author: JUSTICE WOODWARD JUSTICE McCULLOUGH,

text:
    FRANCES M. EDGCOMB, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Board of Education, District No. 150, Appellee and Cross-Appellant).
    Third District (Industrial Commission Division)
    No. 3—88—0044WC
    Opinion filed April 7, 1989.

      John Lesaganich, of Goldfine & Bowles, of Peoria, for appellant.
    Henry D. Noetzel, of Henry D. Noetzel & Associates, Ltd., of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Frances Edgcomb, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) for a work-related incident which occurred on March 24, 1981. Claimant alleged that, while driving a school bus in respondent’s employ, she suffered neck injuries in a collision with an automobile. The arbitrator awarded claimant 376h weeks of temporary total disability (TTD) and found her condition had not yet reached a level of permanency. The Industrial Commission (Commission) modified the arbitrator’s award of TTD to 246/7 weeks and found there was no causal relationship between the March 24, 1981, accident and claimant’s cervical surgery performed on October 27, 1981. Though noting that it would not have reached the same result as the Commission, the circuit court of Peoria County confirmed the Commission’s decision and denied respondent’s motion to dismiss claimant’s writ of certiorari for lack of subject matter jurisdiction. This appeal followed.

On appeal, claimant argues that the Commission’s decision is against the manifest weight of the evidence. Respondent’s cross-appeal argues that the circuit court of Peoria County did not acquire special statutory subject matter jurisdiction over this case. We address claimant’s appeal first.

On March 24, 1981, claimant was employed by respondent as a bus driver. She was operating a bus that was struck from behind by an automobile; the impact caused claimant to be thrown between the steering gear and the door. Claimant testified that the impact was “severe.” Following the accident, she was treated for neck, shoulder, and lower back pain by her family physician, Dr. Thomas Cassidy, an internist. She was hospitalized from March 27 to April 10, during which time she underwent physical therapy and received pain-killing medications. Following her release, she was maintained by Dr. Cas-sidy on a conservative treatment regimen, consisting of physical therapy, pain medication, muscle relaxants, and minor tranquilizers. Claimant testified that following her release from the hospital, she continued to feel pain and stiffness in her neck and occasional numbness and shooting pain in her right arm and fingers.

While in the hospital following the accident and upon being discharged, claimant was treated by Dr. 0. Sureka, a physician with the Institute of Physical Medicine and Rehabilitation. Dr. Sureka examined claimant on March 30, 1981. He observed tenderness at the back of the cervical and lumbar spine. Movement of the cervical spine was painful at terminal 10 degrees of forward flexion, extension, and lateral rotation. He noted moderate muscle spasms of paraspinal muscles in the cervical and thoraco-lumbar area. Also, he detected a slightly diminished sensation in the right thumb. On May 18, 1981, Dr. Sureka observed that movement of claimant’s cervical spine was restricted beyond 30 degrees in forward flexion, extension, lateral flexion, and rotation. On June 15, 1981, Dr. Sureka noted that claimant’s ability to move her cervical spine had improved but she was still experiencing pain in the back of the neck. He also noted decreased sensation in her right hand to touch and pain. On July 21, claimant was again examined by Dr. Sureka, who noted a tenderness at the base of the cervical spine. He found that movement of claimant’s cervical spine was painful. The results of the July 21 electromy-ographic and nerve conduction tests performed by Dr. Sureka were normal.

During her treatment program with Dr. Sureka, claimant attended physical therapy on a weekly basis, wore a cervical collar, used cervical traction equipment at home, and took muscle relaxants, analgesics, and minor tranquilizers to relieve her symptoms. Claimant evidently stopped seeing Dr. Sureka in or about July. The record does not indicate the reason for this termination.

At the respondent’s request, claimant was examined by Dr. Lorin Whittaker, a surgeon, on July 23, 1981. He reported that claimant experienced stiffness in the posterior neck, which caused her to proceed in a cautious manner during the exam. She could hyperextend, flex, rotate, and laterally bend her neck to essentially a normal degree, but her capacity to perform these neck movements varied from one time to another. Claimant’s neck contour was normal, and no muscle spasm was noted. It was Dr. Whittaker’s impression that she had sustained a flexion-extension type of injury and that she was still experiencing some symptoms of cervical strain. Nevertheless, he opined that claimant could return to work on August 15.

Claimant’s treating physician, Dr. Thomas Cassidy, saw claimant on numerous occasions while she was first in the hospital following her accident and upon her discharge. His notes dated from April to September 1981 describe claimant’s ongoing cervical spine problems. On May 4, he observed that claimant had increased range of motion of the cervical spine but that she was still experiencing substantial pain with flexion, extension, and rotation. On June 1, he noted that claimant had a fair range of motion in both flexion of the neck, but less than full. On July 7, 1981, he observed that claimant was experiencing a lot of tenderness with range of motion in any direction. During office examinations on August 4 and August 25, Dr. Cassidy observed that claimant was experiencing considerable neck spasms and lack of range of neck motion.

At the request of Dr. Cassidy, claimant was examined by Dr. Jesse Weinger, an orthopedic surgeon, on September 14, 1981. Dr. Weinger found that claimant’s motor strength and sensory examinations were within normal limits and that she had full range of motion of her cervical spine. Dr. Weinger noted claimant’s complaints of neck stiffness and discomfort and opined that these complaints were out of proportion with objective findings. He found no evidence to suggest a cervical disc protrusion or significant ligament instability. Dr. Weinger thought that claimant could return to work and made no suggestions for further medical care. Claimant testified that this examination lasted approximately seven minutes.

Dr. Cassidy’s note regarding his September 22 examination of claimant states:

“0: Examwise she has pain when you turn her head to the right and when you extend it and flex it to the point where it stops her moving it. She has had no definitive abnormal neuro-logic findings or EMG findings throughout this whole thing[;] however, her physical findings are definitely abnormal with regards to ROM (range of motion).
A: I think she has to remain off work until she has much freer ROM to the cervical spine and much less pain. Her job is driving a bus, and I think it is too dangerous to send her back to work.
P: I will see her in about a month. Continue her other medications.”

(It is apparent to us that the O, A, and P in the note above stand for observation, assessment, and prescription, respectively.)

In a letter dated September 25, Dr. Cassidy wrote to claimant’s counsel that he had most recently seen claimant on September 22, at which time she was still complaining of moderately severe pain in the neck. Dr. Cassidy noted that she still had decreased range of motion to both lateral rotations of the neck and sudden pains were induced by extreme flexion and extension of the neck. Despite Dr. Weinger’s recommendation, Dr. Cassidy found it impossible to permit claimant’s return to work, which involved full painless neck and shoulder rotations in order to insure the safety of her passengers.

Claimant’s attorney referred her to Dr. Lawrence Holden, a neurosurgeon, for an examination. At his deposition taken on December 16, 1981, Dr. Holden stated that he had been in private practice since 1949. When he examined claimant on September 30, she complained of pain in the right side of her neck and in her right shoulder. His neurological examination revealed that there was restriction of neck motion in all directions, the cranial nerves were intact, and there was tenderness to percussion in the low cervical region and claimant’s pain radiated into the ulnar aspect of the right hand. Dr. Holden admitted claimant into St. Francis Hospital on October 1 for a conservative treatment (bed rest and muscle relaxants), which failed to alter her symptoms.

On October 27, claimant underwent neck surgery, in which Dr. Holden performed a hemilaminectomy at the C7-T1 interspace. He observed a bulging in the anterior wall of the spinal canal and removed the bone and soft tissues behind the nerve. This procedure was intended to alleviate pressure on the affected nerve. Dr. Holden stated that the nerves emanating from the C7-T1 area went to the ulnar aspect of the hand. Claimant remained hospitalized until November 3.

Dr. Holden had seen claimant several times since her discharge from the hospital. He had not determined the strength in her right arm or the range of motion in her neck. He stated that claimant was not ready to return to work, as she was still recovering from surgery. He also opined that the bulge in the anterior wall of claimant’s spinal column might or could have been caused by the March 24 accident.

On cross-examination, he stated that he had recorded claimant’s complaints upon first seeing her on September 30 rather than neurologically examining her. Upon admittance to the hospital the following day, Dr. Holden examined claimant but did not perform grip strength, pinprick, or reflex tests. He stated that C7-T1 was a common area for a whiplash type of injury to occur. He testified that he did not perform electromyographic or nerve conduction studies or a myelogram because he found them to be inadequate tests. Dr. Holden added that he did not routinely perform these tests.

Further, on cross-examination, Dr. Holden stated that he interpreted claimant’s tenderness in the low cervical region as objective. The pain was confined to one area, which was appropriate to surgical findings. When percussion was applied to this area, it was accompanied by muscle spasms, a result which objectively supported claimant’s subjective complaints. Prior to surgery, Dr. Holden noted muscle spasms in claimant’s neck; these spasms accompanied her restriction of neck motion. In surgery, he found a bulge in the anterior walls of spinal canal at the C7-T1 level. Prior to claimant’s discharge from the hospital following surgery, he did not perform any tests as to claimant’s range of neck or arm motion. Dr. Holden opined that claimant would probably return to work within the next two months.

The Commission found that as a result of the March 24, 1981, accident, claimant was temporarily totally disabled from March 25, 1981, to September 14, 1981. The Commission based its opinion on the September 14 examination of Dr. Weinger, who opined that claimant could immediately return to work. Further, from Dr. Holden’s testimony, the Commission emphasized the following facts. Dr. Holden, prior to performing surgery, did not test claimant for loss of grip strength or loss of sensation. He did not administer reflex tests and ordered no myelogram, EMG, or nerve conduction studies. The Commission also focused on the fact that no disc material was removed during the operation.

