author: JUSTICE COOK

text:
    WILLIAM F. CONKLIN, Plaintiff-Appellee, v. GEORGE RYAN, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0470
    Opinion filed March 18, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John P. Schmidt, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Norvan E. Adams and Richard T. Adams, both of Fairview Heights, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff William E Conklin filed a petition with defendant Secretary of State (Secretary) requesting a restricted driving permit (RDP) (111. Rev. Stat. 1991, ch. 95V2, par. 6 — 205(c)). The Secretary denied the petition. On administrative review, the circuit court of Sangamon County reversed the Secretary’s decision. We reverse the circuit court and reinstate the Secretary’s decision.

On January 20, 1986, plaintiff was arrested for driving under the influence of alcohol (DUI) (111. Rev. Stat. 1991, ch. 951/2, par. 11— 501(a)), after a breathalyzer test administered to him indicated a blood-alcohol concentration of .26. Plaintiff received a statutory summary suspension, and was convicted and received court supervision. Five years later, on January 25, 1991, plaintiff was involved in an automobile accident and again charged with DUI. The arresting officer’s sworn report, written at 1:30 a.m. on January 26, states that plaintiff refused to submit to a chemical test to determine alcohol or drug concentration. The report also states that plaintiff exhibited “slurred speech/odor of alcoholic beverage on breath/bloodshot, glassy eyes/ failed sobriety tests/unsure sense of balance.” Plaintiff was immediately hospitalized after the accident at Memorial Hospital in Belleville. He suffered several broken ribs and bruising about his body. Plaintiff contends he also suffered a concussion but his hospital records contain no support for that claim. A registered nurse filling out plaintiff’s admission report at 5:15 a.m. on January 26 wrote “yes” in the space regarding plaintiff’s “Alcohol/Drug Use” and wrote “[h]as been drinking” in the comments section.

A jury found plaintiff guilty of failure to yield the right-of-way but not guilty of DUI. Still, plaintiff’s arrest for DUI automatically resulted in the statutory summary suspension of his driver’s license for a two-year period commencing March 26, 1991. Plaintiff requested a hearing with the Secretary’s office to obtain an RDP to drive to and from work.

Section 6 — 205(c) of the Illinois Vehicle Code (Code) provides for RDPs to be issued as follows:

“[T]he Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner’s residence and petitioner’s place of employment or within the scope of the petitioner’s employment[-] related duties ***; if the petitioner is able to demonstrate that no alternative means of transportation is reasonably available and the petitioner will not endanger the public safety or welfare; provided that the Secretary’s discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit.” 111. Rev. Stat. 1991, ch. 95V2, par. 6 — 205(c).

The Secretary has enacted regulations which establish standards for issuing RDPs; those regulations have the force and effect of law. (See 92 Ill. Adm. Code §1001.400 et seq. (1991); Youle v. Edgar (1988), 172 Ill. App. 3d 498, 503-04, 526 N.E.2d 894, 898.) All those applying for an RDP must submit an alcohol and drug evaluation. (92 111. Adm. Code §1001.440(a) (1991).) Such applicants are evaluated as “Level I — Non-Problematic (Minimal Risk),” “Level II — Problematic Use (Moderate Risk),” “Level II — Problematic Use (Significant Risk),” or “Level III — Problematic Use Dependent (High Risk).” (See 77 111. Adm. Code §2056.310; 92 111. Adm. Code §1001.410 (1991).) “Level III — Problematic Use Dependent (High Risk)” is defined as “the classification resulting from an alcohol and drug evaluation assigned to an Applicant with symptoms of alcohol and/or drug dependence.” (92 111. Adm. Code §1001.410, at 6352 (1991).) To be eligible for an RDP, the following is required for applicants classified as Level III:

“Applicants classified as Problematic Use, Dependent (Level III) must document [(1)] abstinence as required in subsection (e) below; [(2)] the completion of treatment provided by a facility or facilitator licensed by DASA or the Illinois Department of Public Health; [(3)] the establishment of an ongoing support/recovery program; and [(4)] the completion of any additional treatment recommendations of his/her evaluator.” 92 111. Adm. Code § 1001.440(b)(3), at 6359 (1991).

Plaintiff was evaluated by DUI supervisor Joseph Shaffer through Treatment Alternatives for Special Clients (TASC). Shaffer first assessed plaintiff after his DUI conviction in 1986. At that time, Shaffer noted that plaintiff had been prescribed tranquilizers for five years prior to his 1986 DUI arrest and in 1985 had been told by his doctor to abstain from alcohol due to an ulcer. Shaffer stated that plaintiff “reported minimal drinking over the eight years preceding 1985, but noted plaintiff’s claim seemed inconsistent with the high tolerance demonstrated by plaintiff’s statement that he felt no significant intoxication at a blood[-]alcohol level of .26 *** (consumption of well over twelve drinks in seven hours).”

In Shaffer’s April 8, 1991, evaluation plaintiff stated that since his first DUI in 1986, his only consumption of alcohol consisted of one glass of champagne at a wedding in 1990. Plaintiff’s fiancee, who is also plaintiff’s ex-wife and has known him for many years, told Shaffer that plaintiff “may drink once or twice per month.” She was uncertain of plaintiff’s use generally but said she “could not recall him ever consuming more than five beers more [sic] in one night.” She also stated that plaintiff still may be taking his “nerve pills.” Shaffer concluded that plaintiff’s “denial of use in this incident is not consistent with an arrest for DUI. *** He denies there is any problem now. Alcohol dependency seems likely.” Shaffer placed plaintiff in the category of “Level II — Problematic Use (Significant Risk).” After reviewing copies of plaintiff’s 1986 TASC evaluation, Shaffer amended his findings in an addendum to his evaluation dated April 11, 1991, and placed plaintiff in the category of “Level III — Problematic Use Dependent (High Risk),” with a recommendation for outpatient treatment. This evaluation was introduced into evidence at the RDP hearing.

At the RDP hearing plaintiff testified he consumed no alcohol or medication during the evening of his second DUI arrest in January 1991. Plaintiff said he remembers nothing about the accident except the car skidding, after which he woke up in the hospital. Plaintiff does not recall the officer giving him field-sobriety tests and stated that to his knowledge, he was not offered a breathalyzer test. He testified that his doctor, Gerardo Guerra, said plaintiff had not been drinking that night.

The hearing officer concluded that plaintiff had carried his burden of proving he was addressing his alcohol problem and maintaining abstinence. Remarkably, the hearing officer found plaintiff was participating in self-help or other programs to support continued abstinence, although there was no support in the record for such a conclusion. He recommended plaintiff be granted an RDP for 12 months to drive to and from his work in Mt. Vernon, which is 60 miles from his home. Although the Secretary’s form order (erroneously) states that the Secretary accepted the hearing officer’s findings and conclusions of law, the Secretary reversed the hearing officer. The Secretary noted that plaintiff, having been evaluated as a Level III, was not eligible for an RDP since he failed to present evidence showing that his recommended treatment had been completed, or waived and also failed to present evidence of an established, ongoing support system to help maintain abstinence from alcohol as required in the Secretary’s regulations for Level III alcoholics. (See 92 111. Adm. Code §1001.440(b)(3) (1991).) The Secretary denied the application for an RDP because plaintiff failed to -present such evidence. In the administrative review action, the circuit court stated in an order dated May 6, 1992, that the Secretary’s order was against the manifest weight of the evidence and that the Secretary was directed to issue plaintiff the RDP. The Secretary filed a timely appeal.

Plaintiff now contends the TASC evaluation had no probative value because it was incomplete, inaccurate and inconsistent. Thus, plaintiff argues, he was not required to fulfill the Level III requirements since he had abstained from alcohol since his 1986 conviction and should not have been rated at Level III by the evaluator in the first place. As support of his claims of abstinence, plaintiff submitted three letters from two friends and a co-worker who attested they had never seen plaintiff indulge in any form of alcohol during the years of their acquaintance with him. Plaintiff also submitted a letter from Dr. Guerra which stated that he saw plaintiff the morning after the accident at the hospital and “saw no evidence of alcohol intoxication.” Dr. Guerra’s letter noted that “[njothing was stated in the emergency room report about Mr. Conklin having alcoholic breath or a denial of a blood test.”

