author: JUSTICE GOLDENHERSH

text:
    BERNICE MATLOW, Plaintiff-Appellee, v. VICKI ROSENFELD, Defendant-Appellant.
    Fifth District
    No. 5— 91—0716
    Opinion filed May 21, 1993.

      Eric L. Terlizzi, of Pfaff, Garner & Terlizzi, of Salem, for appellant.
    Curtis L. Blood, of Collinsville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Bernice Matlow, is the operator of a certain oil lease in Marion County known as the “Kagy lease.” Plaintiff owns 65% of the working interest in the Kagy lease. Defendant, Vicki Rosenfeld, owns a 5% working interest in the lease, which she acquired in a negotiated settlement of the estate of her father. Plaintiff and defendant are mother and daughter, and both are California residents. Plaintiff filed suit against defendant seeking to recover 5% of the operating expenses of the lease, which defendant has refused to pay since August 31, 1985. Both parties filed cross-motions for summary judgment and stipulated to the facts. Defendant appeals from an order of the circuit court of Marion County granting plaintiff’s motion for summary judgment in favor of plaintiff on counts I and II and against defendant in the amount of $63,415.67. The trial court determined defendant’s unpaid share of operating expenses as $54,620.21 and ordered defendant to pay $8,795.45 in interest. Defendant contends the trial court erred in granting summary judgment for plaintiff on counts I and II. We affirm.

I

The facts in this case are not in dispute. On March 9, 1988, plaintiff filed a one-count complaint against defendant seeking to recover $23,501.77 for defendant’s proportionate share of operating expenses from August 31, 1985, through January 31, 1988, on the Kagy lease. The complaint also sought a lien against defendant’s interest in the leasehold. Subsequently, plaintiff filed a second and third amended complaint. The third amended complaint, filed on October 18, 1990, consisted of three counts. Count I sought a judgment against defendant for $43,184 plus any other sums advanced by plaintiff on behalf of defendant prior to the date of judgment plus interest and reasonable attorney fees. Plaintiff also requested that the amount found to be due her be declared a lien upon defendant’s working interest in the leasehold. Count II alleged defendant owed plaintiff $25,923.96 for defendant’s share of operating expenses. Plaintiff sought judgment against defendant in that amount, plus any additional operating costs attributable to defendant after June 30, 1988, along with costs of the suit. Count III alleged that a mining partnership existed between plaintiff and defendant and that defendant failed to pay her proportionate share of expenses, namely, $25,923.96. Count III sought a money judgment against defendant for that amount plus imposition of a lien against defendant’s share of the partnership.

On December 17, 1990, the parties filed a joint cross-motion for summary judgment and stipulated to the facts. The pertinent stipulated facts are as follows:

“From prior to the time Defendant acquired her interest, the lease has been a producing lease. During the time Defendant has had her working interest, monthly payments have been made on or to her account by the purchasing pipeline, Union Oil Company of California, except for certain months when one or more of the wells located on the lease were shut down because of system failures. *** Defendant’s account has, since she acquired her interest in the lease, been credited the sum of $90,138.74 as of Sept. 30,1990.
Since Defendant acquired her interest in the Kagy Lease, there have been expenses of operating the leasehold, and she has been billed monthly for her proportionate share of the expenses. *** Plaintiff has advanced payments to creditors of the leasehold and to leasehold employees and for purchase of supplies and materials and then invoiced co-tenants, including Defendant, each for his/her proportionate share of the monthly operating expenses. ***
From the time defendant acquired her interest in the Kagy Lease, until about October, 1985, Defendant remitted her proportionate share of expenses to Plaintiff, but claims to have no record of such payment. Commencing in October, 1985, Defendant has failed to or refused to remit to Plaintiff for the expenses of operating the leasehold, although her account was credited in April, 1986 the sum of $2,000.00 at the direction of Plaintiff. Demand has been made for payment of the balance of the assessments for services to the leasehold. Defendant has not participated in the operation of the lease. *** Plaintiff asserts that the Defendant is indebted to her in the amount of $47,987.90 as of Sept. 30, 1990. The sum of $42,130.39 is being withheld by the pipeline as of Sept. 30, 1990, pursuant to liens filed by Plaintiff against Defendant’s interest.”

The stipulation also consisted of exhibits, including the monthly billing statements from plaintiff to defendant for the period from August 1985 through August 1990. Defendant marked the charges she objected to, a total of $445,095.80. Defendant’s 5% proportionate share was $22,254.79. Additionally, each party filed an affidavit of an expert setting forth what each expert would testify to if called as a witness at trial.

Plaintiff’s expert, W.C. Jenneman, became familiar with the Kagy lease in 1966 when he was retained by plaintiff’s predecessor to render petroleum engineering services for the lease in question. Jenneman still is retained by plaintiff in this capacity. Jenneman reviewed the operating statements since 1985 and concluded that “with the possible exception of certain items amounting to not more than $2500.00 in total,” all expenditures were “within the legitimate scope of and necessary for the proper operation of the lease.” He stated, “They were essentially expenditures of the kinds and types made in the usual and ordinary course in which oil and gas lease operations are carried on in this area.” Jenneman further opined:

“The Kagy lease oil production history is very unusual in that there was a normal expectation that the lease would be economically depleted by about the late 1950’s, whereas it is still a significantly profitable operation some forty years later. The lease is presently producing about 20,000 barrels per year.
One of the factors that makes this record of production uncharacteristic is that the operation of the lease has always been administered by the majority absentee owner.
This consistently profitable operation did not come about by accident. In my opinion, it is the result of careful attention by the operator and the consequent employment of exceptionally competent people to do the site work on an around the clock basis.
Chief of these people is the ‘pumper’ who had the required ability to make immediate repairs when there was any sort of mechanical or electrical breakdown of the pumping equipment; the ability to recognize immediately when a pump was not functioning; the ability to keep meticulous records of production on each well; the ability to do required gauging, testing and treating.
In addition to all of these skills, the pumper had to have a great deal of specialized knowledge and experience in oil field operation in order to handle this lease. The lease was originally developed with 30 completed wells, of which, fifteen are in operation today. For many years the pumper was Cecil Bookhout, who is now retired. He set the standard for the pumpers who succeeded him by establishing outstanding procedures and practices. He is largely responsible for the presently continuing success of this lease.
In this case the operators were able to obtain outstanding pumpers who were willing and able to devote their full time to the job and willing and able to reside on the premises in a house provided by the operator. This on-site residence by the pumper was in this case (with absentee owners) very important in that it provided very good security for the lease. Good security is essential because of potentially serious environmental liabilities whenever there is a faulty line which may result in an accidental oil or salt water spill. In addition ‘good security’ guards against theft of equipment and temporarily stored oil.
In this case, it is also extremely important to keep the wells pumping with as little down time as possible. Most of the wells on the lease are affected by a water flood being conducted on the adjoining Texaco lease. This operation is pushing oil to these wells on a continuing basis, but will also push past them onto competing leases, if these wells are not in continuance [sic] operation. The presence of a ‘full’ time pumper provides the necessary surveillance and ability to service these wells promptly in the event of a malfunction.”

W.C. Jenneman is a registered professional engineer in the State of Illinois, specializing in petroleum engineering. He holds a bachelor of science degree in petroleum engineering from the University of Oklahoma and has actively engaged in the practice of petroleum engineering for more than 44 years.

Defendant’s expert, Marshall Lippert, has been employed in the oil business in Southern Illinois for the past 34 years. Lippert reviewed the same invoices as plaintiff’s expert and was also familiar with the Kagy lease. Lippert opined:

“Salaries of employees, Dale Stallons, Wayne Mann and William Hakey; withholding, payroll unemployment or other employee taxes; pension to former employee Cecil Bookhout; payment to Penny Stations for bookkeeping; monthly payment to Walter Jenneman, geologist; electric bill for electricity other than for the well motors; propane charges for the house; accounting fees; insurance other than for liability insurance and casualty insurance on the lease equipment; petty cash; phone bill; office supplies; miscellaneous supplies and tools; purchasing of vehicles; truck maintenance, gas and oil for truck; any charges incurred regarding the house including garbage disposal, utilities, repairs, maintenance and improvements; and reserve for plugging wells are not reasonable, usual, or customary charges to a working interest owner. All of the above charges are expenses incurred in the general operation of the operator’s business. It is reasonable, usual and customary for an operator to contract with a pumper to perform pumping services at a flat monthly rate and to charge a flat monthly fee for supervision of the leasehold.”

