author: MR. JUSTICE MORAN

text:
    (No. 53626.
    GOLDBLATT BROTHERS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Walter Henning et al., Appellees).

      Opinion filed May 22, 1981.

      Discipio, Martay & Caruso, of Chicago (Francis M. Discipio, of counsel), for appellant.
    Thomas G. Cronin, of Chicago, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The employer, Goldblatt Brothers, Inc., appeals from an order of the circuit court of Cook County which confirmed the Industrial Commission’s award of compensation to claimant, Walter Henning. The Commission, in adopting the arbitrator’s recommendation, determined that the claimant had sustained accidental injuries arising out of and in the course of his employment, and that such injuries resulted in the permanent and complete loss of the use of the right arm to the extent of 100% thereof. It also determined that this loss, in conjunction with claimant’s previously sustained permanent and complete loss of sight of the left eye, constituted total and permanent disability of claimant. As a result, the Commission held that claimant was entitled to receive from the employer the sum of $185.33 per week for 235 weeks. In addition, claimant was awarded $185.33 per week for life commencing December 18, 1980, to be paid by the State Treasurer as ex-officio custodian of the Second Injury Fund.

The employer asserts that claimant failed to establish a causal connection between the accident and his present condition, that the claimant’s disability was totally due to a preexisting degenerative disease, and that, therefore, the award of compensation was contrary to the manifest weight of the evidence.

The claimant was employed by Goldblatt Brothers, Inc., to load warehouse merchandise on trailers for customer delivery. On June 10, 1976, claimant was loading a 300-pound sofa when it fell on his right shoulder, knocking him to the concrete floor. Claimant testified that immediately after the accident he noticed an inability to move his right arm and neck. That same day, claimant went to the Kildare Clinic, where he was examined, X-rayed, and told to go home for the rest of the day. Records from the Kildare Clinic introduced by the employer disclose: “Pt. fell backwards injuring rt. shoulder. Contusion to right shoulder blade. Pt. has muscle weakness to entire arm (including shoulder girdle) atrophy.” Claimant testified that on the following day he experienced pain in his neck, right shoulder, and right arm. He was unable to move his right arm. He returned to work that day but did no loading. He “just checked merchandise off with [his] left hand.” He continued to work “checking merchandise” through June 25. He stated that during this period he had a pain in his neck and his right shoulder and that his right arm “would just hang there.”

On June 15, 1976, claimant went to Dr. Oscar M. Simon’s clinic, where he was examined by Dr. Aurora Augustani, who referred him to Dr. Ben Lichtenstein, a neurologist. Ten days later, claimant was examined by Dr. Lichtenstein, who admitted him to St. Joseph Hospital on June 27. Surgery (cervical myelogram and cervical laminectomy) was performed on claimant’s neck by a neurosurgical consultant, Dr. Amador. Claimant was released after 27 days of hospitalization but continued to experience pain in the neck and right shoulder. He claimed that his “arm still hung” and that his right leg “was dragging.”

Claimant also testified that he had bumped his right shoulder in a trailer 10 years before the incident in question. The shoulder was X-rayed at Kildare Clinic and no damage was found. Claimant suffered no problem until 1975, when he strained his right arm while loading a sofa into a trailer. He testified, “after that to comb my hair was a little trouble.” He stated that he had no trouble loading trailers before the June 10, 1976, accident.

Dr. Robert C. Busch, who examined claimant on April 22, 1977, was called as a witness for claimant. In response to a hypothetical question, Dr. Busch stated that in his opinion “there could or might be a causal connection between the accident which was described and the patient’s condition.” He also stated that if claimant had a prior limitation of the right arm before the injury, the trauma could have served to increase the limitation.

Dr. Oscar M. Simon testified on behalf of the employer. He testified that, in the four-month period prior to the accident in question, claimant had been treated by the clinic on three occasions for unrelated problems. The clinic records for these occasions showed no complaints relating to claimant’s right arm or leg. The record for June 10, 1976, the date of the accident, indicates, “atrophic muscular area, upper deltoid right arm, unable to adduct arm and unable to flex elbow. Weak hand grip, right.”

Dr. Ben Lichtenstein, a specialist in neurology and psychiatry, testified on behalf of the employer. He diagnosed claimant’s condition, on the basis of his workup and his knowledge of the claimant’s surgery, as “compression of the cervical myelopathy secondary to cervical spondylosis *** which means a degeneration of the spine ***. In layman’s terms *** a particular type of arthritis in which the discs are degenerated, compressed on the cord ***.” Dr. Lichtenstein stated that in his opinion the claimant’s fall had no significance to the course of his illness, in that the condition described was progressive.

On review before the Industrial Commission, the employer introduced medical reports of Dr. Marshall I. Matz, a neurosurgeon, and Dr. Ben B. Camacho. Dr. Matz reported that, based on his examination, claimant’s history “is indicative of pre-existent cervical spinal cord compression.” Dr. Camacho’s report dated May 16, 1979, states:

“Today’s examination does show that this man is unable to actively use his right upper limb. However, the condition of ill-being that produced the condition appears to be of long standing; namely, the x-ray findings as well as the atrophic changes, which was already noted shortly after the accident.”

At this same hearing, claimant introduced the June 13, 1979, medical report of Dr. I. Joshua Speigel, an examining neurosurgeon, which states in part:

“It is my carefully considered opinion therefore that *** the incident of trauma of June 10, 1976 superimposed upon a previously existing condition of cervical spondylosis and narrowing of the cervical spinal canal is the immediate cause for his current total incapacity.”

Proof of the existence of a preexisting condition will not necessarily bar an employee’s claim for compensation. The employee will be entitled to compensation if he sustains an accidental injury which aggravates a preexisting diseased condition. Moreover, the accident need not be the sole causative factor in bringing about the employee’s disability. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 29.

The employer argues that the testimony and medical evidence introduced prove that the claimant suffered from a progressive degenerative condition of the cervical spine that predated the instant accident. The employer relies on the medical testimony of Dr. Lichtenstein as proof that the claimant’s present condition was not caused or aggravated by the accident and that the preexisting degenerative condition was the sole causative factor to which his present condition is attributable. We note, however, that there was conflicting medical testimony introduced on this very point. Both Dr. Speigel and Dr. Busch were of the opinion that the accident did or could have caused the claimant’s total and permanent condition. Moreover, a causal connection between the claimed injury and an accident may be established by a chain of events showing that prior to the accident the employee was fully capable of performing manual job tasks and that immediately after the accident such ability was diminished. (Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 471; Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 143.) In the present case, it is uncontroverted that the claimant had routinely performed his manual duties of lifting heavy items of merchandise and loading such into delivery trailers up to the moment of the accident. It is also uncontroverted that he was unable to resume such manual tasks after the accident. Where, as here, the evidence is conflicting on the issue of causation, it becomes the unique province of the Industrial Commission to resolve such conflicts, and its decision will not be set aside unless contrary to the manifest weight of the evidence. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 251.) After a review of the record, we find that there was sufficient evidence to allow the Commission to resolve the conflict in the evidence in favor of claimant, and by doing so its decision was not against the manifest weight of the evidence.

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

Judgment affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GO.LDENHERSH

license: Public Domain

text:
    (No. 53734.
    KEYSTONE STEEL & WIRE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Raymond King, Appellee).

      Opinion filed May 22, 1981.

