author: JUSTICE GREEN

text:
    MARI-MANN HERB CO., INC., et al., Plaintiffs-Appellants, v. STEVEN BORCHERS et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0776
    Opinion filed July 25,1991.

      Albert G. Webber, of Kehart, Shafter, Hughes & Webber, P.C., of Decatur, for appellants.
    Richard L. Heavner, of Heavner, Handegan & Scott, of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This case involves a boundary dispute between adjoining landowners arising because of inaccuracies in metes and bounds descriptions of realty contained in deeds to those premises. The plaintiffs are Mari-Mann Herb Company, a corporation, and Michael L. King and Maribeth Barnett, owners of a tract of land in the southwest part of Decatur in Macon County. The defendants are Bath, Inc., owners of land adjoining that of plaintiffs, and Steven Borchers, the secretary of Bath, Inc. On June 22, 1990, plaintiffs filed an amended complaint against defendants in the circuit court of Macon County requesting that (1) defendants be enjoined from interfering with plaintiffs’ use of property allegedly belonging to plaintiffs; and (2) plaintiffs be declared owners in fee of that property free and clear from claims by defendants.

Prior to filing their amended complaint, plaintiffs had sought and obtained, through stipulation, interlocutory injunctive relief preventing defendants from damaging a building lying partly on the disputed property. After an evidentiary hearing, the court entered an order on September 19, 1990, denying plaintiffs any relief and declaring defendant Bath, Inc., the owner of the area in question. That order stated the court reserved jurisdiction for 30 days to enable any of the parties to seek supplemental relief within that time. Pursuant to the foregoing, defendants obtained an order on October 10, 1990, which required plaintiffs to remove from the property found to belong to defendants that portion of the building which encroached upon defendants’ property. At the same time, the court denied a motion by plaintiffs for rehearing and, in the alternative, to limit defendants’ relief, in regard to the encroachment, to damages at law. Plaintiffs have appealed the orders of September 19, 1990, and October 10,1990.

We affirm the portion of the judgment denying plaintiffs affirmative relief and declaring defendant Bath, Inc., the owner of the questioned premises. We reverse the portion of the judgment requiring plaintiffs to remove the building from the existing premises. We remand to the circuit court with directions.

The first matter to consider is the trial court’s ruling determining ownership of the disputed property. Plaintiffs rely mostly upon the evidence of a survey to support their claim of title. We conclude the evidence of the survey does not conclusively establish which party owns the property. No contention is made by either party of a prescriptive right to the land in question. Accordingly, this portion of the case must be decided upon evidence as to the intent behind the various conveyances involved. Based upon the evidence, the determination of the trial court that defendant was the owner of the property was not contrary to the manifest weight of the evidence. If plaintiff was not the owner, plaintiff was not entitled to injunctive relief.

The land in dispute and the surrounding land which belongs to the parties lies in or near the southwest part of Decatur and south of the Sangamon River. The Decatur to St. Louis line of the Norfolk and Southern Railroad lies east of the property in dispute and is adjacent to another tract owned by plaintiff. Some 100 feet farther east is State Route 48.

Prior to 1940, the adjoining property belonging to the parties was owned by Leland S. Beard. A 1940 deed from him to Clarence A. and Pauline F. Chapman severed that tract. Plaintiffs claim title by mesne conveyances from the Chapmans. That 1940 deed contained the following description of the land conveyed:

“A tract of land in the Southwest x/4 Northeast x/4 *** Township Sixteen (16) North, Range Two (2) East of the 3rd P.M., more particularly described as follows:
Beginning at the Southwest corner of the said Southwest x/4 Northeast x/4 Section 21, thence North 152 feet, thence East 676 feet, thence South 122 feet, thence East 26.6 feet to Northwesterly side of a public road, thence Southwesterly along said Northwesterly side of public road 38.1 feet to the South line of said [quarter quarter section] at a point 665 feet west of the southeast corner of said [quarter quarter section], thence East to center of public road, thence Southwesterly [into the Southwest Quarter of the Northeast Quarter of section 21 with further metes and bounds descriptions ending up at the place of beginning.]” (Emphasis added.)

The “East 26.6 feet” call is crucial to the decision in this case.

The following diagram, which is not drawn to scale, is furnished to illustrate the portion of the real estate described in the foregoing deed which is in the southwest quarter of the northeast quarter of section 21. All of the property which is in dispute is in that quarter quarter section. Point number (1) is the point of beginning and all of the other points are listed in the numerical order in which they appear. The land in dispute is a strip along the east border of the land shown in the diagram. The circuit court found that any land more than approximately 676 feet east of the line between points (1) and (2) belonged to defendant Bath, Inc.

The next four deeds in the chain of title to the property contained the same description and, more particularly, provided for the call between points (4) and (5) as shown on the diagram to be “East 26.6 feet.” Then, on July 4, 1986, C.P. Lambert and his wife, then owners in joint tenancy, made a conveyance to Maribeth Dewein, now plaintiff Maribeth Barnett, and she, on August 3, 1989, made a conveyance placing the property in joint tenancy with her son, plaintiff Michael L. King. Each of these deeds used the same description as the prior deeds in the chain of title except that the call from points (4) to (5) was stated in these words:

“[T]hence West 26.6 feet (instead of East 26.6 feet as described in previous conveyances due to scrivener’s error) to the Northwesterly side of a Public road ***.” (Emphasis in original.)

Defendant Bath, Inc.’s land adjoins plaintiffs’ land to the north and to the west to the extent that the land is in the northeast quarter of section 21. In 1940, Leland Baird had conveyed the land, through which defendants claim, to his daughter Lorraine and her husband Gordon Davis. Several further mesne conveyances were made before Bath, Inc., acquired title in 1962. Some language in the legal description in the last deed is consistent with the original call from point (4) to point (5) in plaintiffs’ chain of title as being “East 26.6 feet.” The descriptions in the prior chain of defendants’ title are not specific enough to tell whether they are consistent with the boundaries set forth in plaintiffs’ chain of title.

No evidence was introduced as to why the change in the call was made or as to how any scrivener’s error had occurred. A title researcher testified she was unable to find any evidence of a survey of the land involved in these deeds until a survey made for plaintiffs by D. Wayne Shoemaker in 1987. That title researcher also testified concerning the chain of title of the various properties involved.

Shoemaker testified for plaintiff. He said he studied deeds, survey records, and plats. He had located an angle bar which was shown on some plat. This marker was on the west boundary of the quarter quarter section just south of the quarter quarter section containing the property shown on our diagram. This angle bar enabled him to tie in surveys of the portion of plaintiffs’ tract in that quarter quarter section. Shoemaker also testified he had found a fence post at a point which served as a place of beginning for the description in the deeds to plaintiffs’ land.

Shoemaker proceeded on the assumption the call from points (4) to (5) of “West 26.6 feet (instead of East 26.6 feet ***)” was appropriate. When he did so with his survey, he was unable to use the call of 676 feet for the distance from points (2) to (3), because doing so would place point (6) too far to the west, thus making the distance from point (6) to point (7), a quarter section corner, longer than the 665 feet stated in all of the deeds. Instead, he used a distance of 710.7 feet between points (2) and (3). Shoemaker correctly gave great significance to the fact that point (7) was an indisputably accepted corner in the same section as the land in question. Such corners control over directions and distance in legal descriptions of real estate. (Ely v. Brown (1899), 183 Ill. 575, 56 N.E. 181; Winscott v. Cass Consumers Service, Inc. (1975), 33 Ill. App. 3d 919, 339 N.E.2d 41.) In order to find the proper points (6) and (5), Shoemaker began by measuring 665 feet west of point (7) to find point (6) and worked backward on the description to locate other points.

Shoemaker also attempted to make a survey on the basis of the original call between points (4) and (5) of “East 26.6 feet” and found use of that call with 676 feet call from point (2) to point (3) would more closely conform to proper points (5), (6), and (8) than would the “West 26.6 feet” call. However, he stated “I still think [the position of those points] would be maybe four, five, six feet too far to the east.” He also noted that the deeds described points (5) and (6) as being on the northwesterly side of a road and that the use of the “East 26.6 feet” call together with the 676 feet call between points (2) and (3) would place points (5) and (6) off that road.

Shoemaker’s survey also gains credibility because he was able to “close” it. By that we mean he was able to follow the metes and bounds described beyond point (8) and reach the place of beginning at point (1). The courses and distances he used in doing so were consistent with the actual position of the angle bar which, as we have indicated, he found in the northwest quarter of the southeast quarter of section 21. We agree with plaintiffs that a description which can close is an essential element of a proper survey. Texas Co. v. Hawthorne (1939), 371 Ill. 468, 473, 21 N.E.2d 565, 568.

Defendants presented a survey by Philip Cochrane. He did not purport to close that survey but rather made it as a survey of the boundary between plaintiffs’ property and that of defendant Bath, Inc. Basically, the survey went from points (1) to (8) using a 676 feet call between points (2) and (3) and running the call from points (4) to (5) in an easterly direction as in the earlier deeds. Cochrane concluded a proper fit would be made by having the call from points (4) to (5) run in an easterly direction for 15.91 feet. Cochrane’s survey ended with finding the distance between point (6) and the corner at point (7) as 655 feet rather than the 665 feet set forth in all of the deeds. This survey lacked the verification which arises when the survey closes.