The trial court considered the stipulated facts and exhibits, plaintiff’s and defendant’s experts’ affidavits, and the arguments of counsel. Ultimately, the trial court entered summary judgments for plaintiff on counts I and II and for defendant on count III, set a hearing date to determine the exact amount defendant owed, and set a foreclosure date. The trial court also found that the expenses claimed by plaintiff were ordinary and reasonable. As to count III, the trial court found that plaintiff failed to prove the existence of a mining partnership. The parties filed a stipulation as to the current figures which represented defendant's share of operating expenses plus interest. The trial court entered its final judgment on June 4, 1991. Defendant now appeals the trial court’s order entering summary judgment for plaintiff on counts I and II.

II

The first issue raised by defendant is whether the trial court erred in granting summary judgment for plaintiff on count I, the lien claim. Defendant raises several arguments concerning count I. First, defendant contends that the Oil and Gas Lien Act (the Act) in place at the time plaintiff filed her complaint bars recovery for charges incurred more than two years prior to recording of the lien. (Ill. Rev. Stat. 1989, ch. 82, par. 510.) Thus, defendant argues, plaintiff is limited in her claim to two years prior to the date of her lien claim. Defendant argues that because plaintiff’s claim for a lien was recorded on April 19, 1990, plaintiff is limited to claims arising on April 19, 1988, and thereafter. Plaintiff responds that because the new Act became effective after plaintiff’s first two liens were filed, no two-year limitation exists to prohibit those. The two-year limitation period is effective only against the third lien, which was filed after the effective date of the new Act. Thus, all three liens against defendant were effective. We agree with plaintiff.

The Act was amended in 1989 and became effective January 1, 1990. (Ill. Rev. Stat. 1989, ch. 82, par. 501 et seq.) The new Act specifically limits lien claims to two years prior to their filing in the recorder’s office. (Ill. Rev. Stat. 1989, ch. 82, par. 510.) The old Act had no such limitation. See Ill. Rev. Stat. 1987, ch. 82, par. 71 et seq.

Here, plaintiff filed three liens against defendant. The first was filed on February 24, 1988, for charges from August 31, 1985, through January 31, 1988. The second was filed on May 16, 1989, for charges from February 1, 1988, through March 31, 1989. The third was filed on April 19, 1990, for charges through March 31, 1990. Plaintiff’s complaint in the instant case was first filed on October 18, 1990. With regard to which Act plaintiff should be allowed to recover under, the trial court specifically stated:

“The statute prior to January 1, 1990, provided a substantive right to interest upon the amount claimed in the lien. This plaintiff advanced services and moneys in light of that statute and filed two liens pursuant to that statute. This court finds that the repeal of the old statute and enactment of the new does not divest the plaintiff of any right to interest she had previously. The lien filed after January 1, 1990 will not carry with it a right to interest.”

Plaintiff argued and the trial court ultimately agreed, as do we, that liens valid when filed under the old Act are saved by section 4 of the Statute on Statutes (Ill. Rev. Stat. 1989, ch. 1, par. 1103), which reads, in pertinent part:

“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to *** any act done *** or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done *** or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.” Ill. Rev. Stat. 1989, ch. 1, par. 1103.

Plaintiff recorded the first two liens prior to January 1, 1990, and we believe she is entitled to proceed under the old Act as to those two liens. “[A] statute will be deemed to operate prospectively only, and will not be presumed to have retroactive operation unless the language employed is so clear that it will admit of no other construction ***.” (Pratt v. Hayes (1959), 20 Ill. App. 2d 457, 468, 156 N.E.2d 290, 296.) Here, we believe the statute allows such an interpretation.

Defendant also argues that plaintiff should be allowed to proceed under only one Act and not be allowed to rely on those portions of the old Act and new Act which suit her position best. For example, defendant contends, plaintiff sought and received the benefit of the new Act in terms of interest accruing at the statutory rate from the date the services were rendered as opposed to the date the lien claim was filed. However, a review of the judgment order in this case clearly shows that the trial court was well aware of the differing interest provisions between the old Act and the new Act and was consistent in its rulings.

Under section 2 of the old Act, interest accrues from the date the amount was due. (Ill. Rev. Stat. 1987, ch. 82, par. 72.) Under section 2 of the new Act, if no interest is provided for by contract between the parties, interest accrues “from the date of the filing of the lien, at the rate provided for by statute for judgments.” (Ill. Rev. Stat. 1989, ch. 82, par. 502.) In the instant case, the trial court found that plaintiff had a right to interest on the first and second liens, but no right to interest on the third lien filed after enactment of the new Act. The parties then stipulated to the amount of interest due plaintiff, and an order was entered for that amount. We agree with the trial court’s interpretation of the old Act, and plaintiff does not contest the court’s interpretation of the new Act. We do not agree, however, that plaintiff is entitled to a remand for attorney fees.

Plaintiff argues in her brief that she is entitled to a remand for attorney fees, which are allowed under the new Act. (Ill. Rev. Stat. 1989, ch. 82, par. 517.) While plaintiff did request attorney fees in count I of her third amended complaint, she failed to request or prove up those amounts after the trial court entered summary judgment for her on counts I and II. Plaintiff is not now entitled to a remand on this issue.

Defendant next contends that plaintiff failed to prove her right to recover the charges to which defendant objected under the Act. Defendant argues that it is extremely significant that the trial court found no partnership existed between the parties because numerous charges which might arguably be recoverable against a mining partner are not necessarily recoverable under the Act. Defendant specifically complains about monthly payments made to buy a pickup truck for the current pumper, monthly pension payments of $437.51 paid to a retired pumper who never rendered any services to the leasehold while defendant owned her interest, arbitrary monthly payments for “reserve plugging,” and charges for draperies for the current pumper’s home. Defendant contends these are but a few examples that the trial court’s judgment gave plaintiff carte blanche to charge defendant for whatever she wants without proving the reasonableness of such charges and without proving such charges are recoverable under the Act against a working interest owner rather than a partner. Plaintiff replies that the challenged expenses are reasonable under the unique circumstances presented here and that the Act does not exclude the expenses challenged by defendant. We agree with plaintiff.

Defendant admits that there are no reported cases addressing the question of exactly what expenses are recoverable under the old or new Act. Both acts contain expansive statements about who is entitled to a lien and for what purpose. Section 2 of the old Act states:

“Any person who shall, under contract with the owner of any land or leasehold for oil or gas purposes, or any pipe line, perform labor or furnish materials, machinery, equipment, tools, or oil well or pipe line supplies, used or employed, or furnished to be used or employed, in the digging, drilling, torpedoing, acidizing, cementing, completing, operating, or repairing of any oil or gas well upon .such land or leasehold, or in the construction, maintenance, operation, or repair of any pipe line, or who shall furnish any material, machinery, tools, equipment, or oil well or pipe line supplies, or perform any labor in constructing, putting together, or repairing any of the material, machinery, equipment, tools or supplies used or employed, or furnished to be used or employed, in the digging, drilling, torpedoing, acidizing, cementing, completing, operating or repairing of any oil or gas well, or in the erection, maintenance, operation, or repair of any pipe line, shall be entitled to a lien under this Act for the amount due him for such material, machinery, equipment, supplies, or labor, and interest from the date same was due.” (Ill. Rev. Stat. 1987, ch. 82, par. 72.)

Section 2 of the new Act states:

“Persons entitled to lien — amount of lien. Any person including the operator, who shall, under contract with the owner or operator of any leasehold or. of any pipeline, perform any labor or furnish any material or services used or employed, perform any labor or furnish any material or services used or employed, or furnished to be used or employed for, or preliminary to the drilling, completing, equipping or operating of any oil or gas well upon such leasehold, or in the construction of any pipeline, or in the constructing, putting together, or repairing of any materials so used or employed, or furnished to be used or employed, shall be entitled to a lien under this Act, whether or not a producing well is obtained and whether or not such material is incorporated in or becomes a part of the completed oil or gas well, or pipeline, for the amount due him for the performance of such labor or the furnishing of such material or services, including without limitation transportation and mileage charges connected therewith, and interest as provided by the contract between such person and the owner or operator, or if no interest is provided for by contract, from the date of the filing of the lien, at the rate provided for by statute for judgments.” (Ill. Rev. Stat. 1989, ch. 82, par. 502.)

Under either Act’s definition, we believe the trial court’s determination was reasonable.