      David J. Parsons, of Chicago (Seyfarth, Shaw, Fair-weather 8c Geraldson, of counsel),- for appellant.
    Clarence Lipnick, of Lipnick, Barsy & Joseph, of Chicago (Cornelia Honchar Tuite, of counsel), for appellee.
   MR. CHIEF JUSTICE GO.LDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded petitioner, Raymond King, Sr., compensation for permanent and total disability suffered as the result of an accident while in the employ of the respondent, Keystone Steel 8c Wire Company. On review the Industrial Commission affirmed the award, and on certiorari the circuit court of Cook County confirmed. No appeal was taken. Subsequently respondent filed a petition under section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)) to modify the award. The petition is not included in the record, but it may be assumed that it was alleged that petitioner was gainfully self-employed and was no longer permanently and totally disabled. After hearing evidence the Industrial Commission denied respondent’s petition. The Commission also found that there had been an unreasonable and vexatious delay by respondent in the payment of compensation for the period from September 23, 1978, to October 18, 1979, and that under section 19(k) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)) petitioner was entitled to an additional sum of compensation. Pursuant to section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) respondent was ordered to pay petitioner’s attorney fees in the amount of 20% of the compensation payments due. Respondent was also ordered to pay interest as provided in section 19(n) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(n)). On certiorari the circuit court of Cook County confirmed and respond-dent appealed (73 Ill. 2d R. 302(a)).

At the hearing on respondent’s section 8(f) petition, three employees of Scrap Corporation of America, called by respondent, testified that over a 10-month period between August 1, 1977, and May 30, 1978, petitioner, under the business name of “Ray King and Sons,” contracted with and was paid by their company for work which included painting, replacing floor tile, carrying 50-pound steel lockers, and putting sealant on the roof of an office building. They testified that they had personally observed petitioner perform manual labor; that on some days petitioner worked periods of four to five hours; some days he worked a little more, on other days a little less, some days not at all, and on some days with one or more helpers.

Petitioner and his two sons testified that petitioner did very little physical work on these jobs and that his involvement in the business was primarily supervisory. Neither son was a full-time employee of the petitioner during the 10-month period. Neither party presented medical evidence.

Respondent contends that the Industrial Commission and the circuit court erred as a matter of law in finding that respondent had failed to prove that petitioner was no longer permanently and totally disabled. It argues that the error resulted from the failure to properly construe and follow E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, and A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482. It argues that the findings and conclusions contained in the Commission’s decision show that it had erroneously concluded that in order for an award for permanent and total disability to be modified, it was necessary to prove that the employee had engaged in regular or steady employment involving physical labor over an extended period of time for a particular number of hours each day. Respondent contends, too, that the Commission required proof by respondent that an offer of steady employment had been made to petitioner or that there had been an offer and rejection of vocational rehabilitation or retraining. ,In support of this last contention respondent cites the following statement found at the end of the Commission’s order and decision to deny respondent’s section 8(f) petition:

“This order shall not be a bar to further proceedings whenever the respondent can establish that petitioner has been offered steady employment within his physical and mental capabilities, skills and training, or has been offered and rejected an appropriate program of vocational rehabilitation or retraining.”

Citing E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, the Commission stated in its order:

“The law is clear that Petitioner’s age, the nature of disability, training and work experience must be considered in determining permanent total disability. *** Petitioner has completed only one year of high school and absent from the record is any evidence showing Petitioner has any kind of specialized training. Petitioner was employed as a painter at the time of his injury and prior to that time had worked as a laborer. Prior to his injury [from which the permanent disability arose] as a result of which Petitioner underwent a surgical laminectomy, Petitioner had already had two earlier laminectomies. In addition, Petitioner had a traumatic amputation of four fingers on his left hand prior to his industrial accident.
Evidence which shows that an employee has been able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of only partial disability. A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. Jones v. Industrial Commission, 71 Ill. 2d 368, 375 N.E.2d 1306 (1978), Firestone Tire & Rubber Co. v. Industrial Commission, 28 IL. Dec. 548, 76 Ill. 2d 197, 390 N.E.2d 907, (1979), E. R. Moore v. Industrial Commission. Respondent did not show, nor does the record reflect, that Petitioner was performing or could perform services on a regular basis for which there is a reasonably stable labor market.
The Commission therefore finds that Respondent failed to prove that Petitioner was no longer permanently and totally disabled. The record does suggest that Petitioner has the desire to be regularly employed and might benefit from a program of vocational rehabilitation and counseling paid to by Respondent.”

The Industrial Commission correctly construed our holding in Moore.

Respondent attempts to review now the correctness of the Commission’s rulings made in the hearing on review of the original award. Respondent contends that certain medical reports were erroneously admitted into evidence. The award became final upon being confirmed by the circuit court. The Commission, of course, had before it the entire record in the case, and the reference in its order to the nature of the surgical procedures performed on petitioner and his injuries does not serve to open up for review evidentiary rulings in the earlier arbitration and review.

Citing Perry Coal Co. v. Industrial Com. (1931), 343 Ill. 525, as “a case factually on all fours with the instant case,” respondent argues “This court must reach the inescapable conclusion that King was capable of some form of regular or steady employment which did not seriously endanger King’s health or life.” Perry Coal Co. is clearly distinguishable in that there the Commission found that the employee was no longer totally disabled and further there was medical testimony which supported that finding. Respondent’s contention that the Industrial Commission and the circuit court erroneously failed to apply the proper rule of law is wholly without merit.

Respondent contends next that the Commission’s findings of fact are contrary to the manifest weight of the evidence. Respondent argues that, because petitioner was engaged in strenuous physical labor during a 10-month period, he was capable of engaging in various kinds of profitable employment. Respondent argues that the Commission improperly relied upon the testimony presented by the petitioner and selectively ignored testimony of respondent’s witnesses to make the finding that petitioner was able to work only occasionally and in a very limited capacity.

Although this court might draw inferences other than those drawn by the Commission, the Commission’s decision will not be set aside unless it is against the manifest weight of the evidence. (Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159.) It was the Commission’s duty to judge the credibility of the witnesses, determine the disputed facts, and draw reasonable inferences and conclusions from those facts. (Scott v. Industrial Com. (1979), 76 Ill. 2d 183.) The Industrial Commission’s finding that respondent had failed to prove that petitioner was no longer permanently and totally disabled is not contrary to the manifest weight of the evidence.

Respondent contends that the Industrial Commission erred in awarding petitioner additional compensation pursuant to section 19(k) of the Act. It argues that the evidence showed that respondent’s failure to pay compensation was based on the good-faith belief that petitioner was not entitled to compensation and relies on Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, to support the contention that section 19 (k) is inapplicable here.

Section 19(k) of the Workmen’s Compensation Act provides that where there has been any unreasonable or vexatious delay of payment of compensation the Commission may award compensation additional to that otherwise payable. (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k).) Whether the employer’s conduct justifies the imposition of penalties is to be considered in terms of reasonableness and is a factual question for the Commission, not to be disturbed unless against the manifest weight of the evidence. Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297; Wilbon v. Industrial Com. (1976), 65 Ill. 2d 221; Board of Education v. Industrial Com. (1968), 39 Ill. 2d 167.

The respondent unilaterally suspended payment of compensation on September 23, 1978. The petitioner filed a section 19(g) petition (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(g)) on February 20, 1979, seeking payment of the compensation due. The circuit court denied petitioner’s section 19(g) petition on June 25, 1979. As part of a compromise that petitioner not appeal the circuit court’s decision on the section 19(g) petition, respondent agreed to pay compensation from September 23, 1978, to the date of the filing of its section 8 (f) petition.

