author: JUSTICE GOLDENHERSH CHIEF JUSTICE RYAN,

text:
    (No. 55257.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Excel Norwood, Appellee).

      Opinion filed November 18, 1982.

      RYAN, C.J., dissenting.

      Patricia J. Whitten and Michael J. Murray, of Chicago (Reginald D. Taylor, of counsel), for appellant.
    Leo F. Alt, of Chicago, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Excel Norwood, suffered accidental injuries arising out of and in the course of his employment by respondent, the board of education of the city of Chicago, and awarded petitioner worker’s compensation for temporary total disability for 426/t weeks, and for permanent and complete loss of use of the right leg to the extent of 17V2%. Petitioner was also awarded $466 for necessary medical and hospital services. On review the Industrial Commission affirmed the award of the arbitrator, and finding that respondent, without just and good cause, refused payment of weekly compensation benefits for the period of temporary total disability, awarded petitioner the additional sum of $2,500, the statutory maximum, pursuant to section 19(l) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(l). The Commission also found that respondent unreasonably and vexatiously delayed payment of compensation for the entire period of temporary total incapacity and, pursuant to section 19(k) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)), assessed a penalty in the amount of 50% of the compensation award payable during that period. Pursuant to section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) it also awarded petitioner attorney fees in the amount of 20% of compensation awarded under sections 8(b), 19(l) and 19(k). Respondent sought certiorari in the circuit court of Cook County. The circuit court confirmed the award of the Industrial Commission and respondent appealed. 73 Ill. 2d R. 302(a).

Petitioner was employed by respondent as a custodial worker at Gompers School. On May 1, 1979, while mopping a girls’ washroom, petitioner was struck by a swinging door. The impact caused petitioner to bump his right knee against an adjacent wall. Petitioner testified that he experienced pain in his knee but completed the remaining one-half hour of his shift. The next day petitioner contacted the engineer-custodian, Mr. Pierece, and reported the accident to him. Two or three days after the accident petitioner filled out an accident report. On May 3, petitioner went to see his personal physician, who prescribed pain pills. On May 6, 1979, he was admitted into Woodlawn Hospital and remained there for five days. The hospital admission form indicates that the initial diagnosis was “severe right knee strain” and “bronchitis.” While at the hospital petitioner was treated for bronchitis, hypertension, and the knee injury. The hospital records indicate that pain killers were prescribed by the hospital’s physicians for the pain in petitioner’s knee and that he underwent physical therapy. Petitioner continued his physical therapy on an out-patient basis, and his personal physician recommended that he use a cane to aid him while walking. On July 7, 1979, petitioner attempted to return to work. The engineer-custodian, Mr. Pierece, told petitioner to report “downtown” to be examined by a physician. Petitioner testified that he was given a blood pressure test, had his heart checked through the use of a stethoscope, and had his knee checked. He was then told that he was not released to go back to work. On cross-examination, respondent’s attorney asked petitioner if he knew why the respondent’s doctor would not let him go back to work. Petitioner testified, “*** he said my blood pressure is up too high plus my knee isn’t well yet ***.” The examining physician was not called as a witness.

In November 1979, petitioner went to the Veterans Administration Hospital. He was scheduled to see an orthopedic surgeon, whom he saw early in December. He was given pain pills and antibiotics, and a rehabilitation program was set up for him. Also while at the V.A. hospital, the hospital staff discovered petitioner was holding his cane in the wrong hand, and he was taught to use a cane with the proper hand. Petitioner was told that if the swelling did not go away, surgery might have to be performed on his knee.

On February 25, 1980, petitioner saw another physician at respondent’s downtown office. This doctor concluded that petitioner was ready to go back to work, but that he should avoid walking up and down stairs and all unnecessary similar activities.

A report by Dr. Leo Frederick Miller, dated October 31, 1979, was offered by the parties as a joint exhibit. This report had been sent to the attention of respondent’s law department. One of the findings was that petitioner exhibited an internal derangement symptom complex that would require an arthrographic study and if that study turned out positivé, the report recommended an arthroscopic examination and a possible surgical procedure. The report noted that the procedure had not been authorized because respondent’s liability for the injury had not been determined. It concluded with the recommendation that if a causal relationship was established between the injury received on May 1, 1979, and the internal derangement symptom complex, the appropriate measures should be taken by the board.

Respondent contends that the Industrial Commission’s imposition of penalties was contrary to the manifest weight of the evidence. Citing Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, respondent argues that no penalties may be imposed for delay in payment of compensation where an employer in good faith challenges its liability for such payments. Respondent asserts that whether or not the accident occurred, the causal connection between the accident and the injuries received, and the period of temporary total disability were all placed in issue at the hearing on arbitration. Respondent notes that there were no witnesses to the occurrence on May 1, and that petitioner did not seek medical attention for his knee until two days after the occurrence. Respondent notes, too, that, while hospitalized, petitioner was treated for hypertension and bronchitis, which were in no way related to the alleged knee injury.

An employer’s good-faith challenge to liability ordinarily will not subject it to penalties under the Workmen’s Compensation Act. (Chicago Transit Authority v. Industrial Com. (1981), 86 Ill. 2d 101, 105; Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 304.) The question whether an employer’s conduct justifies the imposition of penalties is a factual question for the Commission. The employer’s conduct is considered in terms of reasonableness, and the Commission’s determination on this issue will not be disturbed unless it is against the manifest weight of the evidence. McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198, 209; Keystone Steel & Wire Co. v. Industrial Com. (1981), 85 Ill. 2d 178; Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 302-04.

On this record we cannot say that the Commission’s findings that the failure to pay compensation was “without just and good cause” and that the delay was “unreasonable and vexatious” were against the manifest weight of the evidence. The record indicates that petitioner reported his injury to his supervisor the day following the accident. He saw a physician the next day. While respondent now contends that it vigorously contested the occurrence of the accident, it offered no testimony before either the arbitrator or the Industrial Commission. Respondent’s attorney’s cross-examination of petitioner attempted to show that his failure to return to work resulted from health problems other than the knee injury. Respondent did not call its own physician before either the arbitrator or the Commission to dispute petitioner’s statement that the doctor refused to let him return to work because his knee had not healed. Respondent also suggests that the hospital records clearly show that when he was first placed in the hospital petitioner was being treated for bronchitis and hypertension. While this is true, it is also true that the hospital records clearly indicate a diagnosed knee condition and treatment for that condition. An employer is not justified in refusing payment on the basis that the employee is being treated for an independent health problem at the same time he is being treated for a work-related accident. While other inferences may be drawn, the reasonable inferences drawn by the Commission from the evidence will not be disregarded simply because this court might have drawn other inferences. Schoonover v. Industrial Com. (1981), 86 Ill. 2d 321, 326.

Citing Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, respondent contends that penalties may not be imposed pursuant to section 19(k) of the Workmen’s Compensation Act before there has been a final award by the Commission. This contention was considered and rejected in McKay Plating Co. (91 Ill. 2d 198, 208-09).

For reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

CHIEF JUSTICE RYAN,

dissenting:

Here, as in Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, it appears that penalties under section 19(k) and section 19(l) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), 138.19(l) were awarded for the same delay in making payments of an award for temporary total disability. This court noted in Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, that the provisions for penalties under both section 19(k) and section 19(l) are premised upon an award in favor of an employee and an unreasonable delay in payment of the award. As in my dissent in Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, I again state that I think it is imperative that the legislature reconsider the various penalty provisions of the Workers’ Compensation Act and clarify their applicability.

Although, as noted above, this court has held that it is necessary that there be an award before a penalty be assessed under either section discussed herein, I think there is language in both sections which indicates that the unreasonable failure to pay temporary total disability benefits when due, even before the arbitrator has made an award, may be grounds for assessing penalties. Without attempting to establish the historical reason for the apparent overlapping of these two sections, it may be noted that section 19(l) was not added to the Act until 1975. Prior to that time, this court had held that a proceeding under section 19(k) could be had only after an award had become final. (Board of Education v. Industrial Com. (1932), 351 Ill. 128, 131.) It may be that the legislature, by adding section 19(l) in 1975, was trying to say that penalties should be assessed for nonpayment of temporary total disability compensation prior to an award. However, the Board of Education construction of section 19(k) was followed in subsequent cases and, as indicated above in Brinkmann, was carried over and applied to section 19(l) after its adoption.

I believe that penalties should be available and should be awarded, even in the absence of a previous award, when there is an unreasonable or vexatious delay in making disability payments. If an employee is clearly entitled to temporary total disability benefits, his right to receive penalties for an unreasonable refusal to pay should not depend upon a prior award of temporary total disability benefits by the arbitrator. I can appreciate the fact that the injured employee’s living expenses continue even though he may not be working.

