author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD L. KOCH, JR., Defendant-Appellant.
    Fourth District
    No. 4—91—0773
    Opinion filed July 30, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1991, defendant, Richard L. Koch, Jr., pleaded guilty pro se to deceptive practices involving three checks used to obtain property having an aggregate value exceeding $150, a Class 4 felony. (Ill. Rev. Stat. 1989, ch. 38, pars. 17 — l(BXd), (BXe).) The trial court sentenced him to five years in prison and ordered him to pay restitution. Defendant appeals, including among his arguments the claim that the trial court failed to correctly admonish him in accordance with Supreme Court Rule 401 (134 Ill. 2d R. 401). Because we agree with defendant’s argument and reverse and remand for further proceedings, we need not address the other arguments defendant raises.

I. Facts

On June 5, 1991, defendant was arrested in Florida and held as a fugitive. On June 19, 1991, he was returned to Illinois to stand trial on the present charge. On June 21, 1991, at his initial appearance in court, defendant stated he wished to waive counsel and plead guilty. The trial court refused to accept defendant’s guilty plea, held the case over for four days so that defendant could consult an attorney, and appointed a public defender to represent him. The defendant disclosed at the June 21 hearing that he had previously been convicted of felony deceptive practices, and the prosecutor then stated that he viewed defendant as a candidate for an extended-term prison sentence.

On June 25, 1991, defendant told the trial court again that he wanted to waive counsel and plead guilty. The court then explained to him (1) the nature of the charge, (2) that he had a right to counsel and that one would be appointed for him if he could not afford counsel, and (3) that the minimum and maximum sentences the court could impose were “not less than one nor more than three years.” (Emphasis added.)

The following colloquy then transpired:

“THE COURT: Do you understand the nature of the offense, in other words, a felony offense, criminal offense, as I have indicated, with the potential penalties?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about anything that I have said to you up to this point?
THE DEFENDANT: No.
THE COURT: And you still want to proceed without an attorney?
THE DEFENDANT: Yes.
THE COURT: And what is your age?
THE DEFENDANT: Twenty-two.
THE COURT: With regards to his waiver of counsel, the Court will find that he’s been advised of his right to an attorney, the nature of the services to be provided by the attorney, potential penalties that can be imposed, that today he freely and voluntarily and it appears to the Court intelligently and without any threats or promises having been made to him, giving up his right to counsel and representation by an attorney and proceeding in his own person.
With regards to the charge itself, being deceptive practices, a Class Four Felony, and taking your plea, in the next couple of minutes I’m going to ask you some questions with regards to that. You have have [sic] heard me say earlier at anytime in the next couple of minutes you’re free to change your mind entirely, in which case a plea of not guilty will be reinstated for you. Do you understand that?
THE DEFENDANT: Yes.”

After the trial court accepted defendant’s waiver of counsel, it immediately proceeded to admonish defendant regarding his offer to plead guilty. In doing so, the court explained again to defendant (1) the nature of the charge, (2) that by pleading guilty he waived his right to a jury trial, and (3) that he had a right to plead not guilty. At that point in the proceedings, the court for the first time also admonished defendant that he could be a candidate for an extended-term sentence of “not less than three nor more than six years.” (Emphasis added.) Defendant stated again his wish to plead guilty, and the court ultimately accepted that plea.

At a July 1991 sentencing hearing, the court sentenced defendant to an extended-term sentence of five years in prison. Later that month, defendant filed a pro se motion to withdraw the guilty plea and vacate the sentence. The court appointed counsel to represent defendant on that motion, and in October 1991, counsel filed a supplemental motion to withdraw the plea of guilty. That motion alleged in part that the court erred in failing to inform defendant of the possibility of an extended-term sentence before he waived his right to counsel. The court denied the motion and this appeal followed.

II. Analysis

Defendant argues that his waiver of counsel was invalid because the trial court did not admonish him — before accepting his waiver of counsel — that he could receive an extended term of three to six years in prison. We agree.

Illinois Supreme Court Rule 401(a) provides a court may not accept a defendant’s waiver of his right to counsel until the court has first informed him of, and determined that he understands, the following:

“(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” 134 Ill. 2d R. 401(a).

In the present case, the trial court informed defendant when accepting his waiver of counsel that he could be sentenced to a term of imprisonment of not less than one nor more than three years, the minimum and maximum sentence prescribed by law for a Class 4 felony nonextended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX7).) However, because defendant had a previous conviction for felony deceptive practices within the 10 years prior to the felony deceptive practices charge in the present case, he was eligible for an extended-term sentence of three to six years in prison. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3.2(bXl), 1005-8-2(aX6).) Accordingly, the trial court should have informed defendant under Supreme Court Rule 401(a) that the minimum and maximum sentence it could impose upon him was not less than one year and not more than six years, explaining further that the court had the authority to impose an extended-term sentence, but was not required to do so.

In People v. Derra (1981), 92 Ill. App. 3d 1106, 1111, 416 N.E.2d 688, 692, this court held that strict compliance with Supreme Court Rule 401(a) is required. We later adopted a narrow exception to the strict compliance requirement in a case in which the defendant possessed a high level of legal sophistication. See People v. Houston (1988), 174 Ill. App. 3d 584, 589, 529 N.E.2d 292, 295-96 (defendant was employed as a paralegal and the record established that he exhibited legal sophistication and knowledge).

Under very limited circumstances, the Illinois Supreme Court has held “substantial compliance” with Rule 401(a) sufficient to effectuate a valid waiver of counsel. In both People v. Coleman (1989), 129 Ill. 2d 321, 334, 544 N.E.2d 330, 336, and People v. Johnson (1987), 119 Ill. 2d 119, 132, 518 N.E.2d 100, 106, the trial court correctly admonished the defendant regarding the maximum sentence (the death penalty) and later imposed it. In those cases, however, the trial court either failed to admonish the defendant regarding the minimum sentence (Johnson, 119 Ill. 2d at 134, 518 N.E.2d at 107) or incorrectly admonished him regarding the minimum sentence (Coleman, 129 Ill. 2d at 340, 544 N.E.2d at 339). Nonetheless, the supreme court held that the trial court in each case had substantially complied with Rule 401(a). Coleman, 129 Ill. 2d at 340, 544 N.E.2d at 339; Johnson, 119 Ill. 2d at 134, 518 N.E.2d at 107.

Both Coleman and Johnson are inapposite. Here, the trial court, as part of its Rule 401(a) admonitions, informed defendant that the maximum sentence he could receive was three years in prison and then sentenced him to five years in prison. Further, the record before us does not reveal that defendant had the unusual and demonstrable legal sophistication of the defendant in Houston.

The State argues that the trial court’s subsequent explanation to defendant of the extended-term sentencing range given when it admonished him under Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) before accepting his offer to plead guilty was sufficient to overcome the incorrect admonishment during the waiver of counsel proceedings. We disagree. At the time defendant waived his right to counsel, he had not been informed that he could receive a sentence as severe as that which the court later imposed. We decline to presume — -as we must to give credence to the State’s argument — that defendant would have waived his right to counsel even if he had been correctly informed of the possible sentence he was later given. Instead, the trial court’s admonitions under Rule 401(a) regarding the maximum sentence which could be imposed upon a defendant must be accurate before the court accepts a defendant’s waiver of counsel. Accordingly, when (as here) a defendant is given a sentence in excess of the maximum he was informed of at the time he waived counsel, we hold that the defendant’s waiver of counsel can never be valid. Further, no action subsequently taken by the court, such as correct sentence admonitions given by the court to a defendant during a subsequent guilty plea, can correct the invalidity of that waiver; instead, the court must give the correct sentence admonitions anew and then permit defendant to decide whether he still wishes to waive counsel. The constitutional right to counsel is too important a right to permit any other ruling.

For the reasons stated, we reverse and remand for further proceedings.

Reversed and remanded.

GREEN, P.J., and COOK, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI JUSTICE McCULLOUGH,

license: Public Domain

text:
    BALDWIN ASSOCIATES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Paul E. Breymeier, Appellee.)
    Fourth District (Industrial Commission Division)
    No. 4—91—0280WC
    Opinion filed July 24, 1992.
    Rehearing denied September 24, 1992.

      L. Robert Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellant.
    Michael K. Brandow, of Smith, Waters, Kuehn & Hughes, Ltd., of Peoria, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Appellant Baldwin Associates (employer) appeals the judgment of the circuit court which confirmed a decision of the Industrial Commission (Commission) that claimant-appellee Paul Breymeier (claimant) was permanently and totally disabled for life under section 8(f) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f)). The Commission had increased the award of the arbitrator, which awarded claimant 40 weeks of total disability, in addition to 222/7 weeks of temporary total disability under section 8(b) of the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b).) We affirm.

The pertinent facts are as follows. Claimant was employed by Baldwin as a plumber-pipe fitter. At the time of the hearing on August 27, 1987, claimant was 64 years of age. He testified that he first noticed problems with his knee on December 11, 1984, and went to his physician, Dr, Werking, the next day. Claimant was referred to Dr. Watson, an orthopedic surgeon, who performed surgery. Claimant has not worked as a plumber-pipe fitter since December 11, 1984.

Claimant further testified that he was unaware of any light-duty work which could be procured from the union hall. His knee still swells, and the knee often bothers him when he walks up or down steps. Claimant has not engaged in heavy lifting, and the most he can lift is around 25 pounds. He denied any previous injury to his knee and has not reinjured his knee subsequent to December of 1984.