Despite the higher credentials of the Shoemaker survey, we cannot accept it as conclusive of the rights of the parties. It required a lengthening of the line between points (2) and (3) from 676 feet to 710.7 feet and required an acceptance of the theory that the earlier deeds in plaintiffs’ chain of title, which indicated that the direction of the line from point (4) to point (5) was easterly were in error. No logical reason was presented as to why the proper position of points (5), (6), and (8) with reference both to the position of the comer at point (7) and the northwesterly side of the road upon which points (5) and (6) stood could not be reached by a call of 676 feet between points (2) and (3) and an easterly call of some distance of less than 26.6 feet between points (4) and (5). Shoemaker did not try to do so but merely used the “East 26.6” measurement and was only four to six feet off.

Thus, if while using the 676 feet call between points (2) and (3), Shoemaker had used an easterly call some four to six feet less than the 26.6 feet prescribed for the call between points (4) and (5), a survey could likely have been completed which also would have closed. Under this survey, the deviation from the description common to all deeds in the chain of title would have been no greater than the survey Shoemaker adopted, which increased the distance between points (2) and (3), stated in all those deeds, from 676 feet to 710.7 feet. The testimony of the surveyors was difficult to follow from the report of proceedings, because they often failed to identify the particular places on their surveys to which they were referring. However, we have not found any evidence which indicated that points (3) or (4) had any physical features which identified those points. Accordingly, the circuit court properly found the survey evidence was not conclusive and decided to also consider other evidence bearing upon the intent of the various grantors and grantees in the chains of title to the two properties. McLeod v. Lambdin (1961), 22 Ill. 2d 232, 174 N.E.2d 869.

Although no question of prescriptive right of any of the parties is involved, most of the evidence of intent of the various owners of the property arises from the use of the disputed property. For many years, St. Louis Bridge Road has run parallel to and west of the Norfolk and Southern Railroad from the southwest along the southeasterly border of the tract plaintiffs purchased from the Lamberts. Most of the evidence indicates this road terminated on the north at the line dividing the north half and the south half of section 21. This is the same line upon which points (1), (6), (7), and (8) of the diagram are located, and the road terminates at point (8). However, at point (8), it intersects with a road known as Legion Drive, which extends to the east. For many years, Legion Drive crossed the railroad tracks, but that crossing has since been closed.

In 1978, prior to the purchase by plaintiffs of any land in the area, plaintiffs rented land from defendant Bath, Inc., on the south part of the latter’s tract and in the area east of the east line of the land shown in the preceding diagram. Both individual plaintiffs testified to conversations they had with Webber Borchers prior to their purchase from Lamberts, in which Borchers told them the leasehold had no access to St. Louis Bridge Road, and they would have to get permission from Lamberts to cross the land to that road. Webber Borchers, now deceased, was the grandfather of Steven Borchers and the then owner and operator of Bath, Inc. The area in dispute includes the land which would be that access. Plaintiffs maintain this constitutes an admission by Bath that it had not intended to acquire that land. Plaintiffs admit they put gravel on the area in dispute while tenants of Bath but testified they did so with permission from Lamberts.

In 1989, after plaintiffs’ acquisition from Lamberts in 1986, plaintiffs did not renew their lease with Bath and, soon after, the dispute flared. Defendant Borchers testified that all persons had accepted boundaries he now claims until the dispute started. In deciding in favor of the defendants’ right to the disputed property, the court placed particular emphasis on a theory that each of the grantors from Baird to Lambert must have intended that the tract now owned by Bath retain access at the south end. Plaintiffs maintain this reasoning is faulty, because in the 1940s and 1950s, no grantor had reason to believe the Legion Drive crossing would be closed and, thus, even without the questioned land, the Bath tract had access to the south.

The trial court could have disbelieved the testimony of the individual plaintiffs that Webber Borchers told them, in effect, that the disputed land was part of the Lambert tract and could have believed the general testimony that all parties dealt with the land in question as being part of the Bath tract. We do not find the trial court’s reasoning that parties making conveyance would believe that a south access over the disputed land was necessary rendered its decision erroneous. The evidence supported the trial court’s decision.

We call attention to a minor inaccuracy in the court’s order of September 19, 1990, which defined the border between the properties. In that order, the court found Bath, Inc., was the owner of the east 34.07 feet of a tract, which generally contained the same description of boundaries as the deed through which plaintiffs claimed title. However, the court order, in defining the tract from which the west 34.07 feet was awarded to Bath, Inc., stated the distance from point (2) to point (3) was 711 feet and the call between points (4) and (5) went west rather than east. The effect of extending the north line of the tract defined to 711 feet and the awarding Bath, Inc., the east 34.07 feet was to conclude that the proper length of the line from point (2) to point (3) was approximately 675 feet as set forth in all deeds. However, both surveyors agreed that if the distance between points (2) and (3) was only 675 feet, and the call between points (4) and (5) went back to the west, point (6) would be much more than 665 feet from the corner at point (7). Thus, if the distance between points (2) and (3) was 675 feet, the call from point (4) to point (5) must go for some distance to the east. This would create a small triangle of property extending eastward from the farthest east boundary, which the court order permitted. All survey testimony would require a conclusion that this land belonged to plaintiffs. This irregular piece of property would be so small and would create such irregularity in the border between the parties that we need not remand for correction of the order. As we will explain, the court shall consider this loss of property by plaintiffs upon remand.

As plaintiffs were not entitled to the property in dispute, they were not entitled to permanent injunctive relief to preserve that property. However, we hold that plaintiffs should not have been required to remove the encroaching building.

In Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 443 N.E.2d 804, this court considered the equitable requirements which must be met before parties in the position of plaintiffs can properly be required to remove their encroaching structure. The court stated, “It is established that if an encroachment is unintentional and the cost for removing it is great, and the corresponding benefit to the adjoining landowner is small and damages can be had at law, courts will ordinarily refuse to grant injunctive relief and not require the offending party to remove the encroachment.” Terwelp, 111 Ill. App. 3d at 138-39, 443 N.E.2d at 808.

In Terwelp, determining whether the evidence was sufficient to demonstrate that plaintiffs’ encroachment was unintentional, the court looked to the case of Stroup v. Codo (1965), 65 Ill. App. 2d 396, 212 N.E.2d 518. There, the court indicated that in order for an encroachment to be considered intentional, it must be (1) deliberate in the sense that the owner either proceeded to construct it after notice of the encroachment, or (2) that in ascertaining the boundary, he so failed in the exercise of any appreciable precaution as to indicate a wilful disregard of the rights of the owner. Plaintiffs maintain the evidence here conclusively showed their conduct was not wilful.

Stipulations of the parties showed the cost to plaintiffs for removal of the building would be great. They agreed the cost of removal would be $27,885 and plaintiffs’ business would be disrupted sufficiently to cause a loss of $45,000 in profits from sales. On the other hand, the undisputed testimony was that the total value of the property in dispute was only $2,500 and that of the property encroached upon was only $500. No showing was made that the building itself blocked access of the Bath tract to the south.

Evidence was presented that plaintiffs intentionally made the foundation of the building more firm after the court’s ruling. However, considering all of the circumstances, we conclude the evidence does not support a finding the plaintiffs’ violation was wilful. The boundary evidence was uncertain, but plaintiffs proceeded on the basis of the only survey of the premises. The evidence also indicated that defendants did not immediately complain to plaintiffs about the existence of the building.

The portions of the orders on appeal determining rights in property and denying injunctive relief are affirmed. The supplemental order requiring plaintiffs to remove the building is reversed. The cause is remanded to the circuit court of Macon County to assess damages against plaintiffs King and Barnett and to otherwise do equity. (See Terwelp, 111 Ill. App. 3d at 139, 443 N.E.2d at 808.) In connection with performing this function the court may consider that by its decree the court has awarded defendant Bath a small triangular piece of land to which it was not otherwise entitled.

Affirmed in part; reversed in part and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE NESBITT, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0067
    Opinion filed July 25, 1991.

      Kristen H. Fischer, of Kristen H. Fischer Law Offices, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Bruce Nesbitt was found guilty of battery and sentenced to 300 days’ imprisonment with no good-time credit. Defendant appeals his conviction and sentence, arguing the trial court erred in (1) denying his motion for a new trial based on the prosecutor’s improper conduct and argument in his opening statement and closing argument; and (2) in sentencing him and in denying him good-time credit. We affirm.

Only those facts necessary to resolve the issues before us will be recited.

Defendant’s battery conviction stems from an incident on September 15, 1990, at Barnett’s Liquor Store in Champaign, Illinois, between defendant and the victim, Larry G. Cole. According to three eyewitnesses, defendant was first observed attempting to take a package from Cole outside the liquor store. The eyewitnesses then stated defendant jumped on Cole’s back and pushed his head into the pavement after he fell. According to one eyewitness, defendant then kicked Cole in the head by raising his leg “like a football player kicking a field goal.” The eyewitnesses testified Cole appeared to be intoxicated. The eyewitnesses also stated several of defendant’s friends, who were observing the altercation with Cole, attempted to pull defendant off of Cole.

Cole testified the incident began outside the liquor store when defendant said to him “Hey, let me have some of your stuff,” referring to the wine and beer Cole had just purchased at the store. After Cole said no, the two got into an argument.

Defendant testified he went to the liquor store to purchase liquor and, upon exiting the store with his purchase, he bumped into Cole, who became mad and began using racial slurs against him. Defendant stated Cole threatened to spit in his face and, when defendant pushed Cole away, a fight between the two began. According to defendant, the two were wrestling together on the ground and he (defendant) kicked out at Cole.

