author: JUSTICE LEWIS

text:
    THOMAS HURT, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Borden Chemical Company, Appellee and Cross-Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—89—0106WC
    Opinion filed December 14, 1989.

      Roger Edward Ryan, of Springfield, for appellant.
    Stevenson, Rusin & Friedman, Ltd., of Chicago (Douglas F. Stevenson and Gregory G. Yacala, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The claimant, Thomas Hurt, seeks reversal in part of an order of the circuit court confirming the decision of the Illinois Industrial Commission (hereafter referred to as the Commission), which, in turn, affirmed the decision of the arbitrator. Claimant raises a single issue for our review: whether the Commission erred in failing to award him penalties, pursuant to sections 19(k) and (1) of the Workers’ Compensation Act (hereafter referred to as the Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 138.19(k), 138.19(1)), and attorney fees, pursuant to section 16 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.16). Claimant describes the judgment of the circuit court and the decision of the Commission as “entirely favorable” to him in all other respects. Claimant suffered a broken nose on February 7, 1985, when struck by a fellow employee in the employer’s parking lot. The employer, Borden Chemical Company, has cross-appealed the judgment of the circuit court, questioning, inter alia, whether the claimant’s accident arose out of and in the course of his employment.

Upon entry of the arbitrator’s decision the employer sought review by the Commission. Following submission of the employer’s statement of exceptions and supporting brief the claimant submitted his response. In “Count I” of his response claimant sought against the employer penalties under sections 19(k) and (1) and attorney fees under section 16; in “Count II” of his response he sought against both the employer and its attorney penalties and attorney fees under those same sections. Claimant contended that the statement of exceptions and supporting brief submitted by the employer was “a complete fabrication offered in bad faith.” In response to the Commission’s notice of predecision memorandum on review, the claimant requested a written decision on review setting forth the reasons for the decision concerning the issues, among others, the failure to assess penalties and attorney fees. The written decision of the Commission, dated March 7, 1988, made no reference to penalties or attorney fees. The claimant thereupon sought review in April of 1988 in the circuit court, which, likewise, in its judgment, entered in January of 1989, did not refer to penalties or attorney fees.

In its brief to this court the employer argues, as it did in the circuit court, that the claimant’s demand for penalties was not properly presented to the Commission. On the review proceedings stipulation form submitted to the Commission, signed by counsel for both parties, claimant did not indicate that penalties or attorney fees were in issue. That form states with regard to “Penalties” that a written petition must be on file. In his brief claimant asserts that “[t]he controversy giving rise to this appeal began with a brief filed by [counsel for the employer] entitled ‘RESPONDENT’S STATEMENT OF EXCEPTIONS AND SUPPORTING BRIEF.’” Claimant argues that he raised the issue and asked for penalties and attorney fees “at his first opportunity, in his responding brief.” At no time did claimant file a petition for penalties.

Our supreme court has stated that a petition requesting additional compensation because of delay under section 19(k) must be directed to the Commission so that it may determine as a question of fact whether such delay exists (Garrison v. Industrial Comm’n (1980), 83 Ill. 2d 375, 415 N.E.2d 352). The employer relies upon Christman v. Industrial Comm’n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773, in which we noted that the Commission’s award of penalties under section 19(k) and attorney fees under section 16 were unwarranted because the claimant had never presented those issues properly to the Commission. In Christman the review proceedings stipulation form did not raise the issue either of penalties or of attorney fees. However, on the same date that the claimant filed his review proceedings stipulation, he filed a written petition for penalties under section 19(l). His brief discussed penalties under section 19(l) and attorney fees under section 16, as did his statement of exceptions. He did not mention penalties under section 19(k). We said in Christman that “[t]he Commission may consider, and oral arguments will be limited to, only those issues raised in both the review proceedings stipulation form or its equivalent, and in the party’s statement of exceptions and supporting briefs” (emphasis in original) (180 Ill. App. 3d at 882, 536 N.E.2d at 777). We concluded that the claimant's failure to raise the issue of penalties under section 19(l) in the review proceedings stipulation form was cured by his filing of a written petition seeking 19(l) penalties on the same date that he filed the review proceedings stipulation form but that his failure to raise the issues of penalties under section 19(k) and attorney fees in either the review proceedings stipulation form or in the petition for penalties precluded the Commission from properly considering those issues. Thus, we determined that it was error for the Commission to have imposed penalties under section 19(k) and to have awarded attorney fees under section 16.

In the instant case the issues of penalties and attorney fees were raised neither in the review proceedings stipulation form nor in a petition. The claimant did not, for example, file such a petition when he filed his response to the employer’s statement of exceptions and supporting brief. This failure precluded the Commission from considering these issues. Hence, the Commission did not err in failing to award claimant penalties and attorney fees.

In its cross-appeal the employer raises two other issues for review: (1) “[w]hether, when there is no evidence indicating it is work-related, an otherwise ‘unexplained assault’ constitutes an accident arising out of and in the course of employment” and (2) “[w]hether an award of ‘15 week [sic] *** for a nasal bone fracture’ is authorized by Section 8(d)(2) when there is no finding the injury is ‘serious and permanent’ or results in a ‘permanent partial disability’ as required by the statute and judicial decision construing it.”

Initially, we address the claimant’s contention that the employer may not raise issues not presented by the claimant to the circuit court because the employer did not seek judicial review there. Section 19(f)(1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) begins as follows:

“Except in cases of claims against the State of Illinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred, shall by summons to the Commission have power to review all questions of law and fact presented by such record.
A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons.”

In subparagraph (f)(1), Public Act 83—360, which became effective September 14, 1983, deleted references to writs of certiorari and writs of scire facias by substituting therefor “summons” wherever it appears in subparagraph (f)(1) and, at the beginning of the second paragraph of subparagraph (f)(1), by substituting “A proceeding for review” for “Such suit by writ of certiorari.” (Ill. Ann. Stat., ch. 48, par. 138.19, Historical Note, at 58 (Smith-Hurd 1986).) Public Act 83—360 twice substituted “written request” for “praecipe” in the second paragraph of subparagraph (f)(1). (Ill. Ann. Stat., ch. 48, par. 138.19, Historical Note, at 58 (Smith-Hurd 1986).) Prior to these revisions subparagraph (f)(1) began as follows:

“Except in cases of claims against the State of Illinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred, shall by writ of certiorari to the Commission have power to review all questions of law and fact presented by such record.
Such suit by writ of certiorari shall be commenced within 20 days of the receipt of notice of the decision of the Commission. Such writ of certiorari and the writ of scire facias shall be issued by the clerk of such court upon praecipe returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the praecipe shall contain the last known address of other parties in interest and their attorneys of record who are to be served by scire facias.” Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1).

Prior to these changes the rule was well established that a writ of certiorari brought the entire record of the Commission before the court and that an adverse party did not need to obtain a separate writ of certiorari in order to challenge elements of the Commission’s decision (Hascek v. Industrial Comm’n (1979), 77 Ill. 2d 466, 397 N.E.2d 808). It was never intended that a “cross writ of certiorari” should be necessary in order for the opposing party to preserve his right to object to any question arising on the record or involved in the decision reviewed. (Harrawood v. Industrial Comm’n (1977), 66 Ill. 2d 230, 362 N.E.2d 350; Murrelle v. Industrial Comm’n (1943), 382 Ill. 128, 46 N.E.2d 1007.) The changes effected by Public Act 83—360 are plainly minor procedural ones. They do not indicate an intent on the part of the legislature to alter the law concerning the preservation of an adverse party’s right to object to questions arising on the record or questions involved in the decision reviewed. They do not suggest that the opposing party must also file a summons in order to preserve that right. The summons issued to the Commission upon the written request of the instant claimant brought before the circuit court the employer’s objections to the Commission’s award. Thus, the claimant’s contentions to the contrary are without merit.

