Record to the circuit court of Bureau County in March 1989, and indeed had to file a supplemental certification less than one week before the due date of Appellant Birdsley Trucking Co’s brief; as well as their initial attempts to avoid reading and reviewing the Record by reason of Birdsley’s brief being one business day late. Under the totality of the circumstances, it seems fair to question whether the Commission had even totally considered the evidence or whether its Decision is based upon the manifest weight of it.”

Again, we find the record quite clear that the Commission carefully examined the record and additional evidence presented before it. The Commission’s decision on remand is lengthy and detailed. As to the lost film, the record clearly shows it is just as possible that the employer lost it’s own film. In any event, the witnesses who watched the film all described their observations in detail. Moreover, for the reasons noted above, the films suffered from several deficiencies, and there is an abundance of other evidence documenting information relating to claimant’s injury, which occurred over a decade ago.

Finally, the employer includes a contention titled: “(Reserve) Whether the Industrial Commission has provided a full and complete Record for this Appeal.” The employer argues that the Commission found and certified only two of the four volumes of the record on June 29, 1989. The employer asserts that it reserves the right to argue in its reply brief matters set out in a “transcript received four days earlier.” Whatever pertinent material the employer has included in its reply brief and raised at oral arguments has been carefully considered by this court.

For the foregoing reasons, the judgment of the circuit court of Bureau County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY WHITE, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—0952
    Opinion filed November 27, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Maureen Hartón, and Matthew E. Coghlan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Following a jury trial, defendant was convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a)) and sentenced to 25 years’ imprisonment. On appeal, he argues that: (1) his constitutional right to confront witnesses against him was violated by the State’s use of prejudicial hearsay testimony; (2) he was denied a fair trial as a result of the State’s improper and inflammatory arguments to the jury; (3) the trial court erred in refusing to give his proposed jury instruction regarding eyewitness identification testimony; and (4) the sentence imposed is excessive. For the reasons set forth below, we affirm.

The evidence at trial established the following. On June 8, 1986, Donald Williams’ home was burglarized. The home is a three-story brick house with a finished basement and side driveway located at 4940 South Woodlawn Avenue in Chicago. At the time of the burglary, Williams’ wife, Mary, their daughter, Linda, and three tenants resided in the home. At approximately 6:15 a.m. Williams woke up and, as he was walking past a vacant bedroom used by his son on occasion, he noticed some drawers had been pulled out of the dresser and the contents therein strewn about. Williams returned to his bedroom and awakened his wife. They went downstairs and noticed that the front hall closet was open and several items of clothing were strewn about the floor. Thereafter, they went into their TV room, found a window wide open and discovered that their 19-inch television, which had been sitting on a table in front of the window, was missing. They then went back upstairs to the second floor, awakened their daughter, and the three of them went through the house again, eventually going to the basement family room. There they saw that a window had been broken and that a 13-inch black television was missing. They walked back upstairs to the first floor, Mr. Williams proceeded to the second floor to get dressed and to call the police, and Mrs. Williams and her daughter went to the television room on the first floor.

As the two women stood talking and looking out of the first-floor window, Mrs. Williams saw a man, later identified as defendant, walk up the driveway from the west carrying the black television taken from her home. As defendant continued down the driveway, Mrs. Williams said, “There he is” to Linda, and the two women watched defendant walk approximately 50 feet down the driveway. After losing sight of defendant when he reached some bushes at the front of the house, the women ran upstairs to the master bedroom. Linda called out to her father, “He is here. We see him. He is in the driveway.” Linda and Mrs. Williams continued to watch defendant from the bedroom window. Mr. Williams called the police and gave them a description of defendant as related to him by Linda.

As defendant continued walking toward the front of the house, carrying the television, he met a young black woman wearing blue jeans, a blue jean jacket and a red sweatshirt. They crossed the street and walked behind a parked van. Shortly thereafter Linda and Mrs. Williams saw the woman emerge from behind the van and walk away from the area. Linda testified that she did not see defendant emerge from behind the van and that her view of the driveway between two houses on the east side of the street was obstructed by the van. Approximately five minutes later, Sergeant Swain, a Chicago police officer, arrived at the Williams home, had a conversation with them, and then left. A short time later, he returned, followed by a second squad car. Inside the second car was a black woman whom Linda and Mrs. Williams both identified as the woman they had seen earlier with defendant.