It is axiomatic that a reviewing court will not disturb the Commission’s decision unless it is against the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236.) We find that the manifest weight of the evidence supports the claimant. The only physician to internally examine claimant’s cervical spine was Dr. Holden. During surgery, he detected bulging in the anterior wall. To correct this condition, he removed some of the bone, ligaments, and soft tissue at the C7-T1 interspace. The fact that Dr. Holden did not remove any disc material, which the Commission found so significant, does not negate the necessity of this surgery. This surgical procedure was intended to lessen or remove the pressure on the nerve which passes through this area of the cervical spine. He did not perform a myelogram or nerve conduction test because he viewed them as inadequate to determine claimant’s actual condition. There is no evidence that either of these tests would have conclusively determined claimant’s condition. He initially prescribed conservative therapy, which is a common measure taken to alleviate claimant’s symptoms. Claimant received conservative therapy in the hospital from October 1 to October 26 because Dr. Holden believed that she could obtain a more complete bed rest there than at home. The hospital records related to this stay are replete with many references to claimant’s ongoing complaints of cervical pain radiating to her right shoulder, arm, and hand. The muscle relaxants, cervical traction, and other conservative measures had little positive impact on claimant’s cervical pain and frequent pain and numbness in her right arm and hand. Dr. Holden then performed surgery on claimant’s cervical spine. Almost two months after the surgery, Dr. Holden stated that claimant was not ready to return to work.

Contrary to respondent’s assertions, Dr. Holden’s decision to perform surgery was based in part on objective findings. Percussion applied to claimant’s low cervical region produced pain which was confirmed by surgical findings. Further, the muscle spasms induced by percussion to this region served as objective evidence of claimant’s complaints. Dr. Holden also observed muscle spasms in claimant’s cervical spine directly prior to surgery.

His view was echoed by claimant’s treating physician, Dr. Cas-sidy. He found that as of September 22, 1981, claimant still had decreased motion of her neck and that sudden pains were induced by extreme flexion and tension of the neck. At that time, Dr. Cassidy could not recommend claimant’s return to work.

Also, during office examinations on August 4 and 25, Dr. Cassidy noted muscle spasms in claimant’s lower cervical spine. This evidence further buttresses Dr. Holden’s decision to operate.

In the report of Dr. Sureka’s examination on July 21, which indicated normal results in electromyograph and nerve conduction tests, he states that there was a tenderness at the base of the cervical spine and that movement of the cervical spine produced pain. This tenderness and pain were consistent throughout all claimant’s examinations following her March 24, 1981, accident.

The Commission’s decision is based principally on Dr. Weinger’s cursory examination of claimant. Claimant’s unrebutted testimony is that Dr. Weinger examined her for approximately seven minutes. We note that he did not perform a myelogram, EMG, or nerve conduction study on the claimant. The Commission evidently considered Dr. Holden deficient for failing to perform these various tests, but, contradictorily, paid no attention to Dr. Weinger’s failure to perform said tests. Either both are deficient for failing to perform the relevant tests or neither one is. Dr. Weinger tested claimant’s sensory response, motor strength, and range of motion, all of which produced normal results. He also studied neck X rays taken on March 24 and 28, 1981. He noted no muscle spasms. Believing claimant's reports of neck stiffness and discomfort were out of proportion to his objective findings, he recommended that claimant return immediately to work. Dr. Whittaker’s examination of July 23 generally mirrors this assessment. On balance, we find the evidence obtained from Drs. Holden, Cassidy, and Sureka, gleaned from extensive examination of and contact with claimant, clearly outweighs that of Dr. Weinger.

The cases cited by respondent, Elliott v. Industrial Comm’n (1982), 91 Ill. 2d 100, and Odie v. Industrial Comm’n (1982), 88 Ill. 2d 514, are distinguishable from the instant case. In Elliott, the amount and weight of medical testimony proferred by the employer obviously outweighed the testimony of the one neurosurgeon who supported the claimant’s contentions. Here, the weight of medical testimony, in the form of both the treating and operating physicians, favors claimant. The only evidence cited by the Commission, the records of Dr. Weinger, does not serve to overcome the evidence from claimant’s medical experts. Further, in Odie, unlike the instant case, there was ample evidence to find that the subject surgical procedure was not causally connected to a job-related injury. The Odie petitioner, who had allegedly injured his lower back while working, responded well to conservative therapy and was discharged by his treating physician. In the 41/2 months following this discharge, petitioner went hunting and walked a good deal. Despite a myelogram test results, and another physician’s opinion to the contrary, a surgeon attempted to perform a laminectomy. During surgery, the petitioner was found not to have a herniated disc or any other related problem. The Odie court concluded: “Reluctant as we are to set aside the independent judgment of the operating physician, the facts here so clearly justify the conclusion that the lumbar fusion was not reasonably required that we cannot say the Commission erred.” (Emphasis added.) 88 Ill. 2d at 520.

In the instant case, the claimant suffered ongoing symptoms of a cervical spine injury. Her treating physician never discharged her, and she did not respond well to conservative therapy. Most importantly, the operating physician found objective evidence of pressure on a nerve root and, consequently, performed a hemilaminectomy in which he removed fragments of bone and soft tissues. Moreover, Odie, which indicates that reviewing courts should only reluctantly set aside the operating physician’s assessment, serves to support our decision that the Commission’s decision is against the manifest weight of the evidence.

Next, respondent argues that claimant failed to comply with the requirements of section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)). Specifically, respondent argues that claimant failed to commence the proceeding for review within 20 days of the receipt of the notice of the decision of the Commission, and as a result, the circuit court did not acquire special statutory subject matter jurisdiction to review this case.

The presumption of subject matter jurisdiction does not exist in cases under the Act, because the court is exercising a special statutory jurisdiction and compliance with the statute must appear on the record. Bemis Co. v. Industrial Comm’n (1983), 97 Ill. 2d 237.

The affidavit filed by claimant’s counsel, John Lesaganich, states that the Commission’s notice of decision was received by this office on June 12, 1984. Thus, the last day to file for judicial review was July 2, 1984. Lesaganich then stated that on June 29, 1984, claimant’s Counsel filed with the circuit court of Peoria County a praecipe for writ^ of certiorari, a writ of scire facias, and certificate of mailing writs \of scire facias and certiorari (hereinafter documents). The attorneys of record for respondent were mistakenly listed as Heyl, Royster, Voelker & Allen and not Henry D. Noetzel and Associates. The affidavit further avers that a secretary from Le-saganich’s firm retrieved the original copy of the above documents filed with the circuit court and corrected the attorneys of record to properly reflect respondent’s attorney.

The reverse sides of the documents reveal that they were originally filed with the court at 4:24 p.m. on June 29, 1984. Although the filing stamp on the front of each of them, without explanation, has been “whited out,” none of the documents presently exhibits a filing stamp on its face. The writ of scire facias and writ of certio-rari each bears the date of July 3, 1984, with the word “June” crossed out and July inserted.

Respondent argues that the evidence clearly demonstrates that the disputed documents were filed on July 3, 1984, and, therefore, claimant did not file within the 20-day statutory period. Given this record, we do not share respondent’s certitude that claimant did not meet the statutory requirements.

On one hand, Lesaganich’s affidavit said that the documents were filed on June 29, as indicated on the reverse side of the documents. On the other hand, the documents bear the date of July 3, 1984. There is no filing stamp on the documents or other evidence to clearly determine this issue. To invoke the strict and literal intent of the statute and thereby void claimant’s appeal, we need clear evidence of failure to meet the statute’s 20-day requirement. Such evidence is not in this record. Accordingly, we find that the circuit court of Peoria County correctly denied respondent’s motion to dismiss the writ of certiorari for lack of subject matter jurisdiction.

In conclusion, we reverse the judgment of the circuit court confirming the Commission’s decision and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and McNAMARA and LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

The Industrial Commission found that on September 14, 1981, the petitioner was examined by Dr. Weinger, an orthopedic surgeon. Dr. Weinger found that there was no evidence to suggest a cervical disc protrusion or significant ligament instability. It was Dr. Weinger’s opinion that the petitioner could go back to work on a regular duty status. With respect to Dr. Holden’s examination and surgery, the Industrial Commission found that he performed a laminec-tomy at the C7-T1 and that prior to performing the surgery he did not test the petitioner for loss of grip strength or loss of sensation, did not administer reflex tests, ordered no myelogram, EMG or nerve conduction studies and that pursuant to the surgery no disc material was removed.

The Commission’s finding that there was no causal relationship between the March 24, 1981, accident and the claimant’s cervical surgery performed on October 27, 1981, is not against the manifest weight of the evidence. Keeping in mind that Dr. Weinger examined the petitioner at the request of Dr. Cassidy, who was also petitioner’s doctor, Dr. Weinger’s notes showed that the motor strength and sensory examination were within normal limits, that the claimant had a full range of motion of the cervical spine, and that the complaints of neck stiffness and discomfort were out of proportion with the objective findings. Dr. Weinger found no evidence at all to suggest a cervical disc protrusion or significant ligament instability. Specifically, the doctor stated in his report to Dr; Cassidy:

“It’s my feeling that this patient’s complaints of neck stiffness and discomfort are somewhat out of proportion to objective findings. The accident occurred 3-24-81 and she’s had sufficient time and conservative management for a simple sprain to heal and there is simply no evidence at all to suggest a cervical disc protrusion or significant ligament instability, etc. I feel this patient could go back to work on a regular duty status. I don’t think further diagnostic testing is warranted.”