We turn now to the issue the employer raises whether the claimant’s accident arose out of and in the course of his employment. Following a hearing conducted on September 16, 1985, the arbitrator found with regard to this issue as follows:

“[Claimant] testified that on the morning of the occurrence upon arriving at work, he parked his vehicle in the company lot. He climbed out of said vehicle, but still had the driver’s door open and was reaching inside the vehicle to remove his lunch bucket when he was approached by a co-employee, Dave Turner. Without provocation or warning and without saying anything, Turner smashed his fist or another blunt object into [claimant’s] face. Then he said something that sounded like ‘bear claw,’ pointed to the plant, and walked away. *** [Claimant] further testified that he had worked with Turner for sometime [sic] and that he had- no prior arguments, animosity or disagreements with his assailant. [Claimant] is a considerably larger man than his assailant.
Co-employee, William L. Johnson, testified that on December 17, 1984[,] after he pulled into the company parking lot and got out of his vehicle, Dave Turner approached him and without provocation or warning, punched him in the mouth stating[,] T am no queer.’ Although Johnson, like Petitioner, is a considerably larger man than his assailant, he testified that he did not fight back because Supervisor Charles Karrick was approaching them and Johnson did not want to get fired. Mr. Johnson did not report the incident but later testimony established that [the employer] later did conduct an investigation to determine [copy indistinguishable] Turner was involved.
Co-employee Eric L. Mendenhall testified that he knew and had worked with Dave Turner and never had a problem with him. He liked the guy. In September or October, 1984, Mendenhall and some other co-employees had been talking about a movie by rock star Prince and in the discussion one of the men stated in his opinion that Prince was a ‘queer.’ After work, Mendenhall was walking toward his vehicle in the company parking lot and slowed down to allow Turner to catch up to him and asked Turner what he was going to do that night. Turner replied, ‘Take care of business.’ Then, Turner said, ‘You may kick my ass for this, but...’ and took a swing at Mendenhall. The blow missed Mendenhall. He explained to Turner the nature of the conversation at break and that they were not referring to Turner as a ‘queer.’ A couple of days later, Mendenhall reported the incident to Robert Timmons, Supervisor of the Paste Department.
Group leader, David Lehman, testified that he knew Turner and had worked with him in the past and had a good relationship with him. Two days prior to the attack on [claimant], Turner worked with Lehman for about four hours. Lehman noticed Turner was behaving quite differently than when they had worked together previously. Turner was highly agitated and cursing for no apparent reason. Lehman asked if there was anything he could do to help out. Turner replied, T got a problem, but I’ll handle it.’ Later on the same day, Lehman went to Supervisor Dave Moffitt and informed him that something was bothering Turner and offered to take Turner on his crew to work with him or help Turner if he could.
Personnel Director, Essex Mitchell[,] testified from his own personal knowledge and from reviewing the personnel records of David Turner that no action had been taken by the company concerning the matter. Charles Karrick did indeed witness the attack on William Johnson. Eric Mendenhall had reported Turner’s attack on him to supervisory employee, Robert Timmons. Group leader, David Lehman, had reported to supervisory employee, David Moffitt, that something was bothering Turner. The Arbitrator concludes that agents for [the employer] were aware of David Turner’s bizarre behavior and his possible violence but failed to act to protect other employees; therefore, [claimant’s] accidental injuries did arise from and in the course of his employment by [the employer].”

Upon review before the Commission no additional evidence was presented. The Commission found that an individual had approached the claimant and "struck him in the nose for some unexplained and unprovoked reason.” The Commission found further that the findings of the arbitrator were supported by the evidence in the record and expressly adopted them.

The employer maintains that there is no evidence here that the assault was work related and that “[a]t best, the evidence shows an unexplained assault,” which, as such, was a risk incidental to the general public and was not an accident arising out of and in the course of the claimant’s employment. The claimant argues that he sustained injury as the result of an unprovoked attack by an irrational coemployee and that the injury is compensable pursuant to the authority of Rodriguez v. Industrial Comm’n (1982), 95 Ill. 2d 166, 447 N.E.2d 186.

The purpose of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) is to protect employees against risks and hazards peculiar to the nature of the work they are employed to do. (Illinois Bell Telephone Co. v. Industrial Comm’n (1989), 131 Ill. 2d 478.) An injury is compensable under the Act only if it “aris[es] out of” and "in the course of” the employment. (Ill. Rev. Stat. 1985, ch. 48, par. 138.2; Illinois Bell, (1989), 131 Ill. 2d 478.) While the phrase “in the course of employment” relates to the time, place and circumstances of the' injury, the phrase “arising out of the employment” refers to the requisite causal connection between the injury and the employment. (Associated Vendors, Inc. v. Industrial Comm’n (1970), 45 Ill. 2d 203, 258 N.E.2d 354.) In the instant case the employer makes no specific or serious contention that the injury did not occur in the course of the claimant’s employment, and we do not consider that assertion further. An injury may be said to arise out of the employment when, upon consideration of all of the circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work is to be performed and the resulting injury. (Pazara v. Industrial Comm’n (1980), 81 Ill. 2d 76, 405 N.E.2d 767.) While it is not necessary that the injury be one which ought to have been foreseen or expected, it must be one which after the event may be seen to have had its origin in the nature of the employment. Taylor Coal Co. v. Industrial Comm’n (1922), 301 Ill. 548, 134 N.E. 172.

Concerning the issue of compensability for injuries resulting from assaults, the supreme court stated in Schultheis v. Industrial Comm’n (1983), 96 Ill. 2d 340, 449 N.E.2d 1341, that it has consistently held that injuries suffered by employees as a consequence of assaults were not compensable if there was evidence to sustain a finding by the Commission that the motive was personal to the victim rather than work related or if the claimant could not demonstrate a reason for the assault. An injury caused by the attack of one employee upon another does not arise out of the employment when no reason for the attack is shown. American Brake Shoe Co. v. Industrial Comm’n (1960), 20 Ill. 2d 132, 169 N.E.2d 256.

In Rodriguez (95 Ill. 2d 166, 447 N.E.2d 186), decided shortly before Schultheis was, the supreme court treated an assault in the workplace motivated by a general racial or ethnic prejudice as a compensable “neutral” risk arising out of the employment. Of so-called “neutral” assaults the court observed:

“Professor Larson describes a category of ‘neutral assaults’ to account for those assaults which are neither personal nor clearly occupational in origin. This category includes ‘those assaults which are in essence equivalent to blind or irrational forces’ (1 A. Larson, Workmen’s Compensation sec. 11.31, at 3—224 (1978)), and comprises but is not limited to assaults by insane or drunken co-employees and assaults the motive for which is unexplained although the identity of the assailant is known. (1 A. Larson, Workmen’s Compensation secs. 11.32—11.34 (1978).) We believe that racial or ethnic prejudice directed by an employee against his co-employee belongs in this category inasmuch as it is an unreasoning emotion ***.
In discussing assaults on claimants by insane, drunken or irresponsible co-employees and unexplained assaults by identifiable co-employees, Professor Larson concludes with approval that a ‘demonstrably larger body’ to a ‘great majority’ of decisions from the various States hold the injuries thus suffered to be compensable (1 A. Larson, Workmen’s Compensation secs. 11.32(a), 11.33 (1978); see Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, 33). The theory behind the decisions in the irrational co-employee cases is that when a co-employee suffers from a delusion or some similar condition which causes him to erupt into violence, his presence in the workplace in his state is a condition under which his victim is employed and must perform his work, just as a defective machine or ceiling in the workplace would be, and in that sense is a risk peculiar to the employment and not shared by the world at large. (Anderson v. Security Building Co. (1924), 100 Conn. 373, 377, 123 A. 843, 844-45; 40 A.L.R. 1119, 1121 (1926); see also, e.g., Cedar Rapids Community School v. Cady (Iowa 1979), 278 N.W.2d 298 (insane delusion); Pacific Employers Insurance Co. v. Industrial Accident Com. (1956), 139 Cal. App. 2d 260, 293 P.2d 502 (same); Crotty v. Driver-Harris Co. (1957), 45 N.J. Super. 75, 131 A.2d 578 (robbery motivated assault); Wakefield v. World-Telegram (1937), 249 App. Div. 884, 292 N.Y.S. 588, aff’d mem. (1937), 274 N.Y. 517, 10 N.E.2d 527 (intoxication); Perez v. Fred Harvey, Inc. (1950), 54 N.M. 339, 224 P.2d 524 (same); Cleland Simpson Co. v. Workmen’s Compensation Appeal Board (1975), 16 Pa. Commw. 566, 332 A.2d 862 (insane delusion that claimant had broken several dates with assailant).) We have found no Illinois decisions holding squarely to the contrary.” Rodriguez, 95 Ill. 2d at 172-74, 447 N.E.2d at 189-90.

In the instant case the claimant demonstrated a reason for the assault, namely, the combativeness and apparent emotional instability of his assailant and coemployee, David Turner. The employer urges that, although claimant “presented several fellow employees to testify they heard or observed prior problems with David Turner, only one prior incident of his actually hitting another employee was mentioned, and this incident was never reported to management.” We think that the employer’s prior knowledge is not determinative. The claimant showed at the hearing that his assailant had exhibited a propensity toward the kind of assaultive conduct that occurred here. Turner’s condition, whether known to the employer or not, was not unlike a defect, known or unknown, in a machine in the employee’s work environment. Turner’s presence in a combative, apparently emotionally unstable state was a condition in which the claimant was required to work. Thus, the risk of assault was one peculiar to his employment and not one shared by the world at large. Therefore, we hold that the accident arose out of claimant’s employment.

