text:
    (Nos. 58056, 58062, 58085 cons.
    JANICE MARIE CROCKER, Appellee, v. MORGAN M. FINLEY et al., Appellants.

      Opinion filed February 1, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Henry A. Hauser, Jane Clark Casey, and Robert S. Vihon, Assistant State’s Attorneys, of counsel), for appellants.
    Sidney Z. Karasik, Lionel Brazen, and Catherine L. Grahn, of Chicago, for appellee.
    Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of Chicago, of counsel), for intervening appellants the People and Susan Catania.
    Aviva Futorian and Sharon Pitts, of Chicago, for intervening appellant Chicago Metropolitan Battered Women’s Network.
    Leslie Landis, Candace Davis, and Marc Gaynes, of Chicago, for intervening appellant Illinois Coalition Against Domestic Violence.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Janice Marie Crocker, brought this class action in January 1982 against several Cook County officers to challenge the validity of sections 27.1(a)(3) and 27.2(l)(d) of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1981, ch. 25, par. 27.1(a)(3); Ill. Rev. Stat., 1982 Supp., ch. 25, par. 27.2(l)(d))., As amended by Public Act 82 — 645, effective January 1, 1982, these provisions require clerks of the circuit courts to collect a special $5 filing fee from petitioners for dissolution of marriage. The $5 fee, which is paid in addition to regular filing fees, is collected to fund shelters and other services for victims of domestic violence in Illinois. See Ill. Rev. Stat. 1981, ch. 40, pars. 2401-2403; Ill. Rev. Stat., 1982 Supp., ch. 40, par. 2403.1.

As a petitioner for dissolution of marriage, plaintiff paid the $5 fee under protest. She then brought this suit in the circuit court of Cook County, naming as defendants the clerk of that court, his chief deputy in the domestic relations division, and the county treasurer. Plaintiff charged that the fee statute contravenes numerous provisions of the Federal and State constitutions. She requested the court to declare the statute invalid, to enjoin collection of the fee, and to restrain the clerk from transferring to the county treasurer the fees already collected.

Upon plaintiff’s motion, the trial court ordered the clerk to segregate all $5 fees collected from dissolution-of-marriage petitioners. The order directed the clerk to deposit the fees into interest-bearing accounts to be entitled the “Domestic Violence Special Protest Fund.” The court appointed a trustee to supervise the fund, and it temporarily restrained the clerk and his deputies from transferring the fees to the county treasurer.

The following parties then requested and were granted leave to intervene: The People of the State of Illinois and Susan Catania, chairperson of the Illinois Commission on the Status of Women (represented by Illinois Attorney General Neil F. Hartigan); the Chicago Metropolitan Battered Women’s Network and the Illinois Coalition Against Domestic Violence. After denying defendants’ and interveners’ motions to dismiss, the court granted plaintiff’s motion to define and certify a class. The classes certified consist of a State class — all persons in the State of Illinois who petitioned for dissolution of marriage on or after January 1, 1982, and paid the $5 fee — and a similar subclass consisting only of Cook County petitioners.

On cross-motions for summary judgment, the trial court ruled in plaintiffs’ favor on all issues of the complaint. The court reaffirmed the conclusions that it had set out in a memorandum of decision issued when it denied the motions to dismiss. It held that the fee statute contravenes the due process and equal protection guarantees contained in the United States and Illinois constitutions; that the statute constitutes special legislation in violation of article IV, section 13, of the Illinois Constitution; and that the fee infringes upon the right to obtain justice freely which is secured by article I, section 12, of the Illinois Constitution. Accordingly, the trial court ordered the trustee to present a plan of refund to the class. Aware that the defendants and intervenors planned to appeal, the court stayed its judgment and the implementing orders pending appeal.

Defendants and intervenors contend that the fee statute comports in all respects with the Federal and State constitutions. From the order granting plaintiffs’ counter-motion for summary judgment, they appealed directly to this court pursuant to our Rule 302(a)(1). 87 Ill. 2d R. 302(a)(1).

The provisions imposing the challenged $5 fee are one facet of a statutory scheme designed to combat domestic violence in this State. Enacted in 1981, the Illinois Domestic Violence Act (Ill. Rev. Stat. 1981, ch. 40, pars. 2301 — 1 to 2303 — 5) recognizes domestic violence as a serious crime against victims who are unable to effectively protect themselves. (Ill. Rev. Stat. 1981, ch. 40, pars. 2301 — 2(1), (2).) With this Act, the legislature sought to expand the civil and criminal remedies available to victims, and to provide law enforcement officers with tools for prompt assistance. Ill. Rev. Stat. 1981, ch. 40, pars. 2301-2(3), (4).

To supplement the Illinois Domestic Violence Act, the legislature passed “An Act in relation to domestic relations and domestic violence shelters and service programs.” (Ill. Rev. Stat. 1981, ch. 40, pars. 2305 — 1 to 2403; Ill. Rev. Stat., 1982 Supp., ch. 40, par. 2403.1.) This Act authorizes the Department of Public Aid to “administer domestic violence shelters and service programs *** for adults and their dependents who are the subjects of domestic violence.” (Ill. Rev. Stat. 1981, ch. 40, par. 2402.) The shelters thus established are intended to provide “temporary residential facilities to family or household members who are victims of domestic violence and their children.” Ill. Rev. Stat. 1981, ch. 40, par. 2401(c).

This Act directs the Department of Public Aid to finance the shelters and service programs by allotting monies, from the Domestic Violence Shelter and Service Fund. (Ill. Rev. Stat. 1981, ch. 40, par. 2403.) It is to support this fund that the $5 fees, at issue in the case at bar, are collected. (Ill. Rev. Stat. 1981, ch. 25, pars. 27.1(a)(3), 27.2(l)(c).) As another source of revenue, the fund receives proceeds from a special $10 fee charged by county clerks for each marriage license issued. Ill. Rev. Stat. 1981, ch. 53, pars. 35, 73.

To implement this funding process with respect to the fee imposed on dissolution-of-marriage petitioners, the legislature amended “An Act to revise the law in relation to clerks of courts.” As amended, the Act now imposes the $5 fee that plaintiffs challenge in this action:

“Sec. 27.1. The fees of the Clerk of the Circuit Court in all counties having a population of 1,000,000 inhabitants or less *** shall be as follows:
(a) Chancery
* * *
(3) All cases seeking dissolution of marriage $45 of which $5 shall be paid into the Domestic Violence Shelter and Service Fund.” Ill. Rev. Stat. 1981, ch. 25, par. 27.1(a)(3).
“Sec. 27.2. The fees of the Clerks of the Circuit Court in all counties having a population in excess of 1,000,000 inhabitants *** shall be as provided in this Section. ***
(1) The fee for filing a complaint, petition or other pleading initiating a civil action, with the following exceptions, shall be $75.
* * *
(d) Dissolution of marriage: the filing fee as required above; and an additional $5 which shall be paid into the Domestic Violence Shelter and Service Fund.” (Ill. Rev. Stat., 1982 Supp., ch. 25, par. 27.2(l)(d).)

The clerk of each circuit court is to deposit these fees with the county treasurer (see Ill. Rev. Stat. 1981, ch. 85, pars. 721, 722), who remits them monthly to the State Treasurer. The State Treasurer then deposits this money into the Domestic Violence Shelter and Service Fund in the State Treasury. Ill. Rev. Stat., 1982 Supp., ch. 40, par. 2403.1 (repealing section 1.2f of “An Act to revise the law in relation to county clerks” (Ill. Rev. Stat. 1981, ch. 35, par. 1.2f)). See also section 6b — 4 of “An Act in relation to State Finance” (Ill. Rev. Stat. 1981, ch. 127, par. 142b4), which requires that fees collected for the Domestic Violence Shelter and Service Fund in counties of 3,000,000 or more inhabitants be used solely in those counties.

The salutary goals of our new domestic violence acts are not at issue in this case. Nor is the General Assembly’s decision that the laws were sorely needed. Instead, the question presented is whether the legislature may impose a court filing fee on a limited group of litigants where the funds so collected go ultimately into the State Treasury to fund a general welfare program. This central issue inheres in each of the constitutional grounds on which plaintiffs attack the fee statute and on which the trial court based its conclusions.

We first address the lower court’s decision and the plaintiffs’ contention that the $5 fee conflicts with the Illinois constitutional right to obtain justice by law freely. Based on the following considerations, we agree that this provision renders the fee statute invalid.