The section 8(f) petition is not contained in, nor can the date of its filing be determined from, the record. The record shows that respondent filed a petition under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)). When the matter was set for hearing, respondent apparently became aware that the petition was not timely filed and moved for leave to amend the section 19(h) petition to a section 8(f) petition. The motion was denied. As a result, the hearing was continued for several months. Following the hearing the Industrial Commission found that the respondent had no legal authority to terminate payments due under the award merely because respondent had filed a petition requesting that the order be modified, and that its refusal to pay compensation was unreasonable and vexatious.

Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, cited by respondent, does not support its position. Unlike the situation here, in Avon there had not been a final determination of the employer’s liability at the time of the delay in payment of compensation.

Respondent argues that the evidence that petitioner worked and earned money over a 10-month period furnished the basis for a good-faith belief that petitioner was not entitled to compensation. Viewing that conduct in terms of reasonableness and noting that it was a question of fact for the Commission, we cannot say that the Commission’s finding that respondent’s conduct was unreasonable and vexatious is against the manifest weight of .the evidence.

Respondent also contends that the award of attorney fees under section 16 (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) and of interest from the date of the arbitrator’s decision under section 19(n) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(n)) should be set aside. Citing Grigsby v. Industrial Com. (1979), 76 Ill. 2d 528, respondent argues that the statutes affect the substantive rights and liabilities of the parties and therefore do not apply to an award arising out of an accident prior to their effective date of July 1, 1975. We do not agree. The statutory sanctions were invoked by respondent’s unreasonable and vexatious failure to pay compensation on September 23, 1978, subsequent to the statutes’ effective date. We hold the above provisions are applicable, and we find no error in the Commission’s decision to award attorney fees and interest.

Finally, respondent contends that the paragraph in the Commission’s decision which awards interest is incomprehensible. The Commission ordered that respondent pay to the petitioner interest on the award entered by the arbitrator as provided in section 19(n) of the Act. The pertinent part of section 19 (n) provides that all decisions of the Industrial Commission confirming an award established by an arbitrator of the Commission shall bear interest at the rate of 6% per annum from the date of the arbitrator’s award on all compensation accrued. (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(n).) The interest accrued should properly be computed by the Industrial Commission, and the cause is therefore remanded for the determination of the amount of interest due. The judgment of the circuit court of Cook County is affirmed.

Affirmed and remanded.


text:
    (No. 53987.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GARY G. WUNNENBERG, Appellee.

      Opinion filed May 22, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield and Stephen Landuyt, State’s Attorney, of Oquawka (Melbourne A. Noel, Jr., Michael Vujovich, and Michael V. Accettura, Assistant Attorneys General, and John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Thomas A. Lilien, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the circuit court of Henderson County, defendant, Gary Wunnenberg, pleaded guilty to three charges of unlawful delivery of a controlled substance. On March 12, 1979, the court sentenced defendant to a 3y2-year imprisonment term for each felony, to be served concurrently. By majority decision, the appellate court vacated the sentences and remanded for resentencing. 87 Ill. App. 3d 32.

This case presents one narrow issue: Did the trial court properly consider defendant’s prior conviction under the Federal Youth Corrections Act (Act) (18 U.S.C. sec. 5005 et seq. (1964)) as an aggravating factor in sentencing when that prior conviction had been set aside?

Here, the facts are uncontroverted. The presentence investigation report, submitted at the sentencing hearing, contained a 1969 guilty plea by defendant in the United States District Court for the Western District of Missouri to three counts of possession of counterfeit money. The district court sentenced defendant to three years’ probation under the Federal Youth Corrections Act (18 U.S.C. sec. 5010(a) (1964)). The same report also contained a February 10, 1971, order by the Missouri district court setting aside defendant’s 1969 conviction, pursuant to 18 U.S.C. section 5021(b) (1964), and discharging him from probation. The trial court, over defendant’s objections, considered the Federal conviction as a factor in aggravation in sentencing. Among the factors in mitigation the trial court considered the remoteness in time of the Missouri proceeding. The appellate court held that the trial court erred in considering the Missouri proceeding as an aggravating factor in sentencing.

18 U.S.C. section 5010(a) (1964) provides:

“If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.”

18 U.S.C. section 5021(b) (1964) provides:

“Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.”

As both the State and defendant point out, Federal courts have taken differing views in interpreting the meaning of a “set-aside” conviction under section 5021. Several courts have refused to treat section 5021(b) as an expungement provision. (See United States v. Doe (6th Cir. 1977), 556 F.2d 391, 393; United States v. McMains (8th Cir. 1976), 540 F.2d 387, 389; United States v. Hall (S.D.N.Y. 1977) , 452 F. Supp. 1008, 1012; United States v. Heller (N.D. Ohio 1976), 435 F. Supp. 955, 956; Fite v. Retial Credit Co. (D. Mont. 1975), 386 F. Supp. 1045, 1047, aff’d (9th Cir. 1976), 537 F.2d 384.) On the other hand, several decisions, in dicta, have suggested that section 5021 should be read as an expungement statute. (See United States v. Wallulatum (9th Cir. 1979), 600 F.2d 1261, 1262; United States v. Fryer (6th Cir. 1976), 545 F.2d 11, 13 (although the Sixth Circuit later ruled in United States v. Doe that section 5021 does not authorize expunction because the Act does not provide for obliteration of the records); United States v. Dancy (D.C. Cir. 1975); 510 F.2d 779, 782 n.11; Tatum v. United States (D.C. Cir. 1962), 310 F.2d 854, 856 n.2; United States v. Glasgow (D.D.C. 1975), 389 F. Supp. 217, 224 n.17.) Most recently, three Federal courts directly confronted with the question held that section 5021 mandates expungement. See Doe v. Webster (D.C. Cir. 1979), 606 F.2d 1226, 1244 (interpreting the section to require expungement of the conviction record); United States v. Doe (D.R.I. 1980), 496 F. Supp. 650, 653, and United States v. Henderson (D.N.J. 1979), 482 F. Supp. 234, 244 (the latter two cases interpreting the section to require expungement of entire record, including arrest).

Although disagreement exists as to the propriety of equating a set-aside conviction with expungement, there is a clear consensus of opinion in the cited cases that a set-aside conviction under the Youth Corrections Act should not burden the youth offender later in life. For example, the District of Columbia Circuit Court of Appeals stated in Doe v. Webster:

“It is clear that if [the] purposes of the Act are to be effectuated, the set-aside provision must be accorded a liberal construction which allows the rehabilitated youthful offender a meaningful fresh start by protecting him from those ‘stigma’ consequences of his conviction which impede his reintegration into society, as distinguished from an interpretation which grudgingly focuses only on the removal of ‘legal’ disabilities which are of more limited value to the youthful ex-offender seeking to reestablish a useful, productive, and law-abiding life.” 606 F.2d 1226, 1238.

Similarly, in Tatum v. United States, the same court stated that “a person sentenced under the Youth Corrections Act can, by virtue of his own good conduct, be spared the lifelong burden of a criminal record.” 310 F.2d 854,856.