With respect to the other issue the employer raises, pertaining to the award of 15 weeks made by the arbitrator pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)), the employer argues that before an award can be made under that section there must be a finding of “serious and permanent” injury and a “disability.” The employer relies upon Archer Daniels Midland Co. v. Industrial Comm’n (1983), 99 Ill. 2d 275, 458 N.E.2d 494, in which the supreme court stated that, in order for a claimant to be eligible for benefits under section 8(d)(2), the injuries must be “serious and permanent” and result in permanent partial disability or impairment. The employer contends that the instant award of 15 weeks must be reversed.

In the instant case the arbitrator found as follows concerning the nature and extent of claimant’s injury, and the Commission adopted these findings:

“[Claimant] testified that when he was punched in the nose by a fist or other blunt instrument, he experienced immediate severe pain and bleeding from his nose. After the plant nurse provided him first aid, he went directly to Decatur Memorial Hospital, where he was examined by W.J. Pettit, M.D. [Claimant’s] Group Exhibit #1, Decatur Memorial Hospital Records, reflects a diagnosis of acute comminuted fracture of [claimant’s] nasal bones. On February 11, 1985, [claimant] saw Dr. Pettit for a diagnostic visit. [Claimant’s] Group Exhibit #2 indicates he noted [claimant] to have a marked deviation of the dorsum and septum of the nose to the right. On February 12, 1985, he admitted [claimant] to St. Mary’s Hospital where he performed a closed reduction under general anesthesia. When Dr. Pettit saw [claimant] on March 18, 1985, he still had some congestion, and when he saw him again on June 3, 1985, [claimant] continued to have inflammation.
[Claimant] is no longer under treatment. He testified that cool air causes a burning sensation of his nasal passages. At night his nasal passages fill up when he lies down. He now snores and wakes up with a dry throat. Whenever he bends over to pick up something, such as bags of soda ash at work, he feels pressure around his eyes; his eyes water; and he experiences a headache for about one-half hour. His nasal passages itch in hot dry air such as that found at work and he sneezes frequently. He further testified he did not experience any of these symptoms or conditions prior to the occurrence.”

The arbitrator found further, as did the Commission in adopting the finding, that the claimant was entitled to receive from the employer “the sum of $224.16 per week for a further period of 15 weeks, as provided in §8(d)(2) of the Act as amended, because the injuries sustained caused a nasal bone fracture.” The employer argues that a fractured nose can be compensated under the concept of a “man as a whole” where there is “serious and permanent” injury resulting in a “physical impairment” but that the arbitrator made no such findings in the instant case. However, the express findings of the arbitrator make clear that the award was for the full injury suffered by claimant, namely, a broken nose and the attendant problems he continued to experience thereafter. Thus, we consider this contention of the employer to be without merit.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


source: Caselaw Access Project

author: JUSTICE LUND JUSTICE STEIGMANN,

license: Public Domain

text:
    FRANCES M. RENKEN, Plaintiff-Appellee and Cross-Appellant, v. NORTHERN ILLINOIS WATER COMPANY, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0155
    Opinion filed December 14, 1989.
    Rehearing denied January 16, 1990.

      STEIGMANN, J., specially concurring.
    Anthony C. Raccuglia & Associates, of Peru (Cynthia M. Raccuglia, of counsel), for appellant.
    Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal is by defendant Northern Illinois Water Company from an order by the circuit court of Livingston County, directing defendant to pay $8,162.50 to plaintiff’s attorney. The attorney fees order was pursuant to that part of section 5—201 of the Public Utilities Act (Act) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201) which entitles plaintiffs who recover civil damages under section 5—201 to attorney fees. Plaintiff cross-appeals from the judgment in her favor in the amount of $17,183.70, contending that the jury should not have been allowed to reduce the verdict because of comparative negligence.

On December 16, 1985, while crossing a street in Pontiac, Illinois, plaintiff stepped into a hole and fell. The hole, evidently, existed because a water valve covering was lower than the even grade of the city street. Plaintiff was not walking in the available marked crosswalk area. Plaintiff initially filed a complaint against the City of Pontiac. Later, defendant was brought in as an additional defendant. Subsequently, plaintiff settled her claim against the City of Pontiac for $15,000. Plaintiff’s attorney received $5,000 as his fee, pursuant to the contingency fee arrangement he had with plaintiff.

As for the claim against defendant, the complaint alleged a violation by defendant of section 5 — 201 of the Act, based on the violation of an Illinois Commerce Commission (ICC) rule. Section 5 — 201 provides as follows:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.
In every case of a recovery of damages by any person or corporation under the provisions of this Section, the plaintiff shall be entitled to a reasonable attorney’s fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case.
No recovery as in this Section provided shall in any manner affect a recovery by the State of the penalties in this Act provided.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201.)

The rule involved is ICC regulation 600.240, which states:

“Each utility shall establish a valve and hydrant inspection program. Valves and hydrants shall be kept in good operating condition and should be inspected at least annually. Valves and hydrants found to be inoperable shall be repaired or replaced. Valve covers shall be maintained at grade level and not paved over. Each inspection and all maintenance performed shall be properly noted on the valve or hydrant record card.” 83 Ill. Adm. Code §600.240 (1985).

The matter proceeded to trial and resulted in a jury verdict for plaintiff. The jury was instructed as to comparative negligence, and assessed plaintiff with 40% of the responsibility for the injury. The judgment of $17,183.70 represented the jury’s determination of defendant’s 60% share of the liability. Because of the $15,000 settlement with the City of Pontiac, defendant was only ordered to pay the additional $2,183.70 as its share of the damages to plaintiff. Subsequently, because of the favorable verdict, plaintiff asked for attorney fees under section 5—201 and submitted a statement for services in the amount of $14,212.50. The trial court allowed an award of $8,162.50 based on the amount of time actually spent preparing and trying the case against defendant. Defendant is not appealing from the award of damages, but is appealing only from the order for attorney fees. However, in attacking the attorney fees, defendant contends that section 5—201 was not applicable under the facts of this case. Defendant also contends the computation of the fee, if a fee assessment was proper, was not reasonable, and should have, at least, been limited by the contingency fee arrangement between plaintiff and her attorney.

If the facts in this cause cannot sustain a judgment under section 5—201, then the attorney fees ordered, based on the section, must be reversed. Section 5—201 is for practical purposes identical to what was section 73 of the Public Utilities Act (formerly Ill. Rev. Stat. 1983, ch. 111⅔, par. 77). In Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323, the question of the applicability of the defense of contributory negligence to causes under section 73 of the Act was addressed. It was recognized that a violation of a statute to protect human life or property is prima facie evidence of negligence. (Barthel, 74 Ill. 2d at 219, 384 N.E.2d at 326.) However, it must be shown that the violation proximately caused the injury, and that the statute was intended to protect a class to which the plaintiff belongs from the kind of injury suffered. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) Section 5—201 differs from the ordinary statute because it expressly creates a cause of action. Thus, the violation establishes negligence as a matter of law, in contrast to the prima facie evidence rule. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) The supreme court noted that in contrast to the Structural Work Act (see Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), the Coal Mining Act (see Ill. Rev. Stat. 1987, ch. 96½, pars. 251 through 3901), and the Child Labor Law (see Ill. Rev. Stat. 1987, ch. 48, pars. 31.1 through 31.22), which imposed strict liability, the Act does not entail the social policies requiring strict liability. (Barthel, 74 Ill. 2d at 221-22, 384 N.E.2d at 327.) Contributory negligence was upheld as a proper defense in Public Utilities Act cases by the Barthel decision.

Basically, contributory negligence disappeared and reappeared as comparative negligence with the opinion of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.

It is apparent that the evidence indicated plaintiff fell because of a hole around the water valve covering. So, proximate cause was established. The remaining question then is whether section 5—201, together with the incorporation of ICC regulation 600.240 (83 Ill. Adm. Code §600.240 (1985)), was intended to protect the class to which plaintiff belonged.

The thrust of defendant’s argument is that section 5—201, coupled with regulation 600.240, was intended to regulate water valve construction and maintenance to facilitate the use of those valves, rather than protect the general public from faulty construction or maintenance. If defendant is correct, then plaintiff was not in a protected class. The following cases are submitted to support defendant’s position: Ozment v. Lance (1982), 107 Ill. App. 3d 348, 437 N.E.2d 930; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 399 N.E.2d 656; Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131. All of these cases involved incidents similar to ordinance violations. Justice Underwood explained the difference between ordinance violations and Public Utilities Act violations by stating that the former are only prima facie evidence of negligence, while the latter “expressly creates a cause of action.” Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.