In May of 1986, claimant filled out a union form pertaining to work availability at the time. He indicated on this form that he was not seeking employment at this time and was not seeking retraining in a different occupation. In response to a question asking if there was any reason, other than medical, why he was not working, claimant indicated that he was “retired.” Claimant testified that he was not seeking employment and retraining because of his age, which was 64 years.

Other evidence in this case consists of medical reports, and the depositions of Drs. Werking and Watson, concerning the surgery performed on claimant on April 17, 1985. Dr. Watson testified that at the time of surgery, he diagnosed moderate to severe arthritis involving the medial femoral condyle, the lateral femoral condyle, and under the surface of the patella. Dr. Watson shaved down the arthritic surfaces. Following the surgery, Watson saw claimant on April 23, 1985, and at this time claimant was doing well. Claimant was discharged from Watson’s care at this time, and Watson has not seen claimant since this time. Watson’s diagnosis in April of 1985 was osteoarthritis of the knee.

Dr. Watson’s prognosis for the knee in April of 1985 was moderately poor. Watson testified that claimant could probably not return to his occupation. It was very probable that claimant would require future medical care for the knee, possibly further medication, arthroscopic procedures and joint replacement. Watson felt that claimant should avoid all physical activities which caused him discomfort. Dr. Watson also testified that the arthritis he saw in March of 1985 was the same that was present before claimant’s injury.

In the surgery Dr. Watson performed on claimant, he found no evidence of tears of ligaments or menisci. Watson felt that claimant would be maximally improved from the surgery about a month after surgery, and he did not instruct claimant to seek any further medical care. Watson described the arthroscopic procedure he performed as relatively innocuous.

Dr. Werking first saw claimant on December 13, 1984, and continued to treat claimant to the end of 1984. Werking provided claimant with a work release (with restrictions) on January 4, 1985. These restrictions included no heavy lifting or carrying over 25 pounds, no repetitive bending or walking up stairs or standing. Werking recommended rest periods for claimant as well. Dr. Werking again saw claimant on April 25, 1985, after Dr. Watson’s surgery. On June 24, 1985, Dr. Werking saw claimant again, and at this time changed claimant’s work restrictions to include lifting weights of up to 50 pounds. The other restrictions remained, with the additional restriction that claimant was to avoid uneven grades.

Claimant filed an application for adjustment of claim on July 8, 1985. The hearing before the arbitrator was held on August 27, 1987. On September 30, 1987, the arbitrator rendered her decision awarding claimant 222h weeks of temporary total disability at a rate of $474.71. The arbitrator further found that claimant was entitled to 40 weeks at $293.61 pursuant to section 8(e) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)), and that he had sustained 20% loss of use of his right leg. Claimant appealed the arbitrator’s decision, and the hearing before the Commission was held on June 30, 1988. On July 25, 1990, the Commission issued its decision, which increased claimant’s benefits to $474.71 per week for life, based on a finding of permanent total disability under section 8(f) of the Act.

The employer then appealed the Commission’s decision to the circuit court, which on March 14, 1991, rendered a decision confirming the Commission’s decision. The employer filed its notice of appeal on April 12, 1991.

The issue presented for appeal is whether the decision of the Commission finding claimant permanently and totally disabled is against the manifest weight of the evidence.

In the recent case of Marathon Oil Co. v. Industrial Comm’n (1990), 203 Ill. App. 3d 809, 815-16, 561 N.E.2d 141, the court observed:

“An employee is totally and permanently disabled under workers’ compensation law where he is unable to make some contribution to industry sufficient to justify payment of wages to him. [Citation.] He must show that he is, for practical purposes, unemployable. [Citation.] A person need not be reduced to a state of total physical helplessness, but is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. [Citation.]
The employee bears the burden of proving each element of his case, including the extent and permanency of the injury. [Citation.] It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. The Commission’s determination of these issues will not be set aside unless it is against the manifest weight of the evidence.”

In arguing that the determination of the Commission in the case sub judice was against the manifest weight of the evidence, the employer relies heavily on the cases of A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804, and Intercraft Industries Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 297, 447 N.E.2d 807. Specifically, the employer notes that the A.M.T.C. court observed that the mere fact a worker cannot perform very strenuous physical labor does not, standing alone, entitle him to an award as permanently and totally disabled. (A.M.T.C., 77 Ill. 2d at 489.) The employer further notes that in Intercraft, the court noted, without specifically relying on it in reaching its holding, that the employee had accepted retirement benefits. In reaching its holding that the employee did not meet his burden of proving total disability, the court did rely on the fact that “all the medical opinions adduced *** were in agreement at least to the extent that petitioner was capable of sedentary work. Petitioner did not introduce evidence concerning his education or skills, and did not suggest that he fell into an ‘odd lot’ category.” Intercraft, 95 Ill. 2d at 300.

Claimant counters by noting that there is no evidence in this case that he could either perform sedentary work or be employed in another capacity. According to claimant, who cites Esposito v. Industrial Comm’n (1989), 186 Ill. App. 3d 728, 542 N.E.2d 843, once the employee has met his burden of proving the extent and permanence of his injury, the employer must then show that work is regularly and continuously available to the employee in the competitive job market. Claimant contends that the Commission’s determination was the resolution of a factual question which should not be disturbed as it was not against the manifest weight of the evidence.

The appropriate formulation of the burden of proof with respect to availability of employment is found in the case of Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 546-47, 419 N.E.2d 1159. There the court stated:

“Under A.M.T.C., if the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market [citation]), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant [citation].” (Emphasis in original.)

Without addressing the “odd-lot” doctrine, we hold that claimant successfully met his burden in proving total disability. Claimant testified that he has problems mounting and dismounting steps, and his knee is often pained. He further testified that he was uncomfortable sitting in a confined area. The heaviest amount claimant can lift is about 25 pounds. Dr. Watson testified that claimant could probably not return to his job, and that future medical care, possibly joint replacement surgery, would be needed. All physical activities which caused claimant pain should, according to Watson, be avoided. Claimant’s condition was permanent and would not improve. As a result of his injuries, claimant, who still is restricted as to how much lifting he can do and even standing for long periods, must rest five minutes every hour.

This is not a case, such as Intercraft, where medical experts agreed that claimant was able to perform a sedentary occupation. In fact, claimant testified that he had problems sitting for extended periods of time. Nor is this a case like A.M.T.C., where the claimant, a 45-year-old mover, testified that his leg was sore and stiff and that he could not resume his prior job because it involved carrying heavy objects up and down stairs. The court pointed out that claimant never stated that he was permanently and totally disabled, and the only medical testimony was that he was an “industrial cripple.” Further, in A.M.T.C., the record was silent as to the claimant’s training or capabilities and, as a result, the court was unable to determine whether claimant could perform work other than that of a mover.

The evidence in the case sub judice establishes that claimant was 64 years of age at the time of the hearing and that claimant had been engaged as a pipe fitter (with the exception of one year when he sold used cars) continuously since 1941, when he would have been about 18 years of age. As the court explained in Ceco Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 278, 287, 447 N.E.2d 842: “In determining a claimant’s employment potential, his age, training, education, and experiences should be taken into account.” Claimant’s advanced age and work experience support the Commission’s determination that he would be incapable of performing services for which there is a reasonably stable market. In sum, we hold that the Commission’s finding of total and permanent disability is not against the manifest weight of the evidence.

Affirmed.

WOODWARD and H. LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

dissenting:

I disagree with the majority in finding that the claimant successfully met his burden in proving total disability.

The majority refers to the testimony of Drs. Watson and Werking. Dr. Watson indicated that claimant would be maximally improved from the surgery about a month after surgery and did not instruct the claimant to seek any further medical care. Following the surgery when Dr. Watson saw claimant on April 23, 1985, he indicated that the claimant was doing well, discharged the claimant from his care and has not seen the claimant since April 23, 1985. Dr. Watson did indicate that the claimant could probably not return to his occupation but also testified that the arthritis he saw in March 1985 was the same that was present before the claimant’s injury.

Dr. Werking provided the claimant with a work release on January 4, 1985, the restrictions to include no heavy lifting or carrying over 25 pounds, no repetitive bending, or walking upstairs or standing. The doctor saw claimant again on April 25, 1985, after the surgery and again on June 24, 1985, and at that time changed the claimant’s working restrictions to include lifting weights of up to 50 pounds.

As the majority points out, the claimant admits that he was not looking for work, that he was retired, and did not seek employment or retraining because of his age, which was 64 years. The majority refers to Marathon Oil Co., A.M.T.C., Intercraft, and Valley Mould. I agree all of these cases are important in determining the burden of proof with respect to the claimant’s disability.

Because the majority finds that the claimant met his burden proving total disability, this dissent concerns only that proposition. It cannot be said that a claimant or any employee is permanently disabled simply because he has problems mounting and dismounting steps, that his knees were often pained and that he was uncomfortable sitting in a confined area. Dr. Watson did not testify that the claimant could not work, but simply testified that he could probably not return to his job and that future medical care would be needed. This clearly does not show that the claimant was permanently and totally disabled. In addition, Dr. Werking did not testify claimant was permanently and totally disabled.