Officer Swain testified that on June 8, 1986, at approximately 6:30 a.m., he was on routine patrol in his squad car when he observed a black female standing by some trash cans near 4940 South Woodlawn Avenue. She was wearing blue jeans, a blue jean jacket and a red sweater. Swain questioned the woman briefly because it was unusual to see someone out at that time of the morning. Swain then drove off and a minute later he received a radio call concerning a burglary at 4940 South Woodlawn. He returned to that address and, while speaking with the Williamses, he received a second radio call and proceeded to 50th and Kimbark, approximately V-k blocks away from the Williams residence. Upon his arrival, he observed University of Chicago police and Chicago police officer Renard Jackson with a black female, whom Swain recognized as the woman he had previously talked to in front of the Williams home. Thereafter, Swain drove back to the Williams home, followed by Officer Jackson, who had placed the woman in his squad car. Mrs. Williams and her daughter subsequently identified the woman, Azalee James, as the person they had seen with defendant. She was then placed in custody, “Mirandized,” and taken to the 21st District police station.

Detective Patrick Rooney of the Chicago police department testified that he was assigned to investigate the burglary of the Williams home. He interviewed Linda and Donald Williams and Azalee James at the police station. He told James that she was under arrest for residential burglary and advised her of her constitutional rights. (James was subsequently released, and neither the State nor the defendant called her as a witness at trial.) After receiving information from James, Officer Rooney went to defendant’s residence, arriving there at approximately 10 a.m. Defendant was not at home so Rooney left a message with defendant’s mother to have defendant call him. At 2 p.m., defendant called Rooney, he agreed to voluntarily come into the police station to talk with Rooney, and Rooney went to defendant’s house and brought him to Area 1 police headquarters.

At Area 1, defendant was advised of his constitutional rights and informed that the police were investigating a burglary at 4940 South Woodlawn. Defendant denied any knowledge of the burglary, stating that at the time of the incident he was drinking at a disco until 5 a.m. and that he arrived home at approximately 6 a.m., at which time his mother told him the police were looking for him. When Detective Rooney told defendant that he had not been to his mother’s home until approximately 10:15 a.m., defendant then told him that he went to his sister’s house after the disco, fell asleep there for awhile, and, when he awoke, he went to his mother’s house.

Rooney next asked defendant if he knew Azalee James. Defendant replied that he did but that he had not seen her for two weeks. After Rooney related to defendant some information he had received from James, defendant stated that in fact he had been en route to James’ house earlier that day when he observed a burglary in progress at a residence on Woodlawn. He watched while “property was stashed” and then went to James’ house, woke her, and they returned to the scene and took a television which had been among the stashed property. Rooney further testified that when he told defendant that there were two eyewitnesses to the crime, defendant stated that he had in fact been walking with Azalee James past the victims’ home, observed a television lying in the bushes near the front of the house, and then took the television. Thereafter, Rooney requested that defendant’s fingerprints, which were already on file, be compared with fingerprints taken from a broken basement window of the Williams home.

Chicago police officer Levy R Roberts testified that on June 8, 1986, at approximately 3:30 p.m., he fingerprinted defendant. Chicago police officer Fred Harris, a trained latent fingerprint examiner of 12 years and called by the State as an expert, testified that he compared defendant’s fingerprint with a print taken from the scene of the burglary and found 21 points of identification. In Officer Harris’ opinion, the prints were both made by the number 10 finger, or little left finger, of defendant.

After the presentation of the foregoing evidence, the State rested, defendant’s motion for a directed verdict was denied, and a conference on jury instructions was held during which an instruction by defendant on eyewitness identification was refused. Thereafter, defense counsel rested without presenting any evidence, closing arguments were made to the jury, and the jury found defendant guilty of residential burglary. Defendant was subsequently sentenced to 25 years’ imprisonment, and this appeal followed.

Defendant first argues that his right to confront witnesses against him was violated by the State’s substantive use of prejudicial hearsay, i.e., Officer Rooney’s testimony concerning “information received from Azalee James, which prompted him to go immediately to defendant’s home.” Specifically, defendant complains of the following statements by the State in its opening argument to the jury:

“[THE STATE]: That detective [Officer Rooney] will tell you that after that woman was arrested and brought into the police station she was questioned after having received her Miranda rights. After that conversation with the woman, the woman who was identified as being outside that house, the first thing the detective did was go out and look for Ricky White.
[DEFENSE COUNSEL]: Objection.
THE COURT: I will sustain the objection.
[THE STATE]: You will hear a detective went to Rick White’s house. You will hear how the detective did not find Ricky White at home.”