Ozment involved an ordinance prohibiting those under 21 years of age from employment involving the sale of alcohol. The underaged employee was sexually molested while delivering alcohol to a hotel room. The appellate decision held the violation of the ordinance was not evidence of negligence under the existing facts. In Warchol, the duty to maintain sidewalks was not allowed as evidence of negligence when the minor was injured while walking on a pipe fence adjoining the walk. In Galayda, a violation of an ordinance requiring certain stair construction was not allowed as evidence of negligence when plaintiff was injured in a fire, and he did not use the faulty stairway. In Sheehan, plaintiff was not allowed to use evidence of defendant’s violation of a parking ordinance when plaintiff swerved out of his lane to avoid another automobile and hit the defendant truck. The ordinance was held to facilitate the local residents rather than moving vehicles. Except for illustrating the “member of the class” requirement, the cited cases are not particularly helpful in deciding the issue before us.

Defendant’s argument relating to the purpose of the ICC regulation insuring quality of water service, rather than protecting the pedestrian, presents a more challenging issue. If the regulation was for the sole purpose of assuring the usability of water valves, then, arguably, plaintiff would not be a member of the protected class.

Plaintiff argues section 8—101 of the Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8—101), formerly section 32 of the Act (Ill. Rev. Stat. 1983, ch. 111⅔, par. 32), requires public utilities to “promote the safety, [and] health *** of its patrons,” and suggests all Administrative Code provisions are authorized by section 8—101. Defendant argues that regulation 600.240 was adopted for the purposes of implementing section 5—201 of the Act, and was only authorized by section 8—101 of the Act.

The importance of the difference between implementing and authorizing is more apparent when one recognizes the general nature of section 8 — 101, the first section under article VIII, entitled “Service Obligations and Conditions,” and which provides:

“Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and public and as shall be in all respects adequate, efficient, just and reasonable.
All rules and regulations made by a public utility affecting or pertaining to its charges or service to the public shall be just and reasonable.
Every public utility shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto, suitable facilities and service, without discrimination and without delay.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 8—101.

We recognize ICC regulations have different functions. Electric utility regulations might be solely for the purpose of guaranteeing sufficient power, thus, protecting the user, while other regulations might regulate the location of the lines, intending to protect the general public. Water utilities might be controlled by regulations as to pressure available, protecting the user and aiding in fire protection. The location and condition of shutoff valves could affect both users and fire protection by minimizing areas affected by repair shutdowns. There is no question that regulation 600.240 appears, by its terminology, to be directed at the availability and condition of valves and hydrants than the safety of the general public. The only words which could conceivably be read as protection for the general public are: “Valve covers shall be maintained at grade level.” Can this small part of the regulation be read so as to extend the protected class from the users of the public utility to the general public? We recognize that extending the regulation to the protection of the general public allows for the creation of negligence as a matter of law when a violation of the regulation is proved.

The grade level regulation could well be aimed at the protection of the valve. A valve extending above grade level in a highway or road would be subject to easy damage by vehicular traffic. A valve below grade level might well be covered with surplus road materials or dirt. At the same time, valves above and below grade level could be obstacles for vehicles and pedestrians. We are aware that, regardless of whether plaintiff was in a class protected by the Act, a common law negligence action might well rest based upon the installation above or below grade level. While there is an argument for a strict construction of section 5 — 201, coupled with regulation 600.240, because of the creation of absolute liability, we conclude the section and regulation should be read as to apply to plaintiff under the facts of this case, and we find that she is a member of the protected class.

In light of our decision as to protected class, it is not necessary to determine whether the opinion in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 136-37, 383 N.E.2d 929, 933, is precedent for holding all violations of section 5—201, if causing personal injury, create a cause of action. The court in Churchill found no basis for limiting liability to issues of public utility rates and services, and specifically held:

“We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICG’s rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.” (Churchill, 73 Ill. 2d at 137, 383 N.E.2d at 933.)

While Churchill involved a violation of a regulation obviously for the protection of the general public, we recognize an argument can be made that it holds any violation of section 5—201 which results in a personal injury creates a cause of action under the Act.

Since plaintiff had a valid cause of action for damages under section 5—201, she is “entitled to a reasonable attorney’s fee to be fixed by the court.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201.) Defendant’s second argument is that the fee fixed by the trial court was unreasonably high and should be limited to the contingent fee of one-third of the net recovery of $2,183.70.

The court allowed an award of $8,162.50 based on a computation of 65.3 hours at $125 per hour. Plaintiff’s attorney had originally submitted a statement totalling $14,212.50. However, the trial court deleted the activities related solely to prosecuting the case against the City of Pontiac. The court accepted the attorney’s suggested hourly rate of $125 per hour, and awarded the attorney fee representing all of the time spent preparing and trying the case against defendant. Plaintiff’s attorney had previously received $5,000 as his contingency fee from the settlement of $15,000 with the City of Pontiac. Defendant argues this award is not reasonable based on the type of case involved.

There are few guiding principles in our appellate decisions as to what a reasonable attorney fee should be in cases where a statute permits such an award. The Federal system has considerably more to say about the matter, particularly in the area of civil rights cases. Defendant has based its argument on two Federal civil rights cases from the Seventh Circuit Court of Appeals. In Kirchoff v. Flynn (7th Cir. 1986), 786 F.2d 320, the court of appeals reversed an award of attorney fees based exclusively on a 40% figure obtained from the contingency fee arrangement between attorney and client. The court stated the district court was within its discretion in accepting the contingency fee as a proper and reasonable fee. However, the district court had simply not read the fine print in the fee provision. The court remanded the cause for further consideration. Kirchoff was a typical tort lawsuit where the Federal foundation was mere window dressing: “The [plaintiffs] sued to redress some of the oldest torts known, not to challenge accepted wisdom or to explore uncharted seas.” (Kirchoff, 786 F.2d at 327.) In discussing a proper award of attorney fees, the court stated the guiding principle is to determine the prevailing market rate for attorneys of comparable skill and experience who provide similar services. (Kirchoff, 786 F.2d at 324.) As for basing an award on a contingency arrangement, the court concluded:

“The use of contingent fees can coexist with a recognition that courts must compensate counsel who produce non-monetary benefits, and that compensation for such benefits is presumptively based on the number of hours it took to produce the benefits. *** The use of contingent fees is appropriate in cases that enforce old precedents and allow effective compensation as a percentage of the total recovery. Neither approach governs all cases, but there is no necessary conflict. The objective in all cases is the same: to award the plaintiff’s counsel the market rate for the services reasonably required to produce the victory. ‘The market’ uses different methods of calculating compensation in different kinds of cases.
To sum up: the district judge was entitled to compute the attorneys’ fee in this case as a percentage of the total award.” Kirchoff, 786 F.2d at 328.

In the second case, Lenard v. Argento (7th Cir. 1987), 808 F.2d 1242, the court again discussed the effect of a contingency fee agreement:

“Although the Supreme Court has now made clear both that a contingent fee contract does not place a ceiling on the award of attorney’s fees and that the award may exceed the judgment ***, the existence and terms of such a contract, and the relationship between the fees sought by counsel and the relief obtained, continue to be relevant to the district judge’s decision on how large a fee to award. The statute allows only a reasonable fee. This means a fee large enough to induce competent counsel to handle the plaintiff’s case, but no larger.” (Lenard, 808 F.2d at 1247.)

Summarizing these Federal cases, the courts are not to rely arbitrarily on a contingency arrangement as the standard for determining a reasonable attorney fee. Rather, the courts are to consider the contractual fee arrangement between attorney and client as but one factor in their determination. In those instances where a contingency fee represents the standard remuneration for the type of case involved, the contingency fee may adequately serve as the final award.

Plaintiff cites Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 536 N.E.2d 194, to support his argument for sustaining the trial court’s award of some $8,000. Keller follows the general guidelines outlined above. In Keller, the appellate court held the trial court arbitrarily relied on the contingency fee arrangement in a situation where that resulted in an unreasonably small award for the type of case involved. (Keller, 180 Ill. App. 3d at 557, 536 N.E.2d at 205-06.) The action against the City of Pontiac was a normal negligence trip-and-fall case. No law or fact questions are apparent which would indicate the entering into uncharted waters. The case against defendant herein is similar except for the question of absolute liability created by statute. This issue forced counsel into what appears to be uncharted waters. While we might not have awarded the fees approved by the trial court, we do not find them so excessive as to be against the manifest weight of the evidence. We affirm the trial court’s fee order.