The Secretary counters that if plaintiff was dissatisfied with the evaluation it was his obligation to seek an evaluation from a different individual and submit it to the hearing officer in addition. We agree. Although plaintiff supplied some proof of abstinence, not just after the 1991 arrest but even before, the record indicates he has failed to complete the outpatient treatment recommended by Shaffer or participate in any type of ongoing support program. Plaintiff’s claims of abstinence do not negate his responsibility to fulfill the other Level III requirements. A person who seeks restoration of his driving privileges has the burden of establishing his entitlement to restored driving privileges by clear and convincing evidence. (Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 730, 498 N.E.2d 295, 300.) Plaintiff presented Shaffer’s evaluation to the hearing officer at the August 1991 hearing. It was plaintiff’s responsibility to resolve his concerns as to the April 1991 evaluation with Shaffer before submitting it, or secure a different evaluation to submit to the hearing officer if he was unhappy with Shaffer’s, and it was insufficient for him to simply attack his evaluation when he failed to fulfill the requirements of a Level III problematic user. As this court has stated:

“It is abundantly clear that the Secretary has adopted a program designed to remove intoxicated drivers from Illinois roads and highways. Part of that program is to demand that problematic users of alcohol prove they have a support system that makes them deal with their problem. In light of the carnage on our highways that stems directly from the abuse of alcohol, such regulations are reasonable.” (Youle, 172 Ill. App. 3d at 504, 526 N.E.2d at 898.)

Given plaintiff’s failure to present evidence of compliance with the Secretary’s regulations, we find the circuit court erroneously reversed the order of the Secretary.

Further, the Secretary’s decision was not against the manifest weight of the evidence. On judicial review, the findings and conclusions of the administrative agency on questions of fact are considered to be prima facie true and correct. (Youle, 172 Ill. App. 3d at 503, 526 N.E.2d at 897; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) A court may not overturn an administrative decision unless the authority of the administrative body was exercised in an arbitrary or capricious manner or the decision is against the manifest weight of the evidence. (Murdy, 103 Ill. 2d at 391, 469 N.E.2d at 1088.) A reviewing court does not reweigh the evidence or make an independent review of the facts, but rather its function is to ascertain whether the final decision of the administrative body is just and reasonable in light of the evidence presented. (Christiansen v. Edgar (1991), 209 Ill. App. 3d 36, 43, 567 N.E.2d 696, 700.) If the record contains any evidence which fairly supports the agency’s decision, such decision is not against the manifest weight of the evidence and must be sustained upon review. (Christiansen, 209 Ill. App. 3d at 43, 567 N.E.2d at 700.) In order for the circuit court to find the Secretary’s decision is against the manifest weight of the evidence, the circuit court must determine, after viewing the evidence in the light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s finding. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929, 933-34; see also Christiansen, 209 Ill. App. 3d at 43, 567 N.E.2d at 700.

Plaintiff argues that Shaffer’s evaluation contained factual errors and hearsay. As stated previously, plaintiff may not simply evade the requirements of the Secretary’s regulations by undermining the value of the evaluation. On the issue of hearsay, plaintiff complains of several such statements by his fiancee/ex-wife which were included in the evaluation. However, the regulations for such hearings provide that “[t]he technical rules of evidence shall not apply. Any relevant evidence may be admitted if it is the sort of evidence relied upon by reasonably prudent people in the conduct of their affairs.” (92 111. Adm. Code §1001.100(c), at 6332 (1991).) Plaintiff contends his ex-wife’s comments contained obvious bias; however, the facts indicate she is now his fiancee, so it would seem logical that any bias would be in favor of plaintiff. Regardless, we find these comments were both relevant and reliable and thus admissible as evidence.

Plaintiff also contends the evaluation contains improper presumptions of his guilt of the 1991 DUI charge. Plaintiff criticizes the Secretary’s reliance on Shaffer’s 1991 evaluation in that it refers to plaintiff’s 1986 DUI conviction and evaluation. However, this information is clearly pertinent to an evaluation of plaintiff’s request for an RDP. The regulations state that arrests occurring in the years prior to the current RDP hearing may be relevant to determine whether an applicant has met his burden of proof. (92 111. Adm. Code § 1001.440(d) (1991).) Plaintiff’s breathalyzer test in 1986 indicated a blood-alcohol content of .26, yet plaintiff stated he felt no effect from the alcohol he consumed that night. As Shaffer concluded, this indicates a high tolerance to alcohol which casts considerable doubt on plaintiff’s claim that he drank only minimally in the years preceding the accident. This arrest also occurred after plaintiff’s doctor had ordered him not to drink alcohol at all due to an ulcer. Such evidence was also relevant and reliable.

Moreover, the evidence from the current arrest indicates plaintiff suffers from continuing alcohol problems. Although plaintiff maintains he drank nothing on the night of his 1991 accident, a police officer at the accident scene reported that plaintiff appeared intoxicated and refused a breathalyzer test. A registered nurse in the emergency room where plaintiff was taken directly after the accident noted in her report that he had been drinking. Although plaintiff presented a letter from Dr. Guerra stating that he saw plaintiff in the hospital and found no signs of intoxication, the letter clearly indicates that Guerra did not see plaintiff until the morning after the accident when most signs of intoxication from the night before would have dissipated. Further, plaintiff states in his 1991 evaluation that he has had only one drink since his 1986 DUI conviction. This contradicts his fiancee’s statement that plaintiff “may drink once or twice a month” and that she had never seen him drink more than five beers in one night.

Plaintiff is also critical of Shaffer’s statement that plaintiff’s “denial of use in this incident is not consistent with an arrest for DUI.” Plaintiff further contends that, although a DUI is a criminal proceeding and a statutory summary suspension is a proceeding which is civil in nature, “the two are inextricably interwoven,” and his acquittal of the criminal DUI charge should be given some weight. We agree plaintiff’s acquittal has some relevance to this inquiry. However, we take issue with plaintiff’s contention that when he was found not guilty of the DUI charge, his duty to obtain any further alcoholic treatment or evaluation ended. Statutory summary suspension of a person’s driver’s license under the provisions of section 11 — 501.1 of .the Code (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1) is an administrative function of the Secretary which operates without regard to the resolution of the companion DUI case. (People v. Schuld (1988), 175 Ill. App. 3d 272, 284, 529 N.E.2d 800, 807; People v. Furness (1988), 172 Ill. App. 3d 845, 849, 526 N.E.2d 947, 949 (valid summary suspension does not require conviction of DUI).) A summary suspension hearing is a civil action designed, not to punish the driver, but to protect those traveling the State’s highways (Furness, 172 Ill. App. 3d at 849, 526 N.E.2d at 949), and the relevant inquiry before issuing an RDP is the danger to the public safety and welfare (Ill. Rev. Stat. 1991, ch. 951/2, par. 6-206(c)(3); Murdy, 103 Ill. 2d at 392, 469 N.E.2d at 1089). Plaintiff’s acquittal of DUI did not require the Secretary to issue an RDP.

Plaintiff alleges that it is up to the hearing officer (who ruled in his favor) to determine the probative value of the evidence since he is in the best position to assess credibility. It is true that a hearing officer who saw and heard the witnesses is in a good position to judge credibility. However, unlike an appellate court that reviews factual findings of a trial court, an administrative body such as that under the Secretary is not bound by the findings of its hearing officer. (Caracci v. Edgar (1987), 160 Ill. App. 3d 892, 896, 513 N.E.2d 932, 935.) Rather, the issuance of RDPs is entrusted to the Secretary, whose determination will not be reversed unless it is arbitrary or capricious. (Caracci, 160 Ill. App. 3d at 896, 513 N.E.2d at 935.) We find the Secretary’s decision was correct based on the fact that defendant failed to fulfill the requirements for Level III alcoholics under section 1001.440(bX3) of title 92 of the Illinois Administrative Code. 92111. Adm. Code §1001.440(bX3) (1991).

In addition, the rules of the Secretary provide that the applicant’s total driving record is a factor to be considered in determining the propriety of granting a petitioner an RDP. (92 111. Adm. Code §1001.420(d), at 6355 (1991).) Plaintiff here possessed a number of infractions on his driving record in addition to the two DUI arrests. We find it was proper for the Secretary to consider plaintiff’s entire driving record and conclude that the Secretary’s decision was not against the manifest weight of the evidence.

Accordingly, we reverse the order of the circuit court of Sanga-mon County directing the Secretary to grant an RDP to the plaintiff, and reinstate the Secretary’s decision.

Reversed; decision of the Secretary of State reinstated.

McCULLOUGH and LUND, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IRA LEE III, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0661
    Opinion filed March 18, 1993.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Following a jury trial defendant Ira Lee, III, was convicted of armed robbery, a Class X felony (111. Rev. Stat. 1991, ch. 38, par. 18— 2), and sentenced to 20 years’ imprisonment. Defendant appeals, alleging the trial court improperly admitted a sawed-off shotgun not shown to have any connection with him. We affirm.