The $5 charge at issue, referred to by statute as a fee, is in reality a tax. A fee is defined as a “charge fixed by law for services of public officers” (Black’s Law Dictionary 553 (5th ed. 1979)) and is regarded as compensation for the services rendered (36A C.J.S. Fee, at 248 (1961)). Thus, court charges imposed on a litigant are fees if assessed to defray the expenses of his litigation. On the other hand, a charge having no relation to the services rendered, assessed to provide general revenue rather than compensation, is a tax. (Cook County v. Fairbank (1906), 222 Ill. 578, 582-87; see also 1 T. M. Cooley, Taxation sec. 33 (C. A. Nicols 4th ed. 1924); 84 C.J.S. Taxation sec. l.b, at 34-35 (1954).) When these definitions are applied, there can be little dispute that the $5 charge to dissolution-of-marriage petitioners constitutes a tax on litigation.

Statutes imposing litigation taxes, however, do not necessarily offend our State constitution. In Ali v. Danaher (1970), 47 Ill. 2d 231, for example, this court upheld a statute that allows clerks of the trial courts to charge a $1 tax to each litigant who files a first pleading. Funds thus collected go to establish and maintain county law libraries. (See Ill. Rev. Stat. 1981, ch. 81, par. 81.) In spite of constitutional challenges nearly identical to those raised by plaintiffs in the present case, the county law-library tax was held to be valid.

Ali v. Danaher illustrates that a litigation tax may sometimes be imposed. That case, however, does not control the case at bar. Instead, the present appeal compels us to consider a further question that prior cases do not adequately resolve. That is, for what purposes may litigants be taxed?

Recognizing the crucial nature of this inquiry, the parties to this litigation debate the issue at length in their briefs. Plaintiffs maintain that numerous constitutional provisions proscribe a litigation tax that is collected for purposes unrelated to the court system. Defendants and intervenors reject this position and emphasize that filing-fee statutes have consistently withstood constitutional challenges. Citing a number of cases in which this court has upheld fee statutes, defendants stress that no authority exists for the proposition that fees or litigation taxes may be imposed only for court-related purposes. Plaintiffs, however, point out that the cases relied on by defendants all involved statutes which establish charges for operating or maintaining the courts. Therefore, plaintiffs argue, these cases do not bear on the validity of a litigation tax imposed to fund a program unrelated to the judiciary.

A review of prior decisions reveals that plaintiffs correctly characterize the prior cases in which this court has considered constitutional challenges to court filing-fee statutes. Prior cases all involved a fee or tax collected for court-related purposes.

In Ali v. Danaher (1970), 47 Ill. 2d 231, the county law-library tax on litigants was upheld despite claims that it violated separation-of-powers principles (Ill. Const. 1870, art. III); impaired litigants’ rights to obtain justice freely (Ill. Const. 1870, art. II, sec. 19); and conflicted with the guarantee that revenue laws would be imposed uniformly (Ill. Const. 1870, art. IX, sec. 1). In rejecting these claims, this court had no occasion to state that the tax is sound because its purpose is court related. Nevertheless, the relationship of county law libraries to the court system is clear. According to the statute authorizing the tax, funds collected for the libraries could only be disbursed on the order of a majority of a county’s circuit court judges. (Ill. Rev. Stat. 1969, ch. 81, par. 81.) The statute required that libraries supported by the tax be made freely available to “all licensed Illinois attorneys, judges, magistrates and other public officers” (Ill. Rev. Stat. 1969, ch. 81, par. 81), as well as to other members of the public. “[I]t is clear,” this court noted, “that the presence of such facilities is conducive to a proper and even improved administration of justice, which benefits every litigant.” Ali v. Danaher (1970), 47 Ill. 2d 231, 237.

The Ali decision was grounded on principles from earlier cases where this court upheld statutes imposing fees on litigants who file jury demands. (See 47 Ill. 2d 231, 235-37.) Plaintiffs attacking the validity of jury-demand fee statutes usually relied primarily on the right of trial by jury (Ill. Const. 1970, art. I, sec. 13; Ill. Const. 1870, art. II, sec. 5). See People ex rel. Flanagan v. McDonough (1962), 24 Ill. 2d 178 (Chicago municipal jury-fee ordinance questioned); Huber v. Van Schaack-Mutual, Inc. (1938), 368 Ill. 142; Williams v. Gottschalk (1907), 231 Ill. 175. Cf. Fried v. Danaher (1970), 46 Ill. 2d 475 (jury demand fee, nonrefundable even if jury is never impaneled, sustained against equal protection and due process challenges).

In each of these cases, the fee statute was sustained on the ground that no constitutional provision guarantees the right to litigate without reasonable expense. None of the cases required this court to comment on the obvious relationship between jury fees or taxes and the court system. See also Sanko v. Carlson (1977), 69 Ill. 2d 246, where a fee for filing tax objections, collected to defray court expenses, but imposed only on litigants in counties with a population of one million or less, was upheld against numerous constitutional challenges.

With each prior case involving a filing fee or tax collected for a court-related purpose, there was no need to decide whether that purpose was a necessary element of the challenged statute’s constitutionality. However, we now conclude that court filing fees and taxes may be imposed only for purposes relating to the operation and maintenance of the courts. We consider this requirement to be inherent in our Illinois constitutional right to obtain justice freely.

In reference to the provision that secures this right, our court has often stated:

“'“*** The constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law or impede the due administration of justice;***.” ’ ” (Ali v. Danaher (1970), 47 Ill. 2d 231, 236 (quoting Williams v. Gottschalk (1907), 231 Ill. 175, 179, and Adams v. Corriston (1862), 7 Minn. 456, 461); see also Sanko v. Carlson (1977), 69 Ill. 2d 246, 250.)

Applying these principles to the case at bar, we conclude that the challenged $5 tax interferes unreasonably with plaintiffs’ access to the courts. Dissolution-of-marriage petitioners should not be required, as a condition to their filing, to support a general welfare program that relates neither to their litigation nor to the court system. If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general revenue through charges assessed to those who would utilize our courts.

Defendants and intervenors argue alternatively that the statute in question is valid even if it must have a court-related purpose. They point out that victims of domestic violence receive support and counseling from the shelters and programs funded by the $5 tax. These services, they reason, enable victims to use the court system more efficiently in much the way that a county law library improves the administration of justice. The moral and emotional support provided enhance some victims’ resolve to obtain relief in the courts, while preventing others from filing cases that they are not yet ready to pursue.

We have no reason to doubt that domestic shelters and programs operate in precisely the manner that defendants and intervenors describe. We find, however, that the relationship asserted is simply too remote to save the $5 tax from its constitutional shortcomings. If the domestic violence services are deemed sufficiently court related to validate the funding scheme, countless other social welfare programs would qualify for monies obtained by taxing litigants.

Plaintiffs also contend, and the trial court held, that the $5 tax statute violates the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). Plaintiffs claim that, although the tax collected is nominal in amount, the statute arbitrarily imposes the burden of funding a general welfare program on a narrow group of matrimonial litigants. According to plaintiffs, the statute therefore deprives them of property without due process of law. We agree that the statute is unconstitutional in this respect.

To be a valid exercise of the police power, an act of the legislature must bear a reasonable relationship to the public interest sought to be protected, and the means adopted must be a reasonable method of accomplishing the chosen objective. Due process principles operate to limit the police power only to the extent that the power is arbitrarily or unreasonably used. People v. Brown (1983), 98 Ill. 2d 374, 380 (quoting Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453); S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 77.

We focus here on the means that the legislature chose to fund domestic violence shelters and programs. These services are available to all adults and their dependents who are the subjects of domestic violence. (Ill. Rev. Stat. 1981, ch. 40, par. 2402.) As defined by statute, domestic violence can occur between any family or household members. (Ill. Rev. Stat. 1981, ch. 40, par. 2401(a).) Not surprisingly, then, there is no requirement that recipients of the services be either married or divorced. Nevertheless, the legislature chose a tax on petitioners for dissolution of marriage as a means of funding the shelters and programs. We consider this choice to be an arbitrary use of the police power, inconsistent with due process guarantees.

We have discussed the due process issue in light of the exercise of the police power of the State. Whether the additional filing fee provided for by the statute is imposed under the police power or the power to tax, the result we reach is the same. Indeed, a single statute may include the exercise of both the police power and the power to tax. (71 Am. Jur. 2d State and Local Taxation sec. 69, at 396 (1973).) For purposes of this opinion, we need not attempt to distinguish between these two essential powers of government. In the exercise of the power to tax, as in the exercise of the police power, the power may not be exercised arbitrarily and the classification of those taxed must be reasonable. (See Thorpe v. Mahin (1969), 43 Ill. 2d 36, 45-46.) Likewise, the 1970 Constitution of this State provides:

“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.” Ill. Const. 1970, art. IX, sec. 2.