It must be remembered, however, that the General Assembly has seen fit to structure our workers’ compensation act in the nature of an adversary proceeding. (For a discussion of compensation acts that are not adversary, see Popkin, The Effect Of Representation In Nonadversary Proceedings—A Study Of Three Disability Programs, 62 Cornell L. Rev. 989 (1977) (discussing proceedings under the Federal Employees’ Compensation Act, as well as other Federal acts); O’Leary, The Ontario System: Non-Adversary Workmen’s Compensation, 9 Trial 33 (1973) (discussing the Ontario Compensation Act).) A strict application of the penalty provisions of our act, however, may effectively destroy the adversary nature of the proceedings and lead to a reduction of or limitation on the participation of attorneys.

Formerly, the Industrial Commission and this court permitted recovery of penalties in only a very limited number of cases. Recently, however, the number of cases we review wherein the Industrial Commission has awarded penalties under sections 19(k) and 19(l) has been substantially increased, and this court, relying on the time-worn deference to the Industrial Commission, has upheld these awards.

Obviously, there has been a change in policy on the Industrial Commission. Such a change in policy may be administratively an effective way of coercing payments, curtailing appeals, and thus reducing the case load of the Industrial Commission. It must be remembered, however, that penalties must be assessed on the basis of unreasonable or vexatious delay, which depends on the manifest weight of the evidence present in a case, and is not determined by a change in policy on the Industrial Commission.

It now appears that we have reached the point where the employer can contest the payment of temporary total disability benefits only at the peril of being substantially penalized for doing so. The opinion in this case holds that the employer’s conduct is to be “considered in terms of reasonableness.” (93 Ill. 2d at 25.) In Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 9, the majority defines the test as one of “objective reasonableness.” These two opinions confer on the Industrial Commission substantial discretion in determining whether or not penalties should be imposed. Given the present climate to penalize employers that now prevails on the Industrial Commission, as demonstrated by the recent cases that have come to this court, I fear that the adversary system has been substantially curtailed, at least insofar as the employer is concerned.

It has been charged that, in recent years, this court has indulged in such an expansive interpretation of the Act as to make employers “virtual insurers of their employees’ general health and welfare.” (Kinzie, Nyhan, Workers’ Compensation: A System In Need, 30 DePaul L. Rev. 347, 359 (1981).) It would appear that the change of policy on the Industrial Commission which restricts the employers’ right to contest the employees’ claims, and this court’s deference to the Commission’s assessment of penalties, justifies this accusation. A proceeding under the Workers’ Compensation Act has come to resemble a baseball game wherein only the employee is permitted to bat and the employer may have no fielders.

In this case the employee was hospitalized for bronchitis and hypertension, as well as treatment for his injured knee. When he later had a physical examination, he was not permitted to return to work. One of the reasons for not being able to do so was that his blood pressure was too high. I am not saying that a temporary total disability award in favor of the employee was not justified under the facts of this case. I maintain, however, that under these facts, the employer certainly had a right to contest the claim and the assessment of penalties for an unreasonable or vexatious delay in making payments is, in my opinion, clearly contrary to the manifest weight of the evidence.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 55830.
    O’NEAL BROTHERS CONSTRUCTION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Floyd Barbee, Appellee).

      Opinion filed November 18, 1982.

      Cohn, Lambert & Ryan, Ltd., of Chicago (Michael R. Schneider, of counsel), for appellant.
    James C. Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Vermilion County confirming an Industrial Commission award of disability benefits, penalties and attorney fees for an accident allegedly suffered by Floyd Barbee while at work on May 10, 1979. We affirm the circuit court as to the award but reverse as to the penalties and attorney fees.

Barbee operated bulldozers, cranes and earth-moving equipment for O’Neal Brothers, a construction company. Prior to 1977 he had had surgery on his right knee and had an osteoarthritic condition that caused spur formations to form in the lumbar and lower thoracic region of the spine, causing intermittent pain both there and in his knees. He had been working largely free of pain for several years when on January 4, 1977, the bulldozer which he was using to break frost at a construction site settled suddenly, and according to Barbee’s testimony he struck his back and both knees against the seat and dashboard of the machinery. He felt something pop and commenced feeling pain in his back. He went home that afternoon complaining of great pain in his neck, back and knees, took pain pills, and visited Dr. Mehdi Adeli eight days later when the pain failed to subside. An operation on his knee in February 1977 relieved most of the symptoms there. Dr. Adeli placed him in a back brace for five months and a cast for two months, and prescribed bed rest and continuous medication for pain. Barbee was off work from the day of the accident until the last week of June 1977, when Dr. Adeli released him for work. He resumed operating bulldozers but felt pain frequently, the pain sometimes being so severe that he needed to hold the side of the bulldozer when dismounting from it.

On November 13, 1978, Barbee felt a sudden severe pain down the middle of his back and in his tailbone and hips while rolling a 200-pound spool onto a crane base. This time he visited Dr. Bipin Bavishi, who diagnosed a pinched nerve in the right lumbar region along with arthritis-related tenderness of the lumbar vertebrae. He placed Barbee in a corset and recommended therapy in the form of hot packs and ultrasound, but discouraged him from returning to work. Barbee left work and visited Dr. Bavishi on an outpatient basis three times between his first visit and February 23, 1979, at each of which visits he reported some continuing pain. At each visit Dr. Bavishi had Barbee perform flexion and leg-raising exercises to determine the extent of the pain, and on February 23 he released Barbee to return to work provided that he limit himself to light duty and wear a brace at all times except while sleeping. Barbee notified O’Neal Brothers of these terms and resumed work on February 26. He was assigned to operate a bulldozer, as before, and a rubber-tired, suspensionless dirt-moving cart known as a turn-a-pull, which was easier to enter and dismount from. He apparently wore his back brace all the time while at work, although this is not clear from the record, and was scheduled to visit Dr. Bavishi approximately once a month.

Barbee continued to experience pain in his back and hips, especially while dismounting from his bulldozer. On May 10, 1979, he was driving a turn-a-pull over a stretch of rough country road when he felt pains in his back, neck, hip and leg which were so severe he had to spend the rest of the day operating an endloader, which did not jolt as much as a turn-a-pull. On the four days immediately prior to this he had operated a turn-a-pull over similarly rough terrain and felt pain as a result of the jolting, but the pain was not as severe as it was on May 10. He took four days off and returned to work on May 15. Barbee visited Dr. Bavishi on that day and again through June, July and August. Dr. Bavishi gave him pills and allowed him to stay on at work, although Barbee felt severe pain off and on and missed two days from work a month during that period on account of the pain. Flexion and leg-raising exercises during this period indicated that his range of movement was less than it had been before May 1979, and Barbee complained that his right leg felt numb around the hip and thigh.

Between August 15 and September 10, 1979, Barbee took considerably more time off, and on September 10, Dr. Bavishi noticed muscle spasms and took him off work altogether. Dr. Bavishi hospitalized Barbee for 10 days in October and performed a myelogram, but the results were negative. Flexion and leg-raising exercises indicated an increasingly greater range of movement after October, but Barbee continued to feel pain off and on and had not returned to work by January 9, 1980, the day of the hearing before the arbitrator. During this time he received no disability payments from O’Neal Brothers.

Barbee filed three separate claims for disability payments on the theory that three distinct compensable injuries had occurred. At his request, the claims were heard together by the same arbitrator on January 9, 1980. The employer was represented at the combined hearing by three lawyers, as it was insured against workmen’s compensation liability by a different insurance carrier at the time of each incident. The evidence adduced at the hearing included medical testimony by Drs. Adeli and Bavishi. Dr. Adeli stated that Barbee’s pains prior to the 1977 incident were due to an unusually severe and degenerative case of arthritis, and he diagnosed his condition after that incident as involving a fracture of the T-12 vertebra with spur formations on several vertebrae. On cross-examination he indicated that Barbee’s severe arthritis along with his preexisting bone spurs would render him prone to lower back and thoracic defects that might occur spontaneously in the future, but three questions later and again on redirect examination he stated that he could not say for sure that his predisposition to pain was increased by his arthritis and that it was difficult to tell whether he would have encountered the same pain in the absence of his work. Dr. Bavishi also noted the presence of degenerative arthritis and bone spurs but attributed Barbee’s 1978 and 1979 complaints to specific events in the nature of a sprain which aggravated his condition rather than to the degenerative nature of the condition itself.

On January 25, 1980, the arbitrator entered three separate awards based on her finding of three distinct injuries arising out of the work. Each of these awards consisted of temporary total disability compensation, and in each case the arbitrator found no evidence of permanent disability. The award for the 1979 incident included medical expenses and attorney fees and penalties under sections 16, 19(k) and 19(l) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.16, 138.19(k), 138.19(l) based on a finding that O’Neal Brothers failed to pay compensation after September 24, 1979, without just cause.

On August 28, 1980, the deposition of Dr. Leo Miller was taken by the carriers which insured O’Neal Brothers. In the deposition Dr. Miller stated, in answer to a hypothetical question, that in his opinion Barbee was suffering from cyclically recurring arthritic phenomena in his spinal column which was not exacerbated by trauma in May 1979. He based this on the degenerative nature of the disease and the fact that Barbee returned to work shortly after the alleged 1979 accident and remained on the job for nearly four months thereafter.