The evidence at trial established that on March 28, 1992, at about 11:40 p.m., a man and a woman robbed a Decatur Super Gas Station using a sawed-off shotgun. Neither wore a mask, and Mary Abreu, the clerk who was robbed at Super Gas, was able to observe their faces. After the robbery Abreu immediately called the police and reported the crime. She testified the robbers took about $60 in small bills. Police officer James Dellert was in the area when the crime occurred and he stopped a car approximately 20 minutes later which matched the description given by Abreu. The car was driven by Joe Gipson. Abreu identified the passengers in the backseat, defendant and Marilyn Smith, as the two individuals who robbed the station. Abreu testified that defendant had been a regular customer of the station. The police searched Smith, finding nine one-dollar bills in her purse and $40 in small bills in the heel of her shoe. The police then searched Gipson’s apartment and found a coat and jeans that matched a description given by Abreu of those worn by defendant when he robbed the gas station. The next day the police returned to Gipson’s apartment to conduct another search. The police searched an unlocked storage room near Gipson’s first-floor apartment and found a sawed-off shotgun hidden under a carpet.

At trial Abreu testified that during the robbery defendant dropped the sawed-off shotgun on the counter when he unzipped his coat. Abreu identified the sawed-off shotgun found in Gipson’s apartment building as the gun used in the robbery. Investigator Dennis Harris testified about finding the gun in the unlocked storage room at Gipson’s apartment building. The gun was admitted into evidence over defendant’s objection. Defendant testified he had no involvement in the crime charged.

During closing argument the prosecutor pointed the sawed-off shotgun at the jury to show how the robbery was committed. Defendant objected, but his objection was overruled.

It may be reversible error to admit into evidence a weapon that was not used in the charged crime. (See People v. Wade (1977), 51 Ill. App. 3d 721, 729, 366 N.E.2d 528, 534; People v. Yelliott (1987), 156 Ill. App. 3d 601, 603, 509 N.E.2d 111, 113.) The general rule is that weapons are admissible if there is some proof to connect them with the defendant and the crime. (People v. Fierer (1988), 124 Ill. 2d 176, 194, 529 N.E.2d 972, 979.) Not every weapon connected with defendant is admissible, but every weapon sufficiently connected with the crime is admissible. In some cases, such as this one where defendant was positively identified as the perpetrator and the weapon was identified as the one used, proof connecting the weapon with the crime may also be sufficient to connect defendant with the weapon. Another example would be where a weapon is dropped at the scene of the crime; that weapon would be admissible even if there were no other evidence to connect it to defendant. In contrast, a weapon clearly connected to defendant {e.g., found later on defendant’s person) would not be admissible if there were no evidence to connect it with the crime.

Even if there were a question on whether Abreu could positively identify the weapon admitted as the one used in the crime here, it is not necessary for the State to prove a weapon was the one actually used. When there is evidence the perpetrator possessed a weapon at the time of the offense, a similar weapon which the evidence somehow connects to the defendant may be admitted into evidence even though not identified as the weapon used. (People v. Givens (1985), 135 Ill. App. 3d 810, 819, 482 N.E.2d 211, 218; Fierer, 124 Ill. 2d at 194, 529 N.E.2d at 979; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.4, at 135 (5th ed. 1990).) It is only necessary that the weapon be suitable for commission of the crime, not that it be positively shown to have been used in committing the crime. (People v. Free (1983), 94 Ill. 2d 378, 415-16, 447 N.E.2d 218, 236.) A doubt whether the weapon was connected to the crime or to the defendant does not prevent the weapon’s admission, so long as a reasonable jury could find a connection. See Free, 94 Ill. 2d at 416, 447 N.E.2d at 236; People v. McQueen (1983), 115 Ill. App. 3d 833, 840, 450 N.E.2d 921, 927; Givens, 135 Ill. App. 3d at 819, 482 N.E.2d at 217.

Defendant argues the shotgun was not at all connected with him, and connected only remotely, if at all, with Gipson. Defendant was in Gipson’s car shortly after the robbery, and clothes matching the description of those worn by defendant during the crime were found in Gipson’s apartment. Unlike Wade and Yelliott, there was no evidence in this case to rule out the gun found in the unlocked closet as the gun used in the crime. Defendant relies on People v. Suerth (1981), 97 Ill. App. 3d 1005, 1013, 423 N.E.2d 1185, 1193, but that case held it to be error to attempt to exhibit a shotgun to the jury when it was clear the victim was killed with a .44 caliber pistol. Here the gun found in the closet was suitable for commission of the crime. Although the weapon was not found in defendant’s possession, a sufficient nexus was shown between defendant and Gipson to allow into evidence a weapon found in Gipson’s apartment building. (See People v. Ramsey (1986), 147 Ill. App. 3d 1084, 1091, 496 N.E.2d 1054, 1059.) The trial court properly admitted the sawed-off shotgun and testimony regarding the shotgun.

It was not error for the prosecutor to discuss the gun in closing argument. However, the trial court erred in allowing the prosecutor to take the weapon, cock it, and point it at the jury. Pointing weapons at individuals, even weapons thought to be unloaded, is contrary to commonly known rules of gun safety and to common sense. Jurors should not be forced to endure such conduct. Jury duty is often demanding, but jurors do not consent to be abused by counsel when they take their oaths. The prosecutor’s insensitive assault on these jurors, who had no avenue of escape, defense, or even complaint, warrants the most severe criticism. In a given case, not this one, such conduct might deprive defendant of a fair trial. The trial court must be alert to such abuses and be prepared to protect the jurors in its charge.

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

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE GREEN

text:
    CATHY BAKER, Plaintiff-Appellant, v. GRACE MILLER, d/b/a Miller’s Metropole, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0533
    Opinion filed March 18, 1993.

      Gary G. Johnson, of Bloomington, for appellant.
    Rex L. Reu, of Bloomington, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Article I, section 17, of the Illinois Constitution of 1970 (Constitution) states as follows:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” (Emphasis added.) 111. Const. 1970, art. I, §17.

The Illinois Human Rights Act (Act) (111. Rev. Stat. 1991, ch. 68, par. 1 — 101 et seq.) sets forth prohibitions against various types of discrimination, including that set forth above, and creates an Hlinois Human Rights Commission (Commission) (HI. Rev. Stat. 1991, ch. 68, par. 8 — 101), the powers of which include hearing and deciding claims of violations of the Act. Section 8 — 111(C) of the Act states:

“Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (Emphasis added.) HI. Rev. Stat. 1991, ch. 68, par. 8 — 111(C).

On March 17, 1992, plaintiff Cathy Baker filed a two-count civil complaint in the circuit court of McLean County against defendants Grace Miller, d/b/a Miller’s Metropole, and Richard Yeast alleging defendants terminated her employment at Miller’s Metropole on the basis she was a female, in violation of article I, section 17, of the Constitution. Count I charged Miller as the operator of the business, and count II charged Yeast as Miller’s agent who actually discharged her. On defendants’ motion pursuant to section 2 — 615 of the Code of Civil Procedure (HI. Rev. Stat. 1991, ch. 110, par. 2 — 615), the circuit court dismissed the complaint with prejudice on June 2, 1992, determining the language of section 2 — 101(BX1X&) of the Act (111. Rev. Stat. 1991, ch. 68, par. 2 — 101(BXlXa)) “is a reasonable exemption as set forth in [sjection 17 of [ajrticle I of the Constitution of the State of Illinois and that when such an exemption is adopted by the General Assembly, no person falling within the exempt category can make a claim grounded upon the constitutional provisions stated in [a]rticle I, [s]ection 17.” Plaintiff has appealed. We affirm.

One of defendants’ contentions in support of the dismissal of the complaint is that plaintiff has no cause of action under the cited constitutional provision because it merely bars discrimination in “hiring and promotion practices” and plaintiff’s alleged discharge does not involve “hiring” or “promotions.” The various districts of the appellate court are in disagreement on that question. (Compare Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 527 N.E.2d 1281; Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 458 N.E.2d 985; Greenholdt v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 748, 438 N.E.2d 245.) As we affirm for other reasons, we need not rehash this issue.

Article 2 of the Act (111. Rev. Stat. 1991, ch. 68, pars. 2 — 101 through 2 — 105) concerns discrimination in employment but limits those who are subject to prohibitions of the Act as “employers,” with exceptions not involved here, to those who employ “15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation” (111. Rev. Stat. 1991, ch. 68, par. 2 — 101(BXlXa))- The parties are in agreement that if defendant Miller was an employer within the meaning of section 2— 101(B)(1)(a) of the Act (111. Rev. Stat. 1991, ch. 68, par. 2— 101(B)(1)(a)), section 8 — 111(C) of the Act, which speaks of courts’ lack of jurisdiction over cases concerning an “alleged civil rights violation” (111. Rev. Stat. 1991, ch. 68, par. 8 — 111(C)), would deny plaintiff the right to proceed in the circuit court. Dilley v. Americana Healthcare Corp. (1984), 129 Ill. App. 3d 537, 472 N.E.2d 596; see Thakkar, 120 Ill. App. 3d 878, 458 N.E.2d 985.