An unreasonable or arbitrary classification for tax purposes places upon the members of a class a burden not shared by others and is violative of due process, as well as equal protection, guaranteed by our Constitution. Ill. Const. 1970, art. I, sec. 2.

We can find no rational basis for imposing this tax on only those petitioners filing for dissolution of marriage, thereby causing members of that class to bear the cost of maintaining the public welfare program provided, while excluding other classes of taxpayers.

There is a certain overlapping and intertwining of the issues we have discussed. In light of our holding on these issues, it is unnecessary for us to consider other challenges to the validity of the statute.

For the reasons above stated, we affirm the judgment of the circuit court of Cook County and remand the case to that court for further proceedings.

Judgment affirmed; cause remanded.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 58106.
    INTERNATIONAL PAPER COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Michele L. Lulay, Appellee).

      Opinion Filed February 1, 1984.

    Westervelt, Johnson, Nicoll & Keller, of Peoria (Jeffrey W. Jackson, of counsel), for appellant.
    Glenn J. Church, Ltd., of Peoria (Glenn J. Church, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Michele L. Lulay, sought workmen’s compensation benefits for an injury she sustained while in the employ of the respondent, International Paper Company. An arbitrator awarded claimant compensation for temporary total disability for a period of 454/? weeks under section 8(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)) and permanent partial disability to the extent of 15% of the use of her right arm under section 8(e) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(e)). On review, the Industrial Commission, with one commissioner dissenting, found that petitioner’s condition had not reached a state of permanency and, therefore, reversed the arbitrator’s award for permanent partial disability and extended the award for temporary total disability to 90 weeks. The Commission also concluded that claimant was entitled to additional medical expenses and vocational rehabilitation under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)) and remanded the cause to the arbitrator for rehearing on the question of a vocational rehabilitation award. The circuit court of Peoria County confirmed the decision of the Commission. Respondent has appealed pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

The issues raised on review are whether the Commission’s findings (1) that claimant’s condition had not reached permanency and (2) that vocational rehabilitation was required, are against the manifest weight of the evidence.

At the hearing before the arbitrator, the claimant testified that on June 21, 1977 she was employed by the respondent as a shrink-film operator. In that capacity, she would take bundles of labels off a conveyor belt and then put them through a shrink-film machine which would seal the labels. On June 21, 1977, the labels on the belt were proceeding unusually fast because of a “big job that had to be out.” As claimant was removing labels off the belt, another pile of labels was approaching. When the labels met, she felt a “pop” go through her right arm. The arm began to ache, feel heavy and her elbow began to swell.

Upon return to work the following day, she reported her condition to her foreman and thereafter, on her own, sought treatment from a chiropractor, Dr. Robert L. Downs. He diagnosed claimant’s condition as epicondylitis of the right elbow and treated it with ultrasound, a transcutaneous nerve stimulative unit, and hot packs. He also advised claimant to wear a sling and refrain from using her arm. The following day, claimant returned to work, and her foreman assigned her to a desk job in the bindery. She was placed on disability on July 19, 1977, when the desk job was completed.

Claimant next consulted an orthopedic surgeon, Dr. Paul Consigny, on June 28, 1977. In a report prepared by Dr. Consigny for the respondent, which was entered into evidence, the doctor diagnosed claimant’s condition as “tennis elbow.” He treated her with medication, heat, and injections in the elbow. Because of her failure to respond to this treatment, Dr. Consigny recommended rest and heat although he noted that claimant could continue to do some work if it did not involve use of her right arm. On August 30, 1977, claimant consulted with Dr. Paul Palmer, another orthopedic surgeon, who was respondent’s company doctor. Dr. Palmer diagnosed tendonitis of the right elbow, treated claimant with therapy, and advised that she not work during the four-month period he treated her. He released her from his care on January 1, 1978. Claimant received temporary total disability payments from respondent for the period beginning July 19,1977, and ending January 1,1978.

Claimant returned to her job as a shrink-film operator on January 2, 1978. Although she wore an elbow brace, which had been prescribed by Dr. Palmer, she testified that she experienced a throbbing pain and tension in her right elbow when at work. She continued at her job until October 6, 1978, at which time she took a six-month leave of absence for an unrelated condition.

Claimant returned to her job on March 13, 1979. She testified that in May of 1979, she began having difficulty lifting small bundles of labels without experiencing intense pain. Because of this, she consulted with a company doctor, Dr. C. J. Thomas, on May 29, 1979. Dr. Thomas’ report, which was entered into evidence, indicated a possibility of minimal permanent disability of the right elbow. He treated the claimant with cortisone injections, prescribed an elastic elbow brace, and advised her to remain off work for the remainder of the week. Following the four-day rest, claimant returned to her regular job. At this time, however, the bundles of labels weighed from 30 to 40 pounds because of the unusually large size of the label involved. Claimant found the job much harder to perform and, therefore, during the following Q-k months she worked at three other production jobs within the company which she thought would be less physically demanding. They all proved to be just as difficult to handle. Claimant left work early on September 20, 1979, when she found herself dropping labels and experiencing pain in her right arm.

During the second week of August, claimant went to her family doctor, Dr. Wilbert S. Newcomer. Dr. Newcomer referred her to an anesthesiologist, Dr. Mohammed Shariff, who was affiliated with a pain management clinic. An appointment was arranged for October 10, 1979. Dr. Shariff examined claimant and also referred her to a psychologist for evaluation. The psychologist’s report, entered into evidence, indicated that claimant was anxious to be rid of her pain and would be likely to cooperate with any future treatment. Dr. Shariff treated claimant with several different modes of therapy which gave her varying degrees of relief but were unable to alleviate the pain for any significant amount of time.

On November 9, 1979, claimant was sent to an orthopedic surgeon, Dr. David Conner, at the request of respondent. In a report sent to respondent’s attorney and entered into evidence, Dr. Conner diagnosed chronic right lateral humeral epicondylitis. He stated that claimant would probably have some permanent partial disability and recommended changing her type of work to adjust to the condition.

Claimant continued her treatment with Dr. Shariff who recommended that she try to return to work. On May 27, 1980, she returned to work for the first time since September 20, 1979. Dr. Shariff recommended sedentary work that did not involve lifting more than 2 to 4 pounds. Claimant was assigned to work as a die cutter, which involved repetitive movement of her body as well as lifting. She was only able to work for 2V2 hours because the burning sensation returned to her arm and the pain increased. At the hearing before the arbitrator, claimant testified that she was not working and had not worked since May 27, 1980. She stated that the only job at respondent’s company which she felt was within her capabilities was the interoffice mail run, which was held by another employee.

Claimant testified, in the hearing before the Commission, that she had not worked since May 27, 1980. She also stated that she had contacted respondent in July of 1980 to inquire about the mail job and was told it was not open. No offer of employment had been made by respondent since the hearing on arbitration. Claimant further testified that she suffers from continuous pain and is greatly limited in carrying out routine household chores. She takes pain medication three times a day as well as applying heat to the elbow.

An evidence deposition of Dr. Shariff was also introduced into evidence on behalf of the claimant at the hearing before the Commission. Dr. Shariff stated that claimant had lateral epicondylitis, which is a self-limiting disease that normally follows its own course to heal. He further stated that he would recommend rehabilitation for claimant in a much lighter or entirely different job.

In its decision and opinion on review, the Commission found that claimant was entitled to additional medical expenses and temporary total disability payments. In addition, the Commission found, that the claimant’s condition had not reached a permanent condition and that she was eligible for rehabilitation. As such, it remanded the case to the arbitrator to take further evidence consistent with Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489. In Hunter, this court remanded the case to the Commission for rehearing on the question of a vocational rehabilitation award and further held that “[ujntil the claimant has completed a prescribed rehabilitation program, the issue of extent of permanent disability cannot be determined.” (86 Ill. 2d 489, 501.) The claimant in Hunter, a disabled pipefitter, sought a rehabilitation award to cover tuition costs and expenses necessary to complete a college degree. The court noted that this form of rehabilitation, which was approved by the Commission and confirmed by the trial court, was based totally on the request of the claimant. There had been no evidence presented by trained rehabilitation personnel in support of claimant’s proposed rehabilitation program. Thus, the court affirmed the Commission’s finding of the need for rehabilitation but reversed that portion of the circuit court judgment which confirmed the Commission’s specific vocational rehabilitation award and ordered the Commission to hold further hearings to determine the most appropriate program of rehabilitation.