The three claims were heard on a consolidated basis by the Industrial Commission, the only addition to the record being a transcript of Dr. Miller’s deposition. The Industrial Commission first announced its decision regarding the 1977 claim, adopting the arbitrator’s award and adding to it an award of 90 weeks’ permanent partial disability based on a finding that the fracture of claimant’s T-12 vertebra was a permanent injury. Three months later the Commission announced its decisions as to the 1978 and 1979 claims. It adopted the arbitrator’s decision as to the 1978 claim but added to that award penalties and attorney fees under sections 19(l) and 16 of the Workers’ Compensation Act. The Commission reversed the award of penalties under section 19(k) of the Act but adopted the arbitrator’s award for the 1979 claim in all other respects, including an assessment of penalties of $1,200 under section 19(l) and attorney fees of $1,277.55. No appeal was taken by the attorneys handling the 1977 or 1978 claims, but the 1979 claim was appealed and the award confirmed by the circuit court of Vermilion County. This appeal by the insurance carrier covering the 1979 claim followed.

The employer’s first objection to the award is that the finding of a compensable work-related incident in 1979 was against the manifest weight of the evidence. It argues that Barbee’s progressive arthritic condition accounted for all of his symptoms in that year, and that no specific giving way of a body part on May 10, 1979, can be pointed to in order to show that his subsequent pain was anything other than a cyclical recurrence of arthritic phenomena that had occurred before and would occur again. The employer points to the opinion of Dr. Miller and the fact that Barbee did not quit work until four months after the alleged accident as supporting this view, and also points out that Barbee himself told Dr. Bavishi on September 10, 1979, that he had been having severe pain in his lower back and tailbone region since April 3, 1979, a month prior to the alleged May injury.

We have held in cases too numerous to mention that a determination by the Industrial Commission should be upheld unless contrary to the manifest weight of the evidence. This court, following the above standard, upholds findings of the Industrial Commission where, as here, there is conflicting medical testimony as to causation (Sears, Roebuck & Co. v. Industrial Com. (1980), 79 Ill. 2d 59, 67-68). This is so regardless of whether we would have reached a different determination had we been the fact finder.

In this case Barbee took four days off work immediately following May 10 and made an unscheduled appointment to visit Dr. Bavishi on the fifth day. The record is replete with testimony as to the jarring nature of a turn-a-pull ride, and the Commission could well have concluded, as Dr. Bavishi did, that Barbee’s ride on May 10 wrenched his back severely enough to contribute to or accelerate his subsequent miseries despite the absence of immediate pain strong enough to manifest itself clinically (see County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10) or to force Barbee to take more than four days off in May. We note in this regard that according to Dr. Bavishi’s testimony Barbee’s range of flexion and extension was more limited than usual on May 15, so there was not, as the employer argues, a complete absence of clinical symptoms at that time.

We do not find fault with the Commission’s acceptance of Dr. Bavishi’s opinion as to causation instead of Dr. Miller’s contrary opinion and Barbee’s own contrary testimony as to when his pain began. Dr. Bavishi was Barbee’s treating surgeon: he saw Barbee regularly through 1978 and 1979, heard his complaints, tested his symptoms, kept records and made recommendations as to when he could return to work and what kind of work he could perform. His observations were contemporaneous. His medical opinion was certainly not so preposterous as to require the Commission to discard it in favor of the testimony of Barbee, whose recollection of the chronology of his symptoms on September 10 before Dr. Bavishi and at the hearing before the arbitrator was unaided by medical records, or of Dr. Miller, who neither spoke to nor examined Bar-bee.

The employer suggests next that the Industrial Commission erred as a matter of law in finding a compensable 1979 injury because “an employee is not entitled to compensation *** for the effects of prolonged stress on his body unless he can show an injury traceable to a specific time, place and cause” (Lambert v. Industrial Com. (1980), 79 Ill. 2d 243, 247) and Barbee failed to show that a body part gave way on May 10, 1979. This argument takes Lambert out of context. In that case the most that claimant showed was that stress on the job over the years contributed to his pain; he could not point to a single incident that caused or exacerbated it. (See also International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84.) Here Barbee did show a specific incident that led to pain. A work-related accident that exacerbates a preexisting ailment is a compensable injury. Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240.

The next question urged for review by the employer is the propriety of the Commission’s award of permanent disability benefits relating to the 1977 injury and its denial of such benefits for the 1978 injury. The employer cites Thomas v. Industrial Com. (1980), 78 Ill. 2d 327, for the proposition that the arbitrator and the Commission lack the power to enter findings as to permanent disability when the issue is not specifically presented to the arbitrator, and complains that the effect of a finding that no permanent disability resulted from the 1978 injury here was to require the employer’s 1979 insurance carrier to answer for whatever continuing work-related disability remained after May 10, 1979, even though some of it may in fact have been traceable to 1978.

In Thomas this court noted that the claimant had sought an order advancing his cause for immediate hearing solely on the issue of temporary total disability, and affirmed the decision of the arbitrator and the Industrial Commission not to award permanent disability benefits based on their determination that claimant had not placed the issue of permanent disability before the arbitrator. The circumstances of this case are different. Here the parties did not request an immediate or limited hearing, as they did in Thomas, and the record is devoid of any affirmative indication that the parties wished to limit themselves to the issue of temporary total disability. The arbitrator and the Commission proceeded on the assumption that the parties wished to address the subject of permanent injury — a natural assumption in view of the sequential nature of the injuries alleged by Barbee and the consequent certainty that any work-related disability not attributed to one accident would be attributed to another — and the 1977 insurance carrier against which the Commission awarded permanent disability benefits did not appeal that award. We see no reason why the arbitrator or the Industrial Commission should have assumed that the parties wished to limit the scope of the inquiry to temporary disability; we will not disturb the findings on that account, especially as we have already found them not to be against the manifest weight of the evidence regarding Barbee’s disability subsequent to May 10,1979.

The employer’s final argument is that the award of penalties and attorney fees connected with the 1979 injury was improper because its challenge to liability on that injury was based on substantial evidence and therefore could not be characterized as unreasonable or vexatious. We agree with Barbee that a delay in payment of benefits by an employer or insurance company pending an appeal which seeks only to establish that a prior injury attributable to the same employer caused the disability would be unconscionable. (See Board of Education v. Industrial Com. (Norwood) (1982), 93 Ill. 2d 20; Board of Education v. Industrial Com. (Tully) (1982), 93 Ill. 2d 1; McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198; Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462.) However, we do not agree that this happened in this case, and we reverse the award of penalties and attorney fees relating to the 1979 injury.

The employer argued in its briefs to this court and again in oral argument that Barbee’s 1979 symptoms were due to a degenerative arthritic condition rather than to any specific accident suffered on the job. It did not merely point to prior job-related accidents in an attempt to fix responsibility for the 1979 disability on another insurance carrier, but disputed the Contention that the work had anything to do with any disability suffered after May 10, 1979. Although this challenge to liability has failed, “[w]hen the employer acts in reliance upon responsible medical opinion or when there are conflicting medical opinions, penalties are not ordinarily imposed” (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 302). This rule is necessary to protect the employer’s right to appeal an award which he reasonably believes to be contrary to the manifest weight of the evidence; the right to a legitimate appeal would be substantially burdened were penalties to be imposed on all employers who appeal and lose.

In this case the employer could reasonably have believed on the basis of the clear testimony of Dr. Miller, alone or in conjunction with that of Dr. Adeli, that claimant’s 1979 symptoms were caused by degenerative arthritis rather than by any injury suffered on the job. This case is similar to Avon Products and unlike Board of Education v. Industrial Com. (Tully) (1982), 93 Ill. 2d 1, in which three doctors testified in favor of the claimant and none gave testimony favoring the employer. We conclude, as we did in Avon Products, that the Industrial Commission’s determination that the delay of benefits was unreasonable is against the manifest weight of the evidence.

We do not find fault with the employer’s reliance on Dr. Miller’s testimony merely because it was adduced after the arbitrator rendered her award, which included penalties and attorney fees. The Workers’ Compensation Act does not limit testimony admissible before the Industrial Commission sitting in review of an arbitrator’s award to that already adduced before the arbitrator. See Ill. Rev. Stat. 1979, ch. 48, par. 138.16.

We therefore reverse the award of penalties under section 19(l) of the Workers’ Compensation Act and attorney fees pertaining to the 1979 claim. The award of penalties and attorney fees pertaining to the 1978 claim is affirmed inasmuch as it was not challenged in this appeal. The awards are otherwise affirmed.

Affirmed in part and reversed in part.


author: JUSTICE WARD

text:
    (No. 55860.

      In re WILLIAM DANIEL AMBROSE, Jr., Attorney, Respondent.

      Opinion filed November 18, 1982.