In Mestre Morera v. United States Immigration & Naturalization Service (1st Cir. 1972), 462 F.2d 1030, the court held that an alien could not be deported on the basis of a narcotics conviction that had been set aside under section 5021. The court stated:

“The clear purpose for the automatic setting aside of a youthful offender’s conviction if he responds satisfactorily to treatment under the Youth Correction Act is to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction ***. We are unable to presume that Congress, without any reference to such an intent, meant in section 5021 to provide for setting aside a conviction for some purposes but not for others.” (462 F.2d 1030, 1032.)

(Accord, United States v. Fryer (6th Cir. 1976), 545 F.2d 11, 13.) In Fryer, the district court vacated defendant’s conviction for Federal firearms offenses that included a prior felony conviction as an essential element. The Sixth Circuit affirmed the district court’s holding that a set-aside conviction under the Act could not constitute a prior conviction for the purpose of the firearms offenses. See also United States v. Purgason (4th Cir. 1977), 565 F.2d 1279, 1280, where the court, in a similar holding, stated:

“We find it unnecessary to decide whether the statute is one of expunction in the broad sense of that term for the answer to the present case is found in the plain language of Section 5021(b) which states that the unconditional discharge from probation ‘shall automatically set aside the conviction ***.’ To us it is clear that a conviction which is set aside by the court is vacated and can have no further operative effect. Aside from the clarity of the statutory language, such a construction is consistent with the rehabilitative purposes of the Youth Corrections Act which was designed to permit youthful offenders to lead their lives free from the stigma and effects of a felony conviction.”

It is clear that these cases contemplate that a set-aside conviction under section 5021 will not impair a person’s future, for criminal or noncriminal purposes. Even the cases that decline to equate section 5021 with expungement do not envision a set-aside conviction as having subsequent criminal consequences. (See United States v. Doe (6th Cir. 1977), 556 F.2d 391, 393 (“This automatic effect of the discharge and the requirement of a certificate provide a unique shield from the prejudicial effects of a criminal conviction”); United States v. Hall (S.D.N.Y. 1977) 452 F. Supp. 1008, 1013 (“For all‘legal’purposes, the defendant no longer has a criminal ‘record’ and can resume his life anew without the stigma of a conviction”).) State courts have also construed the purpose of section 5021 to be to prevent a set-aside conviction from having criminal consequences. In State v. Pacheco (1978), 121 Ariz. 88, 91, 588 P.2d 830, 833, the Arizona Supreme Court held that a conviction set aside under section 5021 could not be used to sentence one under the State recidivist statute. See also People v. Garcia (1978), 402 N.Y.S.2d 164, 93 Misc. 2d 667.

These cases all recognize the rehabilitative aspects of the Act (see S. Rep. No. 1180, 81st Cong., 2d Sess. (1950); H.R. Rep. No. 2979, 81st Cong., 2d Sess. (1950), reprinted in 1950 U.S. Code Cong. 8c Ad. News 3983) and its purpose of providing youthful ex-offenders a fresh start free of the taint attached to a criminal conviction. Indeed, the judicial drafters of the Act consistently emphasized that a primary purpose of the then-proposed statute was to ensure that “committed youth offenders who earn their final discharge before the end of their maximum term have their records cleared and all their civil rights restored” and that “when the [Youth Correction] Division turns them out ahead of their maximum sentence, this law blots out their sentence and lets them go without any stigma on their life.” Hearings on S. 1114 and S. 2609 Before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess. at 14, 19 (1949).

The State argues that a set-aside conviction under the Federal Youth Corrections Act is analagous to a prior juvenile record under our Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.). We disagree. First, the Juvenile Court Act has no set-aside provision for a juvenile record comparable to that provided in the Federal act. Second, under the Juvenile Court Act a prior juvenile record may be considered in determining the sentence to be imposed in subsequent criminal matters. (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 9(2);People v. Powell (1973), 53 Ill. 2d 465, 479.) The inclusion of this express language stands in direct contrast to the Federal Youth Corrections Act where such language is omitted.

We are not faced with a situation where a youth demonstrated a continuing pattern of criminal behavior that resulted in a series of criminal convictions which were subsequently set aside. Here, the record reveals a single judgment of conviction entered against defendant for which he received a sentence of probation. Prior to the expiration of the probationary period, the conviction was set aside. Our review of the cases and the underlying purpose of the Act, derived from the legislative history, leads to the conclusion that defendant’s set-aside conviction under section 5021 should not have subsequent repercussions, either of a criminal or noncriminal nature. Accordingly, defendant’s set-aside conviction should not have been considered, however remotely, as an aggravating factor in sentencing for the instant offense.

For the reasons stated, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Henderson County for resentencing.

Affirmed and remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53830.
    THE TOWN OF THE CITY OF PEORIA et al., Appellees, v. EDWARD T. O’CONNOR, County Treasurer and ex officio County Collector, et al., Appellants.

      Opinion filed May 22, 1981.

      John A. Barra and Michael M. Mihm, State’s Attorneys, and John G. Sahn, Special Assistant State’s Attorney, all of Peoria, for appellants.
    David L. Thomas and Brian M. Nemenoff, Corporation Counsel, of Peoria, for appellee City of Peoria.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On November 16, 1976, the Peoria County Board adopted a resolution authorizing the county collector to print instructions on 1976 tax bills that taxpayers paying real estate tax installments by mail should direct such payments to the county collector, while taxpayers paying in person could make their payments to either their township collector or the county collector. The town of the city of Peoria and Mildred Arends, the township collector, thereafter filed a verified complaint in the circuit court of Peoria County against the County of Peoria and its county collector seeking a declaratory judgment that the resolution was contrary to law, and an injunction against the defendants prohibiting them from notifying taxpayers in the township that taxes could be paid to the county collector prior to the first day of September in any tax-collection year.

In its April 22, 1977, order granting a preliminary injunction, the court found that for at least the preceding 20 years real estate tax bills for the plaintiff township had instructed taxpayers to pay the tax at the township collector’s office prior to September 1 and at the county collector’s office thereafter. The court further found the proposed taxpayer instructions were contrary to law and enjoined the defendant county and county collector from notifying the taxpayers of the plaintiff township that they might or should pay any real estate tax to any officer other than the township collector prior to September 1. The order further required the county collector to include with the tax bills a separate sheet directing pre-September 1 payments to be made at the township collector’s office.

The county and county collector thereafter filed an answer and five-count counterclaim against the town and the township collector. The counterclaim alleged that the township and town collector did not possess authority to invest collected taxes; that they did not have authority to retain the interest earned upon the investment of such collected taxes; that the county collector has sole authority to invest proceeds of taxes paid under protest; and that the retention by the town of interest on the collected taxes constitutes a fee for services which is proscribed by the Illinois Constitution (Ill. Const. 1970, art. VII, sec. 9(a)). The parties thereafter stipulated that the town collector invested collected taxes and paid the interest earned therefrom to the town of the city of Peoria.

On April 12, 1979, the circuit court ordered a permanent injunction restraining defendants from suggesting to taxpayers in the plaintiff township that real estate taxes could, prior to September 1, be paid elsewhere than at the office of plaintiff township collector. The court further held that the township collector had the authority to invest collected taxes in interest-bearing accounts, but that the township had no authority to retain the interest earned upon such investment and directed payment of such interest to the county collector for deposit in the county corporate fund. Plaintiffs and defendants appealed and cross-appealed from that order.