The Act was not designed to be a retirement system for persons in the claimant’s position. With respect to this claim, the arbitrator awarded the claimant 20% loss of use of his right leg. Based upon the evidence presented before the arbitrator and the Commission, this finding is within the evidence presented. The decision of the Commission finding the claimant to be permanently and totally disabled is clearly against the manifest weight of the evidence. None of the doctors testifying stated that the claimant was permanently disabled. At the most, it could be said that the doctors indicated that he should not return to work as a pipefitter. This in itself does not have anything to do with the determination of whether the claimant is permanently disabled.

Esposito is not authority for making a determination that the claimant is permanently disabled. Esposito simply stated that the claimant had met his burden of demonstrating that, although he was not altogether incapacitated for work, he was so handicapped as to be unemployable in any known branch of the labor market. This is not the case here.

The judgment of the circuit court confirming the decision of the Commission should be reversed and the decision of the arbitrator reinstated.

STOUDER, J., joins in this dissent.


author: JUSTICE STOUDER

text:
    ROBERT G. YAEGER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baldwin Associates, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—91—0543WC
    Opinion filed July 15, 1992.
    Rehearing denied September 16, 1992.

      R. Wayne Harvey, of Harvey & Stuckel, Chartered, of Peoria, for appellant.
    Robert L. Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Robert G. Yaeger (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.) contending he suffered injuries arising out of his employment with the appellee, Baldwin Associates (the employer). The circuit court twice reversed and remanded the decision of the Industrial Commission (Commission). The circuit court subsequently confirmed the third decision of the Commission. The claimant now brings the instant appeal contending the circuit court erred in setting aside the original decision of the Commission.

The record shows that on March 20, 1981, the claimant was employed by the employer as a pipe fitter. On that date, the claimant was injured when he fell while descending from scaffolding at a worksite. The claimant fell approximately six feet, landing on his back. The claimant was treated at the site with an ice pack applied to his back. The claimant then drove either home or directly to his family physician.

Later in the day, the claimant was examined by Dr. Larry Patton. The claimant complained of moderately severe pain in the mid and upper right lumbar region of his back. X rays were taken which revealed extensive hypertrophic osteoarthritis of the lumbar spine, and a possible fracture of the arthritic bridge between the LI and L2 lumbar vertebrae. The claimant was given Tylenol with codeine and advised to use ice. The claimant testified before the arbitrator that he was prescribed bed rest. The claimant returned a few days later complaining of pain in the right foot and ankle. X rays revealed no fracture, and Patton opined the claimant suffered a sprain.

The claimant testified he remained in bed for over two weeks following the incident. Approximately two weeks after the incident, the claimant testified he developed nausea and dizziness. On May 2, 1981, the claimant was treated by Patton for a laceration above his left eyebrow. The claimant related that while showering he became dizzy and fell, striking his head on a toilet. Although Patton had seen the claimant seven times since the fall at work, this was the first time the claimant had related an episode of vertigo since the incident on March 20, 1981. Patton testified the claimant had experienced prior episodes of vertigo.

Patton surmised the claimant might have struck his head in the fall at work. At the time Patton was concerned the claimant might be suffering a subdural hematoma or even a cerebral concussion. Therefore, Patton made arrangements with Dr. Thomas Clark to have the claimant admitted to Methodist Hospital for an evaluation.

The claimant testified he was examined by Drs. Clark and Kalyanaraman in mid-May 1981. The doctors’ report indicates the CAT scan of the claimant’s brain was normal, as were the results of the electrocardiogram. They found there was no determinable cause for the claimant’s syncopal episodes. Dr. Kalyanaraman felt there was no evidence of subdural hematoma. The doctors believed the claimant could return to ground-level work. The claimant testified he and Dr. Patton were “dissatisfied” with the report and he no longer sought treatment from Clark and Kalyanaraman.

Patton testified he continued treating the claimant during the summer of 1981. The claimant continued to complain of dizziness when looking up or bending over. The claimant experienced shaking in his hands, which later involved his head and even his voice. Patton testified he had been treating the claimant for hypertension for some time. The injury to the claimant’s ankle and the bruising of his back eventually resolved, although the claimant did develop cellulitis and phlebitis in the right leg.

The claimant was examined by Dr. Arthur Sweet on June 15, 1981. Sweet found the claimant’s complaints could not be “discerned” from the examination. He believed the claimant could do some types of light work and that he was no more than 5% disabled.

At the time of his deposition, Patton had not released the claimant to return to work because of the claimant’s vertigo and tremors. Patton believed that although the tremors suffered by the claimant were most likely an inherited condition, the tremors could have been aggravated by the fall. Regarding the vertigo, Patton conceded that the negative CAT scan ruled out a subdural hematoma. However, Patton believed the vertigo could be related to a possible cerebral contusion. On cross-examination, Patton conceded there was some evidence of vertigo dating from a sinus infection in 1978.

At Patton’s recommendation, the claimant was examined by Dr. Douglas Collins, a neurologist, on September 29, 1981. The claimant was also hospitalized in early October of 1981 so that Collins could have certain tests performed on the claimant. The tests were essentially normal; however, based on the subjective complaints of the claimant and the history given by the claimant, Collins opined the claimant could not return to construction work. He opined the claimant suffered from post-concussion syndrome, hemorrhagic labyrinthitis and cerebral infarct as a direct result of his fall at work.

The claimant was examined by Dr. Simon Horenstein on December 9, 1981. In a letter, Horenstein opined the claimant suffered from disease of the acoustic and vestibular apparatus which had caused recurrent episodes of vertigo since 1978. Horenstein found a hemorrhage highly unlikely given the type of hearing loss complained of by the claimant. Horenstein stated in the letter, “It is highly likely that vertigo of vestibular origin accounts for the intermittent attacks, the relatively normal intervening examinations, the sensitivity to head motion and postural change and may well have been responsible for his fall from the scaffold.” He believed the claimant could perform light to moderate physical work which did not require him to be on ladders or scaffolding.

The arbitrator’s decision was filed on March 4, 1983. The arbitrator found the claimant had suffered accidental injuries arising out of and in the course of his employment. As a result, the arbitrator found the claimant was permanently and totally disabled. Specifically, the arbitrator found the claimant suffered a concussion in the fall. The arbitrator based this finding on the claimant’s testimony that immediately after the fall he experienced some lapse of awareness compatible with a blow to the head, and subsequent dizziness. The arbitrator noted the claimant had suffered dizzy spells before the accident; however, the arbitrator stated there had been only two previous incidents of dizziness in two years. The arbitrator found the fall aggravated the arthritic condition of the claimant’s spine. Among other findings, the arbitrator found the claimant’s hypertension and tremors were not casually related to the fall, with the possible exception that the concussion made the tremors worse.

The claimant was found to be entitled to $282.25 per week for life pursuant to section 8(f) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.8(f)). In addition, the employer was to pay $5,834.28 in medical expenses.

Further evidence was taken by the Commission on September 25, 1984. The claimant testified that since the hearing before the arbitrator, he continued to have dizzy spells, back problems and shakiness in his hands. He testified he had attempted some soldering; however, he found his hands shook too severely. The claimant stated he had not sought any type of employment.

The claimant presented the medical report of Dr. Dean Gravlin. Gravlin examined the claimant on March 8, 1984. His diagnosis was that the claimant suffered from near syncope, most likely post-traumatic. Gravlin opined the claimant could not be employed in any job requiring working at heights or with heavy equipment.

The employer offered a report by Dr. Horenstein dated January 17, 1984. Horenstein had examined the claimant a second time on August 8, 1983. The examination and review of test results confirmed his earlier opinion. He stated he could not understand the diagnosis of cerebral concussion when there was no evidence of a head injury. However, Horenstein agreed the claimant could not return to construction work.

The Commission entered its decision on May 16, 1986. The Commission increased the award for medical expenses and increased the rate of weekly compensation to $337.03 per week. In all other respects the Commission affirmed the arbitrator’s decision.

The claimant sought review in the circuit court contending the Commission erred in setting the weekly rate of compensation. In its reply to the claimant’s assertion, the employer raised the contention that the Commission’s decision was against the manifest weight of the evidence. The employer did not seek cross-summons to raise the manifest weight issue.

The circuit court found the Commission’s decision that the claimant was totally and permanently disabled was against the manifest weight of the evidence. The court found the evidence showed the claimant was not unemployable, and that he had failed to prove there was no employment available for a person with his disabilities.

On remand, the Commission entered a new decision on November 29, 1988. The Commission stated it considered the entire record and pursuant to the direction of the circuit court was modifying the earlier award. The Commission found the claimant was temporarily totally disabled for a period of 1831h weeks from March 21, 1981, to September 25, 1984 (the date of the hearing before the Commission). The Commission also found the claimant was permanently disabled to the extent of 95% of a person as a whole. The Commission noted the medical opinions were conflicting. The Commission also noted the circuit court’s observation that the claimant obviously had considerable disabilities. The Commission noted the circuit court’s finding that the claimant had failed to sustain his burden of proof that he was totally and permanently disabled. The rate of compensation remained at $337.03 per week.

The employer sought review in the circuit court. Again, the circuit court reversed and remanded to the Commission. The circuit court found the claimant had failed to prove he was disabled to the extent of 95%, and thus the Commission’s decision was against the manifest weight of the evidence. The court found there was no evidence the claimant was unable to work at ground level as a plumber. The court found the Commission’s determination that the claimant was temporarily totally disabled through September 25, 1984, was also against the manifest weight of the evidence.