Defendant also complains of the State’s similar remarks in its closing argument, i.e.:

“[THE STATE]: Just the statement immediately after talking to Azalee, Detective Rooney went directly over to his house, got in the car and sped right over to his house. The information he got from a woman who we know was out in front of that house, and if anybody knows who she was with, don’t you think it’s clear. After she supplied Detective Rooney with that information, he went directly to his house.
[DEFENSE COUNSEL]: Objection.
THE COURT: Well, I will sustain the objection to what this woman may have said to Detective Rooney.
[THE STATE]: Ladies and gentlemen, we know that they had a conversation and right after that conversation Detective Rooney wasted no time looking for him.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: When he got him and brought him in, and we know that he sat and tried to squirm his way out of a burglary.” (Emphasis added.)

Relying on People v. Campbell (1983), 115 Ill. App. 3d 631, defendant also asserts that “this accusation by inference was just as damaging to the defendant as disclosure of the substance of the conversation would have been.” The State contends that Officer Rooney’s testimony was properly admitted for the limited purpose of explaining his investigatory method.

It is well settled that in cases where officers have testified that they spoke to an accomplice in order to gather information about others involved in the crime charged, and immediately after that conversation arrested the defendant, such testimony is admissible despite the fact that the jury can reasonably infer therefrom that the accomplice implicated the defendant. (People v. Hunter (1984), 124 Ill. App. 3d 516; People v. Jackson (1979), 72 Ill. App. 3d 231; People v. Williams (1977), 52 Ill. App. 3d 81; People v. Coleman (1974), 17 Ill. App. 3d 421.) In the instant case, therefore, we find defendant’s assertion without merit that the accusation made through Rooney’s testimony implicating defendant in the burglary was just as damaging as disclosure of the substance of Rooney’s conversation with James.

On the other hand, we agree with defendant that the use made by the State of Rooney’s testimony exceeded the limited purpose for which it was admitted, ¿e., to explain his investigatory procedure. Analogous to the situation here is, as defendant asserts, People v. Campbell (1983), 115 Ill. App. 3d 631. In Campbell, the court found that the prosecutors, in defiance of the trial court’s explicit instructions, insisted upon repeatedly informing the jury that the defendant’s alleged accomplice had implicated the defendant in the crime charged, with the sole purpose to urge the jury to convict the defendant based upon the hearsay statement of the alleged accomplice implicating him. Specifically, the prosecutors remarked during their rebuttal argument that the police obtained and learned the defendant’s name from his alleged accomplice and, as a result, arrested the defendant. The Campbell court reversed the defendant’s conviction and remanded the case for a new trial. In the instant case, although the prosecutor did not specifically state that Rooney obtained and learned defendant’s name from Azalee James as an alleged accomplice in the burglary, his remarks constituted such a statement notwithstanding that it was phrased differently, i.e., “Just the statement immediately after talking to Azalee, Detective Rooney went directly over to his [defendant’s] house, got in the car and sped right over to his house. The information he got from a woman who we know was out in front of that house, and if anybody knows who she was with, don’t you think it’s clear. After she supplied Detective Rooney with that information, he went directly to his house.” Clearly the State’s remarks here are an example of the recently recognized practice of prosecutors taking improper advantage of the admissibility of testimony by a police officer to explain his investigatory procedure, only to use that testimony, once it is admitted, to impermissibly use it in closing argument. See People v. Hunter (1984), 124 Ill. App. 3d 516.

Although we find that the complained-of remarks were improper and prejudiced defendant, we do not believe that it can be said that the jury’s verdict would have been different had these remarks not been made in light of the overwhelming evidence of defendant’s guilt. (See People v. Love (1985), 139 Ill. App. 3d 104.) Two of the victims of the residential burglary identified defendant as the man they saw with one of the items stolen from their home — the black television. A fingerprint found at the burglary scene matched defendant’s. Additionally, defendant admitted that he took the television, notwithstanding that he allegedly took it under other circumstances, and that he was with Azalee James when he took it, which was corroborated by the victims’ identification of defendant and James by Mrs. Williams and her daughter. “A verdict of guilty will not be set aside on review unless the evidence fails to sustain that verdict, or the evidence is so improbable, unsatisfactory, or inconclusive as not to be worthy of belief.” (People v. Hunter (1984), 124 Ill. App. 3d 516, 525.) The evidence here clearly supports the jury’s verdict.

We also reject defendant’s argument that other remarks by the State during closing and rebuttal arguments to the jury were inflammatory and their cumulative impact denied him a fair trial. Where a prosecutor’s comments are error, they do not necessarily constitute reversible error. Reversible error occurs only where the comments substantially prejudice the defendant. (People v. Wheatley (1989), 183 Ill. App. 3d 590.) A defendant suffers substantial prejudice where the result of his trial would have been different had the improper argument not been made. (People v. Love (1985), 139 Ill. App. 3d 104.) A prosecutor is given great latitude in closing argument, and the propriety of his comments are within the trial court’s discretion. People v. Morrison (1985), 137 Ill. App. 3d 171.