The petitioner, also of her own volition, went to the Institute of Physical Medicine and Rehabilitation and was examined by Dr. Sur-eka. Dr. Sureka found that “movement of both shoulder joints was normal. Muscle strength was normal in both upper extremities. There was no sensory deficit to touch, pain, position and vibration sense in both upper extremities except a slight diminished sensation in the right thumb. Position and vibration sense were normal in both upper extremities. Deep tendon reflexes were also normal in both upper extremities.” Dr. Sureka recommended a program of physical therapy consisting of “hot packs for the back of the neck, upper and lower back, light sedative massage, Williams flexion exercises for the low back and mobilizing exercises for cervical spine, intermittent cervical traction will be carried out.” The petitioner did not return to Dr. Sureka but instead went to Dr. Lawrence Holden on referral by her attorney. Dr. Whittaker examined the petitioner at the request of the respondent and found that she could return to work August 15 or the start of school. He found “examination of both arms reveals a full range of motion including full abduction and internal and external rotation. There is no atrophy. There seems to be no sensation disturbance. She has a normal grip. Examination of her back reveals a normal thoracic spine in a normal position without spasm. The lumbar back examination is normal. She can flex her back to a normal degree and return it promptly to an upright position. Her range of motion otherwise is normal and there is no muscle spasm or tenderness present.” He also stated that the X-ray examination and lateral views of the cervical spine were essentially normal.

As stated, this court should not disturb the Commission’s decision unless it is against the manifest weight of the evidence. We should not put ourselves in a position of determining the credibility of the witnesses or the weight to be given to that evidence. The testimony of Drs. Weinger and Whittaker is more than sufficient to justify the finding and order of the Industrial Commission.

With respect to the motion to dismiss, under section 19(f)(1) (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1)), the proceeding for review is to be commenced within 20 days of receipt of notice of the decision of the Commission. The summons shall be issued by the clerk upon written request. The petitioner filed the proceeding for review on June 29, 1984, at 4:24 p.m. As stated in the affidavit of the employee’s counsel, it indicates that the secretary for the law firm went to the clerk’s office and persuaded a clerk to white out the file mark so that she could return the documents to the law office to correct the name of the appropriate attorney for the respondent. This the clerk should not have done. Respondent, however, does not file any affidavits from the clerks as to what transpired, and even though the affidavit of attorney for petitioner does not indicate when the request for summons was refiled, there is in the record a file mark showing “June 29, 4:24 p.m. ’84” with a record number of 84 — MR—2876. In the record, this appears on the affidavit of petitioner’s attorney that a check was mailed to the Illinois Industrial Commission. In the absence of any affidavits or other records before this court to determine when the petition for review was filed, this document indicates a case number and a file mark within the 20-day period. As the majority points out, the respondent’s motion to dismiss based upon the failure to timely file a petition for review should be denied.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    MICHAEL PEMBLE, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Schneider, Inc., Appellee and Cross-Appellant).
    Third District (Industrial Commission Division)
    No. 3—88—0241WC
    Opinion filed April 5, 1989.

      Julie L. Galassi, of Harvey & Stuckel, Chartered, of Peoria, for appellant.
    John A. Maciorowski and Gregory G. Vacala, both of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals a decision of the Industrial Commission (Commission) which denied him additional temporary total disability benefits and certain medical expenses and awarded only 40% permanent total disability to his right arm. Respondent cross-appeals, contending the circuit court was without subject matter jurisdiction to review the Commission award. We affirm.

Claimant, a steam fitter-welder, injured his right elbow in an industrial accident on January 20, 1982. Conservative treatments proved ineffective, and claimant underwent successive surgeries in 1982 and 1983 to release a tendon and nerve in his right arm. Pursuant to his petition under section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)), a hearing was conducted on September 10, 1984, after which the arbitrator awarded claimant 896/7 weeks of temporary total disability, medicals, and made a finding of 40% permanent and complete loss of use of the right arm. On review to the Industrial Commission, the Commission reduced temporary total disability to 87V7 weeks and remanded for further hearing on permanency because the arbitrator erred in reaching this issue at the section 19(b — 1) hearing. No further review was sought and respondent paid the award.

Thereafter, claimant filed a second petition alleging intermittent temporary disability from September 10, 1984, the date of the first arbitration hearing, through January 23, 1985, the date of the second arbitration hearing. At this second hearing, claimant testified he attempted to return to work at the Commonwealth Edison Byron Station in October 1984 as a welder. He remained on the job for three weeks, working only three days a week before he quit because of pain and swelling in his right arm and wrist. A treating physician, Dr. Hill, administered an injection for pain in October of 1984. Claimant subsequently attempted to secure a welding position at the Clinton Nuclear Power Plant but was unable to pass a three-day welding test. He was subsequently admitted to the hospital on December 10, 1984, and administered three ganglion blocks by Dr. Hill. Claimant testified he did not notice any improvement in his arm after these procedures. Claimant also submitted to a vocational rehabilitation evaluation in December 1984, although he denied taking this course of action at the direction of his attorney.

On cross-examination, claimant admitted that although he continued to try to find work as a welder, jobs in the construction area were scarce and many members of his local union were out of work.

The deposition of Dr. David Connor, an orthopedic surgeon, was also admitted. Connor initially examined claimant, at respondent’s behest, in June 1984. A second examination was requested by claimant’s attorney and performed by a therapist working under the direction of Connor at his hand rehabilitation unit on September 19, 1984. Connor reviewed the therapist’s notes for the purpose of the deposition.

Based on a comparison of the results of the two exams, Connor was of the opinion claimant had gained motion in several of his digits but the overall range of test scores had not fluctuated. Connor acknowledged pinch and grip strength tests revealed weakness in the right arm as compared to the left, as well as decreased strength in right shoulder flexion, and the lack of ability to fully straighten the right elbow. Based on these findings, Connor concluded it was most likely claimant “could not be doing a lot of heavy, forceful, repetitive activities, and it would probably be somewhat dangerous if he would be climbing and had to rely on [his right] arm to stabilize himself in case he fell.” Connor thought lifting 75 pounds very often would be a limiting factor in employment and working overhead with a decreased range of motion to the elbow would probably be difficult for claimant and would decrease the length of time he could work in that position. In Connor’s opinion, these restrictions were most likely permanent, although they were the same restrictions Connor would have thought applicable to claimant after his first examination.

On further questioning about the test results, Connor noted claimant’s inability to straighten his arm to the extent of 40 degrees in September was actually a 20-degree increase in range of motion from the June 1984 exam. As for the pinch and grip strength tests, Connor stated there was a two- to three-pound margin of error in the pinch test and a four- to five-pound margin of error in the grip test. He agreed if there was more than a four- to five-pound difference in the two tests on the unaffected member, he would suspect a lack of effort on the part of the patient in performing the test. Connor noted in June 1984, claimant had a 107-pound grip strength average in his left arm, while the September exam revealed only an 86-pound strength in the same arm. Connor stated this showed a lack of effort on claimant’s part in performing the test.

Connor also found insignificant a lack of five degrees in flexion in the right arm during the September test as compared with full flexion of the arm in June because this small amount of difference did not interfere with the function of the arm. Connor also found no atrophy in the upper right extremity.

Connor disputed the diagnosis of reflex sympathetic dystrophy reached by Dr. Hill and stated his belief further medical treatment would not be likely to provide any benefit to claimant. Connor also indicated it was possible claimant was malingering.

The arbitrator denied the claim for additional temporary total benefits and again set claimant’s permanent total disability at 40% of the right arm. On review to the Commission, additional evidence was presented.

Claimant testified that after March 18, 1985, he sought employment at several welding supply dealers at the direction of the Department of Rehabilitation without success. He admitted no work was available at the time. He also admitted earning approximately $650 performing welding at home out of his garage. He stated, however, his arm continued to swell and he experienced pain from his elbow to his wrist. The swelling occurred when he pulled aggressively on tools or used the right arm for a long period of time.

Melvin Mikkelson, a rehabilitation counselor, saw claimant on referral by claimant’s attorney. An evaluation for vocational testing was performed by a rehabilitation counselor evaluator. Based on the test results, the evaluator recommended claimant remain in the construction field as a welding supervisor. Mikkelson noted at that particular time it was difficult to find work in the construction field because jobs were scarce.

While Mikkelson was of the opinion claimant could not return to his job as a steam fitter because of physical limitations, he also suggested to claimant several other job opportunities, including construction supervision, middle management, owning a business, additional mechanical training, including computers, and sales. Mikkelson recommended claimant continue searching for work.

On cross-examination, Mikkelson stated claimant never applied for a job outside of the construction field prior to March 1985. Mikkelson acknowledged claimant was briefly employed at Xerox in August 1985 at $7 an hour, but quit the job after two days of work because others working for Xerox were being paid more than claimant. Based on claimant’s aptitude, Mikkelson was of the impression claimant could have stayed with Xerox and eventually been promoted into a higher paying job.

James Raingains, a rehabilitation evaluator for the Institute of Physical Medicine and Rehabilitation, testified he recommended claimant receive vocational counseling to identify alternative jobs other than welding or steam fitting. In Raingains’ opinion, claimant tested at the 12th-grade level and had prior experience as a supervisor in the steam fitter-welder profession. He recommended claimant receive family and financial counseling and job placement assistance.

The Commission affirmed the arbitrator’s decision denying benefits for any additional temporary disability including medicals as well as the finding of 40% permanent total disability to claimant’s right arm. On review to the circuit court, the order of the Commission was confirmed.