On remand the Commission found the claimant was temporarily totally disabled for 126h weeks from March 21, 1981, through June 15, 1981, and from October 5, 1981 to October 9, 1981. The Commission also found the claimant was disabled to the extent of 45% of a person as a whole. The Commission also reduced the amount of the award for medical expenses.

The petitioner sought review in the circuit court. The circuit court docket entry states in pertinent part: “Pltf requests Court affirm the decision of the IC and presents no further arguments. Counsel for deft request court affirm decision of IC and presents no further arguments. Decision of IC dated Jan. 28, 1991 affirmed.” The claimant now appeals to this court.

Initially, the employer has moved to dismiss the appeal, contending the most recent disposition in the circuit court was a consent order and therefore unappealable. The employer argues the claimant’s request to the circuit court to confirm with no further argument and the employer’s concurrence constituted a consent decree.

Typically a reviewing court will not review a consent decree because a decree entered by consent is no more than a court’s recording of an agreement reached by the parties in settlement of a dispute or claim and is not a judicial determination of their rights. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1, 476 N.E.2d 409.

In the instant case, we find the judgment of the circuit court was not entered pursuant to the consent or agreement of the parties. The docket entry indicates the parties waived further argument and that they each requested the Commission’s decision be confirmed. However, this does not indicate the judgment of the circuit court was entered pursuant to agreement of the parties. There is no contention the parties made their respective requests to the circuit court pursuant to an agreement. The employer’s motion is therefore denied.

On the merits, the claimant contends the circuit court erred in finding the original decision of the Commission was against the manifest weight of the evidence.

For purposes of section 8(f) of the Act, a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists; conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not totally and permanently disabled. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) A claimant has the burden to prove that no employment is available for a person with his disability unless he is obviously unemployable or unless there is medical evidence to support a claim of total disability. (Reynolds v. Industrial Comm’n (1986), 151 Ill. App. 3d 695, 502 N.E.2d 1178.) It is the province of the Commission to resolve any conflicts in the medical evidence and to decide which testimony to accept. (International Harvester Co. v. Industrial Comm’n (1988), 169 Ill. App. 3d 809, 523 N.E.2d 1303.) Causation and the permanency and degree of disability are issues of fact for the Commission, and its award will be set aside only if it is against the manifest weight of the evidence. Illinois Mutual Insurance Co. v. Industrial Comm’n (1990), 201 Ill. App. 3d 1018, 559 N.E.2d 1019.

In the instant case, the medical evidence was conflicting. At the time of the hearing before the Commission, Dr. Patton had not released the claimant to return to work because he suffered from tremors and vertigo. Dr. Collins opined the claimant’s condition would prevent him from returning to construction work. On the other hand several of the doctors who treated or examined the claimant were of the opinion he could return to employment involving ground-level activities.

The claimant testified before the Commission that he had attempted to do some soldering; however, the tremors in his hands made such tasks impossible.

Viewing the record as a whole, we find the Commission’s decision was not against the manifest weight of the evidence. It was for the Commission, based on its expertise in the area of workers’ compensation, to decide the conflicting factual issues. The circuit court erred in substituting its judgment for that of the Commission’s.

For the foregoing reasons, the judgment of the circuit court of De Witt County is reversed and the initial decision of the Commission is reinstated and affirmed.

Reversed; award reinstated.

McCULLOUGH, P.J., and WOODWARD, H. LEWIS, and RAKOW-SKI, JJ., concur.


author: JUSTICE RAKOWSKI PRESIDING JUSTICE McCULLOUGH,

text:
    FRANK A. MITCHELL, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Fiat-Allis, Appellee and Cross-Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—91—0366WC
    Opinion filed July 15, 1992.
    Rehearing denied September 18, 1992.

      Katz, Friedman, Schur & Eagle, of Chicago (Harold A. Katz, of counsel), for appellant.
    Karen L. Kendall and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria, and Gary L. Borah, of Heyl, Royster, Voelker & Allen, of Springfield, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The claimant, Frank Mitchell, appeals an order of the circuit court which reversed an Industrial Commission (Commission) decision that awarded benefits to claimant. The employer cross-appeals, arguing that this court lacks appellate jurisdiction. We hold that under the circumstances we have jurisdiction, and further, we reverse the circuit court.

Claimant notified his employer that he was injured on March 2, 1985. A hearing was held on November 16, 1987, and the parties presented evidence. On December 31, 1987, the arbitrator denied claimant’s benefits on the basis that he had failed to prove that he in fact had sustained accidental injuries arising out of the course of his employment on the date alleged. On August 22, 1990, the Commission reversed the decision of the arbitrator, awarded claimant benefits, and additionally the Commission awarded attorney fees and penalties, finding that the employer’s termination of benefits to claimant was not justified. On March 1, 1991, the circuit court reversed the Commission’s decision, finding it to be against the manifest weight of the evidence.

Claimant, for reasons which will be discussed later in this opinion, did not appeal this decision of the circuit court within 30 days. On April 25, 1991, however, claimant filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401), requesting that the circuit court withdraw its order of March 1, 1991. The employer objected to this petition. On April 29, 1991, the circuit court entered an order granting claimant’s petition, and entered a new order of judgment which was in substance the same as the March 1, 1991, order. On May 20, 1991, claimant then filed his notice of appeal, which was twice amended. On June 4, 1991, the employer filed its cross-appeal.

The pertinent facts are as follows. Claimant had been employed by the employer, Fiat-Allis, Inc., since 1948. He worked in the powerhouse, taking readings and repairing steam lines. In his work, claimant said, he was often required to use ladders. On the night of March 2, 1985, claimant testified that he was using a ladder to change filters, and he fell off the ladder from a height of about four feet while he was working in the west penthouse. Claimant said that he told the employer’s guard, William Butterfield, about his accident that night, and that he saw Butterfield “write it down.” Claimant had experienced problems with his knees during his employment with the employer other than those arising from the incident of March 2, 1985, and also had problems with his back during his employment with the employer.

Butterfield testified that, on more than one occasion, claimant had told him about work-related injuries, although he could not recall specifically whether claimant told him about an injury incurred on March 2, 1985. Specifically, Butterfield did recall that at some point claimant fell off something while doing maintenance work, and that it happened in the west penthouse. On this occasion, Butterfield said that he recorded the matter of claimant’s fall in his guard report, which he turned in, and which, according to Butterfield should “still be out there” and should have been kept by the company.

Ervin Shores, the employer’s supervisor of medical services, testified that he searched the guard records and found no evidence that claimant had reported the March 2, 1985, injury. Shores was first notified of claimant’s injury by claimant on March 25, 1985. The employer did not introduce the actual March 2, 1985, guard report into evidence, nor did it call either of the two individuals of the company whose job it was to secure the reports the morning after a shift. Shores interviewed Butterfield, and in the accident report that Shores took on March 25, 1985, Shores stated that claimant slipped from a ladder and “had pain in his right leg and hip.” Shores was aware that claimant had experienced previous injuries, but they were not industrial injuries and had been treated under medical. Claimant did not report to the employer’s hospital the morning after the injury, although he had in the past sought the services of the hospital when experiencing aches and pains on the job.

Claimant contacted his orthopedic surgeon, Dr. David Mack, who had performed arthroscopic surgery upon claimant’s knee in 1983, and due to claimant’s previous knee problems, surgery in the future was a possibility. Mack had also treated claimant for his back problems. With respect to the injury of March 2, 1985, Mack saw claimant on March 26, 1985. Claimant reported his work accident to Mack, and Mack wrote plaintiff’s report of the March 2, 1985, accident down. Claimant further told Mack that “catching” in his right knee began after the accident. Though Mack could not specify to what degree, he testified that the accident in March of 1985 aggravated the arthritis in claimant’s knee, that the condition of the knee was worse after the accident and that the accident caused the catching in claimant’s knee, although Mack conceded that catching could have occurred with the absence of trauma to the knee. Claimant did not complain of back problems in March of 1985, and he never claimed to Mack that the March 2,1985, fall aggravated the condition of his back.

Claimant continued to work after the accident until May 9, 1985, at which point Dr. Mack performed arthroscopic surgery on claimant. During this time, however, he could not climb well, and fellow employees did most of the climbing. Claimant experienced quite a bit of pain during the period leading to the surgery.

Claimant was off work from the date of the arthroscopy until January 14, 1986, when Dr. Mack released him to return to work. During the time between his surgery and his return to work, claimant was prescribed therapy in the form of some light weight lifting to strengthen his knee. This hurt his knee quite a bit, and hurt his back somewhat as well. During this period, claimant had both his knee and back treated for this soreness.

The Employer’s Cross-Appeal: Appellate Jurisdiction

The first issue we address relates to whether we have jurisdiction to decide claimant’s appeal. Illinois Supreme Court Rule 303 (134 Ill. 2d R. 303) establishes the requirements for our jurisdiction. Rule 303(a)(1) provides:

“[Njotice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1)-)

However, if the time requirements of Rule 303(a) are not met, appellate jurisdiction may obtain under Jtule 303(e), which provides in pertinent part:

“On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, *** filed in the reviewing court within 30 days after the expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal ***.” 134 m. 2d R. 303(e).

Sub judice, though, claimant neither appealed the March 1, 1991, order disposing of the controversy at the circuit level, nor did claimant file a motion under Rule 303(e) within 30 days of the expiration of the time for appeal. Rather, within the time allowed for under Rule 303(e), claimant filed a motion pursuant to section 2 — 1401 of the Code.