In the instant case, defendant not only complains of comments made by the State in closing argument, but also practically the State’s entire rebuttal argument. In light of the fact that the evidence supports the jury’s verdict of defendant’s guilt, we find it unnecessary to address each complained-of comment. Moreover, our review of the record discloses, as the State contends, that the complained-of comments were either properly based on the evidence or were invited by defense counsel, or, if improper, were harmless beyond a reasonable doubt. For the purpose of illustration, a few of the complained-of comments are as follows. Defendant complains that the State improperly commented on his “intent” when he called the police volunteering to come into the police station, i.e.:

“[THE STATE]: *** He didn’t go with Detective Rooney to the station to really admit what he had done, to cleanse his soul, to give in the proceeds. We know why he called. He had it all figured out. T got my alibi. I am all set.’
Ladies and gentlemen, when he went to the station he had the intent — through the statements we know he had the intent originally of denying any knowledge of this burglary, but when he went to the station he didn’t know that they had talked to Azalee. He didn’t know they had talked to two eyewitnesses.”

We agree with the State that it merely drew reasonable inferences from the evidence in making the foregoing argument based on Detective Rooney’s testimony that defendant at first denied any knowledge of the burglary, stating he was somewhere else at the time, but later admitted that he had in fact been at the scene and had taken the television.

We further note that the complained-of comments made by the State that defendant failed to call Azalee James as a witness and that defense counsel lacked expertise concerning the interpretation of fingerprints were in response to defense counsel’s closing argument to the jury wherein he attacked the State’s failure to call James as a witness and he impugned the State’s fingerprint expert’s interpretation of the fingerprints of defendant and the one taken from the scene of the burglary.

We also find two other complained-of remarks made by the State, although improper, harmless beyond a reasonable doubt. The complained-of comments were that if the victims had awakened while defendant was burglarizing their home, defendant might have been charged with rape or murder, and another remark suggesting that defendant could have had a gun. Defendant correctly argues that these remarks were prejudicial because there was no evidence of any weapons used in the burglary. However, these remarks were harmless beyond a reasonable doubt, not only because of the overwhelming evidence of defendant’s guilt, but also because the court sustained defendant’s objection to them and instructed the jury to disregard them.

In light of the foregoing, we find that defendant’s right to a fair trial was not violated by the complained-of comments made by the State and that any improper comment was cured by the trial court’s prompt sustaining of defendant’s objections and its subsequent instructions to the jury to disregard the comments and to consider only the evidence presented.

Defendant’s last procedural argument is that the trial court erred in failing to give his tendered jury instruction on eyewitness identification. In Illinois, it is well settled that no specific instruction regarding identification reliability is required to protect a defendant’s right to a fair trial where the jury is instructed concerning the credibility of witnesses, the presumption of innocence, and the burden of proof. (People v. Kubat (1983), 94 Ill. 2d 437.) Under the circumstances here, the instructions covering these areas were given to the jury. Defendant’s argument that his theory of mistaken identity required a special instruction, such as the one proposed by him, is without merit in light of the fact that both Mrs. Williams and her daughter identified him in court as the man they saw walking with their television set and defendant himself admitted he took the television and was at the scene of the crime.

In his final argument, defendant complains that imposition of a 25-year sentence was excessive in light of the fact that there was no weapon involved, there was no harm or threat of harm done to anyone, and that he was only 25 years old at the time.

It is well settled that absent an abuse of discretion by the trial court, a sentence may not be altered on review. (People v. La Pointe (1981), 88 Ill. 2d 482.) There is no question that the sentence imposed is a severe one, yet it is within the statutory guidelines. Residential burglary is a nonprobational, Class 1 felony providing for a sentence of 4 to 15 years in the penitentiary. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(4).) An extended-term sentence may be imposed if the defendant has been convicted of the same or a greater class felony within 10 years preceding the second conviction. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(1).) In the instant case, defendant had been convicted in 1981 of armed robbery and was sentenced to seven years. Armed robbery is a Class X felony. The 25-year extended term was clearly within the statutory guidelines. In light of the fact that the trial court was in a better position to determine defendant’s punishment than this court on a cold review of the record, we cannot say that that court abused its discretion. People v. Perruquet (1977), 68 Ill. 2d 149.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

LORENZ and PINCHAM, JJ., concur.