Plaintiff points out that unlike in Dilley and Thakkar, she alleged in count I of her complaint that, at times pertinent, defendant Miller employed fewer than 15 persons. Plaintiff contends that she has no recovery under the Act and thus is not prevented by the terms of section 8 — 111(C) of the Act from suing at law. Her position is supported by Ritzheimer. That court reversed the dismissal of a count of a complaint by a plaintiff against her employer, who employed fewer than 15 employees, claiming she was discharged because of her gender in violation of article I, section 17, of the Constitution. The basis of the decision was that, as the plaintiff had no remedy under the Act, she was not prevented from suing in the circuit court under the constitutional provision.

The Ritzheimer analysis begins with consideration of section 1— 103(D) of the Act (111. Rev. Stat. 1991, ch. 68, par. 1 — 103(D)), which sets forth that the phrase “ ‘[c]ivil rights violation’ includes and shall be limited to only those specific acts” which are set forth in certain described sections of the Act. One such section is section 2 — 102(A) of the Act, which prohibits discrimination by “employers” (111. Rev. Stat. 1991, ch. 68, par. 2 — 102(A)). Thus, as that defendant employed fewer than 15 people, that court concluded the alleged discrimination involved there was not a civil rights violation within the meaning of section 2 — 102(A) or any other section of the Act. As that was so, section 8 — 111(C) of the Act, which prohibited court proceedings for an “alleged civil rights violation” (El. Rev. Stat. 1985, ch. 68, par. 8— 111(C)), did not prevent a circuit court action for that type of a violation of article I, section 17, of the Constitution. Ritzheimer, 173 Ill. App. 3d at 961-62, 527 N.E.2d at 1286-87.

The Ritzheimer court deemed the foregoing statutory language so clear that no further interpretation was necessary. However, if such was necessary, that court concluded that the drafters of article I, section 17, of the Constitution would not have intended that the plaintiff there be left without remedy. That court recognized that article I, section 17, speaks of the legislature providing for “reasonable exemptions” and that the record of proceedings at the constitutional convention indicated a discussion by delegates that exemptions for small employers would be reasonable. However, the Ritzheimer court concluded that no such exemptions had been granted by the legislature. The court then stated:

“Nothing in the Illinois Human Rights Act suggests that small employers should be left to discriminate as they wish. Rather - than excuse any class of employers from its obligations under article I, section 17, of the Constitution, what the Act does instead is simply to impose greater restrictions on and provide additional remedies for claims of discrimination against employers of a certain size.” Ritzheimer, 173 Ill. App. 3d at 963, 527 N.E.2d at 1288.

The Ritzheimer analysis is that (1) the wording of the Act clearly requires that employers not covered by the “15 or more employees” provision of section 2 — lOl(BXlXa) of the Act (El. Rev. Stat. 1991, ch. 68, par. 2 — 101(BXlXa)) are subject to suit under article I, section 17, of the Constitution; and (2) in any event, this is a logical construction to give to the statutory scheme. We respectfully disagree with both conclusions. Our major point of disagreement is that we deem the construction given to the Act is most unlikely to have been intended by the legislature. We also find sufficient ambiguity in the Act to permit us to consider legislative intent.

We cannot agree with the Ritzheimer opinion that under that court’s interpretation of the Act, it “impose[s] greater restriction on and provide[s] additional remedies for claims of discrimination against employers of a certain size” while leaving the smaller employers to what the Ritzheimer court seemingly regarded as the less onerous consequences of suits at law under article I, section 17, of the Constitution (Ritzheimer, 173 Ill. App. 3d at 961-62, 527 N.E.2d at 1287). Rather, we conclude Ritzheimer would place far greater burdens on the smaller employer. Charges brought under the Act must be filed within 180 days of the alleged violation. (111. Rev. Stat. 1991, ch. 68, par. 7A — 102(A).) Statutes of limitations concerning suits at law are much longer. Before action can be brought under the Act, investigations are made as to whether substantial evidence exists to support the charge (111. Rev. Stat. 1991, ch. 68, par. 7A — 102(D)) and the expertise of the Commission is available to help effectuate a settlement (111. Rev. Stat. 1991, ch. 68, par. 7A — 103). The smaller employer with fewer than 15 employees would have none of these protections.

Most employers would, undoubtedly, prefer to have a proceeding brought against them for discrimination tried before an agency whose policies would likely be consistent than subject themselves to the vagaries of a jury. Under the Act, only “actual damages” may be awarded. (111. Rev. Stat. 1991, ch. 68, par. 8A — 104(B).) The smaller employers, who trader Ritzheimer could be sued at law, would be exposed to possible award of punitive damages. We know of no analogous legislation in the field of employment which would place greater burdens of the nature involved here upon smaller employers than upon larger employers.

The Ritzheimer opinion also concluded that “[njothing in the [Act] suggests that small employers should be left to discriminate as they wish.” (Ritzheimer, 173 Ill. App. 3d at 963, 527 N.E.2d at 1288.) That opinion conceded, as does plaintiff here, that under article I, section 17, of the Constitution, the legislature may have had the power to limit or eliminate claims for gender discrimination, i.e., create an exemption from liability from that provision for very small employers, but concluded the legislature had not done so. (Ritzheimer, 173 Ill. App. 3d at 962-63, 527 N.E.2d at 1288.) We conclude that the most reasonable interpretation of the statutory scheme intended here was that the definitional provision of section 2 — 101(B)(1) of the Act was intended to create such a “reasonable exemption.”

As we have indicated, we agree that we can formulate a legislative intent which differs from the wording of the Act only if we find ambiguity in pertinent portions of the Act. We find that ambiguity exists in the use of the phrase “alleged civil rights violations” in section 8 — 111(C) of the Act in connection with the beginning language of section 1 — 103 of the Act (111. Rev. Stat. 1991, ch. 68, par. 1 — 103), which gives rise to section 1 — 103(D) of the Act, which limits the use of the phrase “civil rights violation” to acts specifically set forth in the Act (111. Rev. Stat. 1991, ch. 68, par. 1-103(D)). Section 1-103 of the Act begins as follows: “General Definitions. When used in this Act, unless the context requires otherwise, the term.” (Emphasis added.) (111. Rev. Stat. 1991, ch. 68, par. 1 — 103.) That section then lists definitions for various subsections, including subsection (D), involving “Civil Rights Violationfs].” (111. Rev. Stat. 1991, ch. 68, par. 1 — 103(D).) Thus, the phrase “alleged civil rights violation” appearing in section 8 — 111(C) of the Act, which prohibits circuit court proceedings on such grounds, does not necessarily have the restricted meaning set forth in section 1 — 103(D) of the Act.

In addition to the unusual posture in which small employers would be placed in regard to charges of employment discrimination under plaintiff’s interpretation of the Act, we must consider the ramifications of that interpretation upon other provisions in the overall structure of the Act. As we have indicated, the parties do not dispute that under article I, section 17, of the Constitution, the General Assembly may create “reasonable exemptions” from the rights created thereby. The General Assembly has not done so expressly. The Act makes certain express “exemptions” from coverage of the Act but not from coverage of the article. For instance, under article 2 of the Act, concerning “Employment” (see 111. Rev. Stat. 1991, ch. 68, pars. 2 — 101 through 2 — 105), section 2 — 104 of the Act makes exemptions for activity concerning (1) bona fide qualifications; (2) veterans; (3) unfavorable military discharge; (4) ability tests; (5) merit and retirement systems; (6) training and apprenticeship programs; (7) police and firefighter retirement; (8) police and firefighter/paramedic appointment; and (9) citizenship status. (111. Rev. Stat. 1991, ch. 68, par. 2— 104.) Presumably, these exemptions were placed in the Act so that employers would not be bothered by claims that the activities set forth in those categories were actionable. However, if plaintiff’s theory is accepted, the effect of those provisions would be merely to subject those employers to actions at law in those areas rather than administrative proceedings.

Thus, the only reasonable construction we can give to the interplay between sections 8 — 111(C) and 2 — 104 of the Act is that the General Assembly intended that the conduct described in section 2— 104 of the Act was intended to constitute “reasonable exemption” from article I, section 17, of the Constitution. Similarly, the relationship between section 8 — 111(C) of the Act and section 2 — 101(B)(lXa) of the Act creating the “15 or more employees” requirement in order to be defined as an “employer” is such that we can only conclude the legislature also intended that those employing fewer than the required number of employees be in the category of a “reasonable exemption” from the requirements of article I, section 17, of the Constitution.