The State called two eyewitnesses in rebuttal, both of whom stated defendant and Cole were not wrestling at any time during the altercation. One eyewitness, an employee of the store, testified he did not see defendant in the liquor store prior to the altercation with Cole on September 15, 1990. Cole also testified in rebuttal that he did not at any time touch the defendant.

During his opening statements, the prosecutor attempted to demonstrate for the jury how the defendant kicked Cole in the face. During closing arguments, the prosecutor (1) referred to the eyewitness testimony that defendant kicked Cole in the head “like a football player kicking a field goal”; (2) stated defendant “humiliated” Cole; and (3) stated defendant “was going to have some fun with this drunk,” referring to Cole. Defendant’s objections to the conduct and statements of the prosecutor during opening and closing remarks were overruled.

We first consider the defendant’s claim that the actions and comments of the prosecutor prejudiced him and, therefore, a new trial must be conducted. In matters involving arguments or remarks of counsel, the question of the prejudicial impact, if any, upon the jury is within the sound discretion of the trial court and will not be disturbed on review unless there has been a clear abuse of discretion. Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 933, 479 N.E.2d 1091, 1096; People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814, 823.

The record shows the prosecutor attempted, during opening statements, to show the jury how the defendant kicked Cole in the head. The trial judge noted the demonstration, while improper, was not prejudicial and stated that the prosecutor’s conduct only made him look foolish before the jury. We will not disturb the trial judge’s findings on this issue. As to the State’s closing arguments, the State’s evidence established defendant was the instigator of the altercation with Cole. The State’s closing arguments were based on the evidence and reasonable inferences that could be drawn from the evidence. By its verdict, it is clear the jury believed the State’s witnesses. We find there was sufficient evidence to support the verdict.

We next consider whether the trial court abused its discretion in sentencing defendant and in refusing to grant him good-time credit. The presentence report shows defendant had four felony convictions since 1981. Also, defendant had been sentenced to probation twice since 1981 and had not completed the terms of probation successfully. The trial judge noted defendant’s criminal record, and his inability to complete probation. After stating that a sentence of probation would deprecate the seriousness of the offense, the trial judge sentenced defendant to 300 days’ imprisonment.

The determination of a sentence involves considerable judicial discretion and will not be disturbed on review absent a showing of abuse of that discretion. (People v. Fisher (1989), 186 Ill. App. 3d 255, 542 N.E.2d 1127.) Battery is a Class A misdemeanor, which has a sentencing range up to one year’s imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 3(b), 1005 — 8—3(a)(1).) We find no abuse of discretion in sentencing.

Regarding the denial of good-time or good-behavior credit, section 3 of the County Jail Good Behavior Allowance Act provides that good-behavior credit shall be denied to any person serving a sentence “who inflicted physical harm upon another person in committing the offense for which he is confined.” (Ill. Rev. Stat. 1989, ch. 75, par. 32.) Defendant does not argue that Cole was not injured in their altercation. Rather, he argues there was no showing that Cole’s reported injuries — loss of a front tooth, the loosening of two other teeth, and a cut or “gash” to the forehead — were caused by defendant’s actions. Defendant argues any injuries Cole suffered were a result of their mutual wrestling or struggling and not shown to be caused by the kick delivered to Cole’s head by defendant.

We find defendant’s argument unpersuasive. The evidence established Cole was seen by an eyewitness in the midst of the altercation with defendant with a cut on his forehead. Cole testified his front tooth was knocked out when defendant kicked him in the head. This evidence clearly establishes Cole suffered physical harm as a result of defendant’s actions. The trial court, therefore, properly denied defendant any good-time credit.

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

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE CITY OF SPRINGFIELD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ron Adkinson, Appellee).
    Fourth District
    No. 4 — 90—0842WC
    Opinion filed July 31, 1991.

      James K. Zerkle, Corporation Counsel, of Springfield (Peggy J. Witt, Assistant Corporation Counsel, of counsel), for appellant.
    J. Jay Robeson, of Springfield, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent, the City of Springfield, appeals from an order of the Industrial Commission (Commission) finding claimant permanently and totally disabled. On appeal, respondent contends that determination is against the manifest weight of the evidence because claimant failed to establish he was unable to secure gainful employment despite the limitations of his injury. Concomitantly, respondent argues that the total disability benefits which claimant was awarded must be adjusted downward to reflect claimant’s reduced earning capacity under section 8(d) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)).

The facts are substantially uncontroverted. Claimant was employed by the City of Springfield in September 1970 and rose to the rank of master machinist by November 1, 1980. His duties required that he use all manner of hand tools, climb stairs and ladders, and supervise other employees.

On November 1, 1980, claimant injured his left knee while jumping from a truck and subsequently developed a condition diagnosed as Baker’s cyst. Although claimant continued to work, the condition did not improve and, after treatment by Dr. Haggerty, Dr. Olysav performed surgery on the left knee in March 1981.

Ten days after surgery, claimant was rehospitalized because of a pulmonary embolism. He was eventually released and returned to work in May 1981 to his former duties. Claimant’s left knee condition, however, began to worsen and the cyst returned.

In September 1981, claimant suffered a myocardial infarction and was hospitalized. He came under the care of Dr. Taylor, a cardiologist. In October 1981, claimant developed a ventricular aneurysm which required removal of approximately 45% of his heart, as well as a blood clot. Claimant was off work for approximately six months and returned to duty in March 1982, again at the position of master mechanic. Claimant’s left leg continued to bother him and he returned to Dr. Haggerty, who had originally treated him following his initial injury. In May 1983, Dr. Haggerty performed a second surgery on claimant’s left knee to repair the Baker’s cyst. Claimant returned to work again in August 1983.

On August 30, 1983, claimant reinjured his knee when he slipped on a muddy floor at work and almost fell. Claimant returned to Dr. Haggerty, who referred him to Dr. Adair, who concluded that further surgery on claimant’s left knee would be fruitless.

Claimant returned to work but respondent terminated his employment in January 1985 because of his inability to effectively perform his job duties due to the condition of his left knee. At the time, respondent indicated that there were no suitable jobs available for claimant because of claimant’s medical restrictions which forbade excessive use of the knee and such activities as walking and climbing ladders and stairs.

In February 1985, respondent offered claimant three potential jobs at substantially reduced rates of pay from that which he had earned as a master mechanic. The positions offered were those of janitor, utility security officer, and drafting technician. Claimant testified at arbitration that he was aware of and capable of engaging in the tasks of a drafting technician because he had taken a drafting course in high school and had performed drafting work almost 30 years earlier as part of his apprenticeship toward becoming a tool and die maker, a position he held with another employer for almost 20 years.

Claimant, on the advice of Dr. Taylor, his cardiologist, refused the offered positions, however, because of his heart condition. Claimant thereafter applied for and received social security disability benefits as well as an employee disability pension.

The medical evidence suggested that although the initial pulmonary embolism suffered in March 1981 was related to the initial knee surgery, neither the subsequent heart attack nor aneurysm had any relationship to the employment or to claimant’s knee condition. In addition, Dr. Haggerty testified that although claimant could not return to his former job as a master machinist because of his knee condition, claimant could perform sedentary work as long as he did not put substantial stress on his knee.

The arbitrator found that claimant was permanently and totally disabled and awarded benefits accordingly under section 8(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f)). In making that award, however, the arbitrator found that claimant was physically capable of performing the job of drafting technician offered by respondent but claimant’s unrelated heart condition precluded employment in even that sedentary job. Permanent total disability was, nevertheless, awarded because claimant was disabled from the job in which he was engaged at the time he was originally terminated from employment by respondent because of his knee injury.

Respondent sought review and the Commission affirmed the arbitrator, but on different grounds. The Commission concluded that the subsequent offer of reemployment as a drafting technician was not a bona fide offer because, as a condition of reemployment, respondent expressly refused to make up the difference in salary between that which claimant originally earned as a master mechanic and the reduced salary he would have earned in any of the positions offered. In addition, respondent indicated, in its offer, that if problems continued with claimant’s knee after he accepted reemployment, he would be charged with sick time should he be unable to work. Because respondent was obligated to pay benefits because of claimant’s diminished earning capacity, as well as temporary total disability benefits for any lost time due to his knee condition, the Commission concluded the offer was, in essence, a sham and that claimant was permanently and totally disabled. The circuit court confirmed the Commission.

Respondent initially contends that the finding of permanent total disability is against the manifest weight of the evidence because, at least with respect to the drafting position, claimant acknowledged he was capable of and, in fact, had performed such tasks in the past. Moreover, respondent argues that this position was consistent with the restrictions placed on the use of claimant’s left knee. Hence, because claimant was employable, respondent is only liable to pay benefits for the difference in reduced earning capacity between the salary claimant would have earned as a master mechanic and the salary he would have been paid had he accepted the drafting technician position.