Claimant initially contends he is entitled to temporary disability because Dr. Hill, the treating physician, advised claimant on May 31, 1984, to seek rehabilitation because in Hill’s opinion at that time, “it [was] doubtful [claimant would] be able to return to work as a steam fitter.”

That evidence was considered by the arbitrator and Commission in the first proceeding when the Commission determined temporary disability ended as of June 8, 1984. Since claimant did not seek further review of the Commission’s decision, the Commission finding on that point is res judicata and may not now be collaterally attacked. In any event, Hill’s opinion prior to the first arbitration proceeding is not conclusive since there was also testimony presented by private investigators for respondent to the effect claimant was observed at the garage of his home, out of which he operated a welding business, performing heavy labor while using tools such as impact wrenches and a heavy sander without apparent difficulty to his right arm. The Commission was within its discretion in determining claimant could perform these tasks as of June 8, 1984, and discount Hill’s opinion.

Claimant also points to Dr. Connor’s deposition testimony to the effect he was concerned about petitioner continuing as a steam fitter or welder if he had to climb stairs, work over his head, or move heavy objects in excess of 75 pounds. At no time, however, did Con-nor absolutely rule out claimant’s ability to return to that type of work and, in fact, claimant has continued to seek work in the construction field as a welder or steam fitter and continues to work out of his garage performing these tasks. Based on claimant’s own testimony and that of the rehabilitation counselor, the Commission was well within its prerogative in determining claimant was unable to locate work because of employment conditions rather than physical limitations. Moreover, claimant was employed by Xerox repairing mechanical devices. He quit, not because of physical limitations, but because of a dispute over the salary he was receiving. The Commission found this to be evidence of employability and that decision is not against the manifest weight of the evidence.

Claimant also maintains because he has been accepted into the Department of Occupational and Rehabilitation Services program he has demonstrated temporary disability. We disagree. The evidence is clear he is qualified for certain jobs but initially resisted seeking work outside the construction area during a time when such employment was unavailable. The difficulty in securing employment was economic, not physical.

Claimant also takes exception with the arbitrator’s finding he was malingering. Dr. Connor stated in his deposition and in a report summarizing his June 1984 exam that claimant had heavy calluses on his hand which indicated to Connor he was performing some sort of vigorous work at a time when he claimed he was unable to work. Con-nor also pointed out significant discrepancies in the strength tests conducted during the two exams. For example, although there was only a four- to five-pound margin of error in the grip test, claimant demonstrated a 21-pound discrepancy between the June and September 1984 tests in the left arm, the uninjured member. Connor testified this indicated claimant was not putting forth his best effort in performing the test. Connor also noted no atrophy in the right extremity, which would have been expected, given a three-year disability to the arm. Finally, of the tests administered on claimant in September 1984, those which showed a decrease in function from the previous exam were subjective tests over which claimant had some control. Taken in conjunction, these various aspects of the evidence support a finding of malingering.

Claimant would have the court adopt a rule that if a party can never return to the precise job task he performed prior to the accidental injury, he continues to be temporarily disabled. That is not the test, however. Temporary total disability is to be awarded for the period of time between the injury and the date the employee’s condition has stabilized. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 44, 454 N.E.2d 252, 257.) Temporary total disability exists from the time an injury incapacitates an employee for work until such time as he is as far restored as the permanent character of his injury will permit. (Shell Oil Co. v. Industrial Comm’n (1954), 2 Ill. 2d 590, 119 N.E.2d 224.) One is temporarily totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (Zenith Co. v. Industrial Comm’n (1982), 91 Ill. 2d 278, 437 N.E.2d 628.) In proving such period of incapacity, it is not enough for the employee to show he did not work — he must also show that he was unable to work. Arbuckle v. Industrial Comm’n (1965), 32 Ill. 2d 581, 207 N.E.2d 456.

Here claimant clearly indicated he could work and sought work. At most, he could not work at precisely the same job tasks for which he was employed prior to the injury. This is reflected by the permanent aspect of his disability. Since his condition has stabilized, the Commission determination claimant has not demonstrated continuing temporary disability is not against the manifest weight of the evidence.

Claimant next maintains it was error to deny medical expenses for treatment by Dr. Hill because Dr. Connor did not say surgical treatment would be of no benefit but only that such treatment was unlikely to be a benefit to claimant. Connor also testified, however, as of September 19, 1984, there was nothing further medically which would improve claimant’s condition. This opinion predated the ganglion blocks performed on claimant in December 1984, which claimant testified provided no relief.

While it has been stated the Workers’ Compensation Act provides no limitation on the duration of an employer’s obligation to provide medical services required to relieve the effects of an injury (Efengee Electrical Supply Co. v. Industrial Comm’n (1967), 36 Ill. 2d 450, 223 N.E.2d 135), there is also usually no dispute about the claimant’s need for continued medical care, its origin and the accident in question, and the reasonableness of the expenses. Here, the Commission could conclude from claimant’s own testimony that the subsequent treatment by Dr. Hill which provided no benefit confirmed Dr. Con-nor’s prior diagnosis further medical treatment would be ineffective.

Respondent also complains the finding of 40% disability is against the manifest weight of the evidence. Claimant asks that a finding of 75% disability be made. The determination of permanent partial loss of use of a member is not capable of mathematically precise determination, and estimation of partial loss is peculiarly the function of the Industrial Commission. Because of the Commission’s expertise in the area of workers’ compensation, its finding on the question of disability should be given substantial deference. (Board of Education v. Industrial Comm’n (1983), 96 Ill. 2d 239, 449 N.E.2d 839.) It is for the Commission to resolve disputes in the evidence and to draw reasonable inferences and conclusions from the evidence, and the Commission’s decision may not be set aside on review unless it is contrary to the manifest weight of the evidence. (Glover v. Industrial Comm’n (1985), 140 Ill. App. 3d 361, 485 N.E.2d 605.) Here there is evidence of nerve damage and limitation in range of movement. Yet, there is also significant evidence claimant has substantial use of the right hand and arm. There is also evidence claimant is employable in occupations working with his hands and arms, the only limitation being claimant may not be able to lift large weights or work over his head for extended periods of time. The Commission’s decision is not against the manifest weight of the evidence.

Claimant’s final contention that the Commission failed to award penalties is without merit. Since the Commission properly determined claimant was not entitled to additional benefits, it cannot be said the employer vexatiously delayed paying benefits to which claimant was not entitled.

Turning to the cross-appeal, we conclude the trial court did not lack subject matter jurisdiction. In this case, the Commission issued its original decision on January 13, 1987. On January 27, 1987, claimant filed a written request for a summons, which was promptly issued by the circuit clerk. On January 28, 1987, respondent filed a motion to correct a clerical error in the Commission’s decision concerning the amount of temporary disability previously awarded by the arbitrator at the first arbitration proceeding. A corrected decision was issued by the Commission on March 11, 1987, and claimant thereafter refiled a timely new written request for summons in the original circuit court proceeding. That request was amended to show the date of the corrected Commission decision, and dates for the return on summons were also appropriately changed. A second summons was then issued by the circuit clerk. We have examined the circumstances here and those revealed by the decision in American Can Co. v. Industrial Comm’n (1986), 149 Ill. App. 3d 83, 500 N.E.2d 544, and find them distinguishable. In American Can, it was the employer who was attempting to proceed in both the circuit court and before the Commission in an effort to both review and revise the Commission’s original decision. Moreover, when the second request for summons was filed, respondent in American Can did not file a new bond and, thus, did not strictly comply with the terms of the Workers’ Compensation Act.

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

Affirmed.

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


author: JUSTICE HEIPLE

text:
    SECURITY SAVINGS & LOAN ASSOCIATION, Plaintiff and Counterdefendant-Appellee, v. WILLIAM HOFMANN et al., Defendants and Counterplaintiffs-Appellants.
    Third District
    No. 3—88—0495
    Opinion filed April 5, 1989.

      Coryn, Walker & Meehan, of Rock Island (William M. Walker, of counsel), for appellants.
    .Standard & Tenold, of Monmouth (James R. Standard, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff filed an action seeking to foreclose a mortgage upon certain real estate located in Rock Island County, and the defendants filed a counterclaim, asserting they had a judgment lien on the property which was superior to the plaintiff’s interests. Cross-motions for summary judgment were filed, and the court granted the motion filed by the plaintiff. The defendants appeal, and we reverse.

Roger and Sandra Hofmann’s marriage was dissolved in October of 1979. The court ordered Roger to pay Sandra $151,290 as alimony in gross and granted Sandra a lien against Rock Island County real estate awarded to Roger to satisfy the alimony award. At that time, Roger was paying for the real estate pursuant to a contract for deed and did not hold title to the property. Sandra filed what she calls a “lis pendens notice of the judgment” in Rock Island County on December 5, 1979, but the judgment itself was not recorded. The trial court judgment was reversed following Roger’s appeal to this court. (Hofmann v. Hofmann (1981), 99 Ill. App. 3d 526.) The supreme court reversed this court’s decision and remanded the cause to the circuit court for further proceedings. Hofmann v. Hofmann (1983), 94 Ill. 2d 205.

In April of 1983, before the case was decided on remand and before Roger Hofmann obtained title to the Rock Island property, Roger and his new wife obtained a mortgage on the property from the plaintiff herein, Security Savings and Loan Association. According to the record, the plaintiff disbursed the funds on the verbal recommendation of its attorney, who indicated that the plaintiff’s mortgage would be a first and paramount lien on the real estate. The mortgage was properly recorded on April 4, 1983.

On June 29, 1983, the circuit court, on remand, entered a judgment against Roger and in favor of Sandra in the amount of $186,195. The court again specifically made the judgment a lien against the Rock Island real estate awarded to Roger. Sandra filed a “lis pendens notice of the judgment” and also filed a certificate of judgment in Rock Island County on July 14,1983.