The foregoing analysis conforms with that of the circuit court. We agree with the circuit court. Accordingly, we affirm the order of dismissal.

Affirmed.

STEIGMANN, P.J., and COOK, J., concur.


author:
PRESIDING JUSTICE McCULLOUGH
      JUSTICE WOODWARD,

text:
    DELORES COGNATO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lucca Packing Company, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 91—0263WC
    Opinion filed January 8, 1993.

      WOODWARD, J., joined by H. LEWIS, J., dissenting.
    Jacobson & Sorkin, Ltd., of Chicago (Steven W. Jacobson, of counsel), for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Francis J. Lynch, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, Delores Cognato, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (111. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). She sought compensation for the death of her husband, Samuel Cognato (decedent), who died from a ruptured myocardial infarction, which claimant alleged occurred while Samuel worked for employer, Lucca Packing Company. After a hearing, the arbitrator awarded benefits to claimant. The Industrial Commission (Commission), with one commissioner dissenting, reversed the arbitrator’s decision. Upon review, the circuit court confirmed the Commission’s decision. This appeal followed.

On June 26, 1992, an opinion of this court was filed. A petition for rehearing was filed by the respondent, the petition was granted pursuant to Supreme Court Rule 367 (134 Ill. 2d R. 367) and an answer was filed by the petitioner.

On appeal, claimant raised two issues, namely, that the Commission’s finding that Samuel’s death did not arise out of and in the course of his employment was against the manifest weight of the evidence; and that the Commission’s finding on the causation issue is contrary to the manifest weight of the evidence.

Decedent was employed as a sausage maker by employer. On January 22, 1985, decedent tripped and fell while carrying a box of meat weighing between 50 and 75 pounds. He was transported by ambulance to Rush-Presbyterian-St. Luke’s Medical Center, at which time cardio-pulmonary resuscitation was attempted. Decedent was pronounced dead upon arrival at 1:48 p.m. The death certificate states that the immediate cause of death was pericardial tam-ponade due to a ruptured myocardial infarction. A postmortem examination showed evidence of severe coronary arteriosclerosis and the myocardial infarction with rupture.

In the morning of January 22, 1985, Steve Magrini, another employee of the employer, stated that decedent had prepared batches of sausage from 6:15 a.m. until 10:30 a.m. Barrels of meat were brought into the sausage room where Magrini and decedent lifted the meat from the barrels with pitchforks. A barrel contains 150 pounds of different kinds of meat which are later converted into sausage. After making several batches of sausage, decedent and Magrini began grinding beef. At approximately 12:15 p.m., decedent left and went downstairs with Patrick Joslin.

Patrick Joslin worked with decedent and shared the same job responsibilities, which included making sausage, stocking shelves and loading and unloading trucks. Decedent was primarily a sausage maker, which involves running a sausage-making machine operated by a knee pedal. On January 22, 1985, a delivery consisting of 12 cases of beef tenderloin arrived at the loading dock. At approximately 12:25 p.m., Joslin and decedent began unloading the boxes, which weighed between 50 and 75 pounds. Joslin saw decedent unload five or six boxes of the meat. Shortly thereafter while carrying another case of meat, decedent tripped on a sewer and fell forward into a table. Joslin also observed that during the fall, decedent struck his head on a shelf and “just laid there.” On the day of decedent’s death, the temperature reached a high of 20 degrees Fahrenheit and a low of 11 degrees Fahrenheit, the average temperature measuring at 16 degrees Fahrenheit.

The employer’s president, Fred Nottoli, testified that employees Steve Magrini and Pat Joslin were responsible for unloading the trucks when the meat shipments arrived. On some occasions, however, decedent would assist in the unloading. On January 22, 1985, Nottoli observed the bluish color of decedent’s hand when the latter came into the office to show Nottoli his right hand. Nottoli saw the decedent’s hand around 10 a.m. and suggested that he see a doctor or go to the hospital. Decedent did not leave, however, and continued to work. Nottoli further testified that the temperature inside the plant was in the neighborhood of 50 to 60 degrees Fahrenheit.

Claimant stated that decedent was 56 years old, stood about 5 feet 10 inches and weighed 228 pounds at the time of his death. He smoked one-half a pack of cigarettes a day for an unspecified number of years. Claimant and decedent owned a two-story building in Berwyn, Illinois, which had a frozen pipe problem during the weekend preceding her husband’s death.

Decedent and his son went to the . building to work on the plumbing on the Monday, January 21, 1985, and possibly on Sunday, January 20, 1985. On Monday, January 21, decedent left for the building at 4 p.m. and returned home around 6:30 p.m.

Dr. Nathaniel Greenberg, board certified in internal medicine, and Dr. Michael Lesch, a board-certified cardiologist, testified before the arbitrator. Their testimony was presented with respect to the issue of whether the decedent sustained accidental injuries arising out of and in the course of his employment or that a causal relationship existed between the incident of January 22, 1985, and his death. Upon review of the medical records, Dr. Greenberg opined that the unloading and carrying of the heavy boxes of meat in the cold environment put an excessive strain on the previously infarcted heart, causing the rupture which led to the decedent’s collapse and death. He further testified that the infarcted heart muscle is at its weakest between 5 to 12 days following the infarct and for this reason, individuals who have suffered from a myocardial infarction are urged to stay at rest during the critical period. He also stated that heavy work in a cold environment “is just the sort of circumstance that leads to rupture.” Dr. Greenberg disputed the employer’s position that the decedent’s death could have been caused by repair work on frozen pipes performed the Sunday preceding his death. He further stated that exertion markedly increases the likelihood of a rupture.

Dr. Lesch testified that he saw between three to five “infarct” patients per week and had written extensively on the subject of myocardial infarction. Dr. Lesch opined that there was no relationship between the decedent’s employment and the post-myocardial infarction rupture. His reasons for that opinion were basically threefold. First, Dr. Lesch reasoned that there was no causal connection because there is no data to show that effort affects the incidence of post-myocardial infarction ruptures. Next, Dr. Lesch stated that the incidence of rupture does not vary according to the seasons of the year or geographical regions; hence, he concluded that temperature was not a factor. Finally, Dr. Lesch opined that effort does not affect the incidence of rupture because of recent trends in treatment of myocardial infarction patients with exercise.

He further testified that decedent’s death could be explained by two alternative scenarios that would be consistent with the autopsy report. Under the first, decedent could have ruptured his heart, and then he collapsed. Under the second, decedent could have collapsed from a cardiac arrest, which necessitated the administration of cardiopulmonary resusitation, which, in turn, caused the rupture. According to Dr. Lesch, either scenario could have occurred.

Dr. Lesch also indicated that 99.9% of the cases of myocardial infarction are caused by coronary arteriosclerosis and complications thereof, which are in turn associated with such factors as high cholesterol, smoking, obesity, hypertension, diabetes, and a sedentary lifestyle. He further stated that from his research there was no data whatsoever to show that the external factors such as exertion, exercise or cold temperature played any part in causing a post-myocardial infarction rupture.

As found by the Commission, Dr. Lesch disagreed with the opinion of petitioner’s expert, Dr. Greenberg, who believed the physical stress of lifting heavy boxes and the cold environment put an excessive strain on decedent’s previously infarcted heart, causing the rupture and subsequent collapse and death.

The Commission adopted the findings and opinions of Dr. Lesch and found that “Decedent’s collapse from a fatal heart rupture was unrelated to exertion or temperature and that in any case, Decedent’s physical exertion on January 22, 1985 was minimal and not beyond his regular duties.”

The arbitrator ruled in favor of the petitioner. The arbitrator’s decision noted Dr. Lesch admitted that he would never allow an individual who had suffered a myocardial infarction to lift boxes weighing 50 to 100 pounds, and that strenuous activity could aggravate that condition. On review, however, the Commission relied on Dr. Lesch’s testimony in reversing the arbitrator’s decision. The Commission concluded that the decedent’s heart rupture was unrelated to exertion or temperature and that the decedent’s physical exertion on the day of his death was minimal and not beyond his regular duties.