A claimant is permanently and totally disabled when he is unable to make some contribution to the work force sufficient to justify the payment of wages. (Gates Division, Harris-Intertype Corp. v. Industrial Comm’n (1980), 78 Ill. 2d 264, 399 N.E.2d 1308.) While the burden of proof is upon the claimant to show the nature and extent of his injuries and the resulting inability to secure gainful employment (A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804), a claimant is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted under the Act (Inland Robbins Construction Co. v. Industrial Comm’n (1980), 78 Ill. 2d 271, 399 N.E.2d 1306). Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable market. (A.M.T.C., 77 Ill. 2d at 487, 397 N.E.2d at 806.) Conversely, an employee is not entitled to total and permanent disability compensation if he is qualified for and capable of obtaining gainful employment without serious risk to his health or life. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) In determining a claimant’s employment potential, his age, training, education, and experiences should be taken into account. A.M.T.C., 77 Ill. 2d at 489, 397 N.E.2d at 807.

We begin by noting that the issue of claimant’s heart condition is not material to the issue before us on review. Each of the experts who offered opinions on the subject unequivocally stated that neither claimant’s myocardial infarction nor ventricular aneurysm was work related. An employer is not liable for the condition caused by a subsequent disability unless it can be shown that the existing work-related disability was a causative factor in producing the subsequent condition. (International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 263 N.E.2d 49.) Accordingly, it is immaterial whether claimant refused the job offer because of his heart condition.

The question before us is whether claimant was capable of performing that employment without serious risk to his health because of the work-related injury. The evidence clearly showed claimant was qualified to perform the tasks of a drafting technician given the limitations placed on the use of his knee. His treating physician, Dr. Haggerty, testified claimant was capable of performing sedentary work. There is no suggestion that the duties of a drafting technician are not essentially sedentary in nature. Moreover, claimant testified he was capable of performing these duties as he had previously taken a high school course in drafting and had worked as a drafter prior to becoming a tool and die maker. Since this was the type of employment that could be performed by a person in claimant’s circumstances, given the limitations in using his left knee, claimant did not demonstrate he was permanently and totally disabled within the meaning of the Act.

Nevertheless, the Commission found claimant’s offer of employment was not bona fide because of the conditions placed upon it. At the time the offer was made, and in response to questions specifically raised by claimant, respondent indicated it would not make up the difference between the salary claimant earned from his previous position as master mechanic and the substantially reduced sum he would have earned as a drafting technician. Respondent specifically indicated the salary claimant would receive for the position he chose from those offered would be the entire sum he would receive. Respondent further indicated that should claimant be unable to work because of recurring knee problems, he would be charged with sick time rather than be accorded additional temporary disability.

While we do not condone the respondent’s conduct in conditioning reemployment upon such conditions, there is no testimony suggesting claimant would have refused the position for those reasons alone. In addition, we are skeptical that had claimant been able to accept the position absent his heart condition, respondent could have enforced such conditions.

At the time the offer was made, petitions for adjustment of claim had been filed before the Commission for the two knee injuries claimant suffered. To the extent claimant was clearly entitled to benefits because of his obviously permanent knee disability, respondent was in no position to legally compel claimant to forego these benefits in view of the pending Commission proceedings. Since respondent was statutorily obligated under section 8(d) of the Act to pay benefits based on claimant’s diminished earning capacity, any attempt to evade payment of these benefits as a condition of reemployment would have been futile.

Despite the chicanery attempted by respondent, we conclude the Commission’s determination the offer was not bona fide is against the manifest weight of the evidence because the conditions placed upon that offer were legally unenforceable.

While we appreciate the Commission’s displeasure with respondent’s practices, that does not detract from the fact that claimant was capable of performing the employment within the medical limitations applicable to his injured knee. Moreover, no authority is offered for the proposition that the mere act of attaching spurious conditions which respondent could not compel claimant to accept to an otherwise legitimate offer of employment renders the offer nonbona fide within the meaning of the Act. Accordingly, we conclude the determination that claimant was permanently totally disabled is against the manifest weight of the evidence.

For the foregoing reasons, the judgments of the circuit court and the Commission are reversed, and the cause is remanded to the Commission for the calculation of benefits for claimant’s reduced earning capacity in conformity with section 8(d) of the Act.

Reversed and remanded with directions.

McNAMARA, WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE HAASE PRESIDING JUSTICE STOUDER,

text:
      In re MAY 1991 WILL COUNTY GRAND JURY (Tony Marquez et al., Petitioners-Appellants, v. The People of the State of Illinois, Respondent-Appellee).
    Third District
    No. 3 — 91—0464
    Opinion filed July 26, 1991.
    STOUDER, P.J., concurring in part and dissenting in part.
    Joseph C. Polito, Ltd., and Gerald G. Kielian, both of Joliet, for appellants.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A grand jury in Will County, Illinois, subpoenaed the petitioners, Tony Marquez and John Romo. The subpoenas required both to appear in an in-person lineup, submit fingerprints, palm prints, a blood standard, and head and pubic hair samples to the grand jury. No charges have been filed against either man. The petitioners filed, motions to quash the subpoenas. Following a hearing before the circuit court of Will County, the court quashed the subpoenas requiring the petitioners to submit blood standards, pubic hair pullings, and head hair pullings. The court ruled these items were the subject of fourth amendment protection and, absent a showing of probable cause, beyond the scope of the grand jury’s subpoena power. The court upheld the subpoenas with regard to fingerprints, palm prints, in-person lineup, head hair clipping and combing, and pubic hair clipping and combing. The court ruled these items are not the subject of fourth amendment protections in that they are items routinely exposed to public view. The petitioners appeal the court’s ruling. We affirm in part and reverse in part.

First, the petitioners argue that there is no showing that the subpoenas were issued at the direction of the grand jury. We dispose of this argument summarily. The petitioners assert they “believe” the subpoenas “may” have been issued at the direction of the State’s Attorney and not by action of the grand jury. The burden of showing irregularity in grand jury proceedings rests upon the defendant and may not be based upon speculation. (People v. Haag (1979), 80 Ill. App. 3d 135, 399 N.E.2d 284.) Absent proof of irregularity, which is not demonstrated by this record, we decline to presume error in the issuance of the subpoenas.

The remainder of the petitioners’ claims warrant careful consideration.

First, the petitioners contend the subpoenas are not authorized by applicable Illinois law. They argue (1) the Illinois Constitution provides that the legislature may limit the powers of the grand jury; (2) the legislature has limited the subpoena powers of the grand jury to oral testimony, documents, and transcripts; (3) hair, blood and the other evidence sought fall into none of the aforementioned categories; and (4) therefore, the subpoenas issued by the Will County grand jury exceed their lawful authority and should be quashed. Secondly, petitioners claim a fourth amendment protection from divulging these items absent a showing of probable cause. Third, the petitioners assert the subpoenas violate their constitutional right to privacy under the Illinois State Constitution.

In order to fully understand the issues presented, a review of the powers of the grand jury is required.

The fifth amendment to the United States Constitution guarantees that no civilian be brought to trial by the United States for an infamous crime “unless on a presentment or indictment of a Grand Jury.” (U.S. Const., amend. V.) This guarantee evolved from the English common law tradition of placing a body of citizens between the prosecutor and the accused. (Wood v. Georgia (1962), 370 U.S. 375, 392, 8 L. Ed. 2d 564, 581, 82 S. Ct. 1364, 1374.) The grand jury serves the dual function of protecting citizens from the overzealous prosecutor and providing an investigative body to root out law breakers. The right to a grand jury indictment, however, does not extend to defendants accused of State crimes. Hurtado v. California (1884), 110 U.S. 516, 28 L. Ed. 232, 4 S. Ct. 292.

In Illinois, our State Constitution provides for indictment by grand jury. Article I, section 7, of the Illinois Constitution provides that no person may be held to answer for a crime punishable by death or imprisonment unless brought by “indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.” The Constitution also provides that the legislature “may abolish the grand jury or further limit its use.” Ill. Const. 1970, art. I, §7.

In providing for the grand jury, the legislature has empowered the grand jury with broad investigative powers.

“The Grand Jury has the right to subpoena and question any person against whom the State’s Attorney is seeking a Bill of Indictment, or any other person, and to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State’s Attorney.” Ill. Rev. Stat. 1989, ch. 38, par. 112— 4(b).

Upon a careful reading of both the State Constitution and the above-cited statute, we believe the defendants’ argument regarding section 112 — 4(b) of the Criminal Code of 1961 is in error.

First, the Constitution provides the legislature may abolish the grand jury or “further limit its use.” Although we express no opinion on the matter, even if the legislature has the authority to limit the investigative powers of the grand jury, the cited statute does not impose such a limitation. The statute provides that the grand jury has the right to subpoena any person and to subpoena any relevant documents or transcripts. Inherent in the grand jury’s power to subpoena any person is the power to require that person to provide evidence as long as it is done within Federal and State constitutional boundaries. The provision that the grand jury has the authority to subpoena documents or transcripts is in addition to, not a limitation on, the inherent powers of the grand jury.

For example, in People ex rel. Hanrahan v. Power (1973), 54 Ill. 2d 154, 295 N.E.2d 472, the Illinois Supreme Court implicitly rejected the restrictive interpretation the petitioners urge this court to accept. In Hanrahan, the trial court refused to issue a grand jury subpoena requiring an individual to submit handwriting exemplars to the grand jury. In response, the State filed a writ of mandamus asking the Illinois Supreme Court to order the subpoena issued. The court, citing United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764, granted the mandamus. Clearly, had the grand jury been without the authority to obtain the exemplars, the court would not have granted the State’s petition.