CROSS-APPEAL

Plaintiff argues, on cross-appeal, that there should not be a setoff based on comparative negligence. The position is taken that the supreme court, by adopting comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), reversed its previous ruling that contributory negligence defenses applied to cases arising under the Act. (See Barthel, 74 Ill. 2d at 222, 384 N.E.2d at 329.) Plaintiff’s position is without merit.

Alvis was filed on April 17, 1981, and modified on denial of rehearing on June 4, 1981. Justice Simon’s opinion in Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918, was filed on March 31, 1981. In Vegich, it was pointed out that causes of actions under the Act were not limited to violations of wilful acts, thus differentiating them from violations of the Child Labor Law (Ill. Rev. Stat. 1979, ch. 48, pars. 31.1 through 31.22), the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69), and “An Act to protect workers and the general public from injury ***.” (Ill. Rev. Stat. 1979, ch. 121, pars. 314.1 through 314.8.) In Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 458, 473 N.E.2d 946, 953, Justice Simon specifically held that comparative negligence was not proper in Structural Work Act cases, and cited Vegich and the wilfulness standard. In our opinion in Knyal v. Illinois Power Co. (1988), 169 Ill. App. 3d 440, 444, 523 N.E.2d 639, 642, which involved the Act, we stated:

“Nothing we have stated is intended to make the possible status of the injured party as a trespasser immaterial on the question of whether that party’s presence on the premises was foreseeable or whether that party was guilty of contributory negligence for comparative purposes.”

Comparative negligence is still a proper defense in public utility cases because a violation of the" Act, while creating liability, is not necessarily wilful and does not require the strict liability that exists in cases where wilfulness is part of the statute. The trial court’s ruling on comparative negligence must be affirmed.

Affirmed.

KNECHT, P.J., concurs.

JUSTICE STEIGMANN,

specially concurring:

I agree with the result reached by the majority in this "case, but I do not agree with the reasons given by the majority to reach that result. Specifically, I believe the majority has incorrectly construed the statute at issue in this case, section 5—201 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201), by engaging in an analysis that has been foreclosed by a decision of the Illinois Supreme Court. The defendant in this case argues that section 5—201, coupled with regulation 600.240 of the ICC (83 Ill. Adm. Code §600.240 (1985)), was intended to regulate water valve construction and maintenance to facilitate the use of those valves, rather than to protect the general public from faulty construction or maintenance. The majority opinion observes that if the defendant is correct, then plaintiff was not in a protected class. We know, however, that the defendant is not correct because of the decision of the Illinois Supreme Court in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929. Essentially the same argument presented to us by the defendant in this case was addressed to the supreme court in Churchill, and the court stated the following:

“Defendant initially seeks to dispose of the question by asserting that the statutory remedy in section 73 does not apply to personal injury actions. It contends that the Public Utilities Act is directed at regulating rates and services of public utilities, and that, consequently, section 73 is intended to provide a remedy for such abuses as overcharging and preferential rates and not for safety violations at railroad crossings. We fail to find any substantiation whatsoever for this contention.
*** We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICG’s rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.” Churchill, 73 Ill. 2d at 136-37, 383 N.E.2d at 933.

As the majority opinion notes, the section 73 of the Public Utilities Act discussed in Churchill (Ill. Rev. Stat. 1969, ch. 111⅔, par. 77) is for all practical purposes identical to the section 5—201 that is at issue in this case. Accordingly, in view of the Churchill decision, I cannot agree with the lengthy analysis of the majority opinion leading to the conclusion that section 5—201, coupled with regulation 600.240, should be read to apply to the plaintiff under the facts of this case because “she is a member of the protected class.” 191 Ill. App. 3d at 750.

I further disagree with the majority’s opinion because, even if the Churchill case had not already resolved the primary issue before us, I conclude the determination of whether the plaintiff was part of a “protected class,” which the majority opinion addresses, is unnecessary based on my reading of the Illinois Supreme Court decision in Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323. The majority opinion, in analyzing Barthel, states the following:

“It was recognized that a violation of a statute to protect human life or property is prima facie evidence of negligence. (Barthel, 74 Ill. 2d at 219, 384 N.E.2d at 326.) However, it must
be shown that the violation proximately caused the injury, and that the statute was intended to protect a class to which the plaintiff belongs from the kind of injury suffered. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) Section 5—201 differs from the ordinary statute because it expressly creates a cause of action. Thus, the violation establishes negligence as a matter of law, in contrast to the prima facie evidence rule.” 191 Ill. App. 3d at 747, 547 N.E.2d at 1378.

In Barthel, as in Churchill, the supreme court was construing section 73 of the Public Utilities Act. In doing so, the supreme court distinguished section 73 from the ordinary statutes designed to protect human life or property by pointing out that with regard to such statutes a plaintiff, in order to recover, must show that the violation proximately caused his injury and that the statute was intended to protect a class to which he belongs from the kind of injury that he suffered. The court distinguished section 73 in the following way:

“Section 73 of the Public Utilities Act, however, differs from the ordinary statute in that it expressly creates a cause of action. The provision declares unequivocally that a utility which violates the Act or implementing regulations shall be liable in damages for resulting injuries. *** We agree with plaintiffs that the statutory provision is incompatible with the ordinary rule that violation of a statute is merely prima facie evidence of negligence. We do not agree, however, that the statute imposes strict liability on public utilities.” Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326-27.

I read this language as indicating that a plaintiff must show that he belongs to a class and that he suffered from the kind of an injury that the statute at issue was intended to protect only when that statute is one of the ordinary statutes designed to protect human life or property; not when, as here, the statute itself expressly creates a cause of action. With regard to the ordinary statutes, their violation is only prima facie evidence of negligence, and the defendant may prevail by showing that he acted reasonably under the circumstances. A defendant charged with a violation of section 73 of the Public Utilities Act, now section 5—201 of that Act, may not prevail by showing that he acted reasonably under the circumstances.


author: JUSTICE SPITZ

text:
    ROBERT J. CRAMSEY, Indiv. and as Independent Adm’r of the Estate of Barbara J. Cramsey, Deceased, et al., Plaintiffs-Appellants, v. RUTH HATTIE KNOBLOCK, Defendant (Kent W. Barber et al., Defendants-Appellees).
    Fourth District
    No. 4—89—0363
    Opinion filed December 14, 1989.
    Rehearing denied January 17, 1990.

      Goehl & Schuering, of Quincy, and J. Patrick Wheeler, of Canton, Missouri, for appellants.
    Lee Humphrey and Susan M. Hickman, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee Kent W. Barber.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Frederick P. Velde, and Adrian E. Harless, of counsel), for appellee Quincy Clinic.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by plaintiffs from an order of the circuit court of Adams County dismissing the medical malpractice portions of the complaint. On October 1, 1986, the plaintiffs, Catherine M. Baker, Robert J. Cramsey II, and Robert J. Cramsey, individually and as independent administrators of the estate of Barbara J. Cramsey, deceased, filed a four-count complaint against Ruth Hattie Knoblock seeking to recover damages resulting from the wrongful death of Barbara Cramsey ensuing from an automobile collision allegedly proximately caused by the negligence of Knoblock. Knoblock is not a party to this appeal. On March 31, 1988, an amended complaint was filed by which the plaintiffs added two counts each against defendants Kent W. Barber, M.D., and the Quincy Clinic, a partnership, for the wrongful death of decedent and loss of society to the individual plaintiffs.

Counts V through VIII of the amended complaint alleged that after Barbara Cramsey suffered a head injury in the collision of April 6, 1985, she became a patient of Barber and the Quincy Clinic. The counts further allege Barber, an orthopedic surgeon, failed to have a “CT” scan (computerized tomography) performed on Barbara Cramsey even though she complained of nausea, headaches, weight gain, and visual problems and failed to perform other tests to determine if a tumor existed, failed to recognize and treat the tumor, and failed to associate himself with a physician qualified to recognize and treat the tumor. These counts further allege that in December 1985, it was determined Barbara Cramsey had a tumor, from which she died on February 4, 1986.

After defendants filed a motion to dismiss the amended complaint, plaintiffs filed a second-amended complaint June 28, 1988. Counts V through VIII of the second-amended complaint are essentially the same as those counts in the first-amended complaint, with the exception that plaintiffs further alleged plaintiff administrator of the estate first became aware the defendants failed to provide proper medical care on September 1, 1987, when Dr. John Scott, a member of the Quincy Clinic, stated during his deposition that a CT scan may have been required under the circumstances. The amended complaint also alleged that plaintiffs had not acquired hospital records of decedent until after April 1, 1986. These further allegations were added only to count V against Barber.