      David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Chicago, for respondent.
   JUSTICE WARD

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint that basically charged William Daniel Ambrose, Jr., with the improper representation of Mrs. Mary Kay Alexander Norman. A panel of the Hearing Board of the Commission recommended that the complaint be dismissed. The Review Board, however, ordered that Ambrose be reprimanded pursuant to the provisions of Commission Rule 10.4. The Administrator was given leave to file exceptions to the Review Board’s order and argues that a greater sanction should be imposed.

Ambrose was admitted to the bar in 1955. The events involved occurred more than nine years ago. At the hearing Mrs. Norman testified that she had retained the respondent in January 1973 to file a complaint for divorce. The respondent filed the complaint in the circuit court of Cook County. She testified that she appeared in August 1973 for a prove-up for the divorce, and she said that, following her testimony, the judge appeared to say that the divorce was granted. She assumed there was in fact a divorce granted, although she did not receive a copy of a decree at the time, and none was later sent to her. The decree never was entered, and the proceeding was later dismissed for want of prosecution.

Sometime in 1974, the complainant, Mrs. Norman, injured her arm in an accident and consulted the respondent regarding a claim for her injury. He referred the complainant to another attorney, who obtained a settlement for her. She apparently inquired of the attorney as to the status of her divorce case, and he sent her a letter reporting that she had not been divorced. She consulted a third attorney, who confirmed the report. That attorney discussed the matter with the respondent, who examined the file and ascertained that the action could not be reinstated. On cross-examination Mrs. Norman admitted that she had been married before and had been divorced from her first husband some 14 years prior to her suit against Mr. Norman. She admitted that she had been given a copy of the divorce decree after her first divorce. She did not acknowledge that she knew that she should have received a copy of a decree for her divorce from Mr. Norman. At the time of the prove-up the judge directed that the husband pay the respondent $600 as Mrs. Norman’s attorney fee, and that the respondent was to prepare and file a decree. Mrs. Norman, however, testified that apparently through an understanding with her husband, the respondent was to have been paid for his services from the proceeds of the sale of a boat. The boat, however, was repossessed by a finance company before she could sell it. (The hearing panel found that Mrs. Norman agreed to pay the respondent’s fee.) Cross-examination of Mrs. Norman also developed that she had been represented by the respondent in a foreclosure action which had been brought by the mortgagee of her house. Through his efforts the property was redeemed through a refinancing of the complainant’s mother’s house. Mrs. Norman was able to sell the redeemed property and used the proceeds of the sale to purchase a condominium in which she was living at the time of the hearing.

Ambrose testified that he had never been paid for his services in the real-estate-foreclosure matter or in the divorce case. He stated that Mrs. Norman called him quite frequently. He was upset when he later learned that the boat had been repossessed, and he said that he believed that he was just wasting his time and energy with Mrs. Norman. He testified that he believed that at one point in their relationship she had told him about having had her driver’s license revoked and having paid an attorney $500 to represent her in that matter. He commented: “He got paid. I didn’t.” He testified that he did not share in the fee paid to the lawyer to whom he had referred Mrs. Norman’s personal injury matter. There was a settlement for $4,000.

The Administrator, arguing that the respondent was professionally neglectful, noted that he never sent Mrs. Norman a statement or other request for fees. Ambrose, however, was not as indifferent to or as casual about receiving payment for his services as the Administrator suggests. He testified that Mrs. Norman called him quite frequently, and considering the entire record, it is obvious that Mrs. Norman’s indebtedness to him was certainly discussed. Mrs. Norman was difficult to reach by telephone, and in the foreclosure matter the respondent had to work mainly through her mother. He requested a $1,200 fee for handling that matter, and the mother of Mrs. Norman expressed satisfaction with the fee request. The respondent, however, was never paid.

The panel of the Hearing Board found that Mrs. Norman had agreed to pay the fee and that Ambrose was entitled to a fee, which was never paid. It observed that his failure to complete the divorce proceeding, while not excusable, was understandable, considering that he had not been paid for his services. The conclusion of the panel was that Mrs. Norman “apparently never had any intention of paying the respondent any fees for the divorce case about which she complains.” The panel noted that the complainant had been previously divorced and had at that time received a copy of a divorce decree and that “she knew better than to believe the judge’s statement that she was divorced” without a decree having been entered. Somewhat incongruously, it seems, the panel concluded that Mrs. Norman, having heard the judge state that she was divorced, did not communicate thereafter with the respondent in an attempt to defeat the collection of his fee. The panel, noting that the attorney had a blameless career of 25 years, recommended that the complaint be dismissed. The panel, however, acknowledged that it “would have been better practice for the respondent to have communicated with the complainant, advising her of his intention not to act until the agreed fees had been paid.” Despite this, the panel said, the failure to communicate with the complainant was not a violation of the Code of Professional Responsibility sufficient to warrant discipline. As we noted, the Review Board ordered that the respondent be reprimanded pursuant to the provisions of Commission Rule 10.4.

We consider that the Review Board’s recommendation of a reprimand is appropriate. The Administrator’s contention, in effect, that this was simply a case of an attorney’s abandonment of a divorce proceeding and, as a consequence, an abandonment of the client’s interest is not convincing. It fails to consider complicating factors. The hearing panel heard the testimony of Ambrose and Mrs. Norman and found that Mrs. Norman appeared to seek to avoid the respondent, and the payment of his fee, until she realized that the decree of divorce had not been entered. Considering the circumstances brought out at the hearing, we cannot say that this finding was contrary to the manifest weight of the evidence. This is not an instance of a client being unable to pay a reasonable fee for services performed by an attorney. An exacerbating circumstance here was the failure of Mrs. Norman to have paid the respondent for his services in enabling her to redeem her house following the foreclosure proceedings. Too, the respondent’s testified-to recollection that Mrs. Norman had told him that she had paid an attorney $500 to represent her in a driver’s-license-revocation matter was uncontradicted and apparently accurate.

We must say, however, that the conduct of the respondent was not blameless. There was a professional responsibility to the court under the circumstances to withdraw as counsel from the divorce proceeding and to advise the client of its status. These responsibilities were not dependent upon the client’s satisfaction of her financial responsibilities to him. He had an independent professional obligation to his client and to the court, which he did not fulfill. Viewing the entire record, we deem that the Review Board’s recommendation that a reprimand be given is proper. Reprimand is not a discipline to be imposed by this court. Disbarment, suspension from practice, and censure are the sanctions this court may impose. (87 Ill. 2d R. 771.) Reprimand is a lesser discipline authorized under the rules of the Attorney Registration and Disciplinary Commission. Rule 10.4 of those rules provides that a reprimand shall be delivered by the Review Board, and accordingly this cause is remanded to the Board for the carrying out of that recommendation.

Cause remanded, with directions.


author: CHIEF JUSTICE RYAN

text:
    (No. 56125.

      In re ALAN JEROME FEDER, Attorney, Respondent.

      Opinion filed November 18, 1982.

    David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Martin and Robert A. Merrick, Jr., of Chicago, for respondent.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

On December 4, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging respondent, Alan Jerome Feder, with conduct which tends to defeat the administration of justice and bring the courts and legal profession into disrepute. A panel of the Hearing Board found respondent to be guilty of conduct in violation of Disciplinary Rules 1—102(a)(4), 1—102(a)(5) and 9—102(c)(4), and recommended that he be suspended from the practice of law for six months and until further order of court. (84 Ill. 2d Rules 1—102(a)(4), 1—102(a)(5), 9—102(c)(4).) Both the respondent and the Administrator filed exceptions.

The Review Board affirmed the Hearing Board’s finding that respondent’s conduct warrants discipline but disagreed with the sanction recommended. Instead, the Review Board recommended that respondent be suspended for a period of two years and until further order of court, and respondent filed exceptions.

Respondent was admitted to practice in Illinois in 1958. He is a sole practitioner, engaged in the general practice of law. The three-count complaint charged him with misconduct as follows: first, that he endorsed his client’s name to a settlement draft without authorization and converted the funds to his own use; second, that he withheld funds owed for medical expenses out of the proceeds of another settlement and failed to pay this money to the providers of medical services; third, that he deliberately attempted to mislead the Commission in its investigation.

Respondent now raises before this court a single issue: whether the totality of the evidence warrants a suspension for two years and until further order of court. It is respondent’s position that censure would be a more appropriate sanction. To support his position, respondent seeks to characterize his misconduct as “negligent, rather than deliberate,” a product of “poor bookkeeping and office procedures, as well as even poorer judgment.” Respondent also objects to the provision “until further order of court.”

Before considering what sanction is, in fact, appropriate, a review of the facts is necessary. The first instance of misconduct occurred in June 1979, when respondent settled a workers’ compensation claim for his client, Ruby Aquiniga Apuzzo, for $1,938. Respondent received the check from the insurance company, signed his client’s name and his name on the check, and deposited it in his trust account. Shortly thereafter, respondent’s client telephoned him to inquire whether he had received the check. He told her that he had not received the check, but that he would contact her when it arrived. She later called the insurance company and was informed that the check had been in respondent’s possession for about one month. After contacting respondent’s office again, and conveying the information she had received from the insurance company, the client received her check the following week. During the period respondent had detained his client’s funds, the balance of his trust account fell below the amount due her.