The trial court’s order specifically sets out why it believes the charges are reasonable under the circumstances presented:

“5. Defendant maintains further that the expenses of operation for which she was billed were not ordinary, necessary or reasonable. The parties have submitted statements (plaintiff of Mr. Walter E. Jenneman and defendant of Marshall Lippert) which they stipulate would be the evidence on this issue if the matter was called to trial.
This action involves a group of 15 wells which have been operated profitably much beyond the number of years expected. This has been due largely to the water flooding being done on an adjoining lease by Texaco. The owners and the operator are all absentees. It is true that plaintiff has not operated the wells in the traditional method employed by other operators of individual units. Plaintiff has not billed in the ordinary individual well operator method of actual costs plus overhead plus supervision fee. Instead this plaintiff operator has employed a full-time pumper and has provided the pumper with an on-site residence.
The pumper is the employee of this operator and is paid from the income produced from these wells. As a full-time on-site employee he is provided a vehicle, work clothing, residence and salary. As the court reviews the monthly expenses since January 1986 many items of expense are listed that would not be ordinary, necessary or reasonable in other circumstances. Indeed, defendant is correct in stating that this operator has operated these several wells like a small business.
The court finds the statement of Mr. Walter C. Jenneman to be persuasive. He describes the need for and benefits of this style of operation under these circumstances. This full-time resident pumper provides continuity and security. By adjoining the Texaco watershed it is critical that there be little down time and the resident pumper helps assume this. The circumstances concerning these 15 profitable wells are not ordinary; however, given these circumstances the expenses incurred are all ordinary, reasonable and necessary.”

In this case, both parties agreed that the facts were not in issue, and both moved for summary judgment. The parties agreed that what was contained in the pleadings and affidavits constituted all the evidence and agreed to let the trial court decide the issues without the necessity of an elaborate trial. A court of review will not disturb the findings of a trial judge sitting without a jury if there is any evidence in the record to support those findings. (Cotter v. Parrish (1988), 166 Ill. App. 3d 836, 842, 520 N.E.2d 1172, 1176.) However, when the evidence before a trial court is documentary in nature, a reviewing court may make an independent decision based on the facts. (In re Estate of Hook (1991), 207 Ill. App. 3d 1015, 1028, 566 N.E.2d 759, 767.) Here, we believe the record supports the trial court’s decision.

The record is clear that the circumstances surrounding this oil lease are unique. Both plaintiff and defendant lived in California and were absent for day-to-day operations. Consequently, on-site resident pumpers have been hired over the years to keep the lease producing. This lease is labor-intensive since the instant lease adjoins a Texaco lease which was periodically flooded to achieve secondary oil recovery. The presence of on-site resident pumpers took advantage of this flooding to enhance this lease’s recovery. It is undisputed that the lease has produced far beyond the time originally anticipated and that such longevity is the result of the pumper’s competence.

The trial court found the affidavit of plaintiff’s expert to be persuasive. It explained how the wells had continued to be profitable over the years. We agree with the trial court’s determination and its conclusion that the challenged expenses were reasonable under the circumstances herein. But for the pumper’s expertise and careful monitoring of the lease, there would be no profits to share. Defendant’s 5% return from this lease has been substantial, and we believe the expenses are justified. We do not agree that the trial court’s order gives plaintiff carte blanche to charge whatever she wants. The trial court was presented with a complicated set of facts and did an excellent job of seeing the forest through the trees.

Defendant next contends that the trial court erred in granting summary judgment in favor of plaintiff and against defendant under count II of the complaint, an express agreement. We disagree.

Defendant again complains that plaintiff failed to prove the necessity and reasonableness of the objected-to charges in the same manner in which she failed to prove them under count I, the Act. However, because we have previously found that such disbursements were reasonable under the facts presented and because defendant admits in her brief that she “does not dispute that it is implicit in the mere ownership of a working interest that the owner is liable for his or her pro rata share of reasonable and necessary operating expenses,” we find defendant’s contention to be without merit. Thus, we find that the trial court did not err in granting summary judgment for plaintiff and against defendant under either count I or count II.

For the foregoing reasons, the order of the circuit court of Marion County granting summary judgment for plaintiff on counts I and II is affirmed.

Affirmed.

WELCH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    RICHARD ADAMS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Neon Sign, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 92—0598WC
    Opinion filed May 25, 1993.

      Serkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellant.
    James K. Keefe, of Keefe & DePauli, P.C., of Fairview Heights, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Richard Adams (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) contending he suffered injuries arising out of and in the course of his employment with the appellee, Neon Sign (the employer). On March 21, 1986, the claimant filed a petition for immediate hearing under section 19(b — 1) of the Act (820 ILCS 305/19(b — 1) (West 1992)) seeking temporary total disability (TTD) benefits and payment of medical expenses. The arbitrator found the claimant was temporarily totally disabled for a period of 258/? weeks. Regarding medical expenses, the arbitrator determined the claimant had exhausted his two independent choices for treating physicians and that, under section 8(a) of the Act (820 ILCS 305/8(a) (West 1992)), he was responsible for the cost of all subsequent treatment sought without the approval of the employer.

On review, the . Industrial Commission (Commission) found the claimant was temporarily totally disabled (TTD) through the date of the hearing on the section 19(b — 1) petition (May 6, 1986) and increased the claimant’s benefits accordingly. The Commission concurred in the arbitrator’s finding that the claimant had elected his two health care provider choices for which the employer was liable, and that the claimant was responsible for the expenses arising from subsequent medical treatment. The Commission remanded the cause for further proceedings, unless a timely appeal from its decision was sought. No appeal was pursued.

On remand, the cause came on for a second section 19(b — 1) hearing before the arbitrator (February 16, 1989), wherein the claimant sought additional TTD benefits and medical expenses. On March 22, 1989, the arbitrator denied additional disputed TTD benefits. The arbitrator denied certain medical expenses, relying on the Commission’s earlier determination on the “third choice” issue. The Commission in pertinent part affirmed. The claimant sought review in the circuit court, which confirmed. The claimant now appeals.

At the first section 19(b — 1) hearing (May 6, 1986), the claimant testified he began working for the employer’s sign business in March of 1984. He basically worked as a painter. On October 3, 1984, the claimant was helping to unload a 500-pound crate from a truck. While moving the crate, the claimant felt a pull in his neck and back. The record shows that on October 12, 1984, the claimant sought treatment from William G. Patterson, a chiropractor. Patterson treated the claimant on a number of occasions through October 20, 1984. Shortly thereafter the claimant went to another chiropractor named Reed. Reed treated him on five occasions in late October 1984.

The claimant testified his condition grew worse. On November 5, 1984, the claimant was admitted to Marion Memorial Hospital under the treatment of Dr. Mannil Ravindranathan, a/k/a Ravin. X rays showed a normal cervical spine. While in the hospital, the claimant was examined by Dr. R.L. Morgan. Morgan diagnosed a cervical strain and recommended cervical traction, analgesics, muscle relaxants, and cervical isometric exercises. The claimant was discharged on November 8, 1984, and prescribed medication and physical therapy. The final diagnosis was a cervical strain.

Ravin referred the claimant to Dr. Carey Campbell in Paducah, Kentucky, who hospitalized the claimant from November 11, 1984, to November 13, 1984. A myelogram was performed. The myelogram revealed a degenerative change with osteophyte formation at the C6-C7 level, with resulting impression on the contrast column. The claimant was diagnosed with C7 radiculopathy. Radiculopathy is a disease process affecting the nerve root; in this case, just above the seventh cervical vertebra. (It should be noted, the record reflects a 1972 spinal fusion at the C5-C6 level.)

The claimant testified Campbell recommended surgery and wanted to do a CAT scan in preparation for the operation. However, the claimant was not able to tolerate the CAT scan procedure. He asked Campbell if he could return home and try bed rest to alleviate his condition. The claimant testified that Campbell agreed. The claimant testified he went back to Campbell seven weeks later. He testified Campbell examined him in the waiting room and told him to seek treatment elsewhere. A report by Campbell dated January 8, 1985, states that Campbell had recommended the claimant remain in the hospital beyond November 13, 1984; however, the claimant refused and left the hospital. In the report, Campbell accused the claimant of “manipulative behavior.” He told the claimant he had no further treatment recommendations at that time.

The claimant returned to Ravin, who referred him to Dr. Kenneth Smith. Smith saw the claimant on four occasions from January 23, 1985, to August 28, 1985. According to Smith’s deposition, he did not view the claimant as a candidate for surgery. He stated the claimant needed to lose weight and exercise. He also recommended the claimant be encouraged to return to work.

The claimant was seen at the employer’s request by Dr. Herbert E. Rosenbaum on May 9, 1985. Rosenbaum found a normal neurological condition; however, he recommended the claimant have a CAT scan to rule out any structural problems in the neck. Rosenbaum examined the claimant again on July 30, 1985. A CAT scan was also conducted that day. Rosenbaum’s report indicates that a problem with the results made it impossible to evaluate the claimant’s condition below the C6 level. Rosenbaum recommended that if the claimant continued to have problems he should have a “definitive” myelogram to determine what further treatment might be necessary.

The claimant underwent physical therapy from September 7, 1985, through October 1,1985.