On July 20, 1988, the clinic filed a motion to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619) on the grounds that the action by plaintiffs was barred by the statute of limitations since it was filed more than two years after the date plaintiffs knew or should have known, through the exercise of reasonable diligence, of the existence of the decedent’s injury. As an additional ground, the clinic urged plaintiffs failed to comply with section 2—622 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—622). On August 27, 1988, Barber filed a section 2— 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615) to dismiss the counts against him alleging failure to comply with section 2—622. In addition, Barber filed a section 2—619 motion based on the statute of limitations.

On November 21, 1988, plaintiffs were granted leave to file a third-amended complaint. In the third-amended complaint, each of counts V through VIII contained a paragraph concerning the allegation of when plaintiffs became aware of the alleged failure to provide proper medical care. In addition, this third-amended complaint added a count against each of the defendants, counts IX and X. In these new counts, plaintiffs alleged the defendants named wilfully and fraudulently concealed the cause of action in that Barber’s medical reports failed to state any connection between the trauma caused by the collision and the brain tumor and Scott also failed to so state a causal connection in the death certificate even though the causal connection was known. Plaintiffs alleged they knew they had a cause of action against defendants on September 1, 1987, and commenced the action on or about March 31, 1988, within five years of the discovery thereof. On December 2, 1988, plaintiffs moved to amend count X of the third-amended complaint. Of significance is the alleged allegation that Barber was a partner and agent of the clinic. On December 20, 1988, the motion to amend count X was granted.

Defendants renewed their motions to dismiss, adding the additional contention that the five-year statute of limitations for fraudulent concealment of a cause of action was not applicable to the case at bar. On February 23, 1989, plaintiff administrator filed an affidavit in which he states he talked to Scott within eight weeks of his wife’s death and at that time Scott did not discuss Barber’s treatment of decedent, or the failure to perform a CT scan or other tests. Nor did Scott opine at that time that such additional tests should have been performed.

On February 24, 1989, the trial court entered an order granting the motions to dismiss as to Barber and Quincy Clinic because the actions are barred by the statute of limitations. An additional reason for the dismissal of counts IX and X was a failure to state a cause of action, since there were no allegations of misrepresentation made with intent to deceive or that plaintiffs detrimentally relied on such misrepresentations. In addition, the trial court stated that because the certifying health professional who signed the certificate filed pursuant to section 2—622 was a practitioner of a different specialty than Barber, counts V through X should be dismissed for this reason as well. The trial court also found there is no just reason to delay enforcement or appeal.

On March 23, 1989, plaintiffs filed a motion to reconsider the order dismissing counts V through X. The trial court denied the motion to reconsider on April 7, 1989, and on April 28, 1989, plaintiffs filed a notice of appeal.

The first issue to consider is whether the trial court erred in dismissing the third-amended complaint for failure to obtain a proper health-care professional’s certification. Plaintiffs argue that when a physician is a named defendant in a lawsuit, any licensed physician is legally qualified to evaluate the treatment and a specialist in a field is not statutorily required since they are neither statutorily regulated or defined under section 11 of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400—11). Section 2— 622(a)(1) of the Code states:

“In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes is knowledgeable in the relevant issues involved in the particular action and who practices in the same specialty as the defendant if the defendant is a specialist; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license", as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached.”

Other reviewing courts have interpreted this section to mean that if defendant is a physician, all that is required is affiant be a physician even though defendant holds himself out as a specialist. (Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 527 N.E.2d 1328 (thorasic surgeon as to radiologist); Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 519 N.E.2d 66 (specialty of certifying physician not disclosed).) As plaintiffs point out, the first district has declared the provision unconstitutional because it delegates a judicial function to a professional group. (DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 540 N.E.2d 847, appeal allowed (1989), 127 Ill. 2d 614.) We need not decide, however, whether the certificate is adequate or whether the provision is unconstitutional since defendants have not addressed this issue and it would therefore seem defendants concede, at a minimum, that the affidavit submitted by plaintiff was sufficient.

Before deciding whether the trial court erred by ruling the statute of limitations began to run on February 4, 1986, as a matter of law, it must be noted that whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendants. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372, cert, denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641; Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Any allegations which are merely conclusions of fact, unsupported by allegations of specific facts, are not admitted, however. Howell v. Blecharczyck (1983), 119 Ill. App. 3d 987, 457 N.E.2d 494.

The primary basis of the dismissal in this case was the failure of plaintiffs to bring the cause of action within the appropriate period delineated by the statute of limitations. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(5).) The statute of limitations applied in this case is section 13—212(a) of the Code, which states:

“Except as provided in Section 13—215 of this Act [fraudulent concealment of a cause of action] no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1987, ch. 110, par. 13—212(a).

In this case, the facts are uncontroverted. Plaintiffs contest an inference from the facts, to wit: plaintiffs knew or should have known, through the use of reasonable diligence, that the death of decedent was wrongfully caused on February 4, 1986, the date of decedent’s death. There is no question plaintiffs knew of the injury at that time. Defendants suggest plaintiffs should have known of the allegedly wrongful cause of decedent’s death because the tumor which caused the death was discovered in December 1985, and at that time plaintiffs should have known the tumor had been previously undiagnosed and untreated in spite of prior complaints to Barber.

Although not a medical malpractice case, the Illinois Supreme Court has recently discussed the statute of limitations in a wrongful death case, noting that the statute begins to run when the party knows or reasonably should know not only that an injury has occurred, but also that the injury was wrongfully caused, and deciding that since a cause of action for wrongful death cannot accrue until death occurs, the limitation period cannot begin to run prior to the death. (Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403.) Since it is here alleged in counts VI and VIII that the individual plaintiffs suffered a loss of society by reason of the death of Barbara Cramsey, that injury could also not have occurred prior to the death and the limitation period on that cause of action begins to run at death, and no earlier. The estate did allege Barbara Cramsey experienced great pain and suffering prior to her death. These allegations are made in the wrongful death counts. Such pain and suffering could also only have occurred prior to death, such that the pain and suffering complained of could not have occurred after February 4, 1986. Therefore, except for the possible argument plaintiffs did not discover the injuries to be wrongfully caused until a later time, the limitation period would ordinarily begin to run on February 4,1986.

Plaintiffs argue that until Scott testified in his deposition on September 1, 1987, they did not learn that Barber should have diagnosed the tumor prior to December 1985. Therefore, according to plaintiffs, the limitation period should begin to run on September 1, 1987. Defendants counter that Scott’s statement may add evidence of negligence, but plaintiffs should have known of the failure to diagnose and treat the tumor from all the facts which existed on February 4, 1986.

In Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 59-60, 501 N.E.2d 882, 884-85, the court discussed the law relevant to section 13—212:

“Under this statute, a plaintiff must bring his action within two years of the date on which he knew or reasonably should have known of his injury in order to maintain a cause of action for damages. Case law has interpreted this to mean that the period begins to run when the plaintiff knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. [Citations.] ‘Wrongfully caused,’ however, does not mean knowledge of a specific defendant’s negligent conduct or knowledge that an actionable wrong was committed. [Citations.] Rather, a plaintiff knows or should know his injury was ‘wrongfully caused’ when he ‘becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.’ Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81.
In determining when a plaintiff knew or reasonably should have known that his injury was caused by a defendant’s wrongful conduct, courts often look to the nature of the injury itself. [Citation.] If the injury is traumatic in nature, that is, immediate and caused by an external force or violence, the plaintiff knows or should know of his right to sue when injured. [Citations.] The more obvious the injury, the more easily a plaintiff should be able to determine its cause. [Citations.] If the injury is, however, an aggravation of a physical problem which may naturally develop, absent negligent causes, a plaintiff is not expected to immediately know of either its existence or potential wrongful cause. [Citations.] Until the plaintiff knows or should know that his condition, seemingly innocent in causation, is perhaps the result of another’s negligent acts, he has had no opportunity to discover that a cause of action exists. [Citations.] The limitations period begins to run when the plaintiff becomes aware that the cause of his problem stems from another’s negligence and not from natural causes.”

A section 2—619 motion affords a means of disposing of issues of law or of easily proved facts at the onset of a case, and if the defects are not apparent on the face of the pleadings, affidavits may be employed to bring affirmative matters to light which would bar the litigation. Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.