The reason for this action is as follows. In his verified section 2— 1401 petition, claimant’s counsel related that he did not receive a copy of the court’s judgment (although a file-stamped copy of the original judgment order indicates that it was sent to counsel) at any time after March 1, 1991. It was not, according to the verified petition, until April 25, 1991, that counsel learned that the order had been entered. On that day, he searched the court file, and the order was not in the court file (although the order’s existence is indicated on the docket sheet entry of March 1, 1991). The verified petition further related that he was informed by the circuit judge of the entry of the order on April 25, 1991. Claimant’s counsel asserted at oral argument both that the circuit judge “directed” him to file a section 2— 1401 petition, and that the circuit judge “suggested” that he file such a petition. While the verified petition is silent as to the circuit judge’s direction or suggestion, the docket sheet entry of April 25, 1991, does state: “[Claimant’s counsel] directed to file written motion to vacate ***.” Neither party on appeal has explained just how the “missing” original order of March 1, 1991, appears in the record, when the order was not in the court file initially.

In Kalan v. Palast (1991), 220 Ill. App. 3d 805, 809-10, 581 N.E.2d 175, the court observed:

“The purpose of section 2 — 1401 is to enable a party to bring facts to the trial court’s attention which, if known by the court at the time it entered the final order or judgment, would have prevented the entry of the judgment or order. [Citation.] Petitioner bears the burden of establishing a right to relief by a preponderance of the evidence. [Citation.] The determination of whether or not to grant the petition lies in the discretion of the trial court and will not be disturbed absent an abuse of that discretion.”

The employer argues that the circuit court was without jurisdiction to grant the section 2 — 1401 petition. We disagree. A section 2 — 1401 petition is not a continuation of the original proceeding but rather the commencement of an entirely new proceeding. (See Manning v. Meier (1983), 114 Ill. App. 3d 835, 840, 449 N.E.2d 560.) While it is true that a circuit court generally loses jurisdiction to vacate or modify a final order after 30 days, claimant did not file a simple motion to vacate or modify the original order, but rather, as indicated, commenced a new proceeding via section 2 — 1401. It necessarily follows that the circuit court had jurisdiction to consider and rule on the motion.

The proper focus, then, is whether the circuit court abused its discretion in granting claimant’s motion and affording claimant the relief claimant requested. At oral argument, claimant’s counsel acknowledged that the order the circuit court entered on April 29, 1991, was in substance the same order as was originally entered on March 1, 1991. The sole purpose of the section 2 — 1401 petition was to allow claimant a new 30-day clock to file a notice of appeal with this court.

A section 2 — 1401 motion “may not be invoked to review an order from which a party could have appealed within the proper time frame, and it cannot be used as a substitute for the party’s right to appeal.” (Ruttenberg v. Red Plastic Co. (1979), 68 Ill. App. 3d 728, 732, 386 N.E.2d 616.) When all relevant facts appear of record, and “especially where reentry of the same judgment is requested, section [2 — 1401] relief is not appropriate.” (Town of Normal v. Board of Regents, Regency Universities (1982), 107 Ill. App. 3d 120, 122, 437 N.E.2d 406.) Here, there is no question that at the time claimant’s counsel became apprised of the entry of the March 1, 1991, order, there was ample time to petition this court under Supreme Court Rule 303(e), and the existence of a reasonable excuse for counsel’s failure to comply with the requirements of Rule 303(a). The proper arena for adjudication of the question of the preservation of claimant’s right to appeal was in the appellate court, pursuant to our supreme court rules. Accordingly, we hold that claimant’s section 2 — 1401 motion was not a proper vehicle to attain the relief claimant sought, and consequently, the circuit court erred in granting both the motion and claimant’s requested relief. This fact alone, however, does not require that we dismiss for lack of jurisdiction.

The employer argues that the Illinois Supreme Court’s recent decision of Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City (1990), 141 Ill. 2d 122, 565 N.E.2d 929, requires reversal in this case. There, the court held that a defendant’s lack of actual notice that its post-trial motion had been denied did not toll the time for appeal, where the order had been signed by the trial judge and filed with the clerk of the court. In Granite City, as in the case sub judice, the trial court had taken the matter under advisement, and when the order was entered, it was entered upon the docket sheet. Further, in Granite City, the party seeking appellate jurisdiction did not become aware of the order until after the 30-day period to file a motion for extension of time provided in Rule 303(e). Nonetheless, the court affirmed the appellate court’s holding that appellate jurisdiction was lacking. Granite City, 141 Ill. 2d at 127.

The employer also cites, inter alia, Huber v. Maggio (1975), 31 Ill. App. 3d 624, 333 N.E.2d 270, in support of reversal. Huber is cited in the employer’s reply brief for the first time. In Huber, the party did not receive notice of a final judgment through “oversight,” and the party filed a simple notice of appeal after the 30-day time frame had passed under Rule 303(a) but during the additional 30 days set forth in Rule 303(e). The appellate court held that the circuit court had no jurisdiction to rule that the party’s notice of appeal was effective, and that the appellate court lacked jurisdiction given the party’s failure to apply for leave to file a late appeal under Rule 303(e). (Huber, 31 Ill. App. 3d at 625.) The circuit court action in Huber did not involve a section 2 — 1401 petition, but rather involved the opposing party’s objection, at the circuit level, to the untimely notice of appeal.

All of the cases which the employer argues call for reversal lack one key aspect which is present in the case: namely, the circuit judge’s direction or suggestion to the party seeking to effect appeal that the party file a given motion at the circuit level. In our view, this distinction is sufficient to take this case out of the ambit of the cases the employer relies upon.

Of particular application to the issue before us are the principles embodied in Needham v. White Laboratories, Inc. (7th Cir. 1981), 639 F.2d 394. There, the court held that despite the fact that defendant’s appeal was untimely, and appellate jurisdiction therefore not invoked within the rules of appellate procedure, the appellate court had jurisdiction to decide the appeal. In Needham, the trial court had erroneously assured defendant’s counsel that a particular post-trial motion tolled the time for appeal until the motion was disposed of. The court stated: “Defendant White should not be penalized for relying on the district court assurance that notice of appeal filed within thirty days of its disposition of the motion to reconsider would be timely.” Needham, 639 F.2d at 398.

In the case before us, the circuit judge made a good-faith attempt to correct what she envisioned as a clerical error. Claimant’s counsel’s assertion that the circuit court directed him to file a section 2 — 1401 motion in order to enable him to appeal is uncontradicted. As indicated, this was not proper advice. However, like the court in Needham, we do not feel that claimant should be penalized for relying upon the directive of the circuit court. Accordingly, we hold that we have jurisdiction to decide the instant appeal.

Claimant’s Appeal

Claimant raises a number of issues on appeal: namely, whether the circuit court erred in reversing the decision of the Commission on the issues of work-related injury, amount of disability and the award of fees and penalties.

It is well settled that we may reverse the Commission’s decision only when it is against the manifest weight of the evidence. (See Adams Truck Lines v. Industrial Comm’n (1990), 193 Ill. App. 3d 814, 550 N.E.2d 1148.) For the following reasons, we do not believe this to be true in the case sub judice, as in this case the Commission’s decision was within the manifest weight of the evidence.

While claimant’s accident at the workplace was unwitnessed, the Commission found claimant’s testimony “credible and unre-butted.” The Commission is the judge of the credibility of the witnesses. (Adams, 193 Ill. App. 3d at 819, citing Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 43, 454 N.E.2d 252, 256.) A review of the record supports the Commission’s determination. Contrary to the position of the arbitrator and the employer on appeal, we find that the testimony of the security guard, Butterfield, and the absence of a report of claimant’s accident support, rather than cast doubt upon, the issue of whether the accident took place at the workplace. Butterfield testified that he recalled that claimant had fallen off something while doing maintenance work in the west penthouse, which mirrors claimant’s testimony about the accident. We find the fact that Butterfield could not remember the exact date of the accident to be of little import. Moreover, Butterfield clearly testified that he filled out a guard report for the accident, and stated that the report should have remained in the employer’s possession. Shores testified that there was no report. Again, it was the Commission’s function to judge the credibility of Butterfield and Shores, and Butter-field’s, as well as claimant’s, testimony contradicts that favoring the employer on the issue of the accident. Finally, we note that the arbitrator’s finding that claimant continued to perform his “normal duties” for a time after the accident is contradicted by claimant’s unre-butted testimony that he was restricted in his ability to climb — a function that his co-workers did a majority of after the accident.

As to the issue of temporary total disability, we note that the employer offered no contrary medical opinion, and therefore Dr. Mack’s testimony is unrebutted. While the employer notes that Mack at one point in his deposition seemed to indicate that he could not say to what extent claimant’s condition was worse due to the accident, he also testified that the accident in March of 1985 aggravated the arthritis in claimant’s knee, that the condition of the knee was worse after the accident and that the accident caused the catching in plaintiff’s knee. Given the absence of any contrary medical opinion, we find that the testimony of Dr. Mack was sufficient to support an award of temporary total disability. As stated in Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 407, 459 N.E.2d 963, quoting Long v. Industrial Comm’n (1979), 76 Ill. 2d 561, 565-66, 394 N.E.2d 1192:

“ ‘Cases involving aggravation of a preexisting condition concern primarily medical questions and not legal ones. Therefore, a finding of fact by the Commission on this issue, based on any medical testimony or on inferences to be drawn from medical testimony, should be given substantial deference because of the expertise acquired by the Commission in this area.’ ”

Finally, we consider the question of attorney fees and penalties. The Commission determined that the employer’s termination of benefits to claimant was not justified. As indicated, claimant was off work from the date of the arthroscopy until January 14, 1986, when Dr. Mack released him to return to work. During the time between his surgery and his return to work, claimant was prescribed therapy in the form of some light weight lifting to strengthen his knee. This hurt his knee quite a bit, and hurt his back somewhat as well. During this period, claimant had both his knee and back treated for this soreness.