The appellate court affirmed in part and reversed in part (85 Ill. App. 3d 427), holding that the township collector had exclusive authority to collect taxes prior to September 1, had inherent authority under the Revenue Act of 1939 to invest the collected taxes, and was entitled to retain the earned interest for the township. We granted defendants’ petition for leave to appeal.

The issues before us are (1) whether the town collector for the town of the city of Peoria has exclusive authority to collect from residents annual real estate taxes prior to September 1, (2) whether tax funds collected by that office may be invested by it, and (3) whether such investment income may be retained by the township collector and used for township purposes.

The boundaries of the city of Peoria and the town of the city of Peoria are coterminous, and the city treasurer serves as town collector. (See Ill. Rev. Stat. 1975, ch. 139, pars. 127, 131.) This fact is relevant here only as it affects the obligation of the township collector in making final settlement with the county collector. (See Ill. Rev. Stat. 1975, ch. 120, par. 680.) County treasurers are by statute ex officio county collectors in their counties. Ill. Rev. Stat. 1975, ch. 120, par. 657.

The tax-collection process commences with the delivery of the tax books to the collecting officials. Section 172 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 653) provides in part:

“Sec. 172. The respective county clerks shall deliver the books for the collection of taxes to the county or town collectors on or before the thirty-first day of December annually.”

Thereafter, the county clerk must certify to the county collector the amount of taxes to be collected and names of the town collectors:

“Sec. 173. On the delivery of the tax books to the town collectors, the clerk shall make a certified statement setting forth the name of each town collector, the amount of taxes to be collected and paid over for each purpose for which the tax is levied in each of the several taxing districts and furnish the same to the county collector.” (Ill. Rev. Stat. 1975, ch. 120, par. 654.)

While the statute still speaks of “books,” we are told by the parties here that Peoria County tax assessment and collection information has been computerized in recent years, and no “books” are presently utilized. The information is stored, and the computer equipment operated and maintained, by the county. The township collector’s office is connected with the county system by a computer terminal, and the work of billing and receipting is now largely computerized.

Section 190 (Ill. Rev. Stat. 1975, ch. 120, par. 671) imposes upon the county collector the duty to prepare and mail the tax bills. It states:

“Sec. 190. Every town collector, and every county collector, in cases where there is no town collector, upon receiving the tax book or tax books, shall proceed to collect the taxes mentioned herein. It shall be the duty of every county collector to prepare tax receipts in triplicate for personal property taxes and each installment of real property taxes assessed, which shall be filled out in accordance with the requirements of Section 196 of this Act, one copy of which shall be mailed by such collector at least 30 days prior to the date upon which unpaid real estate taxes become delinquent, to the owner of the property taxed, or to the person in whose name such property is taxed. Another copy shall be used by the collector in receipting for the tax paid, and the remaining copy thereof shall be retained by such collector. ***” (Emphasis added.)

The relevant statutory provisions relating to disbursement of the collected taxes are contained in sections 199 and 200:

“Sec. 199. Town collectors shall return the tax books and make final settlement for the amount of taxes placed in their hands for collection, within sixty days after receiving the tax books: *** Provided further that town collectors in townships organized under the provisions of ‘An Act to authorize county boards in counties under township organization, to organize certain territory situated therein, as a town, and to provide for annexation of territory to and the disconnecting of territory from said town’, approved May 23, 1877, as amended, shall make a partial settlement with the county collector of all taxes collected at the expiration of sixty days from the day the tax books are received by such town collectors, but shall retain the tax books until on or before the first day of September at which time they shall make final settlement for the amount of taxes placed in their hands for collection together with the amount of interest and penalties which may have accrued thereon, which interest and penalties such town collector is hereby directed to collect and return the tax books to the county collector: ***.” HI. Rev. Stat. 1975, ch. 120, par. 680.
“Sec. 200. At the time of making return to the county collector, each town collector in counties under township organization shall make out and deliver to the county collector a detailed statement, in writing, of the amount of taxes paid under protest, the amount of taxes he has been unable to collect on real estate and from persons charged with personal property taxes, ***. The town collector shall add up the delinquent taxes in said statement, and make a summary thereof, setting forth the aggregate amount of each kind of tax and the total delinquent, in the same manner as in his warrant, and shall make oath that said statement is true and correct. At the time of making such final settlement the town collectors shall pay over to the county collector all taxes paid to them under protest.” (Ill. Rev. Stat. 1975, ch. 120, par. 681.)

Also relevant to our consideration is section 207, which provides:

“Sec. 207. County collectors shall have the same powers and may proceed in the same manner, for the collection of any tax on real or personal property, as town collectors; and if in any town the office of town collector is or shall become vacant, and such vacancy shall not be filled on or before the first day of May next following such vacancy, the county clerk shall deliver all such collectors’ books to the county collector of such county, having annexed to each of such books a warrant under the hand and official seal of the county clerk, commanding such county collector to collect from the several persons named in such books, the several sums of taxes therein charged opposite their respective names, ***. It shall thereupon be the duty of such county collector to collect and pay over all taxes, assessments and other charges shown in such books, and to do all acts required of him by law in like manner as if such taxes, assessments and other charges had been duly returned delinquent by a town collector. ***” (Ill. Rev. Stat. 1975, ch. 120, par. 688.)

Also to be noted is section 208, which states:

“Sec. 208. The power and duty to levy and collect any tax due and unpaid, shall continue in and devolve upon the county collector and his successors in office, after his return and final settlement until the tax is paid; and the warrant attached to the collector’s book shall continue in force and confer authority upon the collector to whom the same was issued, and upon his successors in office, to collect any tax due and uncollected thereon, although such books may have been returned, or the tax carried forward into any other book.” Ill. Rev. Stat. 1975, ch. 120, par. 689.

We are to be guided in our resolution of the issues by the legislative intent as evidenced by the statutory provisions. As this court stated in Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194:

“The language of the statutes must be given its plain and ordinary meaning. ‘It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports." (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.)"

We agree with plaintiffs and the trial and appellate courts that the statutory collection scheme vests exclusive authority in the township to collect taxes prior to the September 1 final settlement and that there is no authority for the county’s proposed dual-collection system. While there are some minor inconsistencies in the various provisions, and separate sections if considered alone might be thought ambiguous, when the Revenue Act is viewed as a whole the legislative intent seems clear. There is no equivocation in the language of section 190 that “[e]very town collector, and every county collector, in cases where there is no town collector, upon receiving the tax book or tax books, shall proceed to collect the taxes mentioned herein.” (Ill. Rev. Stat. 1975, ch. 120, par. 671.) Plainly, in our opinion, county collectors collect only where there is no town collector, or after the town collector’s September 1 final settlement required by section 199. Reinforcement for our conclusion, if it were thought necessary, is also to be found in the detailed requirements of sections 201 through 206 (Ill. Rev. Stat. 1975, ch. 120, pars. 682 through 687) relating to the town collector’s final settlement and discharge and the authority conferred upon the county collector by section 207 (Ill. Rev. Stat. 1975, ch. 120, par. 688) to act in the event a vacancy exists in the town collector’s office. Also entirely consistent with our conclusion is the requirement of section 173 (Ill. Rev. Stat. 1975, ch. 120, par. 654) that, after he turns the tax books over to the town collectors, the county clerk certify to the county collector the names of those to whom he delivered the books and the amounts of taxes to be collected.

We accordingly hold it to be the clear intent of the legislature that the township collector shall have exclusive authority to collect resident real estate taxes prior to the 1st of September.