Awards for vocational rehabilitation are granted pursuant to section 8(a) of the Workmen’s Compensation Act, which provides, in pertinent part, that an employer shall compensate an injured employee “for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee ***.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) No procedures are provided, however, to guide the employer and employee in evaluating the need for rehabilitation or in developing an individualized rehabilitation program. As the court noted in National Tea Co. v. Industrial Com. (1983), 97 Ill. 2d 424, 431, “[i]n view of the frequency with which this issue arises, it seems evident that some flexible guidelines should be established.” (See Gianforte, Industrial Rehabilitation In Illinois — An Evolving Process, 71 Ill. B.J. 668 (1983), for a general discussion of the “120-day rehab rule of the I.I.C.” established to promote development of rehabilitation plans by the employer and insurance carrier.) In spite of the lack of a statutory procedure, however, “there is no prohibition against the Commission’s calling witnesses whose testimony would be helpful or calling on the claimant to produce evidence to support [a particular] program.” Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, 499.

A series of cases decided subsequent to our decision in Hunter have involved questions regarding vocational rehabilitation. (See generally, National Tea Co. v. Industrial Com. (1983), 97 Ill. 2d 424; Revere Copper & Brass, Inc. v. Industrial Com. (1983), 97 Ill. 2d 388; Caterpillar Tractor Co. v. Industrial Com. (1983), 97 Ill. 2d 35; C. D. Turner & Sons, Inc. v. Industrial Com. (1983), 96 Ill. 2d 231; McLean Trucking Co. v. Industrial Com. (1983), 96 Ill. 2d 213; Zenith v. Industrial Com. (1982), 91 Ill. 2d 278.) These cases all proceeded through two levels of judicial review based on decisions of the Industrial Commission which were inherently incomplete. Although vocational rehabilitation awards were granted at the administrative level in all these cases, the rehabilitation orders were all couched in the general language of the authorizing statute (Ill. Rev. Stat. 1977, ch. 48, par. 138(a).) Development of specific plans was left either to the parties or, in three cases (McLean Trucking, Revere Copper and National Tea) remanded to the arbitrator to hear further evidence on the vocational rehabilitation award.

In the instant case, we are, once again, confronted with a decision of the Industrial Commission which remanded the cause to the arbitrator to take further evidence on the question of a vocational rehabilitation award. The record, viewed by the Commission, revealed an injured employee who made repeated but unsuccessful efforts to return to her original job as well as several different company positions. In addition, claimant’s medical history indicated a chronic condition which was only intermittently and partially alleviated by the numerous modalities of treatments attempted. On the other hand, the claimant neither suggested a rehabilitation program to the Commission nor called rehabilitation witnesses. Thus, while the Commission found claimant entitled to “necessary rehabilitation,” it was unable to order a specific rehabilitation program.

The circuit court has jurisdiction to review decisions of the Industrial Commission by writ of certiorari. (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f)(1).) Section 19(f)(1) of the Act has since been amended effective Sept. 14, 1983, to provide for review by issuance of a summons. (Pub. Act 83 — 360; 1983 Ill. Laws 2608.) While the statute does not define the term “decision,” this court has consistently held that only final determinations of the Commission are reviewable. (American Structures, Inc. v. Industrial Com. (1983), 99 Ill. 2d 40, 43-44; International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 185; Metropolitan Sanitary District v. Industrial Com. (1967), 37 Ill. 2d 447, 449.) In the case at bar, the Commission ordered the case remanded to the arbitrator. The case reached the circuit court, therefore, before administrative involvement in the case had been terminated. By its own terms, the decision of the Commission mandated further administrative proceedings. We find, therefore, that the decision of the Commission was not a final appealable determination. As such, the circuit court did not have jurisdiction to review the Commission decision. In light of this disposition, it is unnecessary to reach the merits of the issues raised on review.

We view, with concern, what appears to be a growing practice of the Commission to routinely order employers to pay for mental, physical and vocational rehabilitation of employees before sufficient evidence is presented to enable the Commission to order a specific plan of rehabilitation. Determination of the specific program, as noted above, requires further deliberation by either the litigants or the arbitrator. If judicial review is allowed before this determination is made, the courts will invariably be faced with piecemeal review of such cases, as litigants dissatisfied with the individualized rehabilitation program repeat the entire administrative and judicial review process. It is not unusual, in workmen’s compensation cases, for five years to pass between the time of injury and final judicial determination. More than four years have passed since the claimant in this case initiated the action. The piece-by-piecé review process described above can only exacerbate what is already an intolerably long delay. We hold, therefore, that decisions of the Industrial Commission which include generalized rehabilitation awards that require further determination as to the extent and nature of such rehabilitation are interlocutory and, therefore, not reviewable by the circuit court.

For the reasons given, the judgment of the circuit court of Peoria County is vacated, and the cause is remanded to the arbitrator for further proceedings.

Vacated and remanded.


author: JUSTICE SIMON

text:
    (No. 58124.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT H. SMITH, Appellee.

      Opinion filed February 1, 1984.

      UNDERWOOD, J., took no part.
    Neil F. Hartigan, Attorney General, of Springfield, and James R. Benson, State’s Attorney, of Paxton (Jack Donatelli and Mark L. Rotert, Assistant Attorneys General, of Chicago and Robert J. Biderman and Garry W. Bryan, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Michael R. Cornyn, of Allen & Korkowski & Associates, of Rantoul, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This appeal presents two questions for resolution: Must a one-count information captioned “Reckless Homicide” set forth the element of recklessness in the body of the information? If so, must a challenge to an information which does not allege recklessness be sustained pursuant to People v. Lutz (1978), 73 Ill. 2d 204, when raised for the first time in a timely motion in arrest of judgment?

An information filed against the defendant, Robert H. Smith, charged:

“That on the 26th day of July, 1981, in [Ford] County, Robert Smith AKA Snyder committed the offense of Reckless Homicide, in violation of Section 9 — 3, Chapter 38, Illinois Revised Statutes, in that above defendant did unintentionally kill an individual without lawful justification by committing an act which was likely to cause death or great bodily harm to an individual, said act consisting in the driving of a motor vehicle at an excessive rate of speed resulting in a crash which resulted in the death of Christopher Gulliford Age 22 of Gibson City, said act occurring within the Corporate limits of the City of Gibson Ford County, Illinois.”

At trial, counsel for the defendant did not present an opening or closing statement and offered no witnesses or evidence. At the jury-instruction conference, defense counsel’s motion to strike all references to recklessness in the instructions offered by the State was denied. However, his tendered instructions concerning speeding and failure to reduce speed to avoid an accident were accepted on the theory that these were lesser-included offenses of reckless homicide.

The jury found defendant guilty of both reckless homicide and failure to reduce speed to avoid an accident. Defendant thereupon filed a motion in arrest of judgment, asserting for the first time that the information failed to charge reckless homicide because it did not allege that he acted recklessly. The trial judge denied the motion and sentenced him for the offense of reckless homicide. The trial judge also entered a judgment of guilty of failure to reduce speed but imposed no sentence for that offense. The appellate court, with one judge dissenting, reversed the conviction of reckless homicide and remanded the cause for sentencing for failure to reduce speed. (112 Ill. App. 3d 1033.) We granted the State’s petition for leave to appeal; in this appeal the defendant does not seek a reversal of his conviction for failure to reduce speed, but requests merely that we affirm the appellate court.

A defendant has the fundamental right, under both the Federal (U.S. Const., amend. VI) and State constitutions (Ill. Const. 1970, art. I, sec. 8), to be informed of “the nature and cause” of criminal accusations made against Mm. In Illinois this general right is given substance by section 111 — 3 of the Code of Criminal Procedure of 1963, wMch states:

“Form of Charge, (a) A charge shall be in writing and allege the commission of an offense by:
(Í) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 3(a).)