Death may or may not be such a traumatic event as to preclude the application of the discovery rule. For example, a stillbirth is a traumatic event that should immediately put someone on notice that something was wrong. (Nordsell v. Kent (1987), 157 Ill. App. 3d 274, 510 N.E.2d 606.) However, there are instances where the death may have appeared to have occurred through no fault of the doctor, and in such cases the discovery rule will apply so that the limitation period begins to run when plaintiff discovered the fact of defendant’s negligence, not the fact of death. See Arndt v. Resurrection Hospital (1987), 163 Ill. App. 3d 209, 516 N.E.2d 1.

In Lutes v. Farley (1983), 113 Ill. App. 3d 113, 446 N.E.2d 866, the court stated that when a party knew or reasonably should have known of the injury, the party claiming injury has the burden to inquire as to the existence of a cause of action. The court distinguished sudden, traumatic events, such as stillbirth, which should properly put a party on notice, from an injury with an insidious onset such that a lay person could not determine with particularity the date of injury. In Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259, 380 N.E.2d 1376, the court noted the discovery rule does not apply where the party failed to use reasonable diligence to discover the cause of injury. In Fure, plaintiff did not act with reasonable diligence because she failed to demand hospital records within two years of her husband’s death, but the court added that where doctors did not explain the cause of death in lay terms and listed the death on the death certificate in technical medical terms, the failure of the widow to discover the actual cause of death within two years did not result from lack of diligence.

In the case at bar, the plaintiffs were placed on notice of the injury in February 1986, when Barbara Cramsey died. Plaintiffs already were aware that the defendants had previously failed to diagnose and treat the tumor. As a result, the trial court properly determined the statute of limitations began to run on the date of Barbara Cramsey’s death.

Plaintiffs suggest there are two theories which, if applied to this case, would mitigate against the harsh application of the statute of limitations and allow plaintiffs to assert a cause of action. Therefore, it must be decided whether defendants are estopped from raising the defense of the statute of limitations, or whether the trial court erred in dismissing counts IX and X for failure to allege sufficient facts to bring the action within the extended limitation period for fraudulent concealment.

In Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 865-66, 518 N.E.2d 336, 342, estoppel to assert the statute of limitations as a defense was discussed:

“If a claim is legally time barred, the only other way for plaintiff to avoid that bar is to show that the defendant is precluded from asserting a legal time-bar defense based on some theory of equity. Equitable estoppel is a theory which precludes a litigant from denying prior assertions in cases where it would be unjust to permit the litigant to disavow express and implied statements upon which another party has relied and which have caused him to forego filing his suit. (Real v. Kim (1983), 112 Ill. App. 3d 427, 434, 445 N.E.2d 783, 788.) Basically, the theory provides that a defendant cannot benefit from his own misconduct. However, the plaintiff cannot show mere misconduct, but must be able to show that the defendant said or did something to lull or induce the plaintiff to delay the filing of his claim until after the limitations period has run. (Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783.) Moreover, the doctrine of equitable estoppel will not apply to a case if the defendant’s conduct terminated within ample time to allow the plaintiff to still avail himself of any legal rights he may have had. The court, in determining whether the doctrine of equitable estoppel is applicable to the case, will, of course, consider whether a fiduciary relationship such as a doctor-patient relationship existed between plaintiff and defendant. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) However, whether or not the doctrine is applicable will depend on the particular facts of each case and not merely on the nature of the relationship of the parties.”

The Illinois Supreme Court’s decision in Witherell v. Weimer (1987), 118 Ill. 2d 321, 515 N.E.2d 68, held that statements by a physician to a patient concerning the effect of taking birth control pills could result in defendant physician being estopped from raising the statute of limitations because plaintiff reasonably relied on those statements, her treating physician’s opinions, so as not to initiate the action within the statutory period. It was not necessary for plaintiff to establish the representations were made with an intent to mislead, deceive, or delay. Witherell, however, seems distinguishable from the case at bar. In Witherell, plaintiff continued taking birth control pills after being assured her condition did not result therefrom. As a result, plaintiff did not become aware of her cause of action until after the statutory period of limitations, commencing when plaintiff knew or should have reasonably discovered the cause of action, had expired. (See Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869 (companion case).) In the case at bar, plaintiffs were not the patient. Instead, plaintiffs’ cause of action arose when decedent died. After Cramsey’s death, plaintiffs did not detrimentally rely on statements by defendants or their agents and did investigate, discovering what plaintiffs have now alleged to be a cause of action within sufficient time to file a complaint so as to come within the original statute of limitations. Estoppel is an equitable principle which allows courts to do justice where strict application of the law might result in injustice. But here, unlike Witherell, plaintiffs had an opportunity to file an action within the limitation period, but did not do so — for no reason that can be attributed to defendants’ statements or conduct.

Nor do we believe this is a case of fraudulent concealment. Section 13—215 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—215 (formerly Ill. Rev. Stat. 1981, ch. 83, par. 23)) states:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.”

In Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 402 N.E.2d 181, the Illinois Supreme Court considered when concealment of a cause of action would be sufficient to require the application of the extended statute of limitations. Such concealment requires affirmative acts or representations designed to prevent discovery of the cause of action. Silence alone does not ordinarily constitute fraudulent concealment, unless the person occupies a fiduciary relationship to plaintiff, such as a public officer to a political entity. The court also noted that fraudulent concealment by someone other than defendant does not ordinarily toll the statute of limitations, unless the person fraudulently concealing the cause of action is in privity with or occupies the agency relationship with defendant, in which case defendant’s knowledge or approval of the concealment will toll the statute of limitations.

In Smith (164 Ill. App. 3d at 862-63, 518 N.E.2d at 340), the fraudulent concealment exception to the general statute of limitations was also discussed:

“The concealment contemplated in section 13—215 must consist of affirmative acts or representations which are calculated to lull or induce a claimant into delaying filing of his claim or to prevent a claimant from discovering his claim. Mere silence on the part of the defendant and failure by the claimant to learn of the cause of action are not enough. (Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 898, 404 N.E.2d 496, 500.) Moreover, fraudulent misrepresentations which constitute the basis of the claim do not amount to fraudulent concealment unless these actions tended to conceal the cause of action. (83 Ill. App. 3d at 898, 404 N.E.2d at 500.) Finally, this exception does not apply when the party affected by the fraud might, with ordinary diligence, have discovered it. (Greenock v. Rush Presbyterian-St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266, 271, 382 N.E.2d 321, 324.) If the claimant discovers the fraudulent concealment, or should have discovered it through ordinary diligence, and a reasonable time remains within the remaining limitations period, section 13—215 will not toll the running of the limitations period. (Real v. Kim (1983), 112 Ill. App. 3d 427, 435, 445 N.E.2d 783, 789.) Illinois courts have found that discovery of a claim with as little as 5V2 months remaining within the statute of limitations period constitutes a reasonable time within which to file a medical malpractice claim under section 13—215. (See Brown v. Mason (1985), 132 Ill. App. 3d 439, 477 N.E.2d 61.) While reasonableness is generally a fact question, it may be determined by a court, without a hearing on that issue, if no hearing on reasonableness is requested and if it is clear that a reasonable time did in fact remain within the statute of limitations. See Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.”

Therefore, even assuming defendants acted so as to fraudulently conceal the cause of action, since plaintiffs had sufficient time to file the complaint within the limitation period, section 13—215 does not toll the running of the statute of limitations.

Moreover, in Fure (64 Ill. App. 3d 259, 380 N.E.2d 1376), it was decided the mere failure of a physician to disclose a questionable course of treatment to some third party representing a deceased patient is not fraudulent concealment because, while the doctor has a fiduciary relationship with the patient, requiring the doctor to neither deceive nor withhold vital information from the patient, that fiduciary relationship does not extend to the legal representative of decedent. A physician is not required to charge himself or his partner with professional negligence in order to further a malpractice action. No facts constituting fraudulent concealment are alleged in this case.

Last, plaintiffs argue they should have been allowed to amend counts IX and X. In Schenker v. Chicago Title & Trust Co. (1984), 128 Ill. App. 3d 488, 491-92, 470 N.E.2d 1264, 1267, the trial court’s discretion to allow an amendment to a pleading is discussed:

“It is recognized that the decision whether to allow an amendment to a complaint lies within the sound discretion of the trial court, and its decision will not be disturbed absent a showing of an abuse of that discretion. (Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 858, 392 N.E.2d 591, appeal denied (1979), 79 Ill. 2d 620.) A trial court’s power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205.) The test to be applied in this regard is whether a denial of the request to amend furthers the ends of justice. Plocar v. Dunkin’ Donuts of America, Inc. (1981) , 103 Ill. App. 3d 740, 749, 431 N.E.2d 1175.
Ordinarily, an amendment should not be permitted to include matters which the pleader had full knowledge of at the time the original complaint was drafted and no excuse is presented for not putting its substance in the original pleading; however, an amendment will be allowed where justice is not served by denying leave to amend. (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617.) Further, doubts should be decided in favor of allowance of the amendment. Lawson v. Hill (1979), 77 Ill. App. 3d at 835, 845, 396 N.E.2d 617.”