The issue regarding the authority of the town collector to invest collected tax monies became moot as of July 1, 1980, the effective date of Public Act 81 — 1181. Section 3 of that act provides: “Any treasurer or other custodian of public funds may deposit such funds in a State or national bank in this State. When such deposits become collected funds and are not needed for immediate disbursement, they shall be invested within 2 working days at prevailing rates or better.” (Emphasis added.) (Ill. Rev. Stat., 1979 Supp., ch. 102, par. 34.) The township collector is, of course, a custodian of public funds as to the collected taxes which have not been turned over to the county collector, and thus has not only the authority, but also the duty, to deposit such funds in revenue-producing fashion for the public benefit. This legislation represents another step in the process of eliminating the practice of placing public funds in non-interest-bearing accounts, a formerly existing and troublesome practice.

Prior to July 1, 1980, however, nothing in the Revenue Act of 1939 explicitly directed or precluded the investment of collected taxes by the township collector, and the defendants urge that in the absence of explicit direction no investment can be made. To the contrary, we believe the various statutory provisions relating to township collectors, or to public officials generally, manifest an intent that the authority to invest collected tax monies exists. Section 172 of the Revenue Act provides that the board of town auditors, when requested by the township collector, “shall designate a bank or banks or other depository in which the funds and moneys received by the town collector, by virtue of his office, may be deposited.” (Ill. Rev. Stat. 1975, ch. 120, par. 673.) The township collector, as a custodian of public funds, also seems to come within the purview of “An Act in relation to the deposit of public funds,” section 1 of which states:

“Any treasurer or other custodian of public funds may deposit such funds in a State or national bank in this State ***.” (Ill. Rev. Stat. 1975, ch. 102, par. 34.)

As the appellate court noted as early as 1939, “It also may be conceded as in accord with common experience that the banks would credit these accounts with interest ***.” State Bank & Trust Co. v. Commercial Trust & Savings Bank (1939), 300 Ill. App. 435, 441 (action against sureties of township collector who retained interest earned on deposit of public funds).

Also applicable to township collectors are the provisions of sections 1 and 2 of “An Act relating to certain investments of public funds by public agencies” quoted later in this opinion. (Ill. Rev. Stat. 1975, ch. 85, pars. 901, 902.) Section 1 specifically includes townships, and town collectors have been recognized as township officers. (Osborn v. City of Alton (1954), 4 Ill. 2d 605; People v. Holten (1919), 287 Ill. 225.) Similarly, the Attorney General has expressed the opinion that the State Treasurer, as ex officio custodian of Toll Highway Commission Bond funds, is authorized to invest them in accordance with the statutory authority granted by sections 1 and 2. 1971 Ill. Att’y Gen. Op. 1.

In view of the explicit legislative intent that public funds should be deposited in income-producing fashion, and given the express provisions whereby town collectors, as well as other fund custodians, may protect themselves from liability for the deposit of public funds in specific institutions, we believe a holding that town collectors were in 1976 without authority to deposit collected taxes in interest-earning accounts would be an unwarranted^ restrictive interpretation of the legislative purpose.

The final issue is whether the investment income may be used for the benefit of the township. Defendants urge that it must be paid to the county collector for deposit in the county corporate fund as is the interest earned on similar investments by the county collector (Ill. Rev. Stat. 1975, ch. 120, par. 673a). Plaintiffs suggest that, if the township cannot retain such income, it should be distributed pro rata to the taxing bodies.

Section 1 of “An Act relating to certain investments of public funds by public agencies” (Ill. Rev. Stat. 1975, ch. 85, pars. 901 through 905) provides:

“Sec. 1. The words ‘public funds’, *** mean *** funds of any kind or character belonging to or in the custody of any public agency.
The words ‘public agency’, as used in this Act, mean *** townships, *** and all other political corporations or subdivisions of the State of Illinois, now or hereafter created, whether herein specifically mentioned or not.” (Ill. Rev. Stat. 1975, ch. 85, par. 901.)

Section 2 states:

“Sec. 2. Any public agency may invest any public funds in [specified ways] ***.
*** All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made ***.” (Ill. Rev. Stat. 1975, ch. 85, par. 902.)

The township is not the public agency by or for which the investments were made. The taxes received by the township collector result from assessments and levies by the county, the township, and other political subdivisions. The invested funds belong to those taxing bodies, and the township collector’s authority is only to collect and hold those funds until the time disbursement is required. His authority to invest these funds by virtue of being their custodian does not affect their ownership, for he is simply acting in a statutorily created fiduciary or agency capacity. The township may not keep the interest earned on these funds simply because a township officer collected and invested them on behalf of other public agencies. The clear language of section 2 indicates that this income should be credited to the public agencies for which the investments were made.

The statute does not expressly direct the manner in which disbursement of this income to the taxing bodies shall be made. The statutory scheme does direct that the tax monies be turned over to the county collector at partial and final settlement times for ultimate distribution to the taxing bodies. There would appear no reason to conclude that the General Assembly intended the income on the tax monies to be treated any differently. Accordingly, the county collector will distribute that income to the taxing bodies on a pro rata basis.

The judgment of the appellate court is affirmed in part and reversed in part. The judgment of the circuit court is affirmed as modified herein.

Appellate court affirmed in part and reversed in part; circuit court affirmed as modified.


text:
    (Nos. 53418, 53419 cons.
    MARVIN ROSE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hyster Company, Appellee). — JOHN SMITH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hyster Company, Appellee).

      Opinion filed May 22, 1981.

    James C. Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellants.
    Burgeson, Laughlin, Cunningham & Hare, of Chicago (Robert Thomas Newman, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Two employees of respondent Hyster Company were injured playing “flag football” and sought compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). An arbitrator for the Industrial Commission awarded compensation. The Commission, however, found the injuries did not arise “out of and in the course of” employment and denied compensation. The circuit court of Vermilion County confirmed the Commission, and the employees appealed to this court under our Rule 302(a) (73 Ill. 2d R. 302(a)).

In the first of these consolidated cases, cause No. 53418, Marvin Rose, employed by respondent as a parts man, fractured his left wrist in a flag football game on Sunday, October 2, 1976. In cause No. 53419, John Smith, a crane operator for respondent, sustained a fracture of his right ankle on Sunday, September 19, 1976, in a similar game. The claims of both involve the work of an activities committee, and the details regarding it are relevant. The collective bargaining agreement between the employee union and respondent provided that the “Activities Committee” was to be composed of six members appointed by the union, five appointed by the employer, and the 12th member was to be a nonvoting member from the personnel department. The nonunion members were referred to by a union member as “just advisors.” The committee meets monthly, apparently in the union office — a room in the company plant for which the union pays a monthly rental. The programs of the committee were financed by commissions from vending machines patronized by the employees, the types and locations of the machines and amount of commission being negotiated by the committee with the vendor. Some $24,000 per year was received by the committee and used by it to finance employee social and recreational activities which it selected and approved. Among those activities was the football league composed of five 11-member teams, four of which were Hyster teams captained by Hyster employees. Funds for footballs, colored vests with numerals but not the Hyster name, umpires, trophies, and a party for the winning team were provided by the committee. Games were pre-scheduled, apparently by the team captains, and played on Sundays on noncompany property. Notices relating to the games and other activities could be placed on two bulletin boards used to distribute information regarding both union and company matters. Committee funds were kept in a special account separate from the company’s and controlled by the committee and in its name, with checks requiring the signatures of the treasurer and president or vice-president, all of whom were union members, of the committee. Other activities, including a ski club, bowling, basketball, employee Christmas hams or turkeys, and an Easter egg hunt for the employees’ children, were also financed and sponsored by the committee. Committee records were kept in the treasurer’s home or union office. Results of football games were published in the company newsletter. Claimant Smith testified that a company engineer who had no supervisory authority over him had, in 1972, asked him about playing football, and that a “unit manager” had also asked him to play. It is not contended that employees were subjected to company pressure to join the team.