Claimant petitioned for fees and penalties under section 19(1) of the Illinois Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(1)). Where a delay occurs in the payment of benefits, the employer bears the burden of justifying the delay. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 9, 442 N.E.2d 861.) The employer cites O’Neal Brothers Construction Co. v. Industrial Comm’n (1982), 93 Ill. 2d 30, 442 N.E.2d 895, in support of its position that it could justifiably have delayed benefits to claimant in this case. O'Neal, like the present case, involved a degenerative arthritic condition; that, however, is where the similarity appears to end. While in O’Neal the court reversed an award of fees and penalties under section 19(1) of the Act, it relied heavily on the fact that the employer acted upon responsible medical opinion, which contradicted that favoring the claimant’s position. (O’Neal, 93 Ill. 2d at 41.) Here, the employer points to no medical opinion to justify its withholding of benefits from claimant. We note also that the employer does not contest claimant’s assertion that the employer failed to provide claimant with written notice of its withholding of benefits (in violation of Industrial Commission Rule 7110.70 (50 Ill. Adm. Code §7110.70 (1991)), and that during the period before claimant returned to work, but after the employer began to withhold benefits, Dr. Mack wrote to the employer informing it that claimant was still being treated for his injured knee and was still totally disabled. For the foregoing reasons, we hold that the Commission’s award of attorney fees and penalties was not against the manifest weight of the evidence.

Accordingly, the order of the circuit court of Sangamon County is reversed.

Reversed.

WOODWARD and STOUDER, JJ., concur.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

I respectfully dissent in this matter. The circuit court did not have jurisdiction to entertain the motion filed by the claimant on April 25, 1991.

On February 27, 1991, the circuit court reversed the Commission’s decision. This order was shown filed on March 1, 1991. On April 25, 1991, the claimant filed a purported section 2 — 1401 motion, and on April 29, 1991, the employer objected to the petition. On that date, April 29, 1991, the circuit court granted the claimant’s petition to withdraw the purported order on review and at the same time reentered the order of February 27, 1991, verbatim. The claimant filed his notice of appeal on May 20,1991.

It is clear the grounds set forth in the claimant’s motion of April 25, 1991, do not fall within the parameters of a section 2 — 1401 motion. I agree with the majority’s citations to Kalan and Manning. As stated in Kalan, the claimant had the responsibility to bring facts to the trial court’s attention which, if known by the trial court at the time it entered the judgment, would have prevented the entry of that judgment. Also, as the majority states, a section 2 — 1401 motion is not a continuation of the original proceeding but rather the commencement of an entirely new proceeding.

Ruttenberg states the section 2 — 1401 motion may not be invoked to review an order from which the party could have appealed within the proper time frame and cannot be used as a substitute for the parties’ right to appeal. Claimant’s counsel’s assertions at oral argument as to the circuit court’s observations or directions are. not properly before this court and should not be considered. Claimant’s petition to withdraw, filed April 25, 1991, does not set forth any facts which, if they had been known at the time the court entered its judgment, would have prevented the court from doing so. The respondent filed a special and limited appearance objecting to the April 25, 1991, petition.

The respondent is correct where it states in its special and limited appearance that “the petition does not seek to modify the February 27, 1991, order in any way. The petition alleges no impropriety in the order, nor any allegation of a meritorious claim which would necessitate modification of the order. The petition seeks only to have the order withdrawn or vacated because the 30-day period for appeal of the order has expired. Section 2 — 1401 does not afford such relief.”

The circuit court lost jurisdiction as to the February 27, 1991, order which was filed March 1, 1991, at the very latest on April 1, 1991. On April 25, 1991, the claimant could have filed a motion, pursuant to Supreme Court Rule 303(e), in the reviewing court requesting he be granted leave to file a late notice of appeal. (134 Ill. 2d R. 303(e).) This would not have been an undue burden on claimant and was the proper method to seek review of the circuit court’s order. It appears the only purpose of claimant’s purported section 2 — 1401 motion was to obtain a new 30-day period in which to perfect an appeal.

Following Granite City, the circuit court did not have jurisdiction to enter the order of April 29, 1991, and likewise this court does not have jurisdiction for review purposes.

I also disagree that Needham is authority for this court to find the circuit court had jurisdiction to entertain the motion filed by the claimant. In Needham, the defendant did not file its notice of appeal within the 30-day appeal time period. Defendant did, however, file a motion within that 30-day period, the district court assured defendant the motion tolled the appeal period and the plaintiff informed the district court that the motion was timely. Here, there are two important differences from Needham. In the cause before us, the claimant filed no motion before the circuit court within 30 days of the judgment. Additionally, when the motion was filed, the respondent filed a pleading asserting the motion was not timely.

The respondent’s position is well taken. The circuit court did not have jurisdiction to enter the order of April 29, 1991.

H. LEWIS, J., joins in this dissent.

      We have taken with this case the employer’s motion to strike claimant’s reply brief due to claimant’s failure to comply with Supreme Court Rule 344 (134 Ill. 2d R. 344) regarding the form of briefs. While we agree that by all indications claimant has failed to comply with the type-size requirements of Rule 344, given that we decide the pivotal issues of this case either on authority not provided by either party or upon the briefing contained in both parties’ initial briefs, the motion, though appearing to be well taken, is moot.

      For the same reasons, we deny the employer’s motion to strike claimant’s second amended notice of appeal. The basis of this motion is that claimant failed to appeal the March 1, 1991, order within 30 days of learning of that order. (See 134 Ill. 2d R. 303(cX4).) However, claimant effectively appealed the April 29, 1991, order within the requirements of Rule 303, and the employer has cross-appealed the granting of claimant’s section 2 — 1401 motion and the entry of the relief claimant requested. The orders were, as we have indicated, substantively the same, and we have held that claimant should not be penalized for following the directives of the trial court.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD J. CROWE, Defendant-Appellant.
    Fourth District
    No. 4—91—0730
    Opinion filed August 3, 1992.

      Mark T. Petty, of Areola, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On September 12, 1988, a two-count information was filed in the circuit court of Douglas County charging defendant Donald J. Crowe with the offense of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)). Count II was dismissed for lack of probable cause after a preliminary hearing. On April 19, 1989, the court allowed a defense motion to dismiss count I on double jeopardy grounds. Upon appeal to this court, we reversed and remanded for further proceedings. (People v. Crowe (1990), 195 Ill. App. 3d 212, 552 N.E.2d 5.) On remand, defendant renewed his motion for dismissal on double jeopardy grounds. That motion was denied. After a trial by jury on September 30, 1991, the court entered judgment on a verdict finding defendant guilty and sentenced defendant to probation for 30 months conditioned upon spending four months in imprisonment and certain other requirements.

Defendant has appealed, asserting two grounds for reversal without remandment and two for merely granting a new trial. He contends that (1) failure of the evidence to show that he caused the death of the victim named in the charge, and (2) constitutional double jeopardy principles entitle him to reversal without remandment. In the alternative, he requests a new trial because the court gave an erroneous instruction and because of rulings in regard to evidence concerning blood tests given to him and the victim. We hold defendant is entitled to a new trial because the court gave a faulty instruction which deprived him of due process. We find no other basis for reversal.

The evidence at trial showed that on August 26, 1988, at approximately 2 a.m. defendant was the driver of one of two vehicles which collided on Illinois Route 45 near Areola. The driver of the other vehicle was killed. Count I of the information charged that defendant had (1) operated his vehicle at a speed unreasonable and improper under the traffic conditions, (2) crossed over the highway centerline when it was not safe to do so, and (3) caused the death of Kelly J. Keigley, all while under the influence of alcohol. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).

At trial, the treating physician at the hospital where defendant was taken following the accident testified that defendant’s blood-alcohol concentration was “0.12 percent.” Debra Wilkes, a medical technician at the same hospital, testified that she had drawn the blood sample to measure the alcohol concentration in defendant’s blood and had run the test. The coroner and a deputy sheriff each identified the victim at the scene as Kelly J. Keigley on the basis of her driver’s license. The deputy sheriff testified that when he talked to the defendant both at the hospital and at the scene of the accident, he smelled the distinct odor of an alcoholic beverage on defendant’s breath and observed defendant’s eyes to be bloodshot and his speech slurred. The deputy testified to an opinion that at that time, defendant was under the influence of alcohol.

The defense called several witnesses who testified that they had seen defendant drinking and playing pool in the Knight’s Lounge in Mattoon from about 9:10 p.m. on August 25, 1988, until 1 a.m. on August 26, 1988. All those witnesses testified that they believed the defendant was sober when he left the bar. Defendant testified in his own behalf. He stated that after he left the bar he stopped at a friend’s house for approximately 30 minutes before picking up a sandwich and milk. He then drove north on Route 45 out of Mattoon heading toward his home in Arthur. Defendant testified that the last thing he remembered seeing was the city lights of Areola. He had no recollection of anything from that point until he felt the impact of the collision and pulled himself out of the window of his car.