Accordingly, it is not sufficient for an information merely to set forth the name of an offense and cite the statute which defines it as an offense; it must set forth in addition the nature and elements of the offense. (E.g., People v. Pujoue (1975), 61 Ill. 2d 335, 338; People v. Sirinsky (1970), 47 Ill. 2d 183.) The statute is phrased conjunctively, and in mandatory language: it requires substantial compliance with each of the five steps it enumerates. While the cases in this State have stopped short of requiring absolute compliance with each step, they nonetheless require that a charging instrument give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecution for the same offense. (People v. Hall (1982), 96 Ill. 2d 315; People v. Heard (1970), 47 Ill. 2d 501; People v. Shelton (1969), 42 Ill. 2d 490.) This requirement may be satisfied by proper allegations in the body of the charging instrument even when they vaiy from the statement of the offense in its caption. (People v. Sirinsky (1970), 47 Ill. 2d 183, 187; People v. Sellers (1964), 30 Ill. 2d 221, 223; People v. Shaw (1921), 300 Ill. 451, 452.) In People v. Sellers the court stated, “it is the body of the indictment, rather than the caption, which must specifically state the essential elements of the crime or crimes with which the defendant is charged.” 30 Ill. 2d 221, 223.

Adhering to these principles we believe that the information fell short of charging reckless homicide. That crime is defined in the following statute:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.” (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).)

It requires that the act which causes death be a reckless one, unlike failure to reduce speed to avoid an accident which does not include a state-of-mind requirement. (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 601(a); see In re Vitale (1978), 71 Ill. 2d 229, 238-39, vacated and remanded on other grounds sub nom. Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.) Left open by the information here is the possibility that the act described in it was committed in a negligent but not a reckless manner, as those terms are defined by the criminal code. (Compare section 4 — 6 of the Criminal Code of 1961 (recklessness involves a conscious disregard of a substantial risk) with section 4 — 7 (negligence involves a failure to be aware of a substantial risk where such failure is unreasonable) (Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 6, 4 — 7).) A reckless state of mind is an integral part of the crime of reckless homicide; recklessness therefore must be alleged in the body of the information. See People v. Ray (1972), 5 Ill. App. 3d 624.

The State urges that an information must be read as a whole, an approach which we recently endorsed in People v. Hall (1982), 96 Ill. 2d 315, and cites People v. Williams (1967), 37 Ill. 2d 521, as authority for the proposition that allegations contained in the caption of a charge may be used to plug gaps in the body of the charge. Neither case is helpful here. In Hall we held that a missing allegation necessary for a proper understanding of one count of a multi-count information could be supplied by another count within the body of the information; “reading the information as a whole” in Hall entailed no resort to the caption or transferrai of essential facts from the title of the charge to the body of the information, as the State suggests is proper here to supply the essential elements. In Williams the court permitted the name of the county in which an offense took place to be supplied by the heading of the charge, which contained a reference to Cook County and a Chicago street address. These references, however, were not a part of the name of the offense, as “reckless homicide” in the instant case is, but were independent pieces of intelligence with informative value of their own, and as such they were the kind of factual matter one would expect to find in the body of the complaint.

The State’s contention that the element of recklessness must be inferred from the nature of the acts alleged combined with the fact that the charge set forth is “reckless homicide” lacks merit. First, the acts alleged here, as we have explained, could have been committed negligently rather than recklessly or wantonly (People v. Ray (1972), 5 Ill. App. 3d 624). Second, if it were permissible to divine what the State in its brief terms “the plain meaning of [a] charge” from the title of the charge standing alone there would have been no need either for a statute requiring the State to set forth the nature and elements of an offense in addition to naming the offense, or for the admonishment of People v. Hockaday (1982), 93 Ill. 2d 279, 282, and People v. Abrams (1971), 48 Ill. 2d 446, 458-59, that even a charge phrased in the exact language of the statute alleged to have been violated, which is typically much more detailed than the bare title of the charge, is not automatically valid. These cases are consistent with, but for the purpose of this appeal even more persuasive than, People v. Pujoue (1975), 61 Ill. 2d 335, 338, in which this court acknowledged that it was not sufficient to set forth the statutory citation without further particularization of the nature and elements of the offense charged.

The State argues that it is unfair to permit a defendant to put the State through a full trial, familiarize himself thoroughly with its strategy and the strength of its case, and then win a reversal on a motion in arrest of judgment based on a defect in the charging instrument which could have been brought to the State’s attention before trial, but was withheld on purpose. Both parties agree that under People v. Lutz (1978), 73 Ill. 2d 204, a challenge of this type must be sustained without a showing that the defect prejudiced the defense, while under People v. Pujoue the defendant must show actual prejudice if he raises his challenge for the first time in the appellate court. The State contends that, insofar as the Lutz result was motivated by a desire to force prosecutors to draft complete charging instruments, its purpose is undermined by the Pujoue holding. It asserts further that Lutz is unsound after our holding in People v. Hall (1982), 96 Ill. 2d 315, 322-23, that the focus of inquiry must be on the defendant’s ability to prepare a defense which would bar further prosecution for the same offense, in view of the likelihood that the defendant’s understanding of the charge and his ability to prepare a defense can be ascertained from the record after the trial occurs.

While we do not denigrate these concerns or suggest here that the dichotomy between Lutz and Pujoue stems from practical considerations, we are not at liberty to tamper with the Lutz holding as the State urges we do. That decision sprang, not from a judicial balancing of interests, but from this court’s interpretation of legislative intent evidenced by thb statute providing for motions in arrest of judgment. Section 116 — 2 of the Code of Criminal Procedure of 1963 reads:

“Motion in Arrest of Judgment.
(a) A written motion in arrest of judgment shall be filed by the defendant within 30 days following the entry of a verdict or finding of guilty. Reasonable notice of the motion shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 116-2.)

In People v. Gilmore (1976), 63 Ill. 2d 23, 29, this court held that a conviction based on a defective charge which was attacked for the first time on appeal would not be reversed if it advised the defendant of “the precise offense charged with sufficient specificity to prepare his defense” and permit him to plead the conviction as a bar to future prosecution. It reached this conclusion on the strength of section 114 — 1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 1(b)), a waiver provision relating to motions to dismiss a criminal complaint, and the absence of any provision for nonwaiver at the appellate level comparable to section 116 — 2. Two years later in Lutz the court took the logical next step and gave section 116 — 2 the literal interpretation contemplated by its mandatory wording and foreshadowed by Gilmore. (See People v. Medreno (1981), 99 Ill. App. 3d 449.) Section 116 — 2 remains unaltered by the legislature.

In Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 336, we observed that “[considerations of stare decisis weigh more heavily in the area of statutory construction than in the [common law generally] because such a departure *** amounts to an amendment of the statute itself rather than simply a change in the thinking of the judiciary with respect to common law concepts which are properly under its control.” This rationale applies here. This appeal plows the same ground in which Pujoue, Gilmore, Lutz and cases relying on them are rooted. If the fruits of that ground seem bitter to those who expect complete harmony in the law, it is for the legislature to provide the sweetener, not this court. The judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE UNDERWOOD took no part in the consideration or decision of this case.


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    (No. 58156.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LORETTA A. JACKSON, Appellant.

      Opinion filed February 1, 1984.

    Robert Agostinelli, Deputy Defender, and Pamela A. Peters, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield and John A. Barra, State’s Attorney, of Peoria (Michael B. Weinstein, Assistant Attorney General, of Chicago, and John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The problem in this appeal, which also has been raised in a number of other cases in the appellate court, is whether, in the State’s terms, the defendant was properly convicted of felony theft rather than misdemeanor theft, or, in the defendant’s terms, whether she should have been sentenced for a Class A misdemeanor rather than a Class 3 felony.

Loretta Jackson was indicted for theft under section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1) for shoplifting clothing valued at $251.98. On August 25, 1981, the date of the alleged offense, section 16 — 1(e) provided:

“(e) Sentence.
(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. ***
(2) * * *
(3) Theft of property from the person or exceeding $150 is a Class 3 felony.” (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e).)

Effective January 1, 1982, sections 16 — l(eXl) and 16— 1(e)(3) were amended, increasing the $150 amounts to $300. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)). No other changes were made in section 16 — 1.

Prior to her bench trial in the circuit court of Peoria County, the defendant moved on January 7, 1982, to have the allegation that she stole property worth more than $150 stricken from the indictment, and for admonition as to sentencing alternatives under the statute as amended. The motion was denied, and defendant was convicted of theft and sentenced to 30 months’ probation conditioned on serving 26 weekends in jail, a sentence permissible only for a felony conviction. Defendant appealed on the alternative grounds that her guilt was not proved beyond a reasonable doubt and that the sentencing procedure was improper given the amendment to section 16 — 1 set forth above. The appellate court affirmed (112 Ill. App. 3d 908, 912), and we granted leave to appeal (87 Ill. 2d R. 315(a)). The reasonable doubt question has not been raised in this court.