It is axiomatic that the Commission’s determination as to causation will not be disturbed on review unless it is against the manifest weight of the evidence. (Horath v. Industrial Comm’n (1983), 96 Ill. 2d 349, 356, 449 N.E.2d 1345, 1348.) Where an employee suffers a heart attack which produces disability or death, the disability or death is compensable under the Act if the heart attack is work related. (Wheelan Funeral Home v. Industrial Comm’n (1991), 208 Ill. App. 3d 832, 836, 567 N.E.2d 662, 665.) Compensation is not precluded by the fact that the employee may have suffered from a preexisting heart disease. (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 177, 399 N.E.2d 606, 609.) Where a preexisting heart disease is evident, recovery turns upon whether the heart attack was a product of the heart disease and the employment combined, or the heart disease alone. (Tyrrell v. Municipal Employees Annuity & Benefit Fund (1975), 32 Ill. App. 3d 91, 96, 336 N.E.2d 97, 102.) A claimant is not required to prove that the employment was the sole or principal cause, but only that the employment was a causative factor. Wheelan Funeral Home, 208 Ill. App. 3d at 836, 567 N.E.2d at 665.

If work-related stress aggravates or accelerates the heart condition so as to cause a heart attack, the heart attack is an accidental occurrence that arises out of and in the course of employment unless the employee’s condition was so poor that any activity would constitute an overexertion. Johns-Manville Products Corp., 78 Ill. 2d at 177, 399 N.E.2d at 610.

It is the Commission’s province to judge the credibility of witnesses, to draw reasonable inferences from the testimony and to determine what weight the testimony is to be given. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 483, 548 N.E.2d 1033, 1040.) Further, it is the Commission’s province to resolve conflicts in medical evidence. (Amoco Oil Co. v. Industrial Comm’n (1991), 218 Ill. App. 3d 737, 747, 578 N.E.2d 1043, 1050.) The Commission’s decision on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Paganelis, 132 Ill. 2d at 484, 548 N.E.2d at 1040.

Where the inferences drawn by the Commission are reasonable, a court of review will not discard them merely because other inferences could be drawn from the evidence. (Warren v. Industrial Comm’n (1975), 61 Ill. 2d 373, 376, 335 N.E.2d 488, 490.) It is not the prerogative of the reviewing court to reweigh the evidence and substitute its judgment for that of the Commission. A reviewing court is not the trier of fact. Likewise, it is for the Commission to decide which of two conflicting opinions should be accepted. Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 387, 454 N.E.2d 655, 657.

Claimant argues that the Commission erred in relying on Dr. Lesch’s opinion in determining that no causal connection existed. The employer contends that Dr. Lesch’s testimony was not comprised by the concessions he made regarding the treatment of myocardial infarction in patients immediately following the disease’s onset.

Dr. Lesch testified there was no causal connection because there was no data to show that effort affects the incidence of post-myocardial infarction ruptures, the incidence of ruptures does not vary according to the seasons of the year or geographical region, and that effort does not affect the incidence of rupture.

Both medical experts agreed there was no relationship between the work and the myocardial infarction because the myocardial infarction predated the work.

Dr. Lesch testified “there is no evidence anywhere in the medical literature that correlates rupture to either physical exertion or temperature.” He further testified “that rupture is a natural consequence of myocardial infarction in 10 to 15 percent who die of myocardial infarction, and that this occurs because of factors which we are unaware of, and to which we can attribute no specific cause and effect relationship,” and “the rupture was the natural evolutionary cause of this man’s heart attack and was independent of external factors.”

The subject of myocardial infarctions and ruptures is not of common knowledge and requires expert opinion with respect to causal connection in cases such as the one before us. The Commission believed Dr. Lesch, board certified in cardiology. The Commission found that the petitioner failed to prove that decedent sustained accidental injuries arising out of and in the course of his employment on January 22, 1985, or that a causal relationship existed between the incident and decedent’s death. The decision of the Commission was not against the manifest weight of the evidence.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

EGAN and STOUDER, JJ., concur.

JUSTICE WOODWARD,

dissenting:

I respectfully dissent. The evidence does not support the Commission’s decision as to causal connection and for that reason a review of the facts and testimony of the doctors is most important.

Both Dr. Lesch and Dr. Greenberg agree that decedent suffered myocardial infarction (MI) several days prior to January 22, 1985. No one, including the decedent, was aware that decedent had an MI prior to the events that occurred shortly after noon on January 22, 1985. On that morning decedent was at work and prepared batches of sausage from 6:15 a.m. to 10:30 a.m., lifting meat out of barrels with pitchforks and grinding the beef. Around 10 a.m., decedent’s right hand appeared bluish in color as witnessed by two people; however, he continued to do his regular work. At approximately 12:25 p.m., he began unloading a delivery consisting of cases of meat, each weighing between 50 to 75 pounds. While unloading the boxes of meat off the loading dock, decedent was exposed to a temperature of 20 degrees or less. Carrying a fifth or sixth case of meat, decedent tripped and fell forward into a table; decedent struck his head on a shelf, fell forward and “just laid there.” He was taken to the hospital emergency room where CPR was administered; post mortem medical records stated that decedent died of a rupture of his previously infarcted heart (MI).

On the morning of January 22, 1985, Steve Magrini, another employee, confirmed that he and the decedent unloaded barrels weighing 150 pounds of different kinds of meat which were later converted into sausage. After several batches of sausage, decedent and Magrini began grinding beef. At approximately 12:15 p.m., the decedent went downstairs with Patrick Joslin, another employee. While working downstairs unloading boxes of meat with Joslin, the decedent tripped and struck his head as previously stated.

Decedent’s widow, the claimant, stated that the decedent was 56 years old, stood approximately 5 feet 10 inches tall and weighed 228 pounds at the time of his death. He smoked half a pack of cigarettes a day for an unspecified number of years. Claimant and decedent owned a two-story building in Berwyn, Illinois, which had a frozen pipe problem during the weekend preceding her husband’s death. Decedent and his son went to the building to work on the plumbing on Monday, January 21, 1985, and possibly on the day before which was Sunday, January 20, 1985. On Monday, January 21, decedent left for the building at approximately 4 p.m. and returned home around 6:30 p.m.

Doctors Greenberg and Lesch agree that the decedent had suffered an MI in the days preceding his death. They concurred that the rupture of the heart at the site of the MI caused his death. They each agreed that the proper care of a post-onset MI patient was hospitalization and rest. They further agreed that such treatment was to permit the MI to adequately scar over and thereby prevent a rupture. Dr. Lesch stated that the average hospital stay following an MI was between 8 and 15 days; that the patient should remain in bed for three days; on the fourth day, while still hospitalized, he will become ambulatory and his condition is monitored regularly.

Dr. Lesch stated that during hospitalization the standard treatment now includes the patient engaging in a low level of exercise, one that is well below the maximum level that a patient might otherwise achieve. No lifting is allowed and the MI patients are limited to walking. From this testimony it is clear that if the decedent had been under a physician’s care immediately following the onset of the MI, he would have been hospitalized for a significant period of time and would not have been allowed to return to work until his condition had stabilized. In this case, the decedent continued to work in a physically demanding job following his MI, which both doctors agree had occurred a few days prior to the date of his death.

Dr. Lesch admitted that he would not permit a post-MI patient to lift 50 to 100 pounds of boxes as decedent did immediately prior to his death. Dr. Lesch acknowledged that it would be inappropriate to send an MI patient back to work to perform lifting tasks within a two-week period following an MI.

Dr. Lesch’s admissions concerning the proper treatment of an MI patient seriously undercut his opinion that no causal connection existed between decedent’s work activities and his death due to a ruptured MI. Dr. Lesch appears to want it both ways. On the one hand, he subscribes to a treatment modality which hospitalizes MI patients and permits them only minimal physical activity. On the other hand, he finds that decedent’s lifting of 50- to 100-pound boxes of meat and tripping and falling forward, following a morning of substantial lifting, played no part in the Mi’s rupture. Either exertion is a causative factor in the rupture of a myocardial infarction or it is not. Dr. Les-ch’ s statement as to his treatment of MI patients clearly admits that exertion is a critical factor relating to the rupture of a MI.

Another example of Dr. Lesch’s equivocation came in his response to the question, “Could lifting 50- to 100-boxes aggravate a preexisting myocardial infarction?” Dr. Lesch answered that it may or may not, that he could prove neither and that he could not disagree with the statement that it may. It is well established that a finding of a causal relationship may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. Mason & Dixon Lines, Inc. v. Industrial Comm’n (1983), 99 Ill. 2d 174.

Further vitiating Dr. Lesch’s opinion as to causation is his admission that if CPU can cause an MI rupture, then certainly a blow to the chest such as falling forward while carrying a heavy box can cause a rupture.

Dr. Lesch’s admissions concerning the proper treatment of a myocardial infarction patient seriously impair the weight of his opinion that no causal connection existed between decedent’s work activities on January 28, 1985, and his death due to a ruptured myocardial infarction.

Moreover, as Commissioner Tansor pointed out in his dissent, decedent was trader greater physical stress than normal on the day in question. Witness Notoli acknowledged that unloading delivery trucks was not one of decedent’s regular duties.