We summarily reject defendant’s assertions in regard to the existence of a variance between the name of the person alleged to be the victim and the person who was killed in the collision. A death certificate lists the name of the victim as Kelly J. Wilson. However, a driver’s license found on the victim was issued to Kelly J. Keigley and listed the same date of birth and social security number as that stated on the death certificate in regard to Kelly J. Wilson. Most importantly, the coroner testified that the person killed in the collision had the same face and physical characteristics as shown in the photograph on the driver’s license issued to “Kelly Keigley.” The proof was fully sufficient to justify a determination by the jury that the person killed in the collision was the Kelly Keigley listed as the victim in the charge.

Defendant’s double jeopardy claim arises from three traffic charges which were filed against him in the circuit court of Douglas County on August 26, 1988. One of these charges was for the offense of driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501). On defendant’s motion, on March 29, 1989, that charge was dismissed for a violation of defendant’s right to a speedy trial. Defendant then moved to have all pending charges against him dismissed, relying on section 3 — 3 of the Criminal Code of 1961 (Code) which stated, in relevant part:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection
(c), if they are based on the same act.” Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3(a), (b).

The circuit court allowed defendant’s motion to dismiss, noting that the victim had died at the scene and the prosecution would have known of the existence of a reckless homicide offense at the time the traffic charges were filed. The circuit court also relied upon People v. Rodgers (1982), 106 Ill. App. 3d 741, 435 N.E.2d 963, and People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, where charges filed after earlier charges arising from the same alleged conduct were held to be barred based on the statutory compulsory-joinder principle when the earlier charge had been dismissed for denial of a speedy trial.

On appeal to this court in Crowe, we recognized the apparent analogy to Rodgers and Williams but also explained that here, unlike in those cases, the original charges had been initiated by the relatively informal procedure of the use of uniform citation and complaint forms. In People v. Jackson (1987), 118 Ill. 2d 179, 514 N.E.2d 983, the supreme court held that the compulsory-joinder provision of section 3 — 3 of the Code is not applicable to prior charges brought on a uniform citation and complaint form (see 107 Ill. 2d R. 552). The Jackson court noted that section 3 — 3 of the Code had been enacted prior to the establishment in this State of a unified court system with the circuit court as the sole court of original jurisdiction in each county. The court further explained that section 3 — 3 of the Code refers to prosecutions in the same court and the General Assembly, at time of enactment, would not have envisioned a citation where informal traffic complaints would be filed in a court having felony jurisdiction.

In Crowe, defendant also argued that the reckless homicide charge was also barred by constitutional double jeopardy principles. We held that claim was refuted (1) by the Jackson court’s analysis of the relationship between the prior charges and the charges then being brought, and (2) because, here, the prior charge was dismissed for lack of a speedy trial without the defendant having been placed in jeopardy. On the latter point, we cited People v. Luallen (1989), 188 Ill. App. 3d 862, 544 N.E.2d 1206.

In the instant appeal defendant maintains that the decision of the United States Supreme Court in Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, has changed the law in regard to the application of constitutional double jeopardy principles in a case of this nature from that which was set forth in Jackson. Grady involved a factual situation similar to that here in all material aspects but one. There, the accused was involved in an automobile collision where a motorist was killed. He then pleaded guilty in a town court to two traffic tickets charging driving while intoxicated and failure to keep to the right of the median. Subsequently he was indicted in a county court for involuntary homicide offenses similar to the reckless homicide charged here.

In Grady, a bill of particulars showed that the prosecution intended to prove elements of the offenses for which the accused had been indicted by proof of the conduct inherent in the traffic offenses to which the accused had pleaded guilty in the town court. The Grady court held that prosecution of the offenses set forth in the indictment was barred. In Jackson, the court had held that, except for a situation not present here or there, an earlier prosecution bars a subsequent one only when the statutes from which the charges arise do not each require proof of an element the other does not. (Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180.) This holding in Jackson was relied upon partly by us in Crowe. The State admits and the supreme court agreed in People v. Stefan (1992), 146 Ill. 2d 324, 586 N.E.2d 1239, that this aspect of Jaxikson has been overruled.

The crucial difference between the situation in this case and that in Grady is that in Grady the defendant suffered jeopardy when he pleaded guilty to the prior traffic charges — while here the defendant was not placed in jeopardy when the charges against him were dismissed for lack of a speedy trial. We relied, in part, upon that factor in Crowe when we pointed out that the question of defendant’s guilt or innocence had never been submitted to a trier of fact, citing Luallen. Crowe, 195 Ill. App. 3d at 219, 552 N.E.2d at 10.

In Luallen after a jury was impaneled and upon a defense motion, the circuit court not only declared a mistrial but also dismissed the charge because the State had violated the rights of that accused by unintentionally losing evidence. A few days later, the court recognized that it should not have dismissed the charge and reinstated it. This court held that the question of the guilt of the defendant had not been submitted to the trier of fact and the reinstatement of the charge did not create double jeopardy. Luallen relied on United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187, where during the course of trial, the charges against that defendant were dismissed for preindictment delay and the trial court denied reinstatement. The United States Supreme Court held that no double jeopardy violation had occurred when that defendant was reindicted as that defendant had requested the trial court to abort the proceedings before guilt or innocence had been determined. Scott, 437 U.S. at 98-99, 57 L. Ed. 2d at 79, 98 S. Ct. at 2198.

In Scott, dismissal of a charge at the request of the defense, after jeopardy had attached but before determination of the issue of guilt, did not prevent reindictment on constitutional double jeopardy grounds. Here, the traffic charges against defendant were dismissed at his request not only before the trier of fact had passed on the question of his guilt but before jeopardy had attached. We hold that constitutional double jeopardy principles did not prevent trial of defendant on the reckless charge because the conduct used to prove that offense had never been offered in any other proceeding arising from the same occurrence for which defendant had been placed in jeopardy.

We now turn to the question of the propriety of instructions given to the jury, and which we find constitute reversible error. Section 9— 3(a) of the Code defines reckless homicide as an unintentional killing of an individual by reckless acts committed while driving a motor vehicle in a manner likely to cause death or great bodily harm (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)). The reversible error in instructing the jury arose from an attempt to explain to the jury the significance of subsections (b) and (c) of section 9 — 3, which state:

“(b) In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be prima facie evidence of a reckless act.
(c) For the purposes of this Section, a person shall be considered to be under the influence of alcohol or other drugs while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in section 11 — 501.2 of The Illinois Vehicle Code;
2. Under the influence of alcohol to a degree which renders such person incapable of safely driving.” Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 3(b), (cXl), (cX2).

Over defense objection, the jury was given the following instruction offered by the State:

“Being under the influence of alcohol at the time of the alleged violation shall be prima facie [sic] evidence of a reckless act. A person shall be considered to be under the influence of alcohol if the alcohol concentration of such persons [sic] blood is .10 percent or more by weight of alcohol.”

The jury was also given an instruction tendered by the defendant, which stated:

“Prima facie evidence of recklessness may be rebutted by showing that although a person was under the influence of alcohol when he performed the acts causing the death of another, the acts were not performed recklessly.”

Defendant’s objections at trial to the foregoing State’s instruction was that (1) the instruction was not from Illinois Pattern Jury Instructions, Criminal (IPI); (2) use of the phrase “.10 percent or more by weight of alcohol” is not proper in instructions in a reckless homicide case; and (3) more importantly, reference in a jury instruction to “prima facie evidence” is improper as that phrase is only significant to a court in determining whether evidence is of sufficient weight to be considered by a trier of fact.

On appeal, defendant attempts to broaden the third issue by maintaining that the use of the phrase “prima facie evidence,” when taken together with the use of the word “considered” in the second sentence of the State’s instruction, could easily confuse the jury as to the burden of proof and indicate to it that the defendant had some burden of proof to negate evidence of his guilt. The claim of the impropriety of the use of the phrase “prima facie evidence” was set forth in defendant’s post-trial motion.

We note that the State’s instruction of which defendant complains is taken verbatim from an instruction approved under similar circumstances by the Fifth District Appellate Court in People v. Haas (1990), 203 Ill. App. 3d 779, 795, 560 N.E.2d 1365, 1376, appeal denied (1990), 135 Ill. 2d 561. A similar instruction, however, was deemed erroneous by the Third District Appellate Court in People v. Atteberry (1991), 213 Ill. App. 3d 851, 572 N.E.2d 434, unless the phrase “prima facie evidence” was defined for the jury. The Atteberry opinion was rendered only a few months before the trial in this case and may not have been called to the court’s attention. This court has never passed upon the question of the propriety of this type of instruction before. Under these circumstances, even if Atteberry had been called to the circuit court’s attention, that court was at liberty to choose which of the two districts to follow. Garcia v. Hynes & Howes Real Estate, Inc. (1975), 29 Ill. App. 3d 479, 331 N.E.2d 634.