Defendant argues that section 4 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1103) requires that she be given the option of sentencing according to the new provision, under which she claims to be guilty only of a Class A misdemeanor rather than a Class 3 felony.

“No new law shall be construed to repeal a former law *** as to any offense committed against the former law, or as to any act done, any *** punishment incurred *** or in any way whatever to affect any such offense or act so committed or done *** or punishment so incurred *** before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, by [sic] applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals *** whether the repeal is in the act making any new provision upon the same subject or in any other act.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 1, par. 1103.

Defendant contends that the change in section 16 — 1 applied only to sentencing, i.e., mitigation of punishment. The State argues that the change affects a substantive provision. According to the State, the value of the property taken is an element of the crime, and thus the effect of retroactive application would be to repeal the prior law, a result expressly forbidden by section 4. The State views “felony theft” and “misdemeanor theft” as separate offenses defined by the value of the property stolen, but we are not persuaded by that construction of the statute.

We believe the appellate court erred in holding that value is an essential element of the offense of theft (112 Ill. App. 3d 908, 912). Section 16 — 1 defines only one offense of theft. Variations of the factual circumstances under which control over property of the owner is obtained are enumerated in sections 16 — 1(a) through (d). Value of property taken is mentioned only in subsection (e), titled “sentence,” which applies to all of the variations. Value determines only whether the theft will be punished as a felony or as a misdemeanor. Value has nothing to do with the decision whether a theft has occurred.

The State relies on the broad language of People v. Harden (1969), 42 Ill. 2d 301, 306, for the proposition that value is a material element of the offense of theft. However, the issue in Harden was whether the jury must specifically find the value of the property taken. Harden held that such a finding was required, in order that the defendant could be properly sentenced. So far as Harden states that value is an element of the offense, it applies only within the sentencing context. As thus limited, Harden is consistent with our holding here.

Our appellate court has reached conflicting results on this issue. On facts similar to this one, People v. Palmore (1983), 113 Ill. App. 3d 926, 931, held that the amendment raising the value demarcation for theft has the effect of mitigating the punishment for theft, and therefore section 4 allows the new act to be applied to the defendant, with his consent. People v. Osborn (1983), 111 Ill. App. 3d 1078, 1085, held that a parallel change in demarcation of value in the criminal damage to property statute (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a)) altered only the penalty and not an element of the offense.

In other cases, the appellate court has refused to apply the statutory changes retroactively. In People v. Primmer (1983), 111 Ill. App. 3d 1046, the defendant was charged with armed violence based on criminal damage to property totalling more than $150 but less than $300. Since the underlying offense supporting armed violence must be a felony (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2), sentencing under the amendment would have prevented conviction for armed violence. The court relied on People v. Bilderback (1956), 9 Ill. 2d 175. Although the Bilderback rationale applied to the Primmer facts, it does not control here. The defendant in Bilderback was convicted of assault with intent to. commit a felony. In the interim before the indictment, the underlying offense of escape from the State prison farm was reduced from a felony to a misdemeanor. As in Primmer, but unlike the situation here, retroactive application of the amendment would have prevented conviction of the crime.

In People v. Jimerson (1982), 111 Ill. App. 3d 82, 86, the appellate court refused to apply the amendment to section 16 — 1 retroactively in a shoplifting situation analogous to this one. We find Palmore and Osborn to be more persuasive than Jimerson. The Jimerson court relied on cases in which retroactive application of a statutory amendment would have prevented conviction of the substantive offense. (People v. Poll (1979), 74 Ill. App. 3d 534, aff'd in part and vacated on other grounds (1980), 81 Ill. 2d 286; People v. Gibson (1976), 41 Ill. App. 3d 209.) In Poll, the defendant was charged with armed violence based on the misdemeanor of aggravated assault. Prior to trial, the armed-violence statute was amended so that offense could no longer be based upon a misdemeanor. In Gibson, the defendant was charged with involuntary manslaughter, but while his appeal was pending, the provisions governing involuntary manslaughter and reckless homicide were amended. Under the new provisions, the defendant’s behavior would be reckless homicide. Unlike the case here, the amendments in both Gibson and Poll affected substantive elements of the offense charged.

Here, the amendment affects sentencing only. Even with retroactive application, the defendant here can still be convicted of theft. For that reason, we vacate the sentence and remand to the circuit court of Peoria County for sentencing consistent with this opinion.

Judgments affirmed in part and vacated in part; cause remanded.


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    (No. 58253.
    JOHN WHEATLEY et al., Appellees, v. THE BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, Appellant.

      Opinion filed February 1, 1984.

      John H. Hager and David K. Staub, of Cowen, Crowley & Hager, of Chicago, for appellant.
    Peter M. Katsaros and Wayne Schwartzman, of Hirsh & Schwartzman, P.C., of Chicago, for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

This action was brought in the circuit court of Cook County by plaintiffs, John Wheatley and Celeste Mazor, who were school teachers honorably dismissed by defendant, Board of Education of Township High School District 205, Cook County (the Board). Plaintiffs instituted this suit as a class action seeking a writ of mandamus and declaratory relief for themselves and 57 other teachers who were honorably dismissed by the Board. The trial court dismissed the complaint, finding that the issues were moot. The appellate court reversed and remanded the cause for further proceedings on the merits. (113 Ill. App. 3d 129.) Thereafter, this court allowed defendant’s petition for leave to appeal. 85 Ill. 2d R. 315.

There are two questions presented for review: (1) Is this class action viable? and (2) Does the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12) require a public hearing when a school board’s dismissal of teachers is not based solely on economic necessity?

Following a school board meeting on April 8, 1981, the Board honorably dismissed 26 tenured and 33 nontenured teachers. On May 7, 1981, plaintiffs filed this class action requesting a writ of mandamus directing the Board to rescind its dismissals of the teachers and a declaratory judgment that the Board violated section 24— 12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12) by dismissing the teachers without first holding a public hearing. Plaintiffs’ claim is based on the following language of the School Code:

“Whenever the number of honorable dismissal notices based upon economic necessity exceeds 5, or 150% of the average number of teachers honorably dismissed in the preceding 3 years, whichever is more, then the board shall hold a public hearing on the question of the dismissals.” Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.

On June 6, 1981, the named plaintiffs accepted the Board’s offer of reemployment. On June 23, 1981, the parties filed cross-motions for summary judgment. Because of its disposition of a subsequently filed motion to dismiss, the court did not rule upon the summary judgment motions.

By the beginning of the 1981-82 school year, but after the summary judgment motions were filed, all but five of the honorably dismissed tenured teachers were either reemployed or offered, but refused, reemployment by the Board. On September 9, 1981, the Board filed a motion to dismiss the complaint. The motion was supported by an affidavit from the Board’s Superintendent of Schools which stated that the teachers were dismissed “because of a necessity to reduce the teaching force due to declining enrollment, organizational efficiency and economic necessity.” The Board argued that the change in circumstances rendered the issues moot and also that a public hearing was not required, since the teachers were dismissed for reasons in addition to economic necessity. We note parenthetically that, during arguments on the motion to dismiss, counsel for the Board informed the court that one of the five remaining unemployed tenured teachers was offered, but refused, the Board’s offer of reemployment.

The trial court agreed that the issues were moot and dismissed the complaint. The court also concluded that section 24 — 12 of the School Code requires a public hearing only when more than five tenured teachers remain unemployed in the school year immediately following their honorable dismissals. The appellate court reversed, concluding that section 24 — 12 takes effect when the number of dismissal notices sent exceeded five and, therefore, the issues were not moot as to the tenured teachers who were not offered reemployment.

The Board maintains that this action should be dismissed because the interests of the named representative plaintiffs are moot. An issue is moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief. (West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 507; Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 519.) The record shows that, one month after this action was filed, the named representative plaintiffs accepted the Board’s offer of employment. By virtue of accepting employment, they were granted the essential relief demanded. Under these circumstances, it is clear that the interests of the named representative plaintiffs are moot because there is no longer a controversy between them and the Board.

Illinois courts have found exceptions to the mootness doctrine in actions where there is substantial public interest (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622-23) or where the issues were likely to recur but unlikely to last long enough to allow appellate review to take place (August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276, 279-80). Plaintiffs assert that this action presents questions of substantial public interest because “the number of experienced teachers willing to dedicate themselves to long years of public service is bound to dwindle” if a school board is permitted to dismiss teachers each spring and rehire them the following fall. Plaintiffs further argue that the issues here are likely to recur if school boards are allowed to avoid holding public hearings on economic dismissals by rehiring enough teachers to escape the statutory minimum. Due to the conclusions reached, we find that the exceptions to the mootness doctrine are not applicable in this instance.