A number of earlier opinions of this court have considered the compensability of injuries received by employees engaged in organized recreational activities. Whether compensation was awarded in those cases turned upon the degree of employer involvement in and benefits from the activity in which the injury occurred. (Gourley v. Industrial Com. (1981), 84 Ill. 2d 303; Board of Educa tion v. Industrial Com. (1980), 81 Ill. 2d 17; Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182; Illinois Bell Telephone Co. v. Industrial Com. (1975), 61 Ill. 2d 139; Keystone Steel & Wire Co. v. Industrial Com. (1968), 40 Ill. 2d 160; Jewel Tea Co. v. Industrial Com. (1955), 6 Ill. 2d 304.) We recently reviewed those cases and others in Gourley. No worthwhile purpose would be achieved by again doing so here, since it is clear that the degree of benefit to the company here and its involvement with the football league are not sufficient to justify a finding that these injuries arose out of and in the course of employment. Indeed, counsel for claimants has candidly conceded that, except for the terms of the collective bargaining agreement in this case, the Commission’s decision could not be said to be contrary to the manifest weight of the evidence. He vigorously urges, however, that recognition in the collective bargaining agreement of the activities committee and provision for its composition and financing establish that participation in the activities sponsored by the committee are reasonably incidental to the employment and that a causal connection exists between the employment and any injuries incurred in the course of those activities. Further, claimants argue, the agreement represents an exchange of obligations and benefits by the employer and employees whereby the latter agreed to exchange their services for certain benefits, including a recreation program. Thus, say claimants, by participating they “were collecting payment for services rendered,” and, under the holding in Gunthrop-Warren Printing Co. v. Industrial Com. (1979), 74 Ill. 2d 252, are entitled to recover.

While claimants’ arguments are not without some credibility, their counsel has cited, and we have found, no directly supporting authority. Nor do we believe the arguments can withstand close analysis. Their basic predicate is that since the employer has agreed to the establishment of an activities committee to which the company appoints representatives, and that since the committee is financed by vending machines located on company property, any activity sponsored and financed by the committee automatically becomes employment related and any resulting injuries are employment caused. While not attaching particular significance to the fact, we note, contrary to the implications of claimants’ argument, that the committee apparently pre-dated the collective bargaining agreement, which does not purport to create the committee, but simply provides how its members shall be selected and its activities financed. We note, too, that the committee is not, as claimants stated, “jointly controlled.” The agreement clearly vests ultimate control of committee decisions in the union, which appoints a majority of the voting members.

Our fundamental difficulty with claimants’ argument, however, is that its acceptance would extend liability under workers’ compensation to an unprecedented degree, imposing liability upon employers for injuries incurred in activities with which the employer has only a minimal involvement and which he can neither regulate nor control. Illustrative of the problems are a few of the questions posed to claimants’ counsel during oral argument: Are illnesses experienced by employees compensable when they result from impure turkeys or hams distributed by the committee? What about injuries suffered on skiing trips arranged by the ski club with committee sponsorship? Do employees injured on committee sponsored weekend and sightseeing trips have a right to compensation? Other similar questions regarding the breadth of claimants’ theory of recovery readily come to mind. Were that theory to be accepted, the limits to which liability could, with some logic, be extended would substantially exceed existing boundaries.

Our prior decisions do not disclose the extent to which collective bargaining in those cases involved provision for or reference to the employee recreational or social activities resulting in injury. Rather, they turned on the degree of employer involvement which we believe to be necessary before the injury can be said to arise out of and in the course of employment as the statute requires. We believe that to be the sounder approach and that without substantially more of the employer supervision, participation, control or benefit present in our earlier cases, the recognition in a collective bargaining agreement of an employee-controlled committee and provision for its financing and membership is insufficient to establish the compensability of injuries resulting from committee-sponsored recreational activities.

The judgment of the circuit court of Vermilion County is accordingly affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD

text:
    (No. 53789.
    BUTLER MANUFACTURING COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Richard Corbin, Appellant).

      Opinion filed June 4, 1981.

      Cornfield & Feldman, of Chicago (Alton Sharpe, of counsel), for appellant.
    West, Neagle & Williamson, of Galesburg (Thomas G. West, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Richard Corbin filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) for injuries sustained to the upper back and left leg when he slipped and fell on a public sidewalk while on his way to work as a machinist at the Butler Manufacturing Company in Galesburg. The arbitrator found the injury compensable as arising out of and in the course of employment. The Industrial Commission affirmed the decision of the arbitrator but only as to Corbin’s back injury. The circuit court of Knox County set aside the Commission’s finding on the ground that the injury did not arise out of the claimant’s employment. He brought a direct appeal to this court under Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

There is no dispute as to the facts. Butler Manufacturing Company occupies approximately a one-square-block area. A two-lane street running north and south is adjacent to its east border. Immediately east is unimproved land which extends in a north-south direction for IV2 blocks. At the south end is a parking lot provided by Butler for its employees. There is a sidewalk on the west side of the street but none on the east side at this location, and employees using the parking facility cross to the west side of the street and walk one block north to the only entrance to the plant. A chain-link fence running parallel to the sidewalk prevents one from entering the plant other than through the front gate.

On the day in question, the claimant parked his car, crossed the street to the sidewalk, and walked north towards the plant entrance. He slipped on snow that had fallen that day, and his back and left elbow struck the sidewalk. The entrance to the plant was approximately 150 feet from where he fell. Refusing any assistance from fellow employees, he got to his feet by himself and immediately informed his supervisor of the incident when he entered the plant. He was taken to the first-aid station, where a nurse applied moist heat to his upper back. The claimant worked that day but experienced pain and swelling in his left elbow. After work he made an appointment with his family doctor, who arranged to have X rays taken at Galesburg Cottage Hospital. The claimant did not return to work for seven months. According to a report by Dr. Robert Busch which was submitted at the arbitration hearing, the claimant sustained a fracture of the 4th thoracic vertebra which resulted in a degree of permanent disability. The claimant returned to work at Butler and at the time of the arbitration hearing was employed as a machinist.

The claimant’s position is that the finding of fact by the Industrial Commission was not contrary to the manifest weight of the evidence, and he therefore argues that we should reverse the judgment of the circuit court, which held that his injury did not arise out of his employment. We do not view, however, the question concerned here as one of fact. The question, one of law, is whether injuries sustained by an employee as a result of a fall while walking on a public sidewalk on the way to work are compensable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). Where the issue on appeal involves a question of law, a court is not bound by a decision of the Industrial Commission. Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151, citing Williams v. Industrial Com. (1967), 38 Ill. 2d 593, 595.