Prior to the hearing, respondent admitted to all but one of the factual allegations in the three-count complaint. The only dispute concerns whether respondent had the oral authority which he claimed to sign his client’s name to the check. The hearing panel and the Review Board resolved the dispute in favor of the client’s testimony that she had never given respondent authority to sign her name.

The second instance of misconduct involved the settlement proceeds of two personal injury cases arising out of one accident. The insurance company issued the settlement checks on April 8, 1977. Respondent then disbursed to each client his respective share of the settlement proceeds, withholding the amounts due and owing for various medical expenses. He did not, however, disburse the amounts withheld to pay the medical expenses. It was not until after the initiation of the instant disciplinary proceedings that respondent finally paid the medical expenses. During the two-year period between the date of settlement and the date of payment, respondent’s account periodically dropped below the $1,027 that he withheld from the settlements but did not pay.

The third instance of misconduct occurred when respondent attempted to mislead the Commission with regard to his failure to pay the medical expenses referred to above. During the investigation, respondent wrote a letter to the Commission indicating that he had located the pertinent office file relating to the above matter and had discovered in it three settlement checks for medical expenses which should have been mailed when the settlement proceeds were disbursed. He also indicated that he had made out replacement checks to pay the long-overdue medical expenses. Respondent later admitted that, in fact, there had been no such checks written at the time of disbursement.

The final responsibility for determining what discipline should be imposed rests with this court. (In re Pappas (1982), 92 Ill. 2d 243, 247.) Determining that the conduct which occurred requires discipline is often considerably less difficult than determining the appropriate nature and extent of the discipline.

In the instant case, the hearing panel, in making its recommendation of suspension for six months and until further order of court, noted that there was no evidence that respondent had previously been involved in unprofessional conduct, and that respondent’s clients had, in fact, received their shares of the settlement proceeds, albeit with some delay. The hearing panel also noted, however, that there was “almost no dispute” that respondent’s conduct was serious and warranted discipline and that respondent’s misstatements to the Commission clearly compounded his errors.

The members of the Review Board adopted the findings of fact made by the hearing panel but disagreed with the proposed sanction, stating:

“That the conduct of the Respondent warrants substantial discipline is clear. *** [T]he Board is unanimous in the opinion that an attorney found guilty of the conduct evidenced herein should not be allowed to resume practice absent a showing of rehabilitation. We are also unanimous in the opinion that there is absolutely no evidence of rehabilitation in this record. Thus, an Order providing for suspension for two years and until further Order of Court insures that a proper showing of rehabilitation will be made before the Respondent is allowed to resume practice.”

In his reply brief respondent acknowledges that discipline is appropriate but seeks to have the minimum sanction, i.e., censure, imposed. In particular, respondent seeks to minimize the seriousness of his misrepresentations to the Commission by characterizing his conduct as an act of “human frailty” and an “inartful attempt to conceal his negligence and avoid the resulting shame and embarrassment ***.” Additionally, respondent objects to the provision in the sanction, “until further order of court,” arguing that it is usually reserved for situations in which the attorney is emotionally unstable and that “[rjespondent’s emotional stability is not at issue here.”

We agree with respondent that the sanction “until further order of court” is unnecessary and inappropriate in this instance. As we have previously held, the provision “until further order of court” is generally reserved for situations in which the attorney is emotionally unstable. In re Grant (1982), 89 Ill. 2d 247, 255; In re O’Hallaren (1976), 64 Ill. 2d 426, 434.

In our consideration of the appropriate sanction to be imposed, two cases are particularly relevant: In re Turner (1979), 75 Ill. 2d 128, and In re Dombrowski (1978), 71 Ill. 2d 445. In In re Turner, the respondent was charged with having commingled and converted funds he received on behalf of three clients for the settlement of their personal injury claims and with giving false testimony before a panel of the Inquiry Board in connection with its investigation of his conduct. After receiving a check from the insurance company, the respondent signed his clients’ names to the check, without authorization, and deposited it in his personal bank account. Respondent did not pay his clients their share of the settlement proceeds until one day before the scheduled hearing before the inquiry panel, over 2V2 years from the date the insurance company issued the settlement check.

In Turner this court found the appropriate sanction to be suspension from the practice of law for a period of three years. In that case a more severe sanction than the one which we impose in the instant case was justified because of the additional element of commingling of funds. Here, the funds were deposited in a trust account.

In In re Dombrowski (1978), 71 Ill. 2d 445, the client initially agreed to a settlement in a personal injury action but later refused to sign the release when she discovered how small her net recovery would be. Respondent subsequently signed his client’s name to the release, after she refused to give him further instructions, and also signed her name to the insurance check before depositing it in a fiduciary account. Respondent failed to notify his client of the recovery and later transferred the funds to an interest-bearing account. There was no charge that respondent had misappropriated his client’s funds. On the basis of his conduct, this court ordered that the respondent be suspended for a period of one year.

In the case presently before us, while there was no commingling, the balance in the trust account fell below that which should have been paid out. Accordingly, we suspend respondent from the practice of law in this State for a period of one year.

Respondent suspended.


author: JUSTICE GOLDENHERSH

text:
    (No. 55953.
    DON GRAHAM, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Paul K. Finfrock, Appellee).

      Opinion filed November 18, 1982.

    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (James T. Foley, of counsel), for appellant.
    James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on August 16, 1971, petitioner, Paul K. Finfrock, suffered accidental injuries arising out of and in the course of his employment by respondent, Don Graham. He found that petitioner had suffered injuries which completely disabled him and rendered him wholly and permanently incapable of work and awarded him compensation under paragraph (f) of section 8 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(f)). On review the Industrial Commission affirmed the award of the arbitrator. On certiorari, for reasons not relevant to this appeal, the circuit court of McLean County remanded the cause to the Industrial Commission. On remand the Industrial Commission again affirmed the decision of the arbitrator. Petitioner again sought certiorari, and the circuit court found that the decision of the Industrial Commission was against the manifest weight of the evidence. It vacated the decision of the Industrial Commission and remanded the cause with directions to enter a decision finding that petitioner had sustained total and permanent disability under section 8(e)(18) of the Workmen’s Compensation Act due to the loss of use of both feet. On remand, the Commission entered the section 8(e)(18) award. Respondent sought certiorari, and the circuit court confirmed the decision. Respondent appealed. 73 Ill. 2d R. 302(a).

Petitioner was the only witness at the hearing before the arbitrator. He testified that on August 6, 1971, he was injured while driving a truck for respondent. Due to injuries sustained to his lower back, petitioner lost all sensation in his rectum, penis, and lower legs. Petitioner was taught how to catheterize himself and must do so between 20 and 25 times a day. Petitioner testified that because he has lost all sensation in his genital area, this does not cause pain. Since petitioner has no feeling in his rectum, he must check his bowels manually and manually extricate any fecal matter. As the result of rehabilitative procedures, petitioner is now able to walk with the help of braces on each leg. Petitioner testified that he did not wear these braces while he was in the house or doing light chores such as taking out the garbage, but that he was required to wear the braces when he went anywhere. Petitioner testified that it was necessary that he lie down to rest once in the morning and once in the afternoon.

The evidence deposition of Dr. Floyd S. Barringer was introduced into evidence. Dr. Barringer’s last examination showed that petitioner had made considerable recovery in the strength of his right lower extremity but very little in his left lower extremity. Petitioner’s left lower extremity had a severe foot drop and paralysis of the left foot. A leg brace extending from the knee to the foot was required for petitioner to walk. Dr. Barringer concluded that petitioner’s injuries were permanent. On cross-examination, Dr. Barringer was asked if he made any observations concerning petitioner’s April 3, 1972, visit. Dr. Barringer noted that his observations were as follows:

“Right leg much improved, left leg no change; continues with his left leg brace.”

The evidence deposition of Dr. Robert G. Killough was also introduced into evidence. Dr. Killough detailed petitioner’s inability to control his bladder or his rectum and described the treatments which were necessitated by this condition. Dr. Killough noted that at the time he saw him petitioner had partial return of his leg function and was able to walk with braces. Also introduced into evidence was a letter from Dr. Gordon Schultz, an orthopedic surgeon, dated February 9, 1978. Dr. Schultz’ letter described petitioner’s condition as paraplegia with almost complete paralysis of the legs below the knees. The doctor’s letter noted:

“He wears two short leg braces. If he walks slow he can get along rather well. It is difficult to say just what his endurance would be. He can walk short distances without his braces but when he does, his ankles are very unsteady and he could sprain them very easily. He has a foot drop on the left side which is fairly marked. He can control the foot drop on the right. *** He has marked atrophy below both knees. *** He can’t walk up on his toes. He can stand [erect] and raise the right forefoot up off of the floor. He can barely raise the left forefoot off of the floor.”