Plaintiffs have failed to inform this court of any additional facts which could be alleged which would alter the result reached below. Therefore, the refusal to allow further amendment by plaintiffs was not an abuse of discretion by the trial court.

For the foregoing reasons, the order of the circuit court of Adams County is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    ILLINOIS FEDERATION OF TEACHERS, Plaintiff-Appellee, v. BOARD OF TRUSTEES, Teachers’ Retirement System of the State of Illinois, Defendant-Appellant.
    Fourth District
    No. 4—89—0482
    Opinion filed December 5, 1989.
    Rehearing denied January 18, 1990.

      Gregory J. Malovance and William G. Miossi, both of Winston & Strawn, of Chicago, for appellant.
    Gilbert A. Cornfield and Gail E. Mrozowski, both of Cornfield & Feldman, of Chicago, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

On October 13, 1988, the plaintiff Illinois Federation of Teachers (IFT) filed a complaint in the circuit court of Sangamon County against the defendant Teachers’ Retirement System of the State of Illinois (TRS). The complaint generally alleged the defendant was improperly attempting to collect retirement fund contributions on the basis of certain noncash benefits provided to teachers as part of their compensation plan. The plaintiff asked the court to declare such benefits did not constitute salary under the applicable statutes and the defendant was not entitled to seek contribution on the basis of these benefits. The complaint also sought temporary and permanent injunctions against the defendant to prevent it from collecting the contributions.

At the motion hearing, evidence tending to show the following was adduced: In the summer of 1987, the defendant implemented procedures to improve the accuracy of employers’ reporting of benefits and salaries. As part of this program, each school district was required to submit an annual “compliance questionnaire” providing detailed information about the elements of teacher compensation and the contributions made to the retirement fund. As a result of this questionnaire, defendant discovered a number of school districts which had not been paying contributions to the retirement fund on tax-deferred annuities provided to teachers as part of their compensation plan. In particular, the defendant identified the Special Education District of Lake County (SEDOL) as one district not making contributions. SEDOL had a flexible benefit plan offering employees a choice of either a tax-deferred annuity or health insurance benefits. The defendant notified SEDOL that tax-sheltered annuities were considered to be creditable earnings under its interpretation of the term salary and contributions had to be made on the cash value of those benefits.

On April 28, 1989, the court granted a preliminary injunction against the defendant. The court found the defendant’s decision to collect contributions on the basis of tax-deferred annuities represented a change of policy which the defendant was attempting enforce retroactively. It found refusal to grant the injunction would create financial difficulties for school districts and teachers which would interfere in the collective-bargaining process. It determined the injunction would diminish the benefits available to current retirees under the system and pose a risk of lost income to the system represented by lost contributions. Balancing these equities, the court found they favored the plaintiff and granted the injunction. On June 2, 1989, the court’s written order was filed. On June 9, 1989, the defendant filed a notice of appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)).

Normally a court faced with a request for temporary injunctive relief must first consider whether the plaintiff will sustain irreparable harm by waiting for a decision on the merits. If there is an adequate legal or equitable remedy which will make the plaintiff whole after the trial, a preliminary injunction should not issue. In considering whether to issue an injunction, the court should consider the possibility of irreparable harm to the plaintiff’s legal rights if the injunction does not issue, potential irreparable harm to the defendant if it does, and plaintiff's likelihood of success on the merits. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 508 N.E.2d 1053.) Preliminary injunctions are an extraordinary remedy, the use of which is applicable only to situations where extreme emergencies exist and serious harm would result in the absence of an injunction. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 483 N.E.2d 1271.) The decision to grant or deny preliminary injunctive relief rests with the discretion of the trial court, and because its findings may not be disturbed absent a showing of abuse, the role of the reviewing court is limited to determination of whether those findings were contrary to the manifest weight of the evidence. Lee/ O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 516 N.E.2d 1313.

However, the defendant here is an agency of the State. Injunctive relief will not be granted against public officials with respect to their official acts unless such acts are either outside their authority or unlawful. (Lindsey v. Board of Education of the City of Chicago (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019.) Normally, discretionary acts of public officials carrying out their duties are not subject to review by the judiciary in injunction actions. An exception to this rule arises in cases where the public official’s acts are arbitrary and capricious and he thus abuses his discretion or if fraud, corruption, or gross injustice underlying the discretionary act is shown. (Arnold v. Engelbrecht (1987), 164 Ill. App. 3d 704, 518 N.E.2d 237.) Both parties here agree the fundamental issue to be decided on appeal is whether the acts of the defendant were unlawful or beyond its statutory authority.

Section 16—121 of the Illinois Pension Code defines salary as the actual compensation received by a teacher during any school year and recognized by the system in accordance with rules of the Board. (Ill. Rev. Stat. 1987, ch. 108½, par. 16—121.) Plaintiff argues the contribution sought by the defendant was never sanctioned by a formally promulgated rule and any attempt to seek a contribution from teachers is outside the authority of the defendant. Plaintiff maintains the guides and policies published by the defendant are not general rules which are enforceable. Specifically, it notes the list of creditable earnings which include tax-sheltered annuities in various publications of the defendant does not constitute an enforceable rule.

The contributions sought by the defendant were not outside its authority because a formerly promulgated rule does exist. Section 1650.450 of the Illinois Administrative Code provides that tax-sheltered annuities are to be included in the salary reported to the defendant. The definition contains no qualifying language nor does it require a cash option be available for the benefit to be included as salary. The rule became effective on December 17, 1985. 80 Ill. Adm. Code §1650.450 (Supp. 1986).

In granting the preliminary injunction, the trial court relied on defendant’s April 1988 Employer Bulletin. The bulletin states that tax-sheltered annuities which are offered in lieu of cash have always been considered as a part of salary. It goes on to state: “As of July 1, 1988, all contributions to flexible benefit plans which have a cash option, or an option such as a tax-sheltered annuity which would qualify as salary under Board Rule 1650.450, will be considered TRS creditable earnings.” While the court considered this to represent a change in policy, it is clear that as of December 17, 1985, there was an effective rule which required the reporting of any tax-sheltered annuity. In fact, the bulletin is merely restating an existing requirement. Rule 1650.450 clearly requires the reporting of any tax-sheltered annuity as a part of salary on which contributions to the system are to be based. For this reason, any contribution sought for salary earned after December 17, 1985, was clearly not outside the defendant’s lawful authority.

The question then arises as to whether contributions sought for the period prior to December 17, 1985, are outside the legal authority of the defendant. In making decisions and determinations, agencies have authority to construe statutory provisions. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 520 N.E.2d 46.) An administrative agency has authority to construe statutory provisions and to develop guidelines in aid of such interpretations. Such constructions are entitled to deference by the courts unless clearly erroneous, arbitrary, or unreasonable. Winnetkans Interested in Protecting the Environment (WIPE) v. Pollution Control Board (1977), 55 Ill. App. 3d 475, 370 N.E.2d 1176.

Where there is an express grant of authority there is likewise a clear and express grant of power to do all that is reasonably necessary to execute the power or perform duties specifically conferred by the enabling statute. (City of Springfield v. Carter (1989), 184 Ill. App. 3d 1, 540 N.E.2d 536.) This authority need not always be exercised through a process of formal rulemaking. We decline to adopt the plaintiff’s reasoning which suggests every action which an administrative agency takes, not made subsequent to a formal rule, may be challenged as outside the legal authority of that agency. The purpose of administrative review is to handle disputes such as this in an orderly, equitable manner. The use of injunctive relief undermines this process and should be reserved for extreme situations where an agency has acted arbitrarily and capriciously or in a manner which is clearly inconsistent with the limits of its legal mandate. It is for this reason a plaintiff is required to show more than irreparable harm and a likelihood of success on the merits when he seeks to enjoin an agency of the State.

We do not find the instant case to be one where the injunctive powers of the court were properly invoked. The defendant has a statutory duty to collect contributions to the retirement fund based on the salary and benefits paid to teachers participating in the system. In order to do so effectively, it must have the power to determine what salary and benefits are creditable for the purposes of determining the contribution. We fail to see how the plaintiff could meet even the minimal standards of showing threatened harm or irreparable damage much less the higher standard required here where the defendant is an agency of the State. For this reason the decision of the circuit court is reversed.

Reversed.

McCULLOUGH and STEIGMANN, JJ., concur.