The record shows Ravin released the claimant for light-duty work on January 14, 1985, and again on October 22, 1985. The claimant testified he returned to the employer, who told him there was no work for him. The claimant also attempted to work for a brief period of time selling advertising space for a newspaper. However, he was unable to continue at this job because of the condition of his back and shoulders.

The claimant’s condition appears to have worsened in late 1985 and early 1986. In January of 1986, Ravin recommended the claimant see Dr. Alan Froehling, an orthopedic surgeon. In March, April, and May of 1986, the claimant was examined by Froehling and on referral by Dr. Pritam Sahni.

The claimant was hospitalized by Froehling for tests on March 10, 1986. The hospital discharge report contains a diagnosis of right C7 radiculopathy. The report recommended continued conservative treatment. The April 12, 1986, report of Sahni recommended continued graduated traction. In his deposition, Froehling stated he strongly recommended surgery; however, he stated that he would defer to Dr. Sahni’s decision. The record was left open by the arbitrator for the submission of Sahni’s opinion. The evidence was never presented.

The employer offered the written opinion of Dr. Rosenbaum, dated May 5, 1986. After reviewing the March 1986 test results, Rosenbaum found no evidence of disc disease. He was of the opinion the claimant could return to work with limitations resulting from the 1972 spinal fusion.

On May 29, 1986, the arbitrator entered a decision on the claimant’s section 19(b — 1) petition. The arbitrator found the claimant had sustained accidental injuries arising out of and in the course of his employment on October 3, 1984. The arbitrator found the claimant was entitled to TTD from November 5, 1984, to January 13, 1985, and from May 9, 1985, to August 8, 1985, a period of 253/z weeks. In addition, the arbitrator found the claimant had chosen chiropractors Patterson and Reed to treat him in October of 1984. The arbitrator found this constituted his two employer-paid treatment choices allowable under section 8(a) of the Act. Therefore, the claimant, and not the employer, was responsible for expenses incurred in the claimant’s treatment by Ravin and the subsequent referrals from Ravin.

On September 17, 1986, the Commission modified the TTD award, finding the claimant was temporarily totally disabled from November 5, 1984, through the date of the May 6, 1986, hearing before the arbitrator, a period of 766Ar weeks. The Commission also found the claimant had seen his first and second choice physicians in October of 1984, and that all subsequent hospitalizations, treatments by Ravin, and referrals were the claimant’s responsibility. The Commission stated the cause was remanded to the arbitrator for further proceedings pursuant to Thomas v. Industrial Comm’n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322, but only after the expiration of the time for filing a petition for summons had expired without a filing, or after the completion of judicial proceedings if such petition were filed. No appeal was taken from the Commission’s decision, and the cause was remanded for further proceedings before the arbitrator.

A second hearing was held on February 16, 1989. The claimant again sought TTD benefits and payment of medical expenses. The parties agreed the hearing concerned matters arising since the May 6, 1986, hearing. The employer conceded that TTD benefits were due and payable from the date of the first hearing through December 11, 1987. The claimant maintained he was entitled to TTD through December 27, 1988.

At the second hearing, the claimant testified that following the Commission’s decision in September of 1986, the employer sent the claimant back to Dr. Rosenbaum. Rosenbaum hospitalized the claimant from October 13, 1986, to October 17, 1986, at Barnes Hospital in St. Louis for tests. A myelogram and EMG were performed. Rosenbaum’s report, dated November 18, 1986, relates the EMG showed no significant changes indicative of nerve damage. Rosenbaum recommended conservative treatment. Because the claimant’s symptoms continued, Rosenbaum recommended a second opinion from a neurologist.

The claimant testified the employer chose Dr. Francis Walker for the claimant’s treatment. The claimant was examined by Walker in June of 1987. Walker reviewed the results of the tests taken at Barnes Hospital in October 1986. Walker recommended intensive physical therapy. The claimant underwent physical therapy from September 7,1987, to November 13,1987.

In a letter dated November 16, 1987, Walker states that the claimant reported his condition had worsened after undergoing the physical therapy. The claimant complained of pain in his neck radiating to the right medial scapular area. He also had pain in his shoulder and down his right arm. Walker did not believe the claimant would benefit from additional surgical procedures. He recommended that the claimant continue treatment with his local physician.

In a letter dated November 30, 1987, Walker stated that based on his last examination of the claimant, he believed the claimant capable of returning to work. However, the claimant would have to limit his lifting and shoulder movements for about three weeks. In a second letter dated December 7, 1987, Walker opined the claimant could return to work as of that date.

Similarly, Rosenbaum released the claimant to return to work on January 28, 1988. In that report, Rosenbaum states, “In my opinion, this man continues to have a normal neurologic examination without any evidence of disorder of the central or peripheral nervous system. What initially may have begun as a strain seems to have persisted at least in the subjective symptoms, the basis of which I cannot determine, nor can I find a neurologic basis that would be evident to disqualify him from his usual work activity ***.”

The claimant attempted to testify as to what Walker and Rosenbaum said to him at their last respective appointments. Following objections by the employer’s counsel, which the arbitrator sustained, the claimant made offers of proof. The arbitrator denied the offers of proof.

The record shows that on March 14, 1988, the claimant was examined by Dr. David R. Lange. On May 25, 1988, Lange performed a right C7 decompression with excision of uncinated spurs and an anterior cervical fusion. The claimant testified he experienced some relief following the surgery. Lange released the claimant on December 27, 1988.

The arbitrator denied TTD benefits after December 11, 1987, based on the opinions of Drs. Walker and Rosenbaum. The arbitrator stated that without reaching the issue of medical necessity, he found the Commission had already ruled on the section 8(a) issue, and therefore, the employer was not responsible for medical treatment other than the expenses incurred in treatment by Rosenbaum and Walker.

On June 4, 1990, the Commission issued a decision finding the claimant was temporarily totally disabled through December 28, 1987, based on the opinions of Rosenbaum and Walker. The Commission noted it had previously found the claimant went beyond the chain of referral from his first two health care choices and, citing res judicata principles, agreed with the arbitrator that under section 8(a) the employer was not liable for medical expenses other than those connected with the treatment by Rosenbaum and Walker. The Commission did not specifically address the arbitrator’s decision to deny admission of the claimant’s testimony concerning statements by Walker and Rosenbaum.

In a summary order, the circuit court of Williamson County confirmed. The claimant brings the instant appeal.

On appeal, the claimant argues the arbitrator and the Commission erred in refusing to admit the claimant’s testimony regarding statements made to the claimant by Rosenbaum and Walker. Although the issue was raised before the Commission, the Commission did not specifically address it. The claimant argues, as he did before the arbitrator, that since the doctors were chosen by the employer, they are agents of the employer. Therefore, the claimant’s testimony was admissible hearsay as admissions against interest. The statements contrast with the written statements of the doctors releasing the claimant to return to work.

The employer contends the Act requires them to provide needed treatment to the claimant. After the first hearing, the claimant had a continuing need for medical care. The employer therefore sent the claimant to Rosenbaum and Walker. The employer argues Rosenbaum and Walker cannot be the employer’s agents since the employer was required to provide medical care. The employer argues that the relationship with the doctors was not voluntary and that it had no choice but to send the claimant to the doctors.

At the hearing, the claimant attempted to testify as to what Walker said the last time he visited Walker’s office. The employer raised a hearsay objection. The arbitrator, finding Walker was not an agent of the employer, sustained the objection. In making an offer of proof, the claimant’s attorney stated, “[I]f the witness were permitted to testify [he would state] that Dr. Walker looked at his papers in his hand, looked at the Petitioner and said, [*]I don’t know why you’re here. I told the insurance company I didn’t want to see you. As far as I’m concerned, I’m not your doctor and you can go and seek treatment wherever you want but I’m done with you.[’] And that he then walked out of the office over to his receptionst [sic] at the entry area, put the file down in front of her and said, [‘]tell them I don’t want to see this man.[’]” The offer of proof was denied.

Under a similar scenario, the claimant’s attorney made the following offer of proof concerning the claimant’s last appointment with Rosenbaum: “[H]e would state that Dr. Rosenbaum discussed the possibility of surgery of the neck and in his opinion, he wouldn’t do it but that he would arrange for him to see some other physician for consultation.”

In support of his contention the testimony was admissible because the doctors were agents of the employer, the claimant cites Nollau Nurseries, Inc. v. Industrial Comm’n (1965), 32 Ill. 2d 190, 204 N.E.2d 745, and Keystone Steel & Wire Co. v. Industrial Comm’n (1969), 42 Ill. 2d 273, 246 N.E.2d 228.