Likewise, in In re Grand Jury Investigation (1981), 92 Ill. App. 3d 856, 415 N.E.2d 1354, the trial court found the defendant guilty of contempt of court for refusing to obey a grand jury subpoena directing him to provide a set of fingerprint impressions. The court upheld the conviction and ruled that although considerations of due process apply to grand jury proceedings, the defendant had no right to refuse to comply even though he had provided the information to the grand jury previously. We agree.

Therefore, we hold that section 112 — 4(b) of the Criminal Code of 1961 does not impose a limitation on the inherent powers of the grand jury to subpoena witnesses and gather evidence.

Next, petitioners allege that the fourth amendment to the United States Constitution protects them from having to provide the evidentiary items requested in the subpoena in this case. In United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764, a Federal grand jury subpoenaed approximately 20 persons to provide a voice exemplar for identification purposes. Dionisio objected. He claimed that the fourth amendment applied to grand jury process, and that under the fourth amendment the grand jury could not require him to provide physical evidence absent a showing of probable cause. The Court rejected his claim.

“The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime ‘unless on a presentment or indictment of a Grand Jury.’ This constitutional guarantee presupposes an investigative body ‘acting independently of either prosecuting attorney or judge,’ [citation], whose mission is to clear the innocent, no less than to bring to trial those who may be guilty. Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. [Citations.]” United States v. Dionisio, 410 U.S. at 16-17, 35 L. Ed. 2d at 81, 93 S. Ct. at 773.

In In re Grand Jury Proceedings (3d Cir. 1982), 686 F.2d 135 (Mills), the court dealt with the exact issue presently before this court. In Mills, the grand jury directed the petitioner to furnish samples of scalp and facial hairs. The petitioner refused to comply with the grand jury’s request, unless he was first served with a valid search warrant. The trial court refused to order the petitioner to comply, and the government appealed. Upon review, the court directed the petitioner to provide cut head hair samples and cut facial hair samples. The court noted that the samples sought were on public view. Citing Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, the court pointed out that an individual has no expectation of privacy with respect to that which he knowingly exposes to the public at large, such as voice and appearance. The court felt that the items sought were more akin to fingerprinting and voice exemplars, which have been held outside the ambit of fourth amendment protection.

“[W]e conclude that there is no greater expectation of privacy with respect to hair which is on public display than with respect to voice, handwriting or fingerprints ***. Rather, in terms of intrusiveness, it is more like the involuntary touching, inking, and pressing of one’s finger involved in the process of fingerprinting. If the fingerprints can be subject to compelled disclosure by the grand jury without implicating the Fourth Amendment, it follows logically that the hairs stands can as well.” Mills, 686 F.2d. at 139.

In contrast, the court in In re September 1981 Grand Jury (1982), 104 Ill. App. 3d 94, 432 N.E.2d 625, reached the opposite conclusion. In September 1981 Grand Jury, the State’s Attorney of Sangamon County filed a “Motion for Disclosure to Prosecution.” The motion purported to sound under Supreme Court Rule 413 (73 Ill. 2d R. 413). Although no charges had yet been filed, the motion requested that the petitioner, Robert Cohn, provide, among other things, head hair samples to the prosecution. The trial court ordered the petitioner to comply. Upon review, the court ruled that since no charges had yet been filed against the petitioner, the State was without authority to request any information under Supreme Court Rule 413. The court went further, however, and noted that absent a showing of probable cause, the fourth amendment would shield the petitioner from having to provide the State with the items sought. The court reasoned that while head hair may be visible to the public, its unique characteristics are not; “[w]hile the color of one’s hair may not be protected, its chemical characteristics are.” (In re September 1981 Grand Jury, 104 Ill. App. 3d at 98, 432 N.E.2d at 629.) The court felt that by forcing an individual to provide the State with head hair samples, the State was, in effect, forcing the disclosure of chemical characteristics which are both unique and private. We disagree.

Fingerprints are visible to the naked eye, but unless they are properly inked and analyzed, their value as an identification tool is suspect. Much like fingerprints, cut head hair exemplars may be analyzed by scientific means after they are procured by the State. Or, they may be shown to a grand jury for comparison by the naked eye. We feel, however, the two are legally and logically analogous and decline to follow the court’s ruling in In re September 1981 Grand Jury. We adopt the reasoning of the Circuit Court of Appeals for the Third Circuit in In re Grand Jury Proceedings (3d Cir. 1982), 686 F.2d 135.

We find the logic articulated in Dionisio and Mills persuasive. Although the powers of the grand jury are not unlimited, it has long been the rule in this country that “the public *** has a right to every man’s evidence” (8 J. Wigmore, Evidence §2192, at 70 (McNaughton rev. 1961)), except for those persons protected by a constitutional, common law, or statutory exemption. (See United States v. Bryan (1950), 339 U.S. 323, 331, 94 L. Ed. 884, 891, 70 S. Ct. 724, 730.) A number of cases have held that the fourth amendment shield cannot be used to prevent petitioners from appearing in an in-person lineup (Holt v. United States (1910), 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2), or providing finger and palm prints. (Mara v. United States (1973), 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774.) The reasoning behind these cases is that these are traits constantly exposed to the public; “[tjhere is no basis for constructing a wall of privacy against the grand jury which does not exist in casual contacts with strangers.” (Dionisio, 410 U.S. at 14, 35 L. Ed. 2d at 79, 93 S. Ct. at 772.) Unless a person is a recluse, head hair is an item constantly exposed to the public. Permitting a stranger to cut a few strands of one’s hair, in our estimation, is not considered a particularly offensive, intrusive, or unusual event in our society.

We hold, therefore, the petitioners possess no Federal or State constitutional right which is violated by complying with the court’s order to provide head hair clippings and combings. Based upon the doctrine of stare decisis, we likewise hold the petitioners must comply with the court’s order to appear in an in-person lineup and furnish finger and palm print exemplars.

The petitioners need not, however, provide the grand jury with pubic hair samples absent a showing of probable cause. In Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, the Court ruled that the administration of a compulsory blood test plainly involves the fourth amendment. In Schmerber, the defendant had been involved in an auto accident and was brought to the hospital. At the hospital, the police noticed the defendant’s eyes were glassy and his breath smelled of alcohol. The police placed the defendant under arrest for driving under the influence of alcohol and directed a physician to withdraw a blood sample from the defendant. The defendant refused to consent to this test. At trial, the defendant’s motion to suppress the blood test was denied and the defendant was convicted of drunk driving. The Supreme Court affirmed the conviction. The Court noted (1) the officer had probable cause to place the defendant under arrest for an offense, and (2) the percentage of alcohol in a person’s blood dissipates over time. Given these special facts, the court ruled the blood was appropriately obtained as a search incident to arrest. The Court’s ruling strongly relied on the fact that requiring the officer to obtain a warrant would threaten the destruction of the evidence.

“We thus conclude that the present record shows no violation of the petitioner’s right under the Fourth and Fourteenth Amendments to be free from unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the State’s minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” 384 U.S. at 772, 16 L. Ed. 2d at 920, 86 S. Ct. at 1836.

The Court in Schmerber made it abundantly clear that the power of the State to intrude upon the body of a citizen is limited. The Court also made it clear that the State, absent exigent circumstances, must seek a warrant from a neutral and detached magistrate before any such intrusion may be made.

“Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search ‘be drawn by a neutral and detached magistrate ***.’ [Citations.] The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” 384 U.S. at 770,16 L. Ed. 2d at 919, 86 S. Ct. at 1835.

It is equally indisputable that significant interests of, human integrity and dignity are involved in having one’s pubic hair combed by the State. Applying the logic of Schmerber, it is our estimation of Federal law that absent exigent circumstances, pubic hair combings require the State to first obtain a warrant from a neutral and detached magistrate.

Even if the fourth amendment did not forbid pubic hair combings, we believe our State Constitution would. The Illinois Constitution provides that citizens of this State possess a right of privacy independent of any federally guaranteed rights.

“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” (Emphasis added.) Ill. Const. 1970, art. I, §6.

In People v. Jackson (1983), 116 Ill. App. 3d 430, 452 N.E.2d 85, a Cook County grand jury subpoenaed the bank records of the defendant, Hazel Jackson. The bank complied with the subpoena and the defendant was indicted. Prior to trial, the defendant filed a motion to suppress. The defendant claimed the records obtained by the grand jury violated her constitutional right of privacy. The trial court agreed and ordered the records suppressed. The State appealed, arguing that under United States v. Miller (1976), 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619, a citizen possesses no Federal constitutional privacy right in bank records. The court agreed with the State’s assessment of Federal law, but noted that a State is a sovereign in its own right and may offer its citizens greater constitutional protections than are offered by the Federal Constitution. (See Cooper v. State of California (1967), 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788; Prune Yard Shopping Center v. Robbins (1979), 447 U.S. 74, 88, 64 L. Ed. 2d 741, 756, 100 S. Ct. 2035.) The court went on to determine that citizens of Illinois possess a constitutional right of privacy in their bank records.

“In reliance upon this express proscription against invasion of privacy in Illinois and influenced by the Commentary, which suggests that this protection should be broadly applied, we are led to conclude that the Illinois [State] Constitution offers protection for the reasonable expectation of privacy which our citizens have in their bank records.” Jackson, 116 Ill. App. 3d at 434-35, 452 N.E.2d at 88-89.