Dr. Schultz also noted that the patient had no sensation relating to urination or defecation, and that urination had to take place through the use of catheters inserted by petitioner, and defecation had to be performed “either manually or by massaging muscles so as to express feces.”

Other letters and reports from doctors admitted into evidence reiterated the same diagnosis and recommended that petitioner continue rehabilitation and vocational training for work other than “his former vocation as a truck driver or as a manual laborer.”

The dispute between the parties concerning the applicability of section 8(f) or section 8(e)(18) arises from the fact that petitioner has completed a course at Illinois State University and received a degree in business accounting. The testimony does not show that he is presently employed, but it appears from the comments of counsel that he is employed as an accountant and his earnings are substantially less than they would be if he could perform the duties of his former employment as a truck driver. What is at stake is well illustrated by the comment contained in the opinion of the circuit court:

“An award made under section 8(f) may be terminated if a recipient returns to work. An award under section 8(e)(18) is not subject to termination if a recipient returns to work. Petitioner has received a college degree, and is now employed as an accountant. Simply put, his rehabilitation and return to employment will cause the termination of his section 8(f) pension.”

Respondent argues that the determination of the extent or permanency of an employee’s disability is a question of fact which should not be disturbed by a reviewing court unless it is against the manifest weight of the evidence. Respondent notes that while the evidence was not conflicting, different inferences could be drawn therefrom. Citing Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill. 2d 395, and Keystone Steel & Wire Co. v. Industrial Com. (1969), 42 Ill. 2d 273, respondent argues that a reviewing court may not disregard permissible inferences drawn by the Industrial Commission merely because the court might have drawn different inferences from the evidence.

It is petitioner’s contention that although the evidence would sustain the award under section 8(f), it shows he also lost the complete use of both feet, a loss compensable under section 8(e)(18). He argues that, where either section might apply, the Industrial Commission should make a finding under the more beneficial section 8(e)(18) and that the finding under section 8(f) was against the manifest weight of the evidence.

Although the evidence shows many additional serious and permanent injuries, there is no question that petitioner suffered the complete loss of the use of both feet. The evidence of an insignificant amount of movement in petitioner’s legs and that petitioner, by reason of rehabilitative treatment and the constant wearing of braces, is to some extent ambulatory, does not refute the complete loss of use of his lower extremities. (Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill. 2d 395.) On this record we agree with petitioner that to effect “ ‘the practical and liberal interpretation’ of the Act ‘intended by the legislature’ ” (Monterey Coal Co. v. Industrial Com. (1980), 79 Ill. 2d 334, 338) the award should have been entered under section 8(e)(18). The circuit court correctly held that the award should have been entered under section 8(e)(18), and its judgment is affirmed.

Judgment affirmed.


text:
    (No. 56060.
    INTERNATIONAL HARVESTER, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Curtis Ladewig, Appellant).

      Opinion filed November 18, 1982.

      James Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Mark A. Braun, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded the claimant, Curtis Ladewig, medical benefits, a sum for temporary total incapacity, and 40% permanent disability under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The Industrial Commission affirmed the award. On certiorari the circuit court of Lake County reversed the decision of the Industrial Commission. The court found that the claimant had failed to carry his burden of proving that his condition was causally related to an accidental injury. The court order stated, “At best, petitioner established an equal probability, both that it was related and that it was not related.” Claimant appealed to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

Before the arbitrator, Dr. David Heinrich, an internal medicine specialist, testified that he had been the treating physician of the claimant for about nine years preceding an accidental injury which occurred on December 20, 1978. He first treated the claimant in 1970 for bronchial pneumonia, and the following year he removed a cervical disc. In 1972, Dr. Heinrich performed additional surgery to repair massive adhesions in the stomach area, which had developed as a result of surgery that had been performed by another surgeon prior to the time Dr. Heinrich treated claimant for bronchial pneumonia. Following this repair surgery, another physician discovered claimant had developed an incisional hernia. Following surgery for this condition, a company physician placed claimant on a work restriction which prevented him from lifting more than 20 pounds.

Claimant was intermittently treated by Dr. Heinrich during 1973 and 1974, but was not again treated by him until 1977. At that time, he performed gall bladder surgery in the same general area as the three operations which had been previously performed on the claimant. Near the end of 1977, it was discovered that an additional incisional hernia had developed between the place of the prior surgery and the 1977 gall bladder surgery.

Because of this latest problem, in June 1978, further surgical procedures were performed by yet another physician, Dr. H. James Solomon, to repair the incisional hernia. This was done by adding extra layers of reinforcing sutures. Although Dr. Heinrich allowed the claimant to return to work in August 1978, he placed the claimant under a 24-pound weight-lifting restriction which remained in effect until the incident at issue occurred. After returning to work, the claimant continued to experience epigastric distress and regurgitation which resulted in signrficant stress in the abdominal area. While the wound healed slowly over the next several months, Dr. Heinrich noted in his record of an office visit by the claimant in late November 1978 that the incision was healing well and was almost solid.

On December 20, 1978, the claimant unwittingly violated the weight restriction by lifting a 30-pound panel. Although he previously had been working without apparent difficulty, he immediately experienced pain, burning, and an upper abdominal bulge. After consulting with the company medical department the same day, the claimant was told by Dr. Maniquis, a company physician, that he had a hernia. Dr. Maniquis, however, allowed him to return to work for the next two days until the plant closed for Christmas vacation. He did tell the claimant to avoid excessive activity. When the plant reopened after the Christmas holidays, Dr. Witkowski, another company physician, also told the claimant he had a hernia, and placed him under work restrictions which prevented him from lifting more than 15 pounds. As no work was available within these limitations, he was sent home.

In early January 1979, Dr. Heinrich again examined the claimant. He concurred in the diagnosis of Dr. Witkowski that the claimant had sustained a hernia and should not engage in any further lifting, pushing, or pulling. Dr. Heinrich, moreover, told the claimant he could not be treated further by surgery, since the hernia was located in the same area in which earlier gall bladder and incisional repair surgery had been performed. Each previous operation had diminished the chances of successfully repairing the hernia.

While testifying before the arbitrator, Dr. Heinrich said that he continued to believe the claimant should presently avoid any further lifting, pushing, or pulling. The arbitrator found that the claimant could pursue only light work without suffering adverse consequences; that the employer had offered claimant such a job and that the claimant did not return to work but moved to Wisconsin.

With regard to the causal connection between the lifting and the accidental injury, Dr. Heinrich testified “that it might have well been connected.” On the other hand, Dr. Heinrich also testified that the claimant frequently complained about experiencing stomach pain following his meals throughout his entire period of treatment. He complained, moreover, about frequent vomiting, which caused substantial pressure on his abdomen. Dr. Heinrich testified that when he had completed the surgical repair of the claimant’s hernia in June 1978, he noted the stitches were weak and might not hold. Because the claimant had prior stomach problems, Dr. Heinrich also thought that the probability of recurring problems in this area was substantially increased. As late as November 1978 the claimant had experienced soreness at the incisional site. Repetitive surgery had lessened the blood supply to the fascia, and an infection following the gall bladder surgery had further weakened the incisional area. These factors enhanced the chances that a hernia would develop. Consequently, Dr. Heinrich testified that it was possible that epigastric distress could also have caused the instant hernia. Because Dr. Heinrich had testified as to these two possible causes, as noted above, the circuit court later found that the claimant had failed to sustain his burden of proof and had only established that two causes were equally probable. The arbitrator, however, had found that the claimant sustained an accidental injury arising out of and in the course of his employment. The Industrial Commission affirmed the decision of the arbitrator.

This court has held that medical evidence is not an essential ingredient to support the conclusion of the Industrial Commission that an industrial accident caused the disability. A chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee’s injury. (Martin Young Enterprises, Inc. v. Industrial Com. (1972), 51 Ill. 2d 149, 155.) In Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 144, this court said, “We know of no case requiring a doctor’s testimony to establish causation and the extent of disability, especially where, as here, the record contains the company doctor’s report and hospital records showing findings of the employee’s personal physician which are consistent with the employee’s testimony.” When the claimant’s version of the accident is uncontradicted and his testimony unimpeached, his recital of the facts surrounding the accident may be sufficient to sustain an award. Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 463.

In this case, immediately before the lifting which claimant contends caused his injury, he was not experiencing acute pain, nor was there a swelling or bulging indicating a hernial condition. After the lifting incident, the claimant immediately began to suffer pain and burning, and the bulging was noticed. Further, there is no evidence that the vomiting and epigastric distress, which were sometimes suffered by the claimant, occurred within a medically significant period prior to the accident. This chain of events, even without the introduction of any medical testimony, strongly suggests that the claimant’s injury was caused by the lifting incident.