In Nollau, the claimant initially sought treatment from his family physician. The claimant returned to work some six months later and filed an application for adjustment of claim. Thereafter, the compensation carrier referred the claimant to a doctor in St. Louis, who subsequently operated on the claimant. On appeal, the employer contended the claimant was erroneously allowed to testify as to what this doctor told him. The employer also objected to the admission of the doctor’s written report. The Illinois Supreme Court, without discussion or citation to authority, found no error.

In Keystone Steel, the employer challenged the admission of a medical report prepared by a doctor who examined the claimant at the employer’s request but did not furnish treatment. Citing Nollau, the court held the report was properly admitted. The court stated that in Nollau it had upheld the admission of the report on the ground the doctor was an agent of the employer or the insurance company. The court further held the fact the doctor was a nontreating physician was of no consequence.

The case law supports a finding that Rosenbaum and Walker were agents of the employer and that the arbitrator erred in excluding the testimony. However, we also find the offers of proof were insufficient to render the Commission’s decision against the manifest weight of the evidence. The written opinions of Rosenbaum and Walker that the claimant could return to work as of December 1987 are sufficient to support the Commission’s determination. In general, the Commission’s determinations will not be set aside if there is credible evidence in the record to support them. Lyons v. Industrial Comm’n (1983), 96 Ill. 2d 198, 449 N.E.2d 1323.

Additionally, the claimant makes the assertion that Walker and Rosenbaum refused to treat the claimant; therefore, he was entitled to seek further treatment and the employer should be liable for this additional expense. The record discloses that Walker and Rosenbaum did not refuse to treat the claimant. Rosenbaum hospitalized the claimant in October 1986 to conduct a myelogram and EMC to determine the extent of claimant’s problem. After reviewing the results, Rosenbaum recommended physical therapy. Walker concurred in this opinion in June of 1987. Walker then arranged for the claimant to undergo physical therapy in the fall of 1987. After this treatment, Rosenbaum and Walker released the claimant to return to work. There is no basis for the claimant’s contention these doctors refused to treat him.

• 3 The claimant also raises certain factual assertions as grounds for asserting the Commission erred in not awarding expenses connected with Lange’s treatment. He asserted at oral argument that the myelogram used by Rosenbaum in assessing the claimant’s condition was inadequate because it did not show the C6-C7 area. The record shows that a myelogram was conducted at Rosenbaum’s instruction in July of 1985. Unfortunately, this test did not show the claimant’s neck below the C6 level. Rosenbaum noted this problem in his August 1985 report. As mentioned above, a myelogram was again conducted in October of 1986 at Rosenbaum’s direction. There was no problem with this test. Rosenbaum relied on the results of this test in making his evaluation. The record does not support the claimant’s assertion that Rosenbaum relied on the faulty 1985 myelogram in recommending conservative treatment in November of 1986.

The claimant also asserts surgery that was “reasonably required,” and that under such circumstances, section 8(a) should not prevent him from recovering expenses related to Lange’s treatment. Neither the arbitrator nor the Commission reached the issue of medical necessity. The Commission found that in the original section 19(b — 1) decision it determined the claimant had exhausted his two choices of treating physicians allowed him under section 8(a). Thereafter, the claimant had to get the approval of the employer or seek further treatment at his own expense. The claimant took no appeal from this decision, and this finding was binding on him in the subsequent proceedings.

The claimant sought treatment from Lange in March of 1988, after Rosenbaum and Walker released him to return to work. The claimant did not receive approval from the employer for this treatment. The Commission determined that, based on its earlier decision, the employer was not responsible for these costs. We find no error in this conclusion.

The claimant also contends the Commission erred in not awarding TTD for the period from December 28, 1987, to December 28, 1988. Before the arbitrator, the employer agreed the claimant was entitled to TTD through the date of his release by Rosenbaum and Walker. He contends that even though medical benefits are denied on a “third choice basis,” it does not necessarily follow that the claimant is not entitled to TTD. He argues he should receive TTD benefits even though he pursued further care at his own expense.

In connection with this argument, the claimant asserts the Commission, in increasing the TTD award in the initial review, misled him into believing surgery was necessary. The claimant maintains the Commission, in its September 1986 decision, found that the claimant should have surgery and that he relied on this finding in seeking treatment from Lange. Review of the decision finds no support for this claim. The Commission cited the conflicting medical opinions in finding the claimant temporarily totally disabled through the date of the May 6, 1986, hearing before the arbitrator. The Commission’s statements do not amount to a finding that surgery was necessary.

It is primarily the responsibility of the Commission to determine questions of fact, including the nature and extent of the disability, to draw reasonable inferences from the evidence, and to determine the credibility of the witnesses. Van Overmeiren v. Industrial Comm’n (1981), 84 Ill. 2d 374, 418 N.E.2d 714.

We find the Commission’s determination that the claimant was temporarily totally disabled through December 28, 1987, was not against the manifest weight of the evidence. Drs. Rosenbaum and Walker released the claimant to return to work in December of 1987. Based on these releases, the Commission could conclude the claimant was not temporarily totally disabled after that date.

For the forgoing reasons, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    DALLAS RUNION, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Owens-Illinois, Inc., Appellant).
    Fifth District (Industrial Commission Division)
    No. 5 — 92—0019WC
    Opinion filed May 26, 1993.
    Don W. Ward and Joanne Turner Stevenson, both of Pessin, Baird, Belsheim & Wells, of Belleville, for appellant.
    Marsha D. Bronson, of Talbert & Mallon, P.C., of Alton, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employee, Dallas Runion (claimant), filed his claim pursuant to the Illinois Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.) against Owens-Illinois, Inc. (employer). Following a hearing, the arbitrator denied the claim, finding that claimant failed to prove that his illness was caused or aggravated by his employment. The Industrial Commission (Commission) affirmed, but on judicial review, the circuit court reversed and entered judgment in favor of the claimant. The sole issue on appeal is whether the Commission’s decision was against the manifest weight of the evidence. We reverse.

The relevant facts follow. For the 28 years prior to April 30, 1985, his last day of work, claimant had worked as a lathe operator for employer. On March 31, 1982, claimant was admitted to St. Anthony’s Hospital by his wife. Claimant was agitated and very suspicious. He complained of hearing voices and that his room, phone, and car were bugged. Claimant was discharged on April 6, 1982, but he was treated on an outpatient basis by Dr. Chand for about six months. He was released to work on October 11,1982.

Claimant worked without incident for over two years, during which time no psychiatric treatment was sought by claimant. On April 30, 1985, claimant was allegedly accused by his supervisor of causing a lathe to break down. Claimant went on permanent sick leave on that date and began treatment with Dr. Dennis two days later. Dr. Dennis continued treating the claimant for approximately one year.

During this period, on June 28, 1985, claimant was taken to the Alton Mental Health Center by the Madison County sheriff’s department after threatening family members with a gun. He was discharged on July 19, 1985. The final diagnosis was schizophrenia, paranoid type.

Dr. Dennis, claimant’s psychologist, testified that work did not cause his condition. He testified that he relied solely on claimant’s statements to determine what the triggering event to the 1985 psychosis was, but that he would not trust a patient to know what triggered a psychosis. Dr. Dennis concluded that claimant’s perception at work may not have been real.

Dr. Stillings testified on behalf of the employer. Dr. Stillings, as Dr. Dennis, stated that the claimant’s disorder was genetic in origin. As such, this condition was not aggravated by the environment but existed on its own through a biochemical imbalance in the neurotransmitters. That is, claimant’s depressed condition was not aggravated by any alleged events at work, but because of his depressed condition, anything that he perceived at work would invoke the abnormal response.

On August 8, 1990, claimant died of a self-inflicted gunshot wound.

In Pathfinder Co. v. Industrial Comm’n (1976), 62 Ill. 2d 556, 343 N.E.2d 913, the claimant pulled a co-worker’s severed hand from a machine, fainted, and subsequently suffered psychological problems. In upholding the Commission’s award, the supreme court stated that the claimant experienced a sudden, severe emotional shock, which would be the reaction of a person of normal sensibilities who, attempting to aid an injured co-worker, reached in and drew a severed hand from the press. Pathfinder, 62 Ill. 2d at 567, 343 N.E.2d at 919.

The requirement that the psychological problems must be the result of a sudden, severe shock was emphasized in General Motors Parts Division v. Industrial Comm’n (1988), 168 Ill. App. 3d 678, 522 N.E.2d 1260. In General Motors, the claimant sought compensation for psychic injury suffered after his supervisor verbally assaulted him with profane, racial slurs. While the court noted that recovery for mental incapacity resulting from a work-related injury is a compensable injury in Illinois (General Motors, 168 Ill. App. 3d at 685, 522 N.E.2d at 1265), the opinion went on to say:

“[T]he supreme court’s decision in Pathfinder is limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury and is precipitated by an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment.” General Motors, 168 Ill. App. 3d at 687, 522 N.E.2d at 1266.