If citizens of this State possess a right of privacy in their bank records, surely they possess an equal right of privacy in areas of their body historically thought to be private. As the court in Jackson pointed out, however, the fact a citizen possesses a privacy right in an item does not necessarily bar all State intrusions. After the threshold inquiry of whether a right exists has been satisfied, the second aspect of the constitutional problem comes into focus; that is, would compliance with the subpoena constitute an unreasonable invasion of the protected right. In the case at bar, we believe it would. Certainly, examinations of one’s pubic hair for samples and combing violates any reasonable person’s standard of privacy. The State seeks to compel the petitioners to submit to State-supervised pubic hair combings, yet there has been no allegation that probable cause exists sufficient to charge either man with a crime or cause a search warrant to issue. If the right of privacy as embodied in the Illinois Constitution means anything, it means a citizen may not be forced to expose his or her pubic areas for inspection and combing by the State on the mere chance desired evidence may be obtained. Absent a showing of probable cause, the interests of simple human dignity forbid such a result.

Accordingly, both portions of the judgment of the circuit court of Will County which require the petitioners to appear in an in-person lineup, provide head hair combings and clippings, and to provide fingerprints are hereby affirmed. That portion of the circuit court of Will County’s order which requires the petitioners to provide pubic hair combings and clippings is hereby reversed.

Affirmed in part; reversed in part.

McCUSKEY, J., concurs.

PRESIDING JUSTICE STOUDER,

concurring in part and dissenting in part:

I disagree with the majority’s decision not to follow the fourth district precedent regarding the issue of the grand jury’s power to obtain head hair samples. As in the instant case, in In re September 1981 Grand Jury (1982), 104 Ill. App. 3d 94, 432 N.E.2d 625, the fourth district court was presented with a prearrest, precharge situation. The court went through an extensive analysis of the applicable cases, including those relied on by the majority in this case. (See Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826; United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764; United States v. Mara (1973), 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774.) The court concluded the United States Supreme Court appeared to have fashioned two exceptions to the fourth amendment protection: (1) exigent circumstances wherein destruction of the evidence is reasonably apparent, or (2) physical characteristics which may be observed by anyone without a search. The fourth district court stated, “The rule, as developed thus far, appears to be that there is no intrusion, and hence no fourth amendment protection, into an individual’s privacy when he is asked to expose to the authorities that which has been previously exposed to the public at large.” (In re September 1981 Grand Jury (1982), 104 Ill. App. 3d 94, 98, 432 N.E.2d 625, 629.) Applying the relevant case law, the court held that the taking of hair samples does not come within the public exposure exception. I agree with this analysis and see no reason to depart from this precedent. Under the doctrine of stare decisis, this court should not depart from established Illinois precedent without good reason. This is particularly true where the ground for refuting the Illinois precedent is a decision of a Federal Court of Appeals, whose decisions are not binding on this court. For these reasons I dissent from that portion of the majority’s decision dealing with the grand jury’s right to require head hair samples from individuals who have neither been arrested nor charged with a crime.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. WITTENMYER, Defendant-Appellant.
    Third District
    No. 3 — 90—0693
    Opinion filed July 26, 1991.
    — Modified opinion filed August 26, 1991.—
    Rehearing denied August 26,1991.

      Paul Bradley, of Chicago, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecuor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, James E. Wittenmyer, was found guilty of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16) and one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14). The trial court sentenced the defendant to concurrent five-year terms of imprisonment on each abuse conviction, and to seven years in prison on the assault conviction. The sentence on the assault conviction was to run consecutive to the other three sentences. The defendant appeals and we affirm as modified.

The record showed that in the summer of 1989, D.L., age 10, and her brother G.L., age 13, spent most of the summer residing with their grandmother and the defendant, the children’s step-grandfather. The children’s mother, Judy Lopez, had separated from their father and moved to La Moille, where her mother and the defendant lived. In late June 1989, Judy Lopez attempted suicide and was hospitalized. On advice of her doctors, she spent a month in New Jersey with her brother and his family. D.L., G.L. and their younger brother and sister lived with their grandparents.

D.L. testified that in the last incident of alleged abuse, she had been sent to her mother’s home to retrieve a pair of biking shorts. The defendant accompanied her to the house, which the record showed was only a few blocks from the grandparent’s home. She testified that when she and the defendant were in the basement looking for the shorts, the defendant backed her up against a cabinet. The defendant got down on his knees and lifted D.L.’s shirt and bra. She testified that he rubbed and sucked her breasts. The defendant then put his hands down D.L.’s pants and rubbed her vagina. He then started to insert his finger in her vagina. She stated that she knew this was occurring, because she felt pain and she could feel him push “up and down.” She testified that he inserted his finger as far as the first knuckle. This incident served as the basis for two of the counts of aggravated criminal sexual abuse and the aggravated criminal sexual assault charge.

G.L. testified that while living in his grandparent’s home, he was sexually abused on a number of occasions by the defendant. Concerning the incident constituting grounds for the third count of aggravated criminal sexual abuse, G.L. testified that one evening he was alone in his grandparents’ living room watching television. The defendant returned home from work around 10:30 p.m. After the defendant took a shower, he joined G.L., who was lying on the couch in the living room. G.L. testified that the defendant sat down next to him on the couch. According to G.L., the defendant pulled out his penis and asked G.L. to give him “a rub.” G.L. rubbed the defendant’s penis between 45 seconds and a minute.

Because D.L. was under the age of 13 at the time of the alleged abuse, the State was allowed to submit testimony concerning D.L.’s out-of-court statements, pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Detective Brett Taylor testified to three interviews with D.L. occurring on September 4, 1989, September 15, 1989, and February 22, 1990. Prior to trial, a hearing had been held at which the trial court determined that the circumstances surrounding the statements provided sufficient safeguards of reliability.

Taylor testified in detail about what D.L. said at each interview. Taylor testified that D.L.’s story concerning the incident was basically the same in each interview. However, the insertion of the finger was not mentioned until the last interview on February 22, 1990. As D.L. testified at trial, Taylor stated that D.L. expressed confusion at the last interview and told the investigators that in the earlier interviews she was under the impression that they were asking her whether the entire finger had been placed in her vagina. In his September 4, 1989, report Taylor stated that D.L. did not know if the finger actually went into her vagina. The September 15, 1989, report made no mention of any attempt to insert the finger or that D.L. felt any pain. However, Taylor testified that D.L. did discuss this during the September 15 interview, but that he forgot to mention it in his written report.

The testimony of the State’s witnesses and their cross-examination also brought out numerous other alleged incidents in which the defendant sexually abused D.L. and G.L..

The defendant testified and denied that he ever sexually abused the children. He testified that the time he went with D.L. to look for the biking shorts, G,L, went with them.

Other family members also testified concerning the events surrounding the alleged abuse, and the character of the children and their mother. For example, Tom Pontellis talked with the children on the Sunday of Labor Day weekend 1989 about the alleged abuse. Pontellis testified that G.L. told him that the defendant had G.L. rub the defendant’s penis two or three times while they were alone in the car. D.L. told Pontellis that the defendant rubbed “her private parts” in an upstairs bedroom and in the basement of the defendant’s home.

The trial court found that although there were inconsistencies in the children’s stories, the trial court found their testimony to be “virtually not shaken.” The trial court found the defendant guilty on all four counts.

On appeal, the defendant contends there was insufficient credible evidence to support his conviction on any of the counts. The defendant points to the inconsistencies in the children’s testimony concerning the number of incidents, the location of the alleged abuse, and a number of other discrepancies in the testimony of the witnesses. The defendant contends in particular that he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt. He cites the fact that D.L. did not indicate that the defendant’s finger penetrated her vagina until the third interview with authorities on February 22,1990.

When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The credibility of the witnesses and the weight to be given their testimony is exclusively within the province of the trier of fact. (People v. Hudson (1990), 198 Ill. App. 3d 915, 556 N.E.2d 640.) Further, minor inconsistencies in the testimony do not, of themselves, create a reasonable doubt. People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.

A review of the record shows that the basic facts related by D.L. and G.L. concerning the two incidents of abuse serving as the basis for the indictments against the defendant remained consistent. Although this court might have reached a different determination based on the evidence, we will not substitute our judgment for that of the trier of fact.

Regarding the assault conviction, it is true that D.L. did not reveal the fact that the defendant’s finger penetrated her vagina until over six months after the incident. Detective Taylor’s report of the September 4, 1989, interview of D.L. states that D.L. did not know if the the finger penetrated; however, she did feel pain. The report of the September 15, 1989, interview makes no mention of any attempted penetration. However, D.L. testified that she had not understood whether the investigators were talking about partial or complete insertion of the finger when she was interviewed in September, and that was the reason she did not mention this detail. The trial court apparently found D.L.’s explanation credible.

Viewing the evidence in the light most favorable to the prosecution, we find the trial court could have found the essential elements of aggravated criminal sexual abuse and sexual assault beyond a reasonable doubt.

The defendant asserts that he was denied a fair trial through a combination of the destruction of handwritten notes taken by Detective Taylor during his interviews with D.L., and the introduction of evidence concerning the statements made by D.L. to Detective Taylor and the other investigators. Detective Taylor testified that after he wrote up his reports on the interviews with D.L., he destroyed his handwritten notes. The defendant argues that given the circumstances under which the act of sexual penetration was eventually revealed, the notes might have been invaluable to the defense.