In direct contrast to Dr. Lesch’s wavering testimony is that of Dr. Nathaniel Greenberg, board certified in internal medicine. Dr. Green-berg’s review of the relevant records revealed the following. The postmortem examination revealed a myocardial infarction that had existed for a week to 10 days, with a rupture of the heart at the site of the infarction. The postmortem examination also indicated that approximately a pint of blood escaped through the rupture into the pericar-dial sac, which caused the decedent’s death. Dr. Greenberg opined that the unloading and carrying of the heavy boxes of meat in the cold environment put an excessive strain on the previously infarcted heart causing the rupture which lead to decedent’s collapse and death. Dr. Greenberg explained that infarcted heart muscle is at its weakest between 5 to 12 days following the infarct. For this reason, individuals who have suffered from myocardial infarctions are urged to stay at rest during that critical period. Dr. Greenberg testified further that heavy work and cold environment “[are] just the sort of circumstance that leads to rupture.”

During cross-examination, Dr. Greenberg described a rupture as a very abrupt event. If the rupture is not repaired in a matter of minutes, the rupture will be fatal. Dr. Greenberg further explained that a rupture was not a result of a pinhole or slight aperture that expands over time due to blood pressure. Such expansion, if any, would occur over a period of seconds or minutes, not hours or days. Moreover, only a half dozen heartbeats were required to fill up the pericardium with blood if an individual sustained a one-half-inch rupture. Dr. Greenberg disputed the employer’s position that the decedent’s death could have been caused by repair work on frozen pipes performed the Sunday preceding his death. Dr. Greenberg explained that the decedent’s repair work on the Sunday preceding his death was not the cause of his death because the decedent’s heart did not rupture at that time. As to what actually happened to decedent, Dr. Greenberg believed that the rupture occurred while he was carrying a box of meat. Decedent then collapsed and died within seconds.

When asked if a rupture could occur absent effort, Dr. Greenberg replied that such occurrences have been known to happen, but the frequency is very low. Dr. Greenberg testified further that standard works on cardiology would illuminate the relationship between physical activity and post-myocardial infarction ruptures. Citing works by White, Friedberg and Hurt, Dr. Greenberg explained that exertion markedly increases the likelihood of rupture.

The principles established in heart attack cases are applicable here. Where an employee suffers a heart attack which produces disability or death, the disability or death is compensable under the Act if the heart attack is work related. Wheelan Funeral Home v. Wiggins (1991), 208 Ill. App. 3d 832.

A preexisting heart condition does not preclude an award under the Workers’ Compensation Act (111. Rev. Stat. 1985 48, par. 138.1 et seq). (Ludwig v. Industrial Comm’n (1989), 192 Ill. App. 3d 729.) For a heart attack to be compensable, an employee must prove that some act of employment was a causative factor, but it need not be the sole or even a principal causative factor. Northern Illinois Gas v. Industrial Comm’n (1986), 148 Ill. App. 3d 48.

Based on Dr. Greenberg’s testimony that the decedent’s physical exertion in a cold environment caused the rupture of his MI and the admissions elicited from Dr. Lesch as to the proper treatment of myocardial infarction patients, we find that decedent’s work-related activity was a causative factor in decedent’s death and that the Commission’s decision is against the manifest weight of the evidence.

Accordingly, we would reverse the judgment of the circuit court.

LEWIS, J., joins in this dissent.


author: PRESIDING JUSTICE INGLIS

text:
    KAREN L. STELLMACH et al., Indiv. and as Next Friends of Justin Stellmach, et al., Minors, Plaintiffs-Appellants, v. DEVOLA R. OLSON et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0472
    Opinion filed March 17, 1993.

      Anthony J. Pankau, Jr., of Law Office of John Pankau, and Schirott & Hervas, P.C., both of Itasca, for appellants.
    John J. McCluskey, Jr., of Kalinich, McCluskey, Sullivan & Boylan, P.C., of Glen Ellyn, and Paul J. Bargiel, of Chicago, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Karen and Gregg Stellmach, appeal a grant of summary judgment for defendants, Devola and Vincent Olson, in a negligence suit. Karen Stellmach was injured when her car was struck by a car owned by defendants but driven by Philip Olson, defendants’ adult son, who was traveling alone to defendants’ home. Philip Olson was killed in the accident.

Plaintiffs’ first amended complaint alleged that the accident was the result of defendants’ negligent entrustment of their car to their son, whom they knew to have a drinking problem. Plaintiffs sued two other parties, one of whom plaintiffs later voluntarily dismissed. Defendants and the third party received summary judgment. Plaintiffs did not appeal.

Plaintiffs’ second amended complaint alleged defendants were liable under respondeat superior for Philip Olson’s negligence. The trial court dismissed the complaint for failure to state a cause of action (111. Rev. Stat. 1989, ch. 110, par. 2 — 615). This court reversed. Stellmach v. Olson (2d Dist. 1991), No. 2 — 90—1132 (unpublished order under Supreme Court Rule 23).

On remand, defendants moved for summary judgment, arguing that plaintiffs had not raised a genuine factual issue of whether Philip Olson was defendants’ agent at the time of the accident. The trial court granted defendants summary judgment. Plaintiffs appeal, arguing that the court erred in finding that plaintiffs did not raise a genuine issue regarding whether defendants’ son was acting as their agent at the time of the accident. We set out the relevant pleadings and evidence before the trial court.

Plaintiffs’ second amended complaint alleged that on the evening of November 8, 1988, Philip Olson removed defendants’ Buick from their residence. The next day, he told defendants by telephone that he had borrowed the car. Defendants told him to return the car to defendants’ Lombard home after he had concluded his day’s business and to come to their home for dinner. At about 5:40 p.m. on November 9, 1988, Philip Olson drove the Buick south on Swift Road, where he collided with plaintiffs’ car. His negligence was the sole proximate cause of Karen Stellmach’s injuries. Plaintiffs further alleged that defendants were liable for Philip Olson’s negligence because he was their agent.

In her deposition, Devola Olson testified that Philip Olson, bom in 1953, lived with defendants until about October 1988. Philip had keys to defendants’ house, and he would have known where defendants kept their keys to the Buick. However, he himself did not have keys to the Buick. The Buick was one of two cars defendants owned and kept at home. Defendants never gave Philip permission to borrow either car.

Mrs. Olson knew that, in 1976, Philip had been arrested for driving under the influence of alcohol. At the time of the accident, she was unaware that Philip’s driver’s license had been revoked or that he had a license issued under a different name.

After Philip moved out, he and defendants spoke on the telephone about twice a week. Philip routinely visited defendants on Wednesdays for supper.

On Tuesday, November 8, 1988, defendants went to dinner with friends. They left the Buick in the garage and drove the other car, leaving the house empty. Returning at 11:30 p.m., they saw that the Buick was gone. A note from Philip explained that his car would not start, so he had driven the Buick home.

On Wednesday, November 9, 1988, at about 4:30 p.m., Philip telephoned defendants. He related that he had just come home from court to help settle a dispute between the Olsons and another party. He added that he would be coming to dinner soon. Mrs. Olson testified that she told Philip, “ ‘you better get back here as fast as you can because you’re not supposed to be driving that car.’ ” Philip replied, “ ‘I’ll get it right back there.’ ”

Vincent Olson testified that at the time of the accident he was not aware that Philip Olson’s driver’s license had been revoked or that Philip had a license issued under a different name. At about 4:30 p.m. on November 9, 1988, Philip Olson called defendants. He told them he had been in court and that their case had been settled. He added that he would be over for dinner that evening. Mr. Olson knew Philip had the Buick, and he heard Mrs. Olson tell Philip to bring the car back to their home.

On appeal, plaintiffs invoke case law addressing when a parent may be held liable for the negligence of a child who uses the parent’s car on a “family errand.” They argue they raised two material issues of fact. First, at the time of the collision, was Philip Olson defendants’ agent for purposes of conducting family legal business? Second, was Philip Olson acting as defendants’ agent when returning the car to their house at their direction?

A trial court should grant summary judgment where “the pleadings, depositions, and admissions on file *** show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (111. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) “The purpose of a summary judgment is not to try an issue of fact but to determine whether a triable issue of fact exists.” (Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 866.) The court must construe the evidence strictly against the movant. (Hindo v. University of Health Sciences/Chicago Medical School (1992), 237 Ill. App. 3d 453, 459.) A plaintiff against whom summary judgment is sought need not prove his case at this stage, but he must present some facts that arguably would entitle him to judgment. (Hindo, 237 111. App. 3d at 459.) A grant of summary judgment is a ruling of law which we review de novo. Webber v. Armstrong World Industries, Inc. (1992), 235 Ill. App. 3d 790, 795.