Plaintiffs urge that the action should not be dismissed, even if this court finds that their claims are moot, because relief can be granted for the tenured teachers who were not offered reemployment. As above noted, plaintiffs instituted this suit as a class action on behalf of themselves and for all other teachers similarly situated. However, they never moved for or received class certification prior to the trial court’s granting of the Board’s motion to dismiss.

The class-action statute provides:

“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class.” (Ill. Rev. Stat. 1979, ch. 110, par. 57.3(a).)

As held in Schlessinger v. Olsen (1981), 86 Ill. 2d 314, 317-18, a trial court may rule upon a defendant’s motion to dismiss before the question of class certification has been decided, even though certification should be determined “as soon as practicable.”

The named plaintiffs in a class action have the burden of establishing the statutory prerequisites, and the court must find the prerequisites present before it can sanction the maintenance of the suit as a class action. (McCabe v. Burgess (1979), 75 Ill. 2d 457, 463-64, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230.) The statutory prerequisites are:

“(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” Ill. Rev. Stat. 1979, ch. 110, par. 57.2.

This court has held that the requirement that the named representative of the putative class possess a valid claim against the defendant is subsumed in requirements (2) and (3) of the class-action statute. (Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 48.) Because the claims of the named representatives here have been resolved, they are not proper parties who would fairly and adequately protect the interest of the class they purport to represent. Once a representative plaintiff is granted the desired relief, he is no longer a member of the class because his interests are not consistent with the interests of the other class members. Moreover, where a named party does not have an interest in the litigation, there is no reason to expect zealous representation by him on behalf of the class. (See McCleary v. Realty Industries, Inc. (E.D. Va. 1975), 405 F. Supp. 128; (cf. Board of School Commissioners v. Jacobs (1975), 420 U.S. 128, 43 L. Ed. 2d 74, 95 S. Ct. 848; Valentino v. Howlett (7th Cir. 1976), 528 F.2d 975; Locke v. Board of Public Instruction (5th Cir. 1974), 499 F.2d 359.) No remaining member of the class sought to substitute himself as a named representative and, therefore, certification requirement (2) could not be met. We therefore conclude that the requirements for class certification cannot be met and that the named plaintiffs may not maintain this action.

In light of our disposition of the issues above, we need not reach plaintiffs’ other contention. For the reasons stated, the judgment of the appellate court is reversed and the order of the circuit court of Cook County dismissing plaintiff’s complaint is affirmed.

Appellate court reversed; circuit court affirmed.


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    (No. 58607.
    FREEMAN UNITED COAL MINING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph C. Dullenty, Appellee).

      Opinion filed February 1, 1984.

      Elmer Jenkins and Carter Harrison, of Benton, for appellant.
    Edward F. Brennan, Jr., and G. Richard Jones, of Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This appeal requires us to answer two questions: Is an employee who is receiving ongoing payments for permanent total disability under section 8(e)(18) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(18)) eligible for an award of temporary disability benefits when he is injured in a later employment-related accident? If so, is the employer entitled to credit its payments of the permanent total disability award against the amount due the employee each week for his temporary disability?

On May 7, 1973, the claimant, Joseph Dullenty, while employed as a miner by the appellant, Freeman United Coal Mining Company, sustained injuries which resulted in the amputation of both legs below the knee. An arbitrator for the Industrial Commission awarded him a pension for the loss of both legs, to be paid in monthly installments of $315 for the rest of his life, in addition to necessary medical and surgical expenses and the cost of artificial limbs. The pension was awarded pursuant to section 8(e)(18) of the Act and the arbitrator’s finding that Dullenty’s double amputation constituted “the complete disability of the Petitioner” (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e)(18)). While Freeman continued to pay these benefits as well as Dullenty’s medical and surgical expenses, it retained Dullenty in its employ as a maintenance man. He worked in this capacity on a regular basis for five years.

As part of the work program at the mine, employees took showers at the mine site on company time at the end of a shift to wash off the coal dust. On July 28, 1979, Dullenty slipped while taking a shower at work and broke the skin on the stump end of his left leg. Surgery was required to close this wound, and following the injury Dullenty has had continuing problems in getting a prosthesis that fits comfortably, with the result that he has had difficulty standing for any length of time and has not been able to continue working.

Dullenty filed a claim for full temporary total disability benefits. An arbitrator awarded him benefits of $185.31 per week in addition to his monthly pension and without any credit for amounts paid under the pension. The Industrial Commission affirmed this decision with one commissioner dissenting, and the circuit court of Franklin County confirmed the award.

The basis for this appeal by Freeman is that it makes no sense to find that a person who has been declared permanently and totally disabled is capable of suffering an additional disability; consequently, an award for permanent total disability under sections 8(e)(18) and 8(f) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.8(e)(18), 138.8(f)) is the largest amount that a worker may receive and precludes any type of additional award. The interpretation and application of section 8(e)(18) which Freeman urges upon us does not find support in either the wording of the Act or the decisions of this court. That section provides:

“The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.
Any employee who has previously suffered the loss or permanent and complete loss of the use of any of such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss or permanent and complete loss of the use of the member occasioned by the last independent accident.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(18).)

Section 8(f), to which the quoted section refers, set forth the rates and conditions of payment of benefits for permanent total disability at the time the original award in this case was entered. (The rates of payment now appear in section 8(b)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(b)(2)).) The payment schedules apply “[i]n case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in [section 8(e)(18)]” (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)).

There is a distinction between the two kinds of permanent and total disability referred to in section 8(f), as the wording of that section suggests. “[Complete disability, which renders the employee wholly and permanently incapable of work” is defined only in section 8(f), and only in those words; it can form the basis for an award only if the employee is able to show that his injuries have left him without a market for his skills, so that he is for practical purposes unemployable (Intercraft Industries Corp. v. Industrial Com. (1983), 95 Ill. 2d 297, 300-01; Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 546-47), and benefits for that type of disability must cease or be reduced should the employee subsequently reacquire a wage-earning capacity (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)). Disability under section 8(e)(18), by contrast, is “permanent and total” only by legislative pronouncement; it is not inconsistent with a continuing ability to work, and in that event the pension mandated for it is not to be affected by the employee’s return to work. (National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51; Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill. 2d 395.) Although the benefit rates for disability under section 8(e)(18) are calculated in the same manner as those for disability under section 8(f), the purpose behind section 8(e)(18) is not merely to replace lost wages or provide financial protection for workers whose earning power is terminated, but “is broad enough to accommodate the pain and inconvenience that accompany the ‘specific case of loss of both hands, both arms, both feet or both eyes ***’ even though the employee remains able to work.” (National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, 56-57.) The only limitation on the recovery provided by section 8(e)(18) is that set forth in the second paragraph of that section, which provides that, where an employee loses two members of the body in separate accidents, the employer who employs him at the time of the second accident is liable only for the loss of the member involved in that accident, rather than for the permanent and total loss of the man as a whole.

As we read section 8(e)(18), it provides no basis for arguing, as Freeman does, that an award of temporary total disability in addition to an award of section 8(e)(18) benefits either goes beyond the intention of the Act or requires one to suppose the logically impossible. “If an employee may properly be rated at 100 per cent disability to qualify him for *** workmen’s compensation, even though his earning power has not in truth, for practical purposes, been impaired, it should be at least equally permissible to penetrate the fiction of 100 per cent disability and accept the truth of his remaining earning ability so that *** a subsequent injury with increased actual disability may be compensated.” (Smith v. Industrial Accident Com. (1955), 44 Cal. 2d 364, 370, 282 P.2d 64, 68; accord, Dennis v. Brown (Fla. 1957), 93 So. 2d 584; Industrial Carving Co. v. Hurst (1969), 223 Tenn. 469, 447 S.W.2d 871; 2 A. Larson, Workmen’s Compensation secs. 59.41, at 10 — 514, 59.42(b) (1983)). The court’s observation in Cropp v. State Workmen’s Compensation Commissioner (W. Va. 1977), 236 S.E.2d 480, 484-85, is also relevant to the issue confronting us:

“To say that a life award precludes the obtaining of any additional disability benefits where the injured workman is possessed of sufficient initiative and skills to become re-employed is to embrace a doctrine that human endeavor can ultimately be parceled off in percentages.”