The court concluded that the claimant “failed to establish the verbal abuse he suffered, albeit unpleasant, was anything other than an ordinary incident of employment which is not uncommon to and might well be encountered in a great many occupations.” General Motors, 168 Ill. App. 3d at 688, 522 N.E.2d at 1266.

In Chicago Board of Education v. Industrial Comm’n (1988), 169 Ill. App. 3d 459, 523 N.E.2d 912, a teacher sought compensation for a mental disorder resulting from verbal and physical assaults by students. In reversing the Commission’s award, the court held that on-the-job stress, of itself, is not a disease. (Chicago Board of Education, 169 Ill. App. 3d at 466, 523 N.E.2d at 917.) “To *** allow compensation for any mental diseases and disorders caused by on-the-job stressful events or conditions would *** open a floodgate for workers who succumb to the everyday pressures of life.” (Chicago Board of Education, 169 Ill. App. 3d at 466, 523 N.E.2d at 917.) Besides being extraordinary, the conditions producing the disability must exist in reality from an objective standpoint, and the conditions must be the major contributory cause of the the mental disorder. Chicago Board of Education, 169 Ill. App. 3d at 468, 523 N.E.2d at 918; see also Board of Education v. Industrial Comm’n (1989), 182 Ill. App. 3d 983, 538 N.E.2d 830.

The most recent case dealing with this issue is City of Springfield v. Industrial Comm’n (1991), 214 Ill. App. 3d 301, 573 N.E.2d 836. In Springfield, the claimant, a fire inspector, testified that his workload, politics, interpretation of rules, and discrimination by supervisors over a four-year period led to stress-related mental disease. In reversing the Commission’s award, we held that because the conditions that the claimant referred to were not unique to the claimant’s employment or to the claimant himself, the claimant did not satisfy the test that would allow the court to find that he suffered an occupational disease. Springfield, 214 Ill. App. 3d at 309, 573 N.E.2d at 842.

In the case sub judice, the claimant seeks compensation under the Workers’ Occupational Diseases Act for the aggravation of his preexisting condition that resulted in his 1985 breakdown. The claimant alleges that the stress of work slowly built up over an 18-month period. He argues that even if the illness was genetic, the issue is whether the conditions in his work environment aggravated his mental illness or accelerated the processes which led to his breakdown in April 1985. Claimant relies on Azzarelli Construction Co. v. Industrial Comm’n (1981), 84 Ill. 2d 262, 418 N.E.2d 722.

Azzarelli is clearly distinguishable from the the case sub judice. In Azzarelli, the claimant sought benefits because he suffered a heart attack while at work. The supreme court’s support for the statement that a claimant’s injury need not be the sole factor that aggravated a preexisting condition, so long as it is “a factor” that contributed to the disability, comes from cases that all dealt with physical injuries at the workplace that resulted in disabilities. (See Azzarelli, 84 Ill. 2d at 267, 418 N.E.2d at 724.) In the case sub judice, we are dealing with a mental disability and therefore a different standard applies.

Recovery for nontraumatically induced mental disease is limited to those who can establish that: (1) the mental disorder arose in a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience; (2) the conditions exist in reality, from an objective standpoint; and (3) the employment conditions, when compared with the nonemployment conditions, were the “major contributory cause” of the mental disorder. Chicago Board of Education, 169 Ill. App. 3d at 468.

In the case sub judice, the factors allegedly contributing to claimant’s schizophrenia (the dual operation, the timed production schedule, and the “scrap” policy) were the same for every employee. The employer notes that there was no disciplinary action taken regarding the machine that broke down. In fact, a supervisor, Dewey, and the Industrial Relations Director, Bailey, both testified that they heard nothing of the incident, and the claimant’s foreman, Moseby, never acted in the manner consistent with claimant’s statement. (Moseby passed away before the hearing.)

In essence, the claimant has not shown that the pressure to not produce scrap, a closely timed production schedule, or a change to a new machine were conditions that were extraordinary to his employment. Furthermore, according to both doctors, claimant’s perception of events may not have existed in reality. Finally, there were family conditions in evidence which could have caused the Commission to view the events at work, if they happened at all, as not a major contributory cause of the mental disorder.

In conclusion, the Commission’s finding that claimant’s psychosis was not a compensable illness under the Workers’ Occupational Diseases Act was not against the weight of the evidence. In addition, the contention that the claimant’s psychosis was aggravated by stress in the work place is not proper as a matter of law.

Accordingly, the order of the circuit court is reversed.

Reversed.

McCULLOUGH, Ed., and WOODWARD, STOUDER, and RARICK, JJ., concur.


author: JUSTICE GOLDENHERSH LEWIS, J.,

text:
    CARBONDALE CONVENTION CENTER, INC., et al., Plaintiffs-Appellees, v. THE CITY OF CARBONDALE, Defendant-Appellee (Illinois Press Association et al., Interveners-Appellants).
    Fifth District
    No. 5 — 92—0143
    Opinion filed May 27, 1993.

      LEWIS, J., specially concurring.
    Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant Illinois Press Association.
    Michael L. Wepsiec, City Attorney, of Carbondale, for appellee City of Carbondale.
    Charles C. Hines, of Carbondale, for other appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Carbondale Convention Center, Inc., brought this action against defendant, City of Carbondale, for breach of contract. The parties agreed to settle the matter on August 17, 1990, and sought an order of dismissal from the trial court. On September 6, 1990, the Southern Illinoisan newspaper in Carbondale requested a copy of the settlement agreement. On September 19, 1990, the trial court entered an order of dismissal which contained the following provision at the request of the parties:

“It is the further Order of this Court that neither the parties to this litigation, nor their agents, representatives, employees, successors or assigns may disclose to anyone the terms or conditions constituting the resolution of the dispute between the parties.”

After the order was entered, defendant denied the Southern Illinoisan’s request under the Freedom of Information Act (the Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.), relying on the court’s order as the basis for its denial. On October 18, 1990, the Illinois Press Association, the Southern Illinoisan newspaper, and Tracy James, a reporter for the Southern Illinoisan, filed a petition to intervene. The trial court granted their petition, and the intervenors then filed a complaint in intervention, requesting that the gag order be vacated and requesting production of the settlement agreement pursuant to the Act. Both plaintiff and defendant moved to dismiss the complaint in intervention. On June 19, 1991, the trial court granted the motion to dismiss, finding that the gag order was entered at the request of the parties and that section 7(l)(bb) of the Act exempts the settlement agreement, from disclosure. (Ill. Rev. Stat. 1989, ch. 116, par. 207(l)(bb).) The issues on appeal are: (1) whether the Act requires release of settlement documents; and (2) whether the gag order is unconstitutional. We reverse and remand.

The first question we will address is whether the Act mandates defendant to release the documents regarding the settlement agreement between plaintiff and defendant. Defendant does not contend that the Act does not apply to it. Section 1 of the Act provides, in pertinent part:

“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.)

There is a presumption that public records be open and accessible, subject only to exemptions that are to be narrowly construed. (Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559.) Although section 7 of the Act provides an extensive list of exemptions to disclosure, the burden of proof is on the governmental agency to establish that the documents in question are exempt from disclosure. (Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113.) “To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.” (Emphasis in original.) (192 Ill. App. 3d at 537, 548 N.E.2d at 1114.) Defendant denied the interveners’ request just after the trial court entered the gag order, citing section 7(lXa) as an applicable exemption to the Act. That section provides:

“(1) The following shall be exempt from inspection and copying:
(a) Information specifically prohibited from disclosure by Federal or State law or rules and regulations adopted pursuant thereto.” Ill. Rev. Stat. 1989, ch. 116, par. 207(lXa).

Defendant asserts that the trial court’s dismissal order strictly prohibits defendant from disclosing the terms or conditions of the settlement agreement, and that such an order constitutes State law. Assuming for purposes of this argument and without so holding that such an order is a “State law,” we find this position incompatible with the intent of the Act. In the case at bar, defendant requested the court to impose the gag order. Therefore, the “State law” defendant asserts as exempting disclosure of the agreement exists, in part, as a result of defendant’s efforts to prevent disclosure of the agreement. Since such an action contradicts the purpose and intent of the Act under which the exemptions are intended as shields rather than swords, we hold section 7(l)(a) does not apply as a possible exemption in this case.

Defendant states in a supplemental memorandum in support of its motion to dismiss and/or strike complaint of intervention that sections 7(l)(b) and 7(l)(bb) of the Act are applicable exemptions to its disclosure of the settlement documents. Section 7 reads as follows, in pertinent parts:

“§7. (1) The following shall be exempt from inspection and copying:
(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy ***.
(bb) Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.’’ (Ill. Rev. Stat. 1989, ch. 116, pars. 207(lXb), (lXbb).)