Defendants claim that the doctrines of collateral estoppel and res judicata prevent plaintiffs from raising a claim of agency. We choose not to address this argument because we find that, as a matter of law, plaintiffs have presented no facts to support their agency claim.

Under Illinois law, parents may be held liable under an agency theory for their child’s negligent driving if, at the time of the accident, the child was engaged in doing the parents’ business. (Graham v. Page (1921), 300 Ill. 40, 43; Ritter v. Taucher (1978), 65 Ill. App. 3d 464, 468; O’Haran v. Leiner (1940), 306 Ill. App. 230, 233-35.) Parents are not liable if they merely allow the child to use the car for his own purposes rather than for a family errand. (White v. Seitz (1930), 342 Ill. 266, 271; Arkin v. Page (1919), 287 Ill. 420, 425-27. Contra Toms v. Ketterer (1925), 237 Ill. App. 135, 144.) What constitutes a family errand is a question of fact. (Ritter, 65 Ill. App. 3d at 468; O’Haran, 306 Ill. App. at 234.) An agency relationship does not arise merely from the parent-child relationship. Arkin, 287 Ill. at 422; Ritter, 65 Ill. App. 3d at 467.

Given these principles, defendants would be vicariously liable for their son’s negligence only if, at the time of the accident, the son was using the car with defendants’ permission for a family errand. Plaintiffs argue that the evidence raised a factual question as to the existence of two family errands: (1) the family legal business that Philip Olson undertook at the courthouse; and (2) Philip Olson’s return of the car, at his mother’s demand, to defendants’ house.

We may dispose quickly of the first of these alleged factual issues. The evidence is uncontradicted that Philip Olson borrowed the car without defendants’ permission. Defendants did not authorize him to borrow the car on the night before the accident; they had never before authorized him to borrow the Buick; and they told him that he was not supposed to be using the car. Moreover, the accident occurred only after Philip drove back from the courthouse. Thus, the first ground plaintiffs urge raised no genuine issue of fact as to agency. Moreover, any agency relationship would be irrelevant to whether defendants may be liable for the accident that occurred after Philip Olson returned from his courthouse errand and started to use the car for a different purpose.

The second ground urged by plaintiffs is more persuasive. However, we conclude that case law does not support parental liability for the negligence of a child who drives the parents’ car solely because they demand that he surrender his unauthorized possession of the vehicle. Even if parents “permit” the child to use the car for this limited purpose, we conclude that merely restoring the car to its rightful possessors does not involve the sort of parental benefit necessary to a finding that the child was on a family errand. We have not found a factually comparable case, but we believe the principles drawn from case law oppose extending agency liability under such circumstances.

The seminal Illinois case on this issue is Arkin (287 Ill. 420). There the supreme court rejected the broad “family purpose doctrine,” under which parents who buy a car for the pleasure of the family and permit their child to use the automobile may be liable for the child’s negligence even if the child used the car purely for his or her own private purposes. Drawing on general principles of agency, the court refused to find that a son was an agent of his father when the son “us[ed] the family automobile to take a ride by himself for pure pleasure.” (Arkin, 287 Ill. at 425.) The son could not be said to be doing the father’s business merely by “furnishing amusement for himself.” Arkin, 287 Ill. at 425.

In Graham v. Page (1921), 300 Ill. 40, the supreme court upheld a verdict against the father of a 16-year-old girl who drove her father’s car into the plaintiff’s bicycle. At the time of the collision, the daughter was using the car, with her father’s consent, to pick up her shoes from a repair shop. (Graham, 300 Ill. at 42.) Holding that the father was vicariously liable for the daughter’s negligence, the court explained that the daughter was not merely driving the car for pleasure but was using it “on a family errand, — one of the purposes her father testified he kept the car for and one of the purposes *** his daughter was authorized to drive it for.” (Graham, 300 Ill. at 43.) Recognizing that the mere relation of parent to child did not create agency, the court stressed that the father had a duty to supply (and to keep in good repair) shoes for his minor child, who was unemployed and lived with her parents. Thus, in driving to the shoe repair shop, the child was performing “the duty and business of her father” as he had authorized her to do. Graham, 300 Ill. at 43.

In Gates v. Mader (1925), 316 Ill. 313, the court upheld a judgment against the father of a driver who injured the plaintiff while driving several family members to a lunch engagement. (Gates, 316 Ill. at 314.) The court noted that, before the incident, the father regularly had allowed the son to drive the car for the pleasure of the son or family members. Holding that Arkin did not control the result, the court attached no importance to the son’s adult age or separate residence at the time of the accident. Rather, what was crucial to the finding of respondeat superior liability was that he was driving the car with his father’s authorization for the pleasure and convenience of the family, which was one of the purposes for which the father owned and kept the car. Gates, 316 Ill. at 317-18.

In White v. Seitz (1930), 342 Ill. 266, the court reversed a judgment based on agency liability where the minor child drove his father’s automobile with his father’s permission but purely for his own pleasure. The court held that Arkin was controlling. (White, 342 Ill. at 273.) The court distinguished Gates by noting that, in Gates, the driver of the car was not a member of the family or a minor, but an adult who lived apart from his parents and visited his parents about once a week. (White, 342 Ill. at 270-71.) Recovery in Gates was based on respondeat superior, “not on the family car or ‘family purpose’ doctrine.” (White, 342 Ill. at 271.) In White, the court explained that it was adhering to the Arkin rule that a parent is not liable under respondeat superior for damages caused by a child who drove the parent’s car for the child’s own purposes, even if the parent consented to that use. White, 342 Ill. at 273.

In O’Haran v. Leiner (1940), 306 Ill. App. 230, the defendant, his wife, and their six-year-old daughter lived together. The defendant provided all the family’s income. His wife drove his car downtown to purchase a party dress for the daughter. While on this errand, she drove the car into the plaintiff’s car. (O’Haran, 306 Ill. App. at 232.) Holding that the defendant’s wife had been acting as his agent at the time of the collision, the court reasoned that nothing in previous decisions limited the scope of “family errands” to the purchase of necessities. The court emphasized that, under the statute then in force, a husband was chargeable with family expenses, not merely necessities. (O’Haran, 306 Ill. App. at 234.) The court concluded that the purchase of the dress was legally equivalent to the shoe repairs in Graham, as both errands were undertaken in furtherance of the “business” or “duty” of the husband. O’Haran, 306 Ill. App. at 235.

In Ritter v. Taucher (1978), 65 Ill. App. 3d 464, the defendant, the mother of the driver whose negligence caused the plaintiff’s injuries, was a passenger in her child’s car at the time of the accident. (Ritter, 65 Ill. App. 3d at 466.) Holding that the trial court erred in granting the defendant a directed verdict, the appellate court explained that the jury could have found an agency relationship between the defendant and her son. The son was returning to college after a visit home. He was unemployed and depended on his parents for both tuition and transportation to college. His parents had driven him to school on earlier occasions. These facts sufficed for a finding that the son was on a family errand at the time of the collision. Ritter, 65 Ill. App. 3d at 468-69.

The case at bar is not “on all fours” with any of these cases. Here, the record allows for no dispute that, in the first instance, defendants’ son did not have their permission to drive the car. However, there is evidence that, after discovering that he had the car, defendants ordered their son to drive the car back to defendants’ home. From this, plaintiffs contend they established a factual basis to conclude that, at the time of the accident, Philip Olson was performing a “family errand,” i.e., he was returning the car with his parents’ consent and for his parents’ benefit.

Although so broad an implicit definition of “family errand” is conceivable, we believe that a fact finder ought not be allowed to infer a principal-agent relationship from such facts. Where courts have properly found such a relationship, the child was driving the car in fulfillment of a parental obligation (such as the duty to support the child by buying clothing or providing transportation to college) or to confer a genuine benefit on other family members. (Graham, 300 Ill. at 43; Ritter, 65 Ill. App. 3d at 468-69.) Moreover, the child’s use of the car was with the parent’s full consent from the beginning. Here, Philip Olson was doing no more than restoring the car to its rightful possessors after he had taken it without their permission. Defendants, who did not wish to part with the car in the first instance, authorized him to do only what would restore the state of affairs that would have existed had he not taken the car without their permission originally. The situation here is not comparable to one where a child uses his parents’ car with their full consent to help them fulfill a parental obligation or to obtain some new benefit. Neither the case law nor the equities visa-vis the parents support making parents liable for a child’s negligent driving, absent any negligence on their part, under such circumstances. Therefore, the grant of summary judgment was proper.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and QUETSCH, JJ., concur.