We are not bound by the decisions of other appellate districts. We conclude that the phrase “prima facie evidence” should not be used even when defined. We hold that its undefined use, together with the use of the word “considered” in the second sentence of the State’s instruction, created a condition whereby reasonable jurors could have interpreted the instruction to shift the burden of proof to the defendant as to an aspect of the case. (Sandstrom v. Montana (1979), 442 U.S. 510, 514, 61 L. Ed. 2d 39, 45, 99 S. Ct. 2450, 2454.) When this happens, due process rights of the accused are violated and the error created is not waived by failure to preserve the issue in the trial court. People v. Thompson (1967), 36 Ill. 2d 332, 223 N.E.2d 97.

We are quick to add that the trial court’s instructing the jury about “prima facie evidence” would have been error even if it had not been used in conjunction with the word “considered.” For the reasons that follow, we hold that the trial court should never instruct a jury regarding the phrase “prima facie evidence.”

We agree with the Atteberry analysis that a reasonable juror could have thought that the phrase “prima facie evidence” was sufficiently ambiguous such that a reasonable juror could feel that the evidence required defendant to rebut an element of proof of guilt and thereby violated his due process right as set forth in Sandstrom.

The Atteberry opinion cited with approval the decision of the Fifth District Appellate Court in People v. Gray (1981), 99 Ill. App. 3d 851, 426 N.E.2d 290. That court reversed a conviction for deceptive practices because of an error in instructing the jury. At that time, section 17 — l(BXd) of the Code stated:

“Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 17 — l(BXd).)

The circuit court gave an issues instruction incorporating that language.

Language in the Gray opinion by the late Justice John M. Karns is instructive:

“The objectionable portion of this language is the use of the term ‘prima facie.’ ‘Prima facie’ is used in two senses and is therefore ambiguous and often misleading. It is sometimes used as the equivalent of a presumption which here would require or permit the jury to conclude that defendant knew he had insufficient funds on deposit in the bank at the time the checks were issued and, therefore, had the requisite intent to defraud from proof that insufficient funds were, in fact, not on deposit. At the minimum, it would shift the burden of producing evidence, and perhaps the burden of persuasion, onto the defendant. On the other hand it is also used to denote evidence sufficient, as a matter of law, to warrant submission of the case to the fact[ ]finder or, more simply, the making of a submissible case. See 9 Wigmore, Evidence §2494 (Chadbourn rev. 1981).
Although we believe the better view to be that the use of ‘prima facie’ in section 17 — l(BXd) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 17 — l(BXd)) is instructive to the court in its determination of submissibility (see McCormick, Evidence §342 and n. 26, at 803 (2d ed. 1972)), it is unnecessary to decide that question inasmuch as the use of the term, in an issues instruction, in either of the two senses is objectionable. As stated, the use of ‘prima facie’ in determining submissibility involves the use of a legal term to aid the court. Such a term cannot be properly used to instruct a jury, particularly absent an explanation as to its meaning. The use of the term as the equivalent to a presumption has constitutional ramifications. If a reasonable juror could have interpreted ‘prima facie’ as a presumption to shift the burden of production or the burden of persuasion, or to have been conclusive, then there is a conflict with the overriding presumption of innocence afforded the accused in a criminal case. Thus, the failure to instruct the jury as to the nature of the presumption would result in the deprivation of a fair trial. See Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, and cases cited therein.” Gray, 99 Ill. App. 3d at 854-55, 426 N.E.2d at 292.

Here, defendant was permitted to have the jury instructed that “[p]rima facie evidence of recklessness may be rebutted” by showing that although the accused may have been intoxicated, he was not reckless. However, in a criminal case the qualification of a presumption by language stating it may be rebutted is not enough to make the presumption merely permissive rather than mandatory. (County Court v. Allen (1979), 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2225.) Thus, the instruction here was not sufficiently clarified by an instruction defining the phrase “prima facie evidence,” even if it could have been rendered proper by such a clarifying instruction. Moreover, because of the due process issue raised by the State’s instruction in question, the fact that defendant tendered an instruction attempting to clarify the phrase “prima facie evidence” does not create a waiver of the error in the State’s instruction using the phrase.

We agree with the Gray court that the phrase “prima facie evidence” has a preferred use as describing whether evidence is strong enough for consideration by a trier of fact and that any attempt to clarify the phrase in an instruction to mean something else is undesirable. The phrase concerns a legal determination to be made by the court and should not be used in an instruction submitted to a jury.

The use of the word “considered” in the second sentence of the State’s instruction compounds the confusion which the instruction creates and the likelihood a reasonable juror could have erroneously-decided that a mandatory presumption was created. The instruction told the jury that a person is “considered” under the influence of alcohol upon a showing of a certain level of alcohol in that person’s blood. The verb “consider” has sometimes been used to mean “to think about carefully; to think of especially with regard to taking some action.” (Webster’s Ninth New Collegiate Dictionary 279-80 (1990).) However, “consider” also means “to come to judge or classify.” (Webster’s Ninth New Collegiate Dictionary 280 (1990).) The definition “to *** classify” seems to be most consistent with the context in which the word considered is used in the questioned instruction and that usage would give rise to a mandatory presumption.

Defendant also maintains on appeal that the use of the phrase “.10 percent or more by weight of alcohol” in the State’s instruction was error. Section 9 — 3(cXl) of the Code, which sets forth the statutory inference of intoxication arising from the amount of alcohol in a subject’s blood or breath, is spoken of as being “0.10 or more based on the definition of blood and breath units in Section 11 — 501.2 of The Illinois Vehicle Code.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(cXl).) Section 11 — 501.2(5) of the Illinois Vehicle Code states: “[a]lcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.2(5).) Here, the measurement introduced into evidence was stated to be for defendant’s blood and the reading was “0.12 percent.” Thus the language of the witnesses setting forth the alcohol reading and the instruction both used the concept of percentages and the jury could not have been confused on this subject.

While some confusion may exist as a legal question, courts have used the words “.10” and “.10 percent” interchangeably in describing the measurement creating the inference of intoxication. (See People v. Hester (1989), 131 Ill. 2d 91, 97-98, 544 N.E.2d 797, 800-01; People v. Ziltz (1983), 98 Ill. 2d 38, 42-43, 455 N.E.2d 70, 72; People v. Bodoh (1990), 200 Ill. App. 3d 415, 430, 558 N.E.2d 178, 185.) The use of the phrase “.10 percent or more by weight of alcohol” did not render the State’s instruction erroneous.

Defendant’s first claim of error in regard to blood tests concerns those given him at a hospital shortly after the collision. He admits that the results of the blood test given him were not privileged but contends that, over his objection, the State was given access to additional information. He then asserts that the physician and nurse who testified gave no foundation for their testimony and also testified to privileged prejudicial matters. No showing is made that any information gained from the records which was prejudicial to defendant was presented to the jury except the results of the blood tests which were clearly not subject to privilege. Defendant does not set forth the nature of the privileged information revealed by the nurse or physician.

Both the physician and the nurse gave adequate foundation testimony to support the information they gave the jury. No objection was made at trial as to the foundation testimony of the physician. In any event, she (1) testified the report was made when she had knowledge of the matters stated therein; (2) indicated the report was made in the regular course of giving assistance to defendant in diagnosing his condition; (3) used the blood test in diagnosing and treating defendant; and (4) had the blood tests done in the hospital laboratory. The nurse testified that she performed the tests at the physician’s request, recorded the results on a form while the event was fresh in her memory, and that in doing so she was performing in the regular course of her responsibilities. The nurse gave a sufficient explanation that the machine was frequently tested and shown to be accurate. Defendant contends he was denied sufficient cross-examination of the nurse but has not cited the portion of the record where that is shown.

Defendant further challenges the admission of the blood test results on the ground that, “[t]here has to be some testimony in the case allowing for not only some foundation for proper test procedures, but also some evidence upon which the court can determine that the machine itself was a reliable testing device.” We disagree. As this court wrote in People v. Hoke (1991), 213 Ill. App. 3d 263, 269-70, 571 N.E.2d 1143, 1147:

“[Section 11 — 501.4 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.4)] ensures trustworthiness and reliability by requiring the timely involvement of the physician actually treating the person whose blood test results are at issue. The legislature obviously concluded that if these blood-alcohol test results are sufficiently trustworthy and reliable for the emergency room physician to use and consider when deciding what treatment is appropriate, then those results are sufficiently trustworthy and reliable to be received into evidence at a later trial.”

Thus, as foundation for the admissibility of blood-alcohol test results, under section 11 — 501.4 of the Illinois Vehicle Code, the State need not present any evidence regarding either the appropriateness of the test procedures or the good working condition of the machinery utilized.

We conclude no error occurred in the obtaining or presentation into evidence of the information about the blood tests given defendant.

Last, defendant contends the court erred in refusing to allow him to present evidence of a blood test performed on the victim. The offer of proof indicates that blood tests revealed an alcohol concentration at the .08 level. Such information could have a bearing upon whether the victim was reckless or negligent in driving her car; but neither alleged recklessness nor negligence would excuse reckless conduct upon defendant’s part. In supporting any contention that the victim’s recklessness was the sole proximate cause of her death, the evidence would give only minimal aid and would be likely to interject much tangential evidence. (See People v. Gruner (1985), 130 Ill. App. 3d 1042, 474 N.E.2d 1355.) The court did not abuse its discretion in denying admission of the evidence. People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161.

The defendant’s conviction and sentence are reversed and the cause is remanded to the circuit court of Douglas County for a new trial.

Reversed and remanded.

STEIGMANN and LUND, JJ., concur.