Additionally, the defendant argues that use of D.L.’s out-of-court statements in this case “expose the danger of misuse” of section 115 — 10 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Section 115 — 10 allows, in the prosecution for sexual acts perpetrated on a child under the age of 13, evidence of the child’s out-of-court statements to be admitted as an exception to the hearsay rule. Defendant argues that the three interviews of D.L. were within the complete control of the Bureau County sheriff’s department and the State’s Attorney’s office. The defendant contends the State was able to use section 115 — 10 to shore up D.L.’s testimony.

We find no merit to the defendant’s contentions on this issue given the fact that the defense had a full opportunity to cross-examine D.L. during the trial and confront her with the inconsistencies in her account.

The defendant contends the trial court erred in imposing a consecutive sentence for the sexual assault conviction. We agree. Section 5— 8 — 4(a) of the Unified Code of Corrections (111. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) provides in pertinent part: “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.”

The defendant’s three aggravated criminal sexual abuse convictions were Class 2 felonies for violations of section 12 — 16 of the Criminal Code. The sexual assault conviction was a Class X felony brought pursuant to section 12 — 14 of the Criminal Code. Thus in the instant case the one Class X felony conviction was also the only violation of section 12 — 13 or 12 — 14 charged against the defendant. We interpret section 5 — 8—4(a) to require both a conviction for a Class X or Class 1 felony plus an additional conviction for a violation of section 12 — 13 or 12 — 14 before a consecutive sentence can be imposed. A single conviction for violation of section 12 — 14, which is a Class X felony, cannot serve as the basis for consecutive sentences when the defendant has no other convictions of violations of section 12 — 13 or 12 — 14, and has not been convicted of any other Class X or Class 1 felony. Therefore, the trial court erred in imposing a consecutive sentence on the defendant.

Pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we modify the judgment of the circuit court of Bureau County to vacate defendant’s consecutive sentence for aggravated criminal sexual assault and order that defendant’s sentence for that conviction be served concurrently to defendant’s other sentences. In all other respects the judgment of the circuit court is affirmed.

Affirmed as modified.

BARRY and GORMAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    R.A. CULLINAN AND SONS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (William L. Cooper, Jr., Appellee).
    Third District (Industrial Commission Division)
    No. 3 — 90—0684WC
    Opinion filed July 30,1991.

      Patrick W. Martin, of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellant.
    Jeffrey B. Rock, of Hasselberg & Rock, of Peoria, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, William L. Cooper, Jr., filed an application for adjustment of claim following an altercation with a co-worker in which head, neck, shoulder and back injuries were sustained during the course of his employment with R.A. Cullinan & Sons. Claimant filed a petition for immediate hearing pursuant to section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19) seeking temporary total disability and medical benefits. The arbitrator found that claimant initiated the altercation and denied his claim. Upon review the Industrial Commission (Commission) reversed the decision of the arbitrator, holding that the altercation was instigated by claimant’s co-worker, and awarded him temporary total disability benefits in the amount of $554.27 per week for a period of 314/? weeks, and $4,921.49 for necessary medical expenses. The circuit court of Tazewell County confirmed the decision of the Commission. Employer appeals.

Claimant, age 40, was employed as a truck driver hauling dirt in an earth-moving truck for road construction. Claimant worked approximately 58 hours per week from September 1987 until the onset of inclement weather in the last part of November 1987, earning between $16 and $18 per hour. Claimant had no other employment between the time he stopped working for employer in the previous working season until he began again in April 1988. Claimant testified that he again worked 58 hours per week during the current construction season.

On April 21, 1988, claimant was working in a borrow pit. As he left the pit at 7 a.m. with his truck loaded with dirt, he passed his coworker, Ralph Black, who was also driving a truck. According to claimant, Black refused to yield the right-of-way to his loaded truck, and claimant had to slow down and move over to the side of the road as Black passed by him. No words were exchanged at that time. (Claimant indicated that he had no previous problems with Black.)

Approximately 10 minutes later, claimant again encountered Black as he continued into the site to unload his truck. Black stopped his truck in the middle of the road, thereby preventing claimant from crossing the road, and made an obscene gesture.

Claimant reported the incident to his foreman, Luther Leesman, and requested his assistance as he could not continue working under such conditions. Later that day, he found Black waiting for him at the exit to the pit. Black ordered him to pull his truck into a parking area so that he could talk to claimant. As claimant left his truck, Black entered the parking area and pulled to the right of his truck.

Claimant further testified that Black approached him and appeared to be concealing something in his right hand. When Black was approximately two feet in front of claimant, he threatened to kill claimant. At that moment, Black produced a 20-inch steel pipe. Claimant attempted to block the blow with his left hand, but the pipe struck him along the left eye and temple. Claimant then struck Black and wrestled him to the ground in an attempt to get the pipe away from him; however, he was struck in the head several more times. Eventually he was able to wrestle the pipe away from Black. He positioned the pipe over Black’s throat and chest and held Black to the ground. Leesman drove into the parking area and ordered claimant to get off Black and get rid of the pipe.

Leesman testified that claimant had spoken to him about Black’s actions. Leesman attempted to talk to Black about it, but Black was too angry to talk to Leesman. Black just stated that he would do something about it. Leesman further testified that as he came upon the scene, he found claimant and Black on the ground in front of their trucks. Both claimant and Black were bleeding from abrasions and lacerations to the head. According to Leesman, claimant “looked like he was going to collapse, *** weak-kneed *** shaky from shock” and speaking in incoherent phrases. (Claimant and Black were terminated as a result of this incident; however, claimant was reinstated after filing a grievance hearing with the union.) Black did not seek reinstatement.

Black testified that claimant made an obscene gesture at him through the windshield of his truck while they were in the borrow pit. Leesman confronted him with claimant’s accusation that Black had run him off the road. Black informed Leesman that the opposite had occurred and that claimant had tried to run him off the road.

Black further testified that he motioned for claimant to pull into the parking area, and that he came out of his truck carrying the short metal pipe beside his right leg because he did not know what he would encounter when he met claimant. (Claimant weighed approximately 295 pounds, while Black weighed 170 pounds.) According to Black, claimant struck the first blow with his fist near Black’s right eye, and they both went down on the ground. Black testified that claimant tried to gouge his right eye out with his thumb and threatened to kill him. Black received 11 stitches as a result of the altercation. Black stated that claimant had never previously threatened him or anyone else on the jobsite.

Claimant testified that upon his arrival in the hospital emergency room he was scared, extremely disoriented, and on the verge of losing consciousness. Claimant sustained multiple contusions and received several stitches in the back of his head for lacerations. A CT scan revealed no intracranial abnormalities. After the altercation, claimant complained of problems with headaches, blurred vision, confusion, depression, shoulder and low back pain.

Claimant’s wife testified that since the accident, claimant has experienced slight memory loss at different times; he forgets things and sleeps a lot as a result of his medication.

On April 22, 1988, claimant was treated by Dr. William Baisier. Dr. Baisier opined that claimant suffered mostly from soft tissue injury, and diagnosed his condition as a contusion and sprain of the cervical and lumbosacral spine, and headaches.

On May 13, 1988, claimant was examined by Dr. Edward Trudeau upon Dr. Baisier’s referral. The electrodiagnostic tests Dr. Trudeau performed on claimant were normal. Dr. Trudeau potentially diagnosed claimant’s condition as post-traumatic cervical syndrome or post-concussion syndrome. Dr. Trudeau further testified that although the electrodiagnostic tests were normal, it does not preclude claimant from suffering from either of the aforementioned conditions. Post-traumatic cervical syndrome and post-concussion syndrome can be caused by one or several blows to the head or neck region; further, both of these conditions can occur simultaneously.

Dr. Baisier referred claimant to Dr. Betsill for headache treatment. On May 10, 1988, Dr. Betsill found no evidence of significant neurologic injury and diagnosed claimant’s condition as post-traumatic headache. On June 15, 1988, Dr. Betsill recommended a psychiatric evaluation by Dr. Bornstein for his complaints of depression.

Mr. Kenneth Imhoff, a clinical psychological tester, examined claimant on August 3, 1988, at the request of Dr. Bornstein. Imhoff holds bachelor’s and master’s degrees in psychology and had been performing psychological testing since 1969.

Imhoff administered a battery of standard psychological and intelligence tests. Imhoff opined that claimant had a dual handicap, with the primary diagnosis as organic brain syndrome and the secondary diagnosis as marked depression and anxiety. According to Imhoff, the injuries sustained by claimant during the altercation with Black had a direct relationship to his organic brain syndrome. Imhoff stated that he believed that claimant was sincere in his effort during the tests. Imhoff further stated that it was doubtful that claimant would return to work as a truck driver because of his inadequate spatial relationship skills.

Dr. Gregg Helgeson, a counseling psychologist, reviewed for the employer claimant’s medical records, the tests conducted by Imhoff, the medical reports of Drs. Trudeau and Baisier, as well as claimant’s junior high school grades. Dr. Helgeson opined that the results are inconclusive as to whether claimant suffered brain impairment. He found that claimant appears to be functioning at the same level of performance as he did in seventh, eighth and ninth grades, and that he did not have a higher premorbid I.Q. It was his opinion that claimant was not suffering from either post-concussion or post-traumatic cervical syndrome.

The arbitrator concluded claimant failed to prove that his injuries arose out of and in the course of his employment. The arbitrator based his decision on his finding that claimant was the aggressor in the fight with Black. The Commission reversed the decision of the arbitrator, concluding that Black was the aggressor and that claimant’s injuries arose out of and in the course of his employment.