Defendant did not support these assertions with any affidavits or proof of any kind, however, and did not provide a detailed justification for its claim of exemption. Defendant therefore failed to meet its burden of proof that either exemption applies. Accordingly, the trial court erred in finding that section 7(l)(bb) exempts defendant from disclosing the settlement documents. Whether section 7(l)(bb) or any other exemption applies to this matter must be proven by defendant with more than just an assertion. Dismissal of intervenors’ complaint was in error, and we hereby reverse the trial court’s order and remand this cause to the trial court for a hearing to determine whether defendant is exempted from providing intervenors the information they seek under the Act.

Since we have resolved this appeal on the basis of the Act, we need hot address the constitutionality of the gag order.

For the foregoing reasons, the order of the circuit court of Jackson County dismissing intervenors’ complaint is reversed, and the cause is remanded for a hearing.

Reversed and remanded.

MAAG, J., concurs.

LEWIS, J.,

specially concurring:

While I agree with the majority that the Freedom of Information Act (the Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.) should be available to a government only as a shield from requests for information from the citizenry rather than to be used as a sword by the government to block legitimate requests for information, I believe that we should construe section 7(lXa) and answer the City of Carbon-dale’s assertion that the gag order is “State law,” and thus information prohibited to be disclosed by the gag order is exempt under the Act.

Further, one might misinterpret the majority opinion as saying that a government cannot make any effort in court to prevent disclosure of information that is shielded by the Act or else such information would become nonexempt. I am sure that the majority opinion is not intended to prohibit a government from actively defending and legitimately shielding itself from disclosure of information exempted under the Act.

The city argues that Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d Ill, 371 N.E.2d 373, holds that court orders are law and thus become “State law” under the Act. Debolt might correctly hold that court orders are law, but it takes a giant leap in logic to conclude that the legislature intended under section 7(lXa) of the Act that court orders were the type of “State law” the legislature had in mind. Debolt points out: “[W]e do not deem the making of law by judicial decree to be a desirable practice per se but should be limited to instances when humanitarian needs dictate the necessity of judicial action or when legislative bodies for an unreasonably long time refuse to enact statutory law for the purpose of coping with an enduring and festering problem.” (Debolt v. Mutual of Omaha, 56 Ill. App. 3d at 116-17, 371 N.E.2d at 378.) It is difficult to comprehend how the need for and the creation of the torts of intentional infliction of severe emotional distress or retaliatory discharge by the courts would justify the transmutation of improper gag orders into “State law,” thereby becoming an exemption under the Freedom of Information Act.

The city’s argument leads to a variation of the Catch 22 situation: The city requests a gag order to prohibit a citizen from validly obtaining information. The trial judge protests and says that such an order is improper and illegal under the Act. The city attorney then tells the judge: “All you have to do to make the order legal is to sign the order and your improper and illegal order becomes ‘State law’ and legal.” If one were to carry this argument to the extreme, all information regarding the affairs of government would be legally exempt from disclosure as long as the government could find a judge to sign an order prohibiting disclosure.

Finally, the city’s argument prevents review by the appellate courts as to the correctness of the trial judge issuing the gag order in the first instance. If the gag order is “State law,” how could this court invalidate the law (excluding constitutional grounds) regardless of how wrong the law or court order may be? The Act is very clear that information specifically prohibited by Federal or State law is exempted and thus the appellate courts would be at a loss for grounds to overturn a “State law.”

The legislature would surely be surprised to learn that every time a statute contained the words “State law” it included all trial court orders construing such. If we were to follow the city’s reasoning, the legislature would have to make a specific exclusion of court orders every time it used the words “State law”; otherwise, the courts could rewrite the legislation any way the courts deemed best. I am sure that the relations between the judiciary and the legislature would not be ameliorated by such a ruling.

Our holding should be that “State law” as used in section 7(l)(a) of the Act does not include court gag orders.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH URSINI, Defendant-Appellee.
    Second District
    No. 2 — 92—0633
    Opinion filed May 26, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Anthony E Mannina, of Wheaton, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

The State appeals the order of the circuit court suppressing evidence the State secured against defendant, Joseph Ursini. While the State does not contest the trial court’s finding that the search of defendant’s car was unreasonable, the State argues that the evidence would have been inevitably discovered during the subsequent inventory search. We affirm.

Defendant was arrested on October 14, 1991, and charged with possessing lysergic acid diethylamide (LSD) with the intent to deliver (Ill. Rev. Stat. 1991, ch. 5Q1k, par. 1401(a)(7)), driving with a suspended license, and driving with a defective taillight (Ill. Rev. Stat. 1991, ch. 951/2, pars. 6 — 303(a), 12 — 201(b)). He brought a motion to suppress the evidence discovered when the police searched his car.

Defendant, who lived in West Chicago, testified that he was driving north on Highway 59 in Du Page County when he saw flashing lights behind him. Officer Bernard Keegan of the Naperville police department stopped the car because a taillight was not working. Defendant pulled his car off the road and onto the shoulder. He left his keys in the ignition and walked towards the officer. The officer had checked the status of the driver’s license of the registered owner of the car and determined that the owner’s driver’s license had been suspended. When the officer told defendant that fact, defendant protested that he had corrected the suspension in court. Defendant testified he pulled his license out of his wallet, which was in his coat’s breast pocket. Officer Keegan testified contrarily that defendant returned to the car and fished along the front seat to find his license. As defendant searched, Keegan saw a glass pipe by the armrest in the center of the front seat; the pipe was of the kind often used to smoke marijuana. Officer Bill Davis then entered the passenger compartment and seized the pipe. Keegan arrested defendant, and other officers searched the backseat and trunk. They found a cardboard and foil tube in the backseat and a pharmaceutically folded piece of paper in the trunk. They also performed an inventory search.

The trial court determined that defendant’s story that the driver’s license was in his wallet on his person was more credible than the officer’s account that the license was in the car. Thus, the officer had no authority to be in the car or to find the pipe, even if the sight of the pipe alone could create probable cause to suspect the presence of contraband. The officers then did not have probable cause to search the trunk where the LSD paper was found, and the trial court granted defendant’s motion to suppress the evidence.

The prosecutor argued in the alternative that the evidence would have been inevitably discovered when the officers performed the inventory of the contents of the car. Officer Keegan testified that he was familiar with the policy of the Naperville police department for towing vehicles. He orally related that the policy was “vehicles that are involved in an arrest situation are towed by department policy as opposed to leaving them unsecured.” He also stated there were limited exceptions, such as when the owner gave permission for a licensed passenger to drive the car; however, defendant was alone that evening. Keegan completed an inventory form, which was a checklist of various compartments of a car, of ordinary items that could be found in cars, and of the condition of the various parts of the car. The car was towed by a private company to a private service station. The checklist included the spaces under the hood and trunk of the car. We note here the State has not objected to defendant’s supplementation of the record with the trial exhibit of the checklist even though defendant has not requested leave of court to do so; the State relies on the exhibit for its statement of facts.

Keegan specifically testified that the purpose of entering the trunk was to search for additional contraband. At that point, the officers were not conducting the inventory search. However, Keegan denied that the items were removed before he made a decision to tow the vehicle. Keegan admitted that defendant’s car was completely off the road. Keegan stated that defendant was “basically under arrest” once the officers determined that the registered owner of the car was operating the vehicle, although they never told him he was under arrest until they found the pipe. They did not ask defendant’s permission to search the car. The officers did not know if the arrest occurred in Naperville, Warrenville, or unincorporated Du Page County.

When the prosecutor asked for a ruling on the inventory search, the trial court stated that it did not believe that a proper inventory search could relate back to cure an unreasonable search. The court stated that, with respect to a previous unlawful search, the inventory could not legitimize the search as a matter of law. The State appeals.

The inevitable discovery doctrine is an exception to the exclusionary rule, which prohibits illegally seized evidence from being used at a criminal trial. (People v. Edwards (1991), 144 Ill. 2d 108, 143.) Evidence seized in violation of a constitutional right may be admitted if the prosecution is able to show that the police would have inevitably discovered the evidence without reference to the police misconduct. Nix v. Williams (1984), 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511; Edwards, 144 Ill. 2d at 142; People v. Zurawski (1992), 234 Ill. App. 3d 418, 427.

To prevail on the inevitable discovery doctrine, the State must show that the inventory search which occurred immediately after the search for contraband was proper by itself and that the officers intended on removing the car based on the traffic violation alone prior to the discovery of the alleged contraband.