This court, moreover, has held that when the Industrial Commission is faced with the question of which of two conflicting views of medical testimony should be adopted, it is for the Commission to ascertain the testimony which is to be accepted. (McIntire v. Industrial Com. (1971), 49 Ill. 2d 239, 242.) It is within the prerogative of the Commission to decide disputed issues of fact involving diverse medical opinions, including those of causal connection. (Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 541.) On review, this court will not reject reasonable inferences of the Commission merely because it might have drawn a contrary inference on the particular facts. Owens-Illinois Glass Co. v. Industrial Com. (1968), 39 Ill. 2d 312, 316; Shell Oil Co. v. Industrial Com. (1967), 38 Ill. 2d 286, 288; Farace v. Industrial Com. (1966), 34 Ill. 2d 80, 84.

It is true that Dr. Heinrich testified that two distinct factors could have caused the injury. However, his testimony that the lifting and the injury “might have well been connected” is supported by the evidence concerning the chain of events and the statement by the company doctor that claimant had a hernia when he reported to the company medical department after the accident. The other opinion voiced by Dr. Heinrich finds no support in the chain of events. The Industrial Commission was therefore justified in rejecting this second opinion, and its finding that the accident and claimant’s injury are causally connected is not against the manifest weight of the evidence. As noted above, there was no evidence of any epigastric distress significantly close to the appearance of the hernia. The statement was simply that such distress could cause a hernia in a person whose physical structure was impaired to the extent to which the claimant’s was impaired.

The judgment of the circuit court of Lake County is reversed, and the award of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 55893.
    RAGLER MOTOR SALES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (James Pasley, Appellee).

      Opinion filed November 18, 1982.

      Joseph F. Bartley III, of Bartley, Fraser, Parkhurst, Hession & Renner, of Peoria, for appellant.
    Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded the claimant, James Pasley, compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The Commission affirmed the award of benefits, and on certiorari the circuit court of Peoria County confirmed the decision of the Industrial Commission. On appeal to this court, pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)), the employer, Ragler Motor Sales, of Peoria, contends that the employer-employee relationship between it and the claimant did not exist at the time of the accident.

There was conflicting testimony given before the arbitrator. Matthew L. Ragler, the proprietor of Ragler Motor Sales, testified that he employed the claimant to perform various odd jobs in his business for approximately the past 10 years. Although he had no arrangement with the claimant about the terms of employment, his practice was to pay him exclusively by check on an hourly basis for work completed. He also withheld taxes and social security. On October 27, 1978, Ragler gave the claimant his last paycheck, and permanently terminated his employment. Ragler further testified that on Wednesday, November 15, 1978, the claimant appeared at his place of business around 4:30 p.m., and volunteered to attend an auto auction held on Wednesday evenings in Tremont. Ragler frequently attended this auction for the purpose of purchasing used cars, depending on the market for such cars in his business. The parties always considered the attendance by the claimant at the auto auction as a separate job from the claimant’s other duties as an employee, and Ragler customarily paid the claimant $10 in cash. Ragler testified that this payment was only made, however, if he purchased a vehicle at the auction, and if the claimant drove it back to the Ragler car lot. Ragler also stated that, at the auction, the claimant was not responsible for test driving or otherwise evaluating the used cars which Ragler was considering purchasing and did not participate in the decision to purchase a particular vehicle.

Further testifying, Ragler said that while he was at the auto auction on the evening of the accident he decided to test drive a used car, and the claimant volunteered to ride along with him. His purpose in test driving this vehicle was to ascertain whether it had a faulty transmission before deciding whether to buy it. While test driving this automobile, a collision occurred with another automobile. James Pasley and Matthew L. Ragler were both injured, as was the driver of the other automobile. Claimant’s injuries sustained in this accident are the subject of claimant’s workmen’s compensation claim.

Ragler, however, had made statements inconsistent with much of the above testimony in an earlier deposition in a related civil case. In the deposition, Ragler testified that he and the claimant did, in fact, have an oral employment agreement which provided the claimant either was on a straight salary, since he was on call at any time, or was periodically paid on an hourly basis for the time which he worked at the garage. Contrary to his testimony before the arbitrator, Ragler further testified in his deposition that the claimant still was employed by him to perform various odd jobs on November 15, 1978, and the claimant also was separately employed to assist him on the trip to Tremont, which resulted in the automobile accident. Indeed, Ragler said that he had a prior oral agreement with the claimant that he would compensate him by a cash payment of $10 for making this trip, even if he did not actually drive a car báck to Ragler’s used car lot. Moreover, although Ragler was questioned in the civil deposition about the time period he employed the claimant, he failed, upon inquiry, to mention that he discharged the claimant prior to the accident.

The claimant, on the other hand, testified that Ragler Motor Sales employed him to perform various odd jobs for approximately the past 20 years. The parties had an oral employment agreement pursuant to which the claimant was compensated on an hourly basis, usually by check, but occasionally by cash. The claimant testified he had never been discharged by Ragler, and he worked at the car lot on the date of the accident.

Claimant further testified that near the end of the working day Ragler mentioned to the claimant that he was going to the Tremont Auto Auction that evening to see whether he could purchase a few cars. Claimant said that in the past he frequently attended these auctions with his employer according to a verbal agreement which provided he would be paid $10 to make the trip. This payment was in consideration for driving to Tremont, and it was paid regardless of whether Ragler bought any automobiles. Claimant said that at the auction he was to offer advice to Ragler about the conditions, marketability, and necessary repairs which the vehicles would require to be marketable. Additionally, the claimant frequently test drove cars.

The claimant, moreover, testified that, after he test drove several automobiles on the evening in question, Ragler suggested that he accompany him as a passenger on a test drive of a vehicle which was suspected of having a faulty transmission. During this test drive, the claimant and Ragler discussed the transmission problem. On the way back to the Tremont Auto Auction, the accident occurred.

This court has held that no rigid rule of law governs in determining whether an employer-employee relationship exists. The answer in each situation depends on the facts of the particular case. (Henry v. Industrial Com. (1952), 412 Ill. 279.) The right of the employer to control the way in which the work is performed is an important factor in determining whether the claimant is an employee or independent contractor. (See O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304.) The court has also considered other factors in determining whether the claimant is an employee, including the level of skill required, the work schedule, whether compensation is on a time basis or by the job, the source of materials and tools, and the right to discharge. (Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97.) Moreover, because the theory of workmen’s compensation legislation is that the cost of industrial accidents should be borne by the consumer as a part of the cost of the product, this court has held that a worker whose services form a regular part of the cost of the product, and whose work does not constitute a separate business which allows a distinct channel through which the cost of an accident may flow, is presumptively within the area of intended protection of the compensation act. Thus, this court has recently attributed increased significance to the nature of the work performed in relation to the general business of the employer. Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 22; Alexander v. Industrial Com. (1978), 72 Ill. 2d 444; Coontz v. Industrial Com. (1960), 19 Ill. 2d 574, 578; see also 1C A. Larson, Workmen’s Compensation sec. 43.51, at 8—17 (1980).

In applying these legal standards, when the evidence is conflicting and the facts are subject to diverse interpretations, it is within the province of the Industrial Commission to draw inferences from the evidence, ascertain the credibility of witnesses, evaluate conflicting testimony, and resolve whether the claimant has met his burden of proof. (C. Iber & Sons, Inc. v. Industrial Com. (1980), 81 Ill. 2d 130, 136; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290.) On review, a court will uphold the determinations of the Industrial Commission in these areas unless they are against the manifest weight of the evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236; Scott v. Industrial Com. (1979), 76 Ill. 2d 183.

In this case, it is our opinion that the finding of the Commission that the claimant was an employee is not against the manifest weight of the evidence, and we therefore affirm the circuit court of Peoria County. Ragler controlled and had the right to control the manner in which the work was to be performed, and he had the authority to supervise the activities of the claimant during his attendance at the auto auction. Although Ragler withheld no income tax or social security, this court has found this factor not to be controlling. See Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 460.

Ragler, moreover, testified before the arbitrator that he retained the absolute right to discharge the claimant. Indeed, he claimed to have exercised this right several weeks before the date of the accident. Further, Ragler testified that he considered the purchase of used cars at the auto auction as part of his business, and this job necessarily included transporting the automobiles back from the auction to Ragler’s car lot. While the testimony may conflict on some of these points, the inference could be drawn by the Commission that the claimant was an employee. This inference is not contrary to the manifest weight of the evidence. The judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 55576.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JEFFREY ALEXANDER, Appellant.

      Opinion filed November 18, 1982.