On September 7, 1983, the plaintiff's attorney issued to the plaintiff his written preliminary report of title, noting that Roger Hof-mann did not have title to the subject real estate, and further noting that there were “judgment liens” against the property, namely the two lis pendens notices and the certificate of judgment Sandra had previously filed. On October 12, 1983, Roger obtained the deed to the property.

On April 12, 1985, Sandra Hofmann, n/k/a Sandra Fausett, executed a written document assigning all of her right, title, and interest in the judgments previously entered against Roger in their dissolution case to William and Donna Hofmann, the defendants herein and the parents of Roger.

Subsequently, Roger and his current wife were in arrears with their mortgage payments, and the plaintiff instituted foreclosure proceedings on February 18, 1986. William and Donna Hofmann were added as defendants in that action by court order on July 2, 1986. On September 11, 1986, the defendants filed an affirmative defense and counterclaim, asserting that they had a lien prior and superior to that of the plaintiff by virtue of the assignment of Sandra’s interest in the judgment lien. The parties filed cross-motions for summary judgment. The court granted the plaintiff’s motion on the complaint, denied the defendants’ motion for summary judgment on the counterclaim, and entered a separate judgment for foreclosure and sale. The defendants appeal from the order granting summary judgment to the plaintiff and continue to maintain that their lien is prior and superior to the plaintiff’s lien. We agree and therefore reverse.

The defendants contend that the plaintiff had actual and constructive knowledge of the existing judgment lien on the property and, therefore, the plaintiff cannot claim to possess a prior and superior lien by virtue of its status as a bona fide purchaser without notice. On appeal, the plaintiff argues primarily that the defendants do not have a lien against the property, first, because Sandra Hofmann’s alimony award was personal and, therefore, not assignable and, second, because the real estate subject to the lien was not sufficiently described in the dissolution order. Alternatively, the plaintiff contends that if a lien was created, it was not until the certificate of judgment was filed, which occurred after the plaintiff recorded its mortgage.

With regard to the plaintiff’s first argument, we find that consideration of the issue of assignability has been waived by the plaintiff’s failure to raise it prior to this appeal. Similarly, the plaintiff’s argument regarding the sufficiency of the legal description has also been raised for the first time on appeal. It is waived.

Finally, the plaintiff contends that its lien is prior and superior to the defendants’ because a certified copy of Sandra and Roger’s dissolution judgment was not recorded until July of 1983, so there was no existing lien on the property at the time the mortgage was recorded in April of 1983. In Illinois, a judgment does not become a lien on the real estate of the person against whom it is entered until a transcript, certified copy, or memorandum of the judgment is filed in the recorder’s office in the county in which the real estate is located. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 101.) Therefore, the plaintiff correctly argues that the filing of the lis pendens notice in Rock Island County in 1979 did not create a proper lien against the subject property. This determination does not resolve the case, however, for we agree with the defendants that the lis pendens notice gave the plaintiff constructive notice of the pending litigation and now prevents the plaintiff from claiming to be an innocent purchaser.

The doctrine of lis pendens represents the view that one who acquires an interest in property that is involved in pending litigation stands in the same position as the vendor, is charged with notice of the rights belonging to the vendor’s antagonist, and takes the property subject to whatever valid judgment is ultimately entered in the litigation. (51 Am. Jur. 2d Lis Pendens §1 (1970).) While Sandra’s filing of notice of lis pendens after the first judgment was entered is a flawed procedure, nothing in the lis pendens statute in force at that time (Ill. Rev. Stat. 1979, ch. 110, par. 405) or in the present statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901) forbids filing of the notice at any time during the pendency of the litigation. The statute provides that from the time the notice of lis pendens is filed, it serves as constructive notice to every person subsequently acquiring an interest in the property, and further provides that the person acquiring the subsequent interest shall be bound by the proceedings to the same extent and in the same manner as if he were a party. Thus, when Sandra filed the notice of lis pendens at the time the initial judgment was appealed, the plaintiff and all others were charged with constructive notice of the judgment in Sandra’s favor, the court’s order permitting the judgment to be made a lien on the real estate, and the fact that the case had been appealed.

The plaintiff disbursed funds to Roger and his new wife and then recorded the mortgage on April 4, 1983, but the final judgment in the dissolution action, which again made the judgment in Sandra’s favor a lien against the real estate, was not entered until June 29, 1983. Thereafter, Sandra promptly filed the necessary certificate of judgment and the judgment became a proper lien on the property.

Sandra’s lien, which she assigned to the defendants, arose out of the final judgment in the dissolution action of which the plaintiff had constructive notice. The record reveals that had the plaintiff conducted a sufficient title search prior to disbursing funds to Roger and his new wife, it would have discovered the notice of lis pendens, and that the court had ordered the judgment in Sandra’s favor to be a lien against the subject property. Further inquiry would have revealed that the case remained unresolved following the appeal. Thus, the plaintiff did not acquire its interest as a bona fide purchaser without notice, but rather, it stood in the shoes of the mortgagor and took its interest with notice and subject to the judgment lien which attached after the final judgment was rendered in the litigation. The plaintiff’s interest in the real estate arose subsequent to the formal notice of Us pendens and is therefore inferior to the defendants’ interest. The trial court should have entered judgment on the defendants’ motion and declared their lien prior and superior to the plaintiff’s interest.

Based on the foregoing, the judgment of the circuit court of Rock Island County is reversed.

Reversed.

WOMBACHER, P.J., and SCOTT, J., concur.


text:
    THE ILLINOIS DEPARTMENT OF PUBLIC AID ex rel. DIANE SPURGETIS, on behalf of Natalie Newburg, a Minor, Plaintiff-Appellant, v. LARRY NEWBURG, Defendant-Appellee.
    Third District
    No. 3-88-0571
    Opinion filed April 12, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Bozeman, Neighbour, Patton & Noe, of Moline (Jack L. Brooks, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The Illinois Department of Public Aid (Department) appeals from a trial court order dismissing a paternity action it filed against the defendant, Larry Newburg. We affirm.

On November 11, 1983, Diane Spurgetis gave birth to a daughter, Natalie. On January 11, 1984, Diane filed a paternity action against Larry Newburg, the defendant herein. She sought entry of an order declaring Larry the father of Natalie, in addition to expenses related to her pregnancy and Natalie’s support. Diane and Larry negotiated a proposed settlement which the circuit court of Rock Island County incorporated in its order entered June 15, 1984, upon a finding that the best interests of the child and of the parties would be served by incorporating the terms of the settlement. The settlement order provided that Larry would pay Diane $12,500 as a complete satisfaction of the cause of action. Diane was to receive $2,500 directly for reimbursement for expenses related to Natalie’s birth, and the remaining $10,000 was allocated for the child’s health, education, and welfare and was to be placed in a savings institution.

At the time the settlement was reached, Diane also executed a document entitled “Individual and Guardian’s Release.” In the release, Diane, individually and as Natalie’s guardian, released Larry from all actions and claims arising at any time out of Natalie’s birth, and specifically, for any and all claims under the Illinois Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. .1351 et seq.) for Natalie’s support. Diane also acknowledged that Larry denied paternity and that the money was accepted in full satisfaction of a disputed claim.

Diane thereafter received support benefits from the Department. On May 25, 1988, the Department filed a petition against Larry which alleged he was Natalie’s father and obligated for her support under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.). The Department requested the court to find Larry to be Natalie’s father and to order him to reimburse the Department for assistance granted on Natalie’s behalf, to pay Diane’s pregnancy and delivery expenses, and to pay reasonable child support.

Larry filed a motion to dismiss and alleged, inter alia, that the Department’s claims were barred by the court-approved settlement in the prior paternity action. Following a hearing on the motion, the circuit court dismissed the Department’s petition with prejudice. The Department has appealed.

The Department contends that the court erred in dismissing the petition because there has never been an adjudication of paternity and Natalie was not a party to the prior paternity action. The Department also argues that the doctrine of res judicata does not bar the present cause of action. The issue of res judicata need not be addressed here; we find that the petition was properly dismissed because Illinois statutes bar such actions where there has been a court-approved settlement.

In 1984, the court approved Larry and Diane’s proposed settlement pursuant to section 9A of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1360). Section 9A provided that in cases where the putative father denied paternity and the parties requested a settlement, if the court was satisfied that the best interests of the child and the parties would be served by entry of an order incorporating the proposed settlement, the court could enter such an order. The Paternity Act also provided, “Except where a settlement order has been entered as provided in [Section 9Á] of this Act, the court shall retain jurisdiction of the cause and may *** make new or supplementary orders for the support, maintenance, education and welfare of the child as from time to time the court deems necessary,” upon petition of a parent, any person who has contributed to the child’s support, or any governmental agency interested in the child’s support. (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 1359.) Thus, under the statute which was in force at the time the court’s settlement order was entered, the court did not retain jurisdiction of the matter or have the authority to enter any supplemental orders for support. See Fitzgerald v. Theisen (1981), 101 Ill. App. 3d 193.

The Paternity Act was repealed and the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.) became effective in 1985. The Parentage Act provides that the repeal of the Paternity Act shall not affect rights or liabilities which were determined, settled, or adjudicated prior to the effective date of the Parentage Act. (Ill. Rev. Stat. 1985, ch. 40, par. 2525.) Thus, the legislature intended that the new statute was not to disturb the finality of matters settled or adjudicated under the prior statute. The trial court in the instant case had no jurisdiction over this matter, nor did it have authority to enter a supplemental order for child support. The Department’s petition was, therefore, correctly dismissed.