In determining whether an inventory search is proper and reasonable, the threshold question is whether the prior impoundment was proper since the need and justification for the inventory arises from the impoundment. (People v. Schultz (1981), 93 Ill. App. 3d 1071, 1075.) It is beyond challenge that the police have authority to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience. (South Dakota v. Opperman (1976), 428 U.S. 364, 369, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3097; Schultz, 93 Ill. App. 3d at 1076.) This authority arises from the police department’s “community caretaking functions.” (Opperman, 428 U.S. at 368, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097.) The fact that the arrestee’s car would be left unattended is not a sufficient reason for impoundment (Schultz, 93 Ill. App. 3d at 1076), unless the vehicle would be illegally parked. Opperman, 428 U.S. at 369, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097; see People v. Braasch (1984), 122 Ill. App. 3d 747, 753.

The reasons for conducting an inventory search are threefold: (1) the protection of the vehicle owner’s property which may be inside the vehicle; (2) the protection of the police against unfounded claims by the owner that items have been stolen from the vehicle during the time the car was impounded; and (3) the protection of the police from potential danger. (Illinois v. Lafayette (1983), 462 U.S. 640, 646, 77 L. Ed. 2d 65, 71, 103 S. Ct. 2605, 2609; Opperman, 428 U.S. at 369, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097; People v. Clark (1976), 65 Ill. 2d 169, 174; Braasch, 122 Ill. App. 3d at 751.) For a customary inventory search to be deemed reasonable, it must further these three objectives. (People v. Bayles (1980), 82 Ill. 2d 128, 140-41.) While the reasonableness of any particular governmental activity does not necessarily depend on the existence of less intrusive alternative means (Lafayette, 462 U.S. at 647, 77 L. Ed. 2d at 71-72, 103 S. Ct. at 2610), as long as the police regulations relating to inventory procedures are reasonable and administered in good faith, the search satisfies the fourth amendment even though courts might, as a matter of hindsight, be able to devise equally reasonable rules requiring a different procedure (Colorado v. Bertine (1987), 479 U.S. 367, 374, 93 L. Ed. 2d 739, 747, 107 S. Ct. 738, 742).

The United States Supreme Court emphasized that inventories must be conducted pursuant to standardized criteria. (Bertine, 479 U.S. at 374, 93 L. Ed. 2d at 747, 107 S. Ct. at 742.) A protective search must be conducted in accordance with standardized procedures to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function. (Opperman, 428 U.S. at 375, 49 L. Ed. 2d at 1008, 96 S. Ct. at 3100; People v. Ocon (1991), 221 Ill. App. 3d 311, 313.) However, the mere existence of a police regulation to inventory all towed vehicles or to authorize the search of all vehicles of arrested persons when the vehicle is not parked on the owner’s property will not conclusively make an inventory search reasonable. Braasch, 122 Ill. App. 3d at 752; People v. Wetherbe (1984), 122 Ill. App. 3d 654, 659.

While Illinois’ courts have found some inventory searches unreasonable because less intrusive means existed, the rulings occurred where there was actual proof that less intrusive means did exist or where the police had no responsibility for the car or its contents. Compare People v. Velleff (1981), 94 Ill. App. 3d 820, 823 (no showing that the defendant consented to the police taking custody or that companion could not have driven vehicle); People v. Valdez (1980), 81 Ill. App. 3d 25, 29 (since car was legally parked in motel parking lot, police had no grounds to move it); People v. Fox (1978), 62 Ill. App. 3d 854, 856 (passenger could have moved vehicle); People v. Brown (1981), 100 Ill. App. 3d 57, 64 (police had no responsibility over vehicle because it was legally parked on street), with Braaseh, 122 Ill. App. 3d at 754 (no evidence that the defendant could contact someone to come to the location within a reasonable time to move the vehicle), and People v. Ruffolo (1978), 64 Ill. App. 3d 151, 158 (the defendant was not the owner of car and true owner could not be contacted). See also 3 W. LaFave, Search & Seizure §7.3(c), at 89-91 (2d ed. 1987).

Defendant contends that the inventory was a sham to cover the previous unreasonable search (see Wetherbe, 122 Ill. App. 3d at 659; People v. Reincke (1980), 84 Ill. App. 3d 222, 225), that the police did not have the right to do an inventory because they did not have custody of the car as it was privately towed, and that the scope of the search and the authority to order a tow exceeded the provisions of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1991, ch. 95V2, pars. 4 — 204, 4 — 203).

In this cause, the State had the burden of proving that its warrantless search of defendant’s car was reasonable. (People v. Spann (1992), 237 Ill. App. 3d 705, 708.) In reviewing a trial court’s motion to suppress evidence, the court’s findings will not be disturbed unless they are manifestly erroneous, but where neither the facts nor the credibility of the witnesses is in dispute, the question is a legal one subject to de novo review. (People v. Froio (1990), 198 Ill. App. 3d 116, 120.) Here, we accept the trial court’s determination that defendant was a more credible witness than the officers. However, we may review the trial court’s application of the law to the facts under de novo review. The State notes that the trial court did not rule that the inventory was a sham or make any ruling on the validity of the inventory search.

We do not believe the State met its burden of proving the reasonableness of the inventory search. The State presented no evidence of the inventory/search policy other than the rendition by Officer Keegan, whom the trial court did not find credible. Keegan directly admitted that the reason the officers searched the trunk was to look for contraband, although he claimed that the decision to do an inventory was formed before the discovery of the pipe. This claim is not credible because the officer claimed that he did not decide to arrest defendant until the officer ascertained the driver’s identity, which Keegan stated did not occur until defendant showed his license, which Keegan said was on the front seat with the pipe. The police could not tow the car unless the sole driver was arrested. Thus, Keegan’s recitation of the Naperville policy is less credible even if the alleged terms of the policy are reasonable.

Defendant argues that the police were not authorized to inventory the car because they never had custody of it. The police had a private tow truck take the car to a private lot. One purpose of an inventory is to protect the police against claims of lost or stolen property while the car is in their custody. (Opperman, 428 U.S. at 369, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097; Wetherbe, 122 Ill. App. 3d at 659.) Since the police did not take custody of the car, defendant argues the rationale for allowing the warrantless search is missing.

Defendant also argues that if the police do authorize the removal of a car, the Illinois Vehicle Code permits them only to record the color, year, manufacturer, model, style, vehicle identification number, license plate information, date, time, location and reason for the tow. (Ill. Rev. Stat. 1991, ch. 95V2, par. 4 — 204.) The Code does not authorize a search of the car’s interior. Defendant also argues that when a vehicle is abandoned or left unattended, it may be removed by a towing service only when it was been left for 10 hours in an urban district or 24 hours outside an urban district. (Ill. Rev. Stat. 1991, ch. 951/2, pars. 4 — 203(b), (e).) The State did not argue that the shoulder of Highway, 59 is an expressway where parking is prohibited. (See Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 1303; Braasch, 122 Ill. App. 3d at 753.) Both defendant and Keegan testified that the car was completely off the road, and neither witness said the car was an obstruction to traffic or the car was in danger of being vandalized. The State has not replied to the defendant’s arguments that the inventory was not authorized because of lack of custody, because of exceeding the scope of section 4 — 204, or because the car was not left unattended the requisite time.

In People v. Alewelt (1991), 217 Ill. App. 3d 578, 581, the court determined that the police officer who conducted the inventory was not a credible witness and had made a pretextual search for contraband. Alewelt noted that the officer did not follow the directives of the Vehicle Code by waiting two hours before authorizing the tow for the car left on the interstate highway. However, we do not read Ale-welt as ruling that the officer’s actions violated section 4 — 203; rather, the discussion appears in the section of the opinion concerning his credibility. In Braasch, this court noted that section 11 — 1302(c)(3) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 1302(c)(3)) authorized the removal of a car in some circumstances when the driver is arrested. (See Braasch, 122 Ill. App. 3d at 753.) Thus, we consider any alleged violation of waiting periods of section 4 — 203 merely to reflect on Officer Keegan’s credibility.

Based on the above analysis, we do not believe the State satisfied its burden of proving that the police officers would have authorized the tow of the car based solely on defendant’s failure to have a valid license and without reference to the illegal search of the car. The State did not prove it was reasonable to inventory a car which it did not take into its custody, was not in danger, and was not obstructing traffic. Thus, the State did not prove that the officers would have inevitably found the LSD paper in the trunk had they not illegally entered it.

Because the State cannot prevail on its argument that the inventory search was reasonable, we need not decide whether an inventory search can be used under the inevitable discovery doctrine. While a search made on a pretext need not be suppressed if the search is objectively reasonable (Ocon, 221 Ill. App. 3d at 314), we do not decide that the inevitable discovery rule could apply to inventory searches. Because the State has not met its burden of establishing the reasonableness of the search anyway, we do not need to reach the question.

For the above reasons, the order of the circuit court is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.