The compensation which DuUenty is receiving pursuant to section 8(eX18) reflects not actual permanent total disability or actual loss of wages but “a stated legislative determination that the [specific injuries suffered] shall have compensation at a fixed figure” (Jones v. Cutler Oil Co. (1959), 356 Mich. 487, 491, 97 N.W.2d 74, 76), even though the injuries may heal. By contrast, the temporary total disability award which DuUenty seeks in this proceeding is calculated to replace lost wages during periods of actual disability and has no other purpose, apart from assuring medical treatment. The former award is authorized by the special circumstances attendant on the loss of both feet, and it relates only to the first accident DuUenty suffered. The second accident, which destroys earning power and income stream just as surely as the first, “is not to be inflicted free of liability and suffered without recompense. The law requires two awards.” Jones v. Cutler Oil Co. (1959), 356 Mich. 487, 502, 97 N.W.2d 74, 81; see 2 A. Larson, Workmen’s Compensation sec. 59.41, at 10 — 512 through 10 — 515 (1983).

Freeman relies on Caterpillar Tractor Co. v. Industrial Com. (1947), 397 Ill. 474. That decision is not in point because it involved a different section of the Workmen’s Compensation Act, section 8(e)(17½) (Ill. Rev. Stat. 1945, ch. 48, par. 145(e)(17½), now Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(17)). That section provides for compensation for successive injuries which culminate in or involve the amputation or permanent loss of use of one member of the body. It was construed in Caterpillar Tractor as permitting only one award and as requiring a reduction of that award to reflect the loss occasioned by the earlier injury. The claimant in that case first lost four toes of his right foot, and a later accident resulted in the amputation of the same foot. His claim was, therefore, based on what is now section 8(e)(17) and did not require an interpretation or application of section 8(e)(18) which deals with the “specific case of loss of both” members.

The cases from other States which Freeman cites are also not in point. (E.g., Cabe v. Skeens (Ky. 1967), 422 S.W.2d 884; McGee v. State ex rel. Board of Commissioners (La. App. 1978), 355 So. 2d 1079; Harrison v. Lakey Foundry Corp. (1960), 361 Mich. 677, 106 N.W.2d 521; Walls v. Hodo Chevrolet Co. (Miss. 1974), 302 So. 2d 862; Rollins v. Albuquerque Public Schools (1979), 92 N.M. App. 795, 595 P.2d 765; Scialo v. Luisi (1960), 91 R.I. 86, 161 A.2d 194.) None of them involved an award of specific permanent total disability benefits under a statute comparable to section 8(e)(18) of the Workers’ Compensation Act, followed by a return to work and a temporarily disabling accident. While the maxim that “[a] workman can only be 100% totally disabled. He cannot be 200% disabled,” as one case put it (Rollins v. Albuquerque Public Schools (1979), 92 N.M. App. 795, 797, 595 P.2d 765, 767), may be applicable and preclude an award of further benefits following an adjudication of actual permanent total disability under section 8(f) of our Act, we are not called upon to decide that issue here, for our judgment is directed solely at the application of section 8(e)(18). We merely hold that, inasmuch as adjudications of permanent total disability under section 8(e)(18) are to be made without regard to a worker’s future employment prospects, and awards under that section do not reflect actual unemployability, the Workers’ Compensation Act anticipates that a recipient of section 8(e)(18) benefits may in addition recover temporary total disability benefits should he retain or recover his ability to earn wages only to lose that ability because of a work-related accident. In these circumstances, the Act contemplates that the employee, notwithstanding the previous award, is to be compensated for his current loss of earning power.

Freeman argues that in any event it is entitled to a credit against the temporary award in the amount of the benefits it is paying under the section 8(e)(18) award so as to avoid duplication of benefits. As we observed above when we referred to the National Lock Co. case, a primary purpose of the benefits paid under section 8(e)(18) is to compensate the employee for the pain and inconvenience represented by the loss of both feet, both legs, both arms or both eyes, while the benefits payable for temporary total disability are calculated to replace his lost current earnings. Viewed in this manner, there is no duplication between awards under section 8(e)(18) and those for temporary total disability. More importantly, in construing statutes which purport to impose a general liability or a duty common to all, the courts are free only “to declare and enforce the law as enacted by the legislature, to interpret the language used by the legislature where it requires interpretation, and not to annex new provisions or substitute different ones, or read into a statute exceptions, limitations, or conditions which depart from its plain meaning.” (Belfield v. Coop (1956), 8 Ill. 2d 293, 307; see Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 334; Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363.) Credits operate as partial exceptions to the liabilities created by the Workers’ Compensation Act, and should therefore be narrowly construed where granted and not be extended by implication unless necessary to accomplish the purpose of the Act. 34 Ill. L. & Prac. Statutes sec. 152 (1958).

Section 8(e)(17) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(17)) provides for credits which bear upon liability for accidents suffered after the loss of a member of the body such as a foot. It states that, in computing the compensation to be paid for any accident, the earlier loss of “any member, including hand, arm, thumb or fingers, leg, foot or any toes *** or the *** sight of an eye” shall be taken into account as a deduction. This provision, which was interpreted in the Caterpillar Tractor case as well as in General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106 and D’Amico Macaroni Co. v. Industrial Com. (1970), 44 Ill. 2d 519, is phrased in the singular and does not refer to “[t]he specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof,” which is the basis for a section 8(e)(18) award. Section 8(e)(18) does not contain a comparable provision for a deduction.

We conclude, based on our previous discussion as well as the absence of compelling language in the statute, that the legislature did not intend to allow a credit against subsequent disability payments for payments made under section 8(e)(18). Had this been the legislature’s intent, it would have been a simple matter to either include language to that effect in the text of that section or to omit the singular wording in section 8(e)(17). No such change was made even though the General Assembly made changes in both of those sections in 1975. (Pub. Act 79 — 79, 1975 Ill. Laws 224, eff. July 1, 1975.) There is thus no statutory authority for departing from the general rule that an employer takes his employees as he finds them and must pay full compensation for injuries which result in industrial disability. (Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 238.) Nor are we convinced that the purposes of the Workers’ Compensation Act would be undermined by not reading a credit such as Freeman seeks into the law. The purpose of the Act was to provide a flow of benefits to compensate for lost wages (Board of Education v. Industrial Com. (1982), 93 Ill. 2d 1, 14) and to compensate workers for the loss of industrial earning capacity. Although section 8(e)(18) is not central to this purpose to the extent that it compensates for pain or inconvenience rather than for actual disability, the allowance of full benefits under that section without credit cannot be said to detract from that purpose, and the provision should not be read other than as the legislature framed it. See Cropp v. State Workmen’s Compensation Commissioner (W. Va. 1977), 236 S.E.2d 480, 483-84.

In holding as we do we recognize, as Freeman urges, that employers may be discouraged from hiring individuals who have lost both arms, both legs or both feet in view of the risk that any further accident, no matter how slight, might severely, disable such persons and lead to a substantial award of further compensation. However, encouragement is a two-way street, and workers with useful skills might elect not to rejoin the work force if the law did not permit them to recover for work-related accidents in the future but continued to provide them with a pension whether they return to work or not. The legislature was entitled to resolve this problem in the manner it did, and we are not free to disturb its choice.

Freeman’s final argument is that the Industrial Commission’s finding that Dullenty’s 1979 injury was a separate accident rather than a continuation of the original injury he suffered is against the manifest weight of the evidence, and that consequently the award of temporary total disability benefits must be reversed. Although the second injury was to the same part of the body as the first, the test is not whether Dullenty sustained a new or independent type of injury, as Freeman suggests, but whether he suffered a second accident which caused further disability of a type which the law would recognize as compensable. In this regard, the record reveals no periods of Dullenty being absent from work due to problems with his stumps prior to his slipping while in the company shower, and while Dullenty visited doctors before that occurrence and had minor adjustments made to his prosthesis, his uncontradicted testimony was that when he fell in the shower, he broke his left stump open, has since that time been unable to obtain a prosthesis which fits his stump, and cannot stand for any length of time. The Commission could have concluded that the fall in the shower caused an injury to his left stump which resulted in swelling or bruises, and that his consequent inability to fit a prosthesis to the stump disabled him from work. We must accept a factual finding or an inference drawn by the Commission unless it is against the manifest weight of the evidence (Courson v. Industrial Com. (1983), 98 Ill. 2d 1, 9), and we cannot say that is the case here.

The factual conclusions drawn by the Industrial Commission were supported by the evidence, and the law was properly applied. We affirm the decision of the circuit court which confirmed Dullenty’s award.

Judgment affirmed.