On appeal, employer argues that the Commission did not have jurisdiction because it failed to render its written decision within the time period set forth in section 7020.80(D) of the Illinois Administrative Code (50 Ill. Adm. Code §7020.80(b)(4)(D) (Supp. 1986)). Employer also maintains that the Commission’s decision finding that claimant was not the aggressor in the altercation, and that claimant’s condition of ill-being was the result of the work-related accident, is against the manifest weight of the evidence. Employer also contends that claimant’s weekly wage was erroneously computed.

We turn first to employer’s contention that the Commission did not have jurisdiction because it failed to render its written decision in a timely manner as provided by section 7020.80(D) of the Illinois Administrative Code. That section provides in relevant part:

“(D) The Commission shall file its decision no more than 90 days after the filing of the Petition for Review, and not later than 180 days from the filing of the Petition under Section 19(b — ), whichever is sooner.” (Emphasis added.) 50 Ill. Adm. Code §7020.80(b)(4)(D), at 1436 (Supp. 1986).

Claimant filed the petition for immediate hearing with the Commission pursuant to section 19(b — 1) on February 21, 1989. The predecision memorandum was issued by the Commission on October 11, 1989, followed by the entry of the full decision on December 29, 1989. Thus, employer contends that the Commission’s failure to comply with its own regulations and file its decision within 180 days after the filing of the petition renders its decision invalid.

This court has recently analyzed the language of section 7020.80(D) in Nelson v. Industrial Comm’n (1990), 194 Ill. App. 3d 10, 550 N.E.2d 1047. We held that the time limits for rendering a decision on a workers’ compensation claim are “directory” rather than “mandatory,” and thus, the Commission does not lose its jurisdiction to modify the arbitrator’s award by failing to enter a written decision within the statutory time period. In addition, the Nelson court found no evidence in the record suggesting that the Commission’s actions were intended to be dilatory, or that the claimant suffered any injury due to the 15-day delay in filing the Commission’s written decision.

Similarly, in Orkin Pest Control v. Industrial Comm’n (1989), 187 Ill. App. 3d 269, 543 N.E.2d 149, this court was presented with the issue of whether the Commission would lose jurisdiction when a decision and opinion on review were entered 209 days after claimant filed a petition for immediate hearing. After considering the sudden death of the arbitrator, and the failure of the employer to posit any evidence that it was injured in any way by that delay, this court found that an extended delay did not warrant reversal.

We apply the principles set forth in Nelson and Orkin Pest Control in the resolution of the issue in the present case. We do not find that the 249-day delay in the Commission’s entry of its decision on December 29, 1989, constitutes dilatory tactics, in itself, sufficient to warrant a denial of jurisdiction. Any ruling that the deadlines are mandatory could well deprive both employers and employees of the right to Commission review of decisions of the arbitrators through mere inaction, however, legitimate or inadvertent. (Nelson, 194 Ill. App. 3d at 17, 550 N.E.2d at 1051.) Moreover, employer has failed to submit any evidence that the delay occasioned by the Commission caused it any injury.

Employer next asserts that the Commission’s decision finding that claimant was not the aggressor in the fight with Black was against the manifest weight of the evidence. Injuries occasioned by an assault by a co-employee in the work place during work hours are compensable in Illinois if the assault arose in the course of a dispute involving the conduct of the work, provided that the claimant is not the aggressor. Rodriguez v. Industrial Comm’n (1983), 95 Ill. 2d 166, 447 N.E.2d 186, citing Ford Motor Co. v. Industrial Comm’n (1980), 78 Ill. 2d 260, 399 N.E.2d 1280.

In determining whether the claimant has met his burden of proof on an issue, the Commission is not bound by the arbitrator’s findings and may properly determine the credibility of witnesses, weigh their testimony and assess the weight to be given to the evidence. Anderson Clayton Foods v. Industrial Comm’n (1988) 171 Ill. App. 3d 457, 526 N.E.2d 844, citing Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364.

After claimant initially encountered Black, he reported the incident to Leesman and requested his assistance. Black told claimant to drive into the parking area, and left his truck concealing a 20-inch steel pipe; conversely, claimant was not carrying any type of weapon. Claimant testified that Black threatened to kill him and struck the first blow. We also note that claimant filed a grievance hearing after he was terminated as a result of the fight and received reinstatement.

It is well established that if undisputed facts upon any issue permit more than one reasonable inference, the determination of such issues presents a question of fact, and the conclusion of the Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 541 N.E.2d 665.) We will not discard permissible inferences drawn by the Commission based upon competent evidence merely because other inferences might be drawn by us. Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.

Upon careful review of the record, we find ample support for the Commission’s determination that Black struck the first blow and that claimant was not the aggressor in the altercation.

Employer also contends that there is no causal connection between claimant’s condition of ill-being and the work-related accident.

During the altercation, claimant was struck in the head approximately five or six times with a 20-inch steel pipe. Leesman testified that when he arrived in the parking area immediately following the fight, claimant appeared to be on the verge of collapse; that he was shaky from shock and spoke incoherently. Claimant sustained multiple contusions and received several stitches in the back of his head for lacerations sustained during the course of the fight, and complained of problems with headaches, blurred vision and confusion. Shortly after the incident, Dr. Betsill diagnosed claimant’s condition as post-traumatic headache. In addition, claimant’s wife testified that her husband has experienced bouts of slight memory loss at different times since the injury.

The Commission evaluated the medical testimony of Dr. Trudeau, who diagnosed claimant’s condition as post-traumatic or post-concussion syndrome. Employer contends that claimant could not have post-concussion syndrome because he was not diagnosed as having a concussion when he was initially seen in the emergency room. However, Dr. Trudeau opined that claimant could be suffering from either of those conditions in view of the severe blows he sustained to his head, despite the normal results of the electrodiagnostic tests.

Imhoff, who performed psychological testing on claimant, diagnosed his condition as organic brain syndrome and marked depression and anxiety, which was directly related to the injuries sustained during the altercation with Black. Dr. Helgeson countered that claimant was not suffering from either post-concussion or post-traumatic cervical syndrome.

The question of causation is one of fact for the Commission and will not be overturned unless the finding is against the manifest weight of the evidence. (Interlake, Inc. v. Industrial Comm’n (1987), 161 Ill. App. 3d 704, 515 N.E.2d 202.) A reviewing court may overturn the Commission’s factual determinations only when they are against the manifest weight of the evidence. (Anderson Clayton Foods v. Industrial Comm’n, 171 Ill. App. 3d at 459, 526 N.E.2d at 846.) Based upon the facts in this case, the Commission’s decision that claimant’s present condition is the result of the work-related altercation with Black is adequately supported by the evidence.

Employer finally contends that the Commission’s finding of average weekly wage was against the manifest weight of the evidence.

Section 8(b)(1) of the Act provides that the compensation rate for temporary total incapacity shall be equal to 662/s% of the employee’s average weekly wage, as computed in accordance with section 10. That section provides in relevant part:

“The compensation shall be computed on the basis of the ‘Average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 138.10.

In claimant’s amended request, he stated that his average weekly wage is $929.16. Claimant testified at the arbitration hearing that he earned between $16 and $18 per hour, and that he worked 58 hours per week in the current construction season prior to his injury in April 1988. Claimant worked a similar number of hours in the previous construction season ending in November 1987. The Commission determined that claimant was entitled to $554.27 per week for a period of 314/? weeks, representing the maximum weekly rate for temporary total disability benefits. Thus, it is apparent that the Commission included claimant’s 58 hours per week in calculating the average weekly wage.

Under section 10, overtime wages, bonuses and unemployment compensation are not considered in calculating average weekly wages, even though as a practical matter they account for a significant part of many seasonal workers’ annual incomes which benefit the employer. (Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008.) Offsetting those deductions is the lost-time deduction, which allows the Commission to calculate average weekly wages using a denominator of only those weeks actually worked, to the benefit of the employee. Illinois-Iowa Blacktop, 180 Ill. App. 3d at 893, 536 N.E.2d at 1014.

This court most recently interpreted section 10 in Edward Hines Lumber Co. v. Industrial Comm’n (1990), 215 Ill. App. 3d 659. That case is factually distinguishable from this case, for it concerns a nonseasonal worker who worked under a union contract that provided that he had to work whatever hours the employer demanded, with the minimum number of hours set at approximately 10 per day six days a week. However, this court reiterated the principles set forth in Illinois-Iowa Blacktop, finding that with respect to seasonal workers, overtime wages are not considered in calculating average weekly wages.

It is undisputed that the claimant in this case was a seasonal worker. Claimant worked from September through November 1987, until the onset of inclement weather halted the construction season. Claimant held no other job until he resumed employment during the spring of 1988 when the current construction season began.

Applying the principles set forth in Illinois-Iowa Blacktop for seasonal workers such as the claimant in this case, we find that it was error for the Commission to have included claimant’s overtime wages in its average weekly wage calculation. Therefore, we remand the cause for determination of claimant’s average weekly wage based upon his non-overtime hours.

For the foregoing reasons, the judgment of the circuit court of Tazewell County awarding claimant temporary total disability and medical benefits is affirmed. That portion of the order which pertains to claimant’s average weekly wage is reversed for recalculation pursuant to these holdings. Judgment affirmed in part; remanded in part.

Judgment affirmed in part; remanded in part.

McCullough, p.j., woodward, stouder, and lewis, jj., concur.