      Robert Agostinelli, Deputy Defender, of the Office of the State Appellate Defender, of Ottawa (Robert E. Davison, of Springfield, and Michael Filipovic, Assistant State Appellate Defenders, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Daniel M. Harris, Assistant Attorney General, of Chicago, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

The defendant, Jeffrey Alexander, was charged by information in the circuit court of Will County with theft, in that “on or about October 31, 1979, at and within Will County *** he, knowingly exerted unauthorized control over a 1973 Buick Electra, valued at more than $150, *** intending to deprive Leola H. Perkins permanently of the use and benefit of said property.” (Ill. Rev. Stat. 1977, ch. 38, par. 16—1(a)(1).) Following a bench trial, the defendant was found guilty and was sentenced to serve a three-year term of imprisonment. On appeal by the defendant, the majority of the appellate court affirmed the defendant’s conviction. (99 Ill. App. 3d 810.) The defendant filed a petition for leave to appeal, which was granted. 73 Ill. 2d R. 315(a).

On appeal before this court, the defendant asserts that the majority of the appellate court erred in affirming his conviction because the evidence which was adduced at trial was not sufficient to sustain a conviction as charged in the information. The defendant contends that the information charged him with the theft of a vehicle in Will County on October 31, 1979, and that the evidence showed that the theft occurred in Cook County, but that he exerted control over the automobile in Will County 11 days later.

At trial, the State’s first witness was Leola H. Perkins, the owner of the 1973 Buick Electra. Ms. Perkins testified that she was in her home in Cook County on October 31, 1979. On that date, Ms. Perkins testified, a man with a gun "confronted her on the second floor of her home. The man told Ms. Perkins that he was not going to rape her, but demanded that she give him her money and jewelry.

Ms. Perkins testified that after she gave the man all the money and jewelry that she had in the house, he forced her to drive her car to her bank. The bank was located in Cook County, approximately two miles from Ms. Perkins’ home.

After they parked the automobile outside the bank, the defendant told Ms. Perkins to leave her keys in the car and to go inside the bank to withdraw her money. Once inside the bank, Ms. Perkins asked the bank employees to call the police. While Ms. Perkins was speaking to the police on the telephone, she testified, she saw the defendant drive away in her car.

On November 11, 1979, shortly after midnight, the defendant was observed sitting inside Ms. Perkins’ automobile as it was parked and idling in the 500 block of Haweswood Drive in Crete. Crete is located in Will County. After the police officers established that the automobile was stolen, the defendant was placed under arrest for being in possession of a stolen automobile.

At trial, the State presented testimony which established that the 1973 Buick Electra had a value of more than $150 at the time of the theft. The State also presented testimony which established that the defendant’s fingerprints were found in Ms. Perkins’ home. After presenting its evidence, the State rested. The defense rested without presenting any evidence. The court found the defendant guilty of theft as charged in the information, finding specifically that the defendant committed the offense, “in the manner and form as set forth in the information, on November 11, 1979, which is on or about October 31,1979.”

On appeal, the appellate court affirmed the defendant’s conviction. The court held that the defendant’s argument that his conviction should be reversed because the State failed to prove that the offense occurred in Will County on October 31, 1979, was without merit. The court reasoned that because the information alleged that the defendant “exerted” (not “obtained”) unauthorized control in Will County “on or about” October 31, 1979, the proof at trial of exertion of unauthorized control by the defendant in Will County on November 11, 1979, was not fatal to the information.

The date alleged in a charging instrument need not ordinarily be proved precisely. If there is an error in the indictment, and upon trial the proof establishes that the offense was committed on a date other than the precise date alleged, that irregularity will not constitute a fatal variance. People v. Hubbard (1970), 46 Ill. 2d 563.

In the instant case, a particular time was not an essential element of the crime and the expiration of the statute of limitations was not at issue. Thus, proof that the defendant exerted unauthorized control over the automobile on November 11, 1979, when the information was phrased, “on or about October 31, 1979,” did not constitute a fatal variance.

A defendant can be found guilty of theft solely on the basis of knowingly exerting unauthorized control over the property of another at the time of arrest, because the crime of theft is not limited to the original taking of the property. (People v. Nunn (1965), 63 Ill. App. 2d 465, 470-71.) Section 16—1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16—1(a)(1)) defines theft:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner;
* * *
and
(1) Intends to deprive the owner permanently of the use or benefit of the property.”

In order to sustain a conviction of theft through unauthorized control, however, it is also necessary that proof of the accused’s knowledge of unauthorized control and intent to permanently deprive another of his property be shown. People v. Gordon (1976), 64 Ill. 2d 166, 170.

The State, in the instant case, presented sufficient evidence to establish that the defendant exerted unauthorized control over Ms. Perkins’ automobile on November 11, 1979. The testimony of Ms. Perkins and officers Brian Tesar and David Wallace of the village of Crete police department was offered for this purpose. Ms. Perkins testified that she never gave the defendant authority to use her automobile. Officers Tesar and Wallace testified that they placed the defendant under arrest on November 11, 1979, in Will County for being in possession of a stolen automobile after they received a radio dispatch verifying that the automobile which the defendant was sitting in, with the motor running, was stolen.

Proof of the events that occurred on October 31, 1979, was also offered into evidence by the State. The State contends that this evidence was proffered to establish the defendant’s requisite knowledge that his use and possession of Ms. Perkins’ automobile was unauthorized and that he intended to permanently deprive her of its use. The defendant contends that introduction of this evidence concerning the invasion into Ms. Perkins’ home, the theft of her jewelry and money, and her abduction on October 31, 1979, was unnecessary and improper. While it is true that evidence of other crimes is inadmissible if offered merely to establish a propensity to commit crimes, evidence of other crimes is admissible to show knowledge, intent, motive, design, plan, or identification. (People v. Lindgren (1980), 79 Ill. 2d 129, 137; People v. Foster (1979), 76 Ill. 2d 365, 374.) Evidence of the defendant’s conduct on October 31, 1979, was properly admitted to show the defendant’s knowledge and intent in this case.

Due process requires that an indictment or information must apprise the defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar to a future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 28-29.) The indictment or information, together with the record, defines the limits of double jeopardy so that a subsequent prosecution on the same facts would be barred. 63 Ill. 2d 23, 30.

The defendant in this case was arrested and prosecuted in Will County. The information charging the defendant specified Will County as the locus of the crime and charged the defendant specifically with “exerting” unauthorized control over Ms. Perkins’ automobile. The defendant has not alleged that his defense was dependent upon the wording of the information or that it induced him to withhold evidence. It is also clear that the information in this case, together with the record, would be sufficient to bar a subsequent prosecution for the exertion of unauthorized control over Ms. Perkins’ automobile in Will County on November 11, 1979. The requirements of due process were therefore met in this case.

The majority of the appellate court correctly distinguished People v. Rivas (1955), 5 Ill. 2d 556, and People v. McIntosh (1977), 48 Ill. App. 3d 694, from the case at bar.

In Rivas, the indictment specified a specific offense of selling six capsules of heroin on June 28, 1952. However, the evidence presented at trial was not sufficient to sustain a conviction for that charge, on that date. The court had sustained a motion to suppress the six capsules of white powder that were seized on June 28, 1952, and the State offered evidence of two other drug sales on June 27, 1952, in an attempt to prove the crime alleged in the indictment. The court held that unless there is some connection between the facts proved and the offense charged, it is improper to admit evidence of one crime to prove another. (People v. Rivas (1955), 5 Ill. 2d 556, 562-63.) The court also pointed out that the defendant could have been separately indicted for each alleged sale and a conviction of one would be no bar to a prosecution for the other. 5 Ill. 2d 556, 562.

In the instant case, there was sufficient evidence presented by the State to sustain a conviction of theft for the exertion of unauthorized control over Ms. Perkins’ automobile on November 11, 1979. The evidence of the events that occurred on October 31, 1979, was introduced to establish the defendant’s knowledge and intent and was properly admitted for that purpose. Also, only one offense of automobile theft was involved in the instant case, so that a conviction would be a bar to a subsequent prosecution for that same offense. This case is clearly distinguishable from Rivas.

In McIntosh, an automobile-theft case, the State’s theory in the trial court was directed towards proof of the defendant’s guilt of the initial theft. The indictment gave the correct date of the initial theft but gave the location of the later unauthorized possession. The State, with the consent of defense counsel, made a motion to delete the address of the unauthorized possession as mere surplusage. The motion was granted on the first day of trial. The defendant made no challenge to the sufficiency of the indictment at trial. On appeal, the defendant argued that since the location of the unauthorized possession was not shown to be in the county where he was being prosecuted, proper venue was not established and his conviction should accordingly be reversed. The appellate court looked to the record of the case as a whole to determine the State’s theory of the case and rejected the defendant’s argument. The court found that the State was charging the defendant with the initial theft and that venue had been properly established for the initial theft.

It is clear from the record in the case at bar that the State’s theory was directed towards proof of the defendant’s guilt of exertion of unauthorized control over Ms. Perkins’ automobile in Will County, not with the initial theft in Cook County. The location specified in the information was Will County, and the proof at trial was consistent with the State’s theory. Thus, there was no defect regarding venue in this case.

Accordingly, for all the reasons stated, the judgment of the appellate court, affirming the circuit court, is affirmed.

Judgment affirmed.