We note further that section 7 of the new Parentage Act, governing who may bring an action to determine paternity, provides, “Regardless of its terms, an agreement, other than a settlement approved by the court, between an alleged or presumed father and the mother or child, does not bar an action under this Section.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 2507(d).) The new statute thus continues to preserve the finality afforded to court-approved settlement orders and does not permit the mother, alleged father, or a public agency which has supported the child to bring an action after a court-approved settlement has been reached. Under the Parentage Act, entry of a settlement order does not bar an action by the child to ascertain paternity (Ill. Rev. Stat. 1987, ch. 40, par. 2512.1), but actions such as the one before us, which was instituted by the Department for additional amounts of support, are barred in cases where a court-approved settlement has been entered.

Accordingly, the order of the circuit court of Rock Island County is affirmed.

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WAYNE A. DECKER, Defendant-Appellee.
    Third District
    No. 3—88—0077
    Opinion filed April 12, 1989.

      Gordon L. Lustfeldt, State’s Attorney, of Watseka (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Ronald E. Boyer, of Boyér & Thompson, Ltd., of Watseka, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Wayne A. Decker, was arrested for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501(a)(2)). His driver’s license was summarily suspended after a blood test revealed that his blood-alcohol content was .168. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(e).) The defendant subsequently filed a petition to rescind the statutory suspension, alleging among other matters that the arresting officer had not had reasonable grounds to stop his vehicle. The trial court granted his petition. The State appeals.

At the hearing on the petition, Iroquois County sheriff’s deputy Robert Williams testified that on October 31, 1987, at approximately 1:50 a.m., he was proceeding westbound on Route 24 between Wat-seka and Crescent City when he first observed the defendant’s vehicle. Williams stated that he followed the vehicle for three miles but was not close enough to observe the defendant’s driving until he reached Crescent City, where he observed the vehicle consistently weaving within its lane. He further testified that the vehicle crossed the center line at one point and that it twice crossed the white line on the right edge of the road. Williams admitted that there was no other traffic on the two-lane highway when he made his observations.

The defendant testified that he had not crossed the center line or gone off the road at any time during his drive from Watseka to Crescent City. He also testified that he had not exceeded the speed limit or violated any other law during his trip.

In granting the defendant’s petition to rescind, the trial court noted that crossing the center line did not constitute an illegal act without a showing that the defendant created a hazard. The trial court also noted that Deputy Williams had not mentioned on the summary suspension form that the defendant was weaving.

On appeal, the State argues that the trial court erred in granting the defendant’s petition to rescind. The State contends that the trial court erroneously applied a “probable cause” standard instead of a “reasonable grounds” standard in assessing the validity of the stop. The State further argues that the trial court erroneously based its decision on the fact that the defendant’s conduct did not constitute illegal lane usage.

In an action for rescission of a summary suspension in which a motorist is challenging the suspension based on an illegal stop, the burden of proof is on the motorist. (See People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210; People v. Truman (1986), 144 Ill. App. 3d 498, 494 N.E.2d 1210.) The correct standard to be applied in ascertaining whether an investigative stop is justified is not probable cause to arrest or search, but rather a less exacting standard. (People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.) To stop an automobile, a police officer must have an articulable and reasonable suspicion that the motorist is unlicensed, that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of a law. (Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391.) This is the “reasonable grounds” test. (People v. Collins (1987), 154 Ill. App. 3d 149, 506 N.E.2d 963.) Erratic driving, such as weaving across a roadway or even weaving within a lane, may provide a sufficient basis for an investigative stop of a motor vehicle. People v. Loucks (1985), 135 Ill. App. 3d 530, 481 N.E.2d 1086.

The instant defendant testified at his hearing that he did not go out of his lane or violate any traffic laws at the time in question. The trial judge noted that although Deputy Williams testified that the defendant was weaving, there was nothing to indicate that this was his observation at the time of the incident. It appears from the record that the trial judge believed and relied on the defendant’s testimony and disbelieved and discounted the officer’s testimony. The trial court was not bound to believe any allegations regarding the alleged weaving incident not listed by the deputy on the summary suspension form. (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) Further, it was the trial court’s function as the trier of fact to determine the credibility of the witnesses, the weight to be accorded their testimony, and the inferences to be drawn from the evidence. (People v. Jackson (1987), 161 Ill. App. 3d 573, 515 N.E.2d 219.) Whether the defendant met his burden of proof was a question of fact to be determined by the trial judge. (People v. Griffith (1987), 153 Ill. App. 3d 856, 506 N.E.2d 430.) A reviewing court will not disturb the trial court’s finding on a petition to rescind unless that finding was manifestly erroneous. People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.

The instant trial judge could have properly concluded from the evidence that the defendant’s nonhazardous, momentary crossing of the center line was not reasonable grounds for a stop. Motorists often prudently cross into the oncoming lane to avoid obstacles in their lane. Further, it is insignificant that the court mistakenly used the term “probable cause” in its oral pronouncement granting the defendant’s petition, since it is clear from the record that the court actually applied the proper “reasonable grounds” test. In view of the fact that the trial court had the responsibility of weighing the testimony and assessing the credibility of the witnesses, we cannot say that its finding was manifestly erroneous based on the record before us.

Accordingly, we affirm the judgment of the circuit court of Iroquois County.

Affirmed.

WOMB ACHE R, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE SECRETARY OF STATE, Plaintiff-Appellant, v. EDWARD MIKUSCH et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0499
    Opinion filed March 2, 1989.
    — Modified on denial of rehearing May 5, 1989.

      Steven Nardulli and Daniel Maher, both of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellee Human Rights Commission.
    Richard F. McPartlin, of Chicago, and Wayne Klocke, of Long, Rabin & Young, Ltd., of Springfield, for other appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Secretary of State (Secretary), pursuant to section 2 — 115 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 115), retired the individual defendants, investigators within the Secretary’s office, who had reached the age of 60. Individual defendants filed a charge of discrimination with the Illinois Department of Human Rights, alleging the Secretary discriminated against them on the basis of age. The Illinois Human Rights Commission (Commission) held section 2 — 115 of the Vehicle Code, which compels the Secretary to retire investigators upon their reaching age 60, in irreconcilable conflict with the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.). Accordingly, the Commission found that the Secretary discriminated on the basis of age. (In re Mikusch, 17 Ill. Hum. Rights Comm’n Rep. 241 (1985).) On administrative review, the circuit court of Sangamon County initially reversed the determination of the Commission; however, upon a motion for reconsideration, the circuit court affirmed the Commission’s determination. The Secretary appeals from the circuit court’s order.

We reverse.

On June 20, 1979, section 2 — 115 of the Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 2 — 115) was amended to mandate the age-60 retirement of Secretary of State investigators. The section as amended became effective October 1, 1979. In pertinent part, the amended section 2 — 115 provided:

“No person may be retained in service as an investigator under this Section after he has reached 60 years of age.” Ill. Rev. Stat. 1981, ch. 951/2, par. 2 — 115.

The same General Assembly which amended section 2 — 115 of the Vehicle Code also created the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) on November 8, 1979. The Act became effective July 1, 1980. The Act replaced “An Act to prohibit unjust discrimination in employment because of age ***” (Ill. Rev. Stat. 1979, ch. 48, pars. 881 through 887), which became effective July 26, 1967, and was repealed effective July 1, 1980 (Ill. Rev. Stat. 1981, ch. 48, pars. 881 through 887), the day the Act became effective. The Act, as it existed when the action which led to this cause occurred, provided that it is a civil rights violation:

“For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination.” (Ill. Rev. Stat. 1981, ch. 68, par. 2-102(A).)

The Act defined unlawful discrimination as

“discrimination against a person because of his or her *** age.” (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 103(Q).)

The Act further provided:

“ ‘Age’ means the chronological age of a person who is 40 but not yet 70 years old.” Ill. Rev. Stat. 1981, ch. 68, par. 1— 103(A).

On July 1, 1981, the Secretary informed defendant Edward Mi-kusch that he was to be retired on September 14, 1981, Mikusch’s sixtieth birthday, according to the legislative mandate of the Vehicle Code. The notice quoted the recently amended section 2 — 115 of the Vehicle Code and stated:

“According to our records, you will be 60 years of age on September 14, 1981 thus requiring your mandatory retirement effective as of the close of business that date.”

Similar letters were sent to other individual defendants from the Secretary’s office.

In August 1981, Mikusch and defendants George Bender, Walter Jackson, Charlie Clark, Russell Watier, Raymond Wood, Joseph De-mbinski, and Theodore Pladis submitted charges to the Illinois Department of Human Rights alleging that the mandatory retirement of the Secretary’s investigators at age 60, pursuant to section 2 — 115 of the Vehicle Code, constituted discrimination in violation of section 2 — 102 of the Act. The Department of Human Rights filed a complaint on behalf of the individual defendants. Mikusch and Bender had been retired at that date. The remaining individual defendants had not been forced to retire, but anticipated that they would also be required to retire.

In a motion to dismiss the investigators’ complaints, the Secretary raised the issue with regard to the disparate provisions of the Vehicle Code’s age-60 mandate and the Act. By order dated December 28, 1982, the administrative law judge (ALJ) denied the Secretary’s motion to dismiss. The complaints then went to hearing and the ALJ found for the defendants. The ALJ’s decision was approved by the Commission. The Secretary sought review under the Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.). The circuit court originally reversed the Commission’s decision and ordered the human rights complaints dismissed. The individual defendants filed a motion to reconsider, and the circuit court reversed itself and found the Vehicle Code and the Act in irreconcilable conflict. The Secretary then appealed to this court.

The Commission initially construed the two statutes at issue. An agency’s construction of a statute is considered persuasive, but not binding. Gonzales-Bianco v. Clayton (1982), 110 Ill. App. 3d 197, 206, 441 N.E.2d 1308, 1315, appeal after remand (1983), 120 Ill. App. 3d 848, 458 N.E.2d 1156.

In matters of statutory construction, the intent of the legislature should be determined and given effect. (People v. Parker (1988), 123 Ill. 2d 204, 209, 526 N.E.2d 135, 137.) In construing a statute, a court must consider the language as well as the reason and necessity for the law, the evils to be remedied, and the statute’s objects and purposes. (Parker, 123 Ill. 2d at 209, 526 N.E.2d at 137.) Also, the nature and consequences of a particular construction must be considered while interpreting a statute. Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 313, 527 N.E.2d 1264, 1269.

Section 6 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1105) states in pertinent part:

“Two or more Acts which relate to same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. The Act last acted upon is determined by reference to the final legislative action taken by either house of the General Assembly.”

The individual defendants and the Commission argue that the two provisions passed by the same General Assembly and at issue here are irreconcilable. The Secretary claims that both acts can be construed together. The circuit court agreed with defendants, but we cannot agree. Our supreme court has held that two statutes pertaining to the same subject matter passed at the same legislative session will both be upheld unless they are so antagonistic that both cannot operate. (S. Buchsbaum & Co. v. Gordon (1945), 389 Ill. 493, 59 N.E.2d 832.) We do not find the two acts at issue here so antagonistic that both cannot operate.

The Illinois Pension Code (Pension Code) (Ill. Rev. Stat. 1985, ch. 1081/2, par. 1 — 101 et seq.), which applies to the Secretary’s employees under article 14 of the Pension Code (Ill. Rev. Stat. 1985, ch. lO^k, pars. 14 — 101 through 14 — 151), was amended in 1984, after enactment of the Act. This amendment stated in pertinent part:

“(5) The term ‘investigator for the Secretary of State’ means any person employed by the Investigation Division of the Office of the Secretary of State and vested with such investigative duties as render him ineligible for coverage under the Social Security Act by reason of Sections 218(d)(5)(A), 218(d)(7), 218(d)(8)(D) and 218(p)(l) of that Act.
A person who became employed as an investigator for the Secretary of State between January 1, 1967 and December 31, 1975, and who has served as such until attainment of age 60, either continuously or with a single break in service of not more than 3 years duration, which break terminated before January 1, 1976, shall be entitled to have his retirement annuity calculated in accordance with subsection (a), notwithstanding that he has less than 20 years of credit for such service.” (Ill. Rev. Stat. 1985, ch. 1081/2, par. 14-110(c)(5).)

This amendment removed the requirement that an investigator must have 20 years of service to receive the enhanced pension that is available to investigators at their age-60 retirement.

The Secretary argues that mandatory retirement at age 60 is an exception to the Act because the legislature referred to age-60 retirement in the amendment to the Pension Code, and this is legislative intent to maintain the age-60 retirement requirement for the Secretary’s investigators despite the provisions of the Act which refer to age discrimination. We agree. When the legislature enacts statutory law, it is presumed they do so with knowledge of the law as it existed prior to their action. (Nardi v. Segal (1967), 90 Ill. App. 2d 432, 437, 234 N.E.2d 805, 808.) Additionally, when the General Assembly amended section 2 — 115 of the Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 2 — 115), although more than four months prior to the creation of the Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.), “An Act to prohibit unjust discrimination in employment because of age ***” (Ill. Rev. Stat. 1979, ch. 48, pars. 881 through 887) was still in effect. Therefore, the age-60 retirement mandate of section 2 — 115 was enacted by a legislature which we conclude had knowledge of statutory language which explicitly prohibited age discrimination in employment. The 1984 amendment to the Pension Code referred to reaffirms that legislative knowledge, purpose, and intent.

The Commission notes that the Act enumerates several exceptions to its provisions. In pertinent part, section 2 — 104(A) of the Act provides:

“Exemptions. Nothing contained in this Act shall prohibit an employer, employment agency or labor organization from:
(A) Bona Fide Qualification. Hiring or selecting between persons for bona fide occupational qualifications or any reason except those civil-rights violations specifically identified in this Article.” Ill. Rev. Stat. 1981, ch. 68, par. 2 — 104(A).

The Commission and individual defendants claim the only exception to the Act the Secretary may claim is that age 60 is a bona fide occupational qualification. The Commission argues the inclusion in the Act of exceptions to its provisions implies the exclusion of any other exceptions. We cannot agree; as indicated previously, the legislature amended a statutory scheme pertaining to investigators and did not eliminate the age-60 retirement requirement, but referred to it in the amendment which was passed after the effective date of the Act.

The Act was amended in 1987 and states that nothing contained in the Act shall prevent the employer from:

“Imposing a mandatory retirement age for firefighters or law enforcement officers if prior to December 31, 1993, the law enforcement officer or firefighter has attained the age of retirement in effect under applicable state or local law on March 3, 1983 and if such retirement action is taken pursuant to a bona fide retirement plan. This paragraph (G) shall not apply with respect to any cause of action arising under the Illinois Human Rights Act as in effect prior to the effective date of this amendatory Act of 1987.” Ill. Rev. Stat. 1987, ch. 68, par. 2 — 104(7).

The Commission states that this was amendment of an unambiguous statute and as such is strong evidence of an indication to change the law. (Parker, 123 Ill. 2d at 211-12, 526 N.E.2d at 138.) Therefore, the Commission claims that section 2—115 of the Vehicle Code is not an exception to the Act because no exception other than the bona fide occupational qualification existed until the legislature amended section 2—104 of the Act. The amendment explicitly states that it does not apply to any cause of action which arose prior to the effective date of the amendment, December 3, 1987, which includes this case. We find, however, as the Secretary claims, that this amendment is indicative of legislative intent to clarify existing law. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1041, 492 N.E.2d 622, 627.) This amendment clarifies the legislature’s intent to require age-60 retirement for the Secretary’s investigators. Although the amendment to section 2— 104 of the Act arose subsequent to the cause of action in this case, subsequent amendments may be appropriate sources in determining legislative intent. Parker, 123 Ill. 2d at 210-11, 526 N.E.2d at 138.

The Secretary and the Commission agree that specific statutory provisions must prevail over general statutory provisions. (People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200, 203.) The Secretary argues that the Vehicle Code is more specific than the Act because the Vehicle Code has explicit language which governs the Secretary’s investigators while the Act speaks of employers and employees in general. The Commission and the individual defendants, on the other hand, argue that the Act is more specific than the Vehicle Code because the Act deals with discrimination while the Vehicle Code deals primarily with motor vehicles. We find that the Vehicle Code and Pension Code are a more specific statutory scheme for the regulation of the Secretary’s investigators than is the Act. Therefore, the Vehicle Code’s retirement age governs the Secretary’s investigators.

In addition to their irreconcilable conflict argument, the individual defendants and the Commission argue that the Code violates the Federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. §621 et seq. (1982 & Supp. IV 1986)) and the supremacy clause of the United States Constitution (U.S. Const., art. VI, cl. 2). Section 623(a) of the ADEA states:

“It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” (29 U.S.C. § 623(a) (1982).)

Section 623(f) of the ADEA exempts from the ADEA bona fide occupational qualifications (29 U.S.C. §623(f)(1) (Supp. IV 1986)) and retirement plans which are not subterfuges to evade the purposes of the ADEA (29 U.S.C. §623(f)(2) (1983)). Section 623(i) of the ADEA (29 U.S.C. §623(i) (Supp. IV 1986)) also provides an exemption for fire fighters and law enforcement officers similar to the exemption found in the Act.

We realize that when a clear conflict exists between State and Federal statutes, State legislation is void. A conflict exists where compliance with both the Federal and State regulations is a physical impossibility. (Edgar v. Mite Corp. (1982), 457 U.S. 624, 631, 73 L. Ed. 2d 269, 276, 102 S. Ct. 2629, 2635.) Such a conflict, however, does not exist here.

We conclude that section 2 — 115 of the Illinois Vehicle Code and the Illinois Human Rights Act are not in irreconcilable conflict but are intended by the legislature to be separate provisions which can be construed together. Therefore, the order of the circuit court of Sangamon County granting the individual defendants’ motion to reconsider and vacate judgment is reversed.

Reversed.

LUND and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HUBERT LERON JENNINGS, Defendant-Appellant.
    Fourth District
    No. 4—88—0432
    Opinion filed March 30, 1989.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Larry R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On November 30, 1987, defendant Hubert Leron Jennings was charged by information with the offense of retail theft (Ill. Rev. Stat. 1985, ch. 38, par. 16A — 3(a)). The indictment further alleged defendant had been previously convicted of the offense of retail theft. The State did not present evidence of defendant’s prior conviction during the jury trial on April 20, 1988. Defendant requested a directed verdict for the State’s omission. The circuit court of Macon County refused on the authority of the amended retail theft statute, effective January 1, 1988, which declares that proof of a prior theft conviction is not an element of the offense that can be disclosed to the jury during trial. (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 10(2).) Thus, the trial court held the evidence of defendant’s prior theft conviction would be considered solely as a matter of aggravation at sentencing. The jury returned a verdict of guilty. After the State tendered for the first time evidence of defendant’s prior retail theft conviction, the trial court sentenced defendant to three years’ imprisonment.

On appeal, defendant argues the trial court erroneously applied retroactively the amended sentencing statute when the statute in effect at the time the offense was committed in 1987 had recently been construed by the supreme court to require proof of a defendant’s prior theft conviction at trial as a necessary element of the offense of felony theft. (People v. Hicks (1987), 119 Ill. 2d 29, 518 N.E.2d 148.) The State argues the statute was properly applied as amended because it concerns a matter of procedure and was in effect at the time of defendant’s trial. Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 347, 122 N.E.2d 513, 515.

It is necessary to carefully compare the statute at issue in its original and amended form. Sections 16A — 10(1) and (2) were in effect in 1987 when defendant committed the offense of retail theft charged in this case. Those sections provide:

“Sentence.
(1) Retail theft of property, the full retail value of which does not exceed $150, is a Class A misdemeanor.
(2) After a conviction of retail theft or theft, without regard to the full retail value thereof, a second or subsequent offense of retail theft, the full retail value of which does not exceed $150 is a Class 4 felony.” (Ill. Rev. Stat. 1985, ch. 38, pars. 16A — 10(1), (2)-)

Effective January 1, 1988, the retail theft statute as amended provides in pertinent part:

“Sentence.
(2) A person who has been convicted of retail theft of property, the full retail value of which does not exceed $150, and who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When a person has any such prior conviction, the information or indictment charging that person shall state such prior conviction so as to give notice of the State’s intention to treat the charge as a felony. The fact of such prior conviction is not an element of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 16A— 10(2).)

The amended statute does not contain a saving clause (1987 Ill. Laws 2895, 2898-99 (Pub. Act 85-691)).

Absent evidence of a contrary intent, generally it is presumed that the legislature intended its enactments to operate prospectively and not retrospectively. (Hicks, 119 Ill. 2d at 34, 518 N.E.2d at 151; Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26; Schantz v. Hodge-VonDeBur (1983), 113 Ill. App. 3d 950, 447 N.E.2d 1355.) However, a law may have retroactive application if it affects only matters of procedure. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034; Niven v. Siqueira (1985), 109 Ill. 2d 357, 487 N.E.2d 937.) The sole issue for our consideration is whether the amended theft statute affects only procedure and was thus properly applied to the pending case against defendant so that his prior theft conviction was not presented to the jury as a necessary element of the offense charged.

In Hicks (119 Ill. 2d 29, 518 N.E.2d 148), the defendant appealed his conviction for burglary and theft and argued proof of his prior theft conviction was improperly admitted at trial. Defendant maintained such evidence should have been considered only at sentencing. The supreme court construed the enhancement provision of the theft statute as it existed prior to the 1988 amendment as follows:

“[A]bsent legislative guidance to the contrary, where a prior theft conviction elevates the offense from a misdemeanor to a felony, that prior theft conviction is an element of the offense of felony theft which must be alleged and proved to the trier of fact during the evidentiary phase of trial.” Hicks, 119 Ill. 2d at 34, 518 N.E.2d at 150.

Hicks noted the amendment of the theft statute effective January 1, 1988, changed the statutory scheme such that a prior conviction must be alleged in the charging instrument, but cannot be considered as an element of the offense of felony theft and therefore may not be disclosed to the jury. The court concluded its opinion with the following remarks:

“Absent substantial considerations to the contrary, ‘an amenda-tory change in the language of a statute creates a presumption that it was intended to change the law as it theretofore existed.’ (People v. Nunn (1979), 77 Ill. 2d 243, 248[, 396 N.E.2d 27].) As such, we view the current statutory amendment as not inconsistent with the holding expressed herein, as it evidences the legislature’s desire to alter the statutory elements of felony theft.” (Hicks, 119 Ill. 2d at 34, 518 N.E.2d at 151.)

The court declined to apply the amendment retroactively and thus declared defendant unaffected by the recent change in the law.

On this authority we cannot conclude the effect of the amended retail theft statute is merely procedural. While the legislature may have changed the law in an effort to clarify procedural questions surrounding the enhancement provisions, the result is clearly substantive. Under the new statute, a prior theft conviction will elevate the offense from a misdemeanor to a felony without the State ever having to prove to the jury the existence of the prior theft conviction. We believe the alteration by the legislature of the statutory elements of felony retail theft greatly exceeds the definition of mere procedural change. (See People v. Ruiz (1985), 107 Ill. 2d 19, 22-23, 479 N.E.2d 922, 924.) Because the State failed to prove the existence of a prior retail theft conviction, the defendant in this case was proved guilty only of misdemeanor retail theft.

The judgment of the circuit court of Macon County is reversed and remanded for resentencing for misdemeanor retail theft.

Reversed and remanded.

LUND and GREEN, JJ., concur.


author: JUSTICE SPITZ

text:
    RICHARD BOLIN, Plaintiff and Counterdefendant-Appellant, v. LOREN SOSAMON, Defendant and Counterplaintiff-Appellee.
    Fourth District
    No. 4—88—0645
    Opinion filed March 31, 1989.

      John L. Wright, Jr., of Fint, Wright & Associates, Ltd., of Bloomington, for appellant.
    Joseph B. Taylor, of Clinton, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Richard Bolin, plaintiff, appeals from the order of the circuit court of De Witt County awarding defendant Loren Sosamon a judgment in the amount of $1,037.63. Plaintiff initiated this action by filing a small claims complaint on December 8, 1987. By his complaint, plaintiff sought to recover $325 for damage to food stored in a freezer caused by defendant shutting off the electric power to the house in which plaintiff resided.

On February 3, 1988, defendant, by his attorney, filed an answer and a countercomplaint. In the countercomplaint, defendant sought to recover damages caused by plaintiff failing to pay rent, failing to pay for utilities, and for striking defendant in the head with a shovel.

On March 22, 1988, plaintiff, now represented by attorneys, filed a motion for a continuance of the hearing in this matter. The hearing was reset for May 4, 1988. However, on April 4, 1988, plaintiff filed a motion for substitution of judge. This motion was allowed, and the cause was set to be heard on June 14, 1988.

On June 13, 1988, plaintiff filed three motions: (1) a motion for a continuance; (2) a motion to dismiss the countercomplaint; and (3) a motion to amend the complaint. Attached to the motion to file an amended complaint was the document which plaintiff proposed to file. The amended complaint is in two counts, count I being an action for tortious conversion arising out of the contractual relationship of the parties, and count II alleging the same acts of defendant as being wilful, wanton, intentional, and malicious. By this amended complaint, plaintiff would demand damages in excess of $15,000, elevating the cause from the small claims division to the law division. Count II also requested punitive damages.

On June 14, plaintiff appeared by counsel and defendant appeared personally and by counsel and a hearing was had on plaintiff’s motions. Each and every one of plaintiff’s motions was denied, and plaintiff declined to present evidence upon the complaint. After taking a voluntary nonsuit as to the claim for personal injuries, defendant presented evidence in support of the breach of contract claims in the countercomplaint. On June 17, 1988, a written judgment order was entered by the trial court awarding defendant $1,037.63.

On July 15, 1988, plaintiff filed a request for leave of court to file post-trial motions, with the post-trial motion attached. At that time, however, the only judge available to consider the motion was the judge who had previously been removed from the case, and no other judge would be available in the county to consider the petition prior to July 20, 1988, according to the affidavit of plaintiff’s counsel filed in the record. On July 22, plaintiff’s request for leave to file post-trial motion was granted. On August 30, 1988, plaintiff’s motions to vacate judgment and for rehearing or retrial and to further reconsider the court’s prior ruling and reinstate plaintiff’s original complaint were heard and denied. On August 30, 1988, a notice of appeal was filed by plaintiff.

Although the parties do not address the question, we must initially determine whether this court has jurisdiction to consider the appeal. Ordinarily, the filing of a post-trial motion within 30 days after the entry of a judgment order, or within an extended period granted by the court, stays the enforcement of the judgment. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1202(c), (d).) In order for this court to have jurisdiction to consider an appeal, a notice of appeal must be filed within 30 days after the entry of the final judgment or after the entry of the order disposing of the last pending post-trial motion. (107 Ill. 2d R. 303(a)(1).) However,- in small claims cases, post-trial motions may not be filed without leave of court. (113 Ill. 2d R. 287(b).) Since the purpose of the new rule is not to reduce appeals from small claims cases, but to “simplify procedures and reduce the cost of litigation” (113 Ill. 2d R. 287(b), Committee Comments, at xcix; Ill. Ann. Stat., ch. 110A, par. 287(b), Committee Comments, at 100 (Smith-Hurd Supp. 1988)), it appears the supreme court intended that the filing of the petition for leave to file a post-trial motion accompanied by the post-trial motion tolls the 30-day period for filing a notice of appeal. Therefore, we will consider the merits of this appeal.

The only issue raised on appeal is whether the trial court properly denied plaintiff’s motion to amend his complaint. A trial court has broad discretion regarding the allowance of amendments to pleadings prior to the entry of final judgment, and the trial court’s ruling will not be overturned by an appellate court in the absence of a showing of manifest abuse of discretion. (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 280 N.E.2d 437.) In this case, plaintiff filed the motion the day before the hearing, and plaintiff’s counsel appeared to argue the motion at the time of the scheduled hearing. Plaintiff did not personally appear at that hearing. No valid excuse was made by plaintiff for failing to amend the complaint at a time so as not to inconvenience the court or defendant, who was obviously ready to proceed with the hearing. Since plaintiff did not personally appear and since plaintiff also filed a motion for a continuance, the trial court could justifiably conclude that the only purpose for plaintiff filing the motion to amend was to cause delay. Therefore, the denial of plaintiff’s motion to amend was not an abuse of discretion by the trial court.

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

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.