This accident occurred on a public sidewalk approximately 150 feet away from the entrance to the plant. The injury was not sustained on the premises of the Butler Manufacturing Company and does not involve the situation of an employee injured on a parking lot owned and maintained by the employer. (See, e.g., Hiram Walker & Sons v. Industrial Com. (1968), 41 Ill. 2d 429; De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110.) This court has held that “when an employee slips and falls, or is otherwise injured, at a point off the employer’s premises while traveling to or from work, his injuries are not compensable ***.” (Reed v. Industrial Com. (1976), 63 Ill. 2d 247, 248-49. See also Browne v. Industrial Com. (1967), 38 Ill. 2d 193; Northwestern University v. Industrial Com. (1951), 409 Ill. 216.) The claimant has not shown why this case does not fall within these holdings.

For the reasons given, the judgment of the circuit court of Knox County is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 53948.

      In re MARRIAGE OF MARY ANN ROGERS, Appellee, and ROBERT ROGERS, Appellant.

      Opinion filed, June 4, 1981.

      Gerald M. Sheridan, Jr., of Wheaton, for appellant.
    John T. Perry and Michael H. Polley, of Wheaton (Vescelus 8c Perry, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The parties to this appeal were married on December 1, 1956, and the marriage was dissolved in 1979 by order of the circuit court of Du Page County. Respondent, Robert Rogers, was ordered to pay petitioner, Mary Ann Rogers, maintenance of $500 per month for three years from the judgment date. The marital residence of the parties, owned in joint tenancy, was ordered to be sold within this same three-year period.

Petitioner was given the right to remain in possession of the residence until its sale and was given an option to purchase respondent’s interest in it. That interest was judged to be $20,000, with interest compounded at a 7% annual rate. The value of the residence, based upon 1977 appraisals, was determined as between $105,000 and $110,000. Petitioner was made responsible for mortgage and tax payments and for upkeep of the premises. The furniture and other furnishings were divided between the parties. Respondent was ordered to pay $3,500 in attorney fees in 12 monthly installments. Other provisions irrelevant here also were entered.

Respondent contends on appeal that he should have been assigned an interest in the marital residence to correspond to the amount of nonmarital money he invested in it. The appellate court has divided on the issue of whether nonmarital property, as defined under the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) remains nonmarital property when it is placed in a jointly held bank account or in jointly held real estate. See, e.g., Klingberg v. Kling berg (1979), 68 Ill. App. 3d 513 (money in joint bank account held marital property in the absence of evidence of a contrary intent); In re Marriage of Key (1979), 71 Ill. App. 3d 722 (identifiable nonmarital assets exchanged for jointly held property should be refunded to the investing party where gift was not intended); In re Marriage of Dietz (1979), 76 Ill. App. 3d 1029 (new act intended to destroy presumption that interspousal conveyances evidence donative intent); In re Marriage of Smith (1979), 77 Ill. App. 3d 858 (money invested in joint bank account was marital property); In re Marriage of Amato (1980), 80 Ill. App. 3d 395 (nonmarital funds commingled with marital funds to purchase marital asset transmuted those funds into marital property); In re Marriage of Leon (1980), 80 Ill. App. 3d 383 (nonmarital funds deposited in joint bank account and used to pay the mortgage on the marital residence; held that the residence was marital property); In re Marriage of Preston (1980), 81 Ill. App. 3d 672 (inheritance invested in marital residence owned in joint tenancy; held that inheritance remained non-marital property); In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617 (property held in joint tenancy held marital property, despite fact that one spouse paid entire amount with nonmarital money); In re Marriage of Scott (1980), 85 Ill. App. 3d 773 (nonmarital money invested in marital home owned in joint tenancy held marital property); In re Marriage of Schriner (1980), 88 Ill. App. 3d 380 (commingling of nonmarital cash evidences intent to treat it as marital property); In re Marriage of Lee (1980), 88 Ill. App. 3d 1044 (adopting transmutation theory); In re Marriage of Crouch (1980), 88 Ill. App. 3d 426 (art objects not transmuted despite some evidence of commingling).

The appellate court in this case held that the marital residence was appropriately considered marital property. (86 Ill. App. 3d 904.) We affirm.

The parties agree upon the basic facts. In 1967, respondent inherited $65,000 in securities and cash. This money and these securities were initially maintained by respondent in his name only. In 1968, the parties, living in Michigan, sold their home and moved to Colorado, where they bought another home held in joint tenancy. The down payment for this home was $24,000. Approximately $8,000 of the down payment came from the net proceeds of the sale of the parties’ Michigan residence; the balance came from funds which respondent had inherited.

The Colorado home was sold in 1971, and approximately $25,000 was realized from that sale, all of which was invested in the down payment on their next home in Wheaton. Additional payments for the home made by respondent came from the inheritance.

It is well recognized that statutes are construed with reference to the law existing prior to their enactment, in order to ascertain their purpose. (See Kerner v. State Employees’ Retirement System (1978), 72 Ill. 2d 507, 512; Harding v. Albert (1939), 373 Ill. 94, 97.) Prior to the advent of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), a marital residence held in joint tenancy was generally regarded as owned by both spouses, even if one spouse had furnished all of the consideration for it. The consideration-furnishing spouse was presumed to have intended a gift of one-half of the property. (Doody v. Doody (1963), 28 Ill. 2d 191, 194; Peck v. Peck (1959), 16 Ill. 2d 268, 283; Savich v. Savich (1957), 12 Ill. 2d 454, 460; Lutticke v. Lutticke (1950), 406 Ill. 181, 187-88.) It was said that the gift presumption was one “of fact” which could be rebutted “by clear, convincing, and unmistakable evidence that no gift was intended. [Citations.]” Baker v. Baker (1952), 412 Ill. 511, 515.

Section 17 of the prior divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 18), however, provided that the court could compel the conveyance of property held by one spouse to the other spouse upon “equitable” grounds. Section 18 of the prior act allowed the court to award one spouse the property of another in particular circumstances in lieu of alimony. Ill. Rev. Stat. 1975, ch. 40, par. 19.

Under the new act, section 503 classifies property as marital or nonmarital in order to assign or divide it upon a marriage dissolution (Ill. Rev. Stat. 1977, ch. 40, par. 503). “[T]he court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions ***.” (Ill. Rev. Stat. 1977, ch. 40, par. 503(c).) Property acquired by either spouse after the marriage but prior to a judgment of dissolution is “presumed” to be marital property, regardless of how title is held. (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).) This same section in which the presumption is established, however, also provides for its destruction upon a showing that the property at issue was acquired (1) by gift, bequest, devise, or descent (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(1)), (2) “in exchange for property acquired before the marriage,” or (3) “in exchange for property acquired by gift, bequest, devise or descent” (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(2)), and in other ways not relevant here (Ill. Rev. Stat. 1977, ch. 40, pars. 503(a)(3) through 503(a)(6)).

The new act, unlike the old one, provides for the division of marital property without regard to marital fault. The new act incorporates a partnership theory of marriage. (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 94; see Bentley v. Bentley (1981), 84 Ill. 2d 97; In re Marriage of Aschwanden (1980), 82 Ill. 2d 31; Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563.) The Act does not purport, however, to change the law regarding interspousal transfers of property owned individually. It does not indicate, by implication or otherwise, any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. It may be anachronistic now to refer to an intent to convey a gift to the other spouse, but it is not improper to refer to an intent to convey a gift to the marriage. Therefore, a marital residence owned by both spouses, even if one spouse has furnished all of the consideration for it out of nonmarital funds, will be presumed “in fact” as marital property, absent convincing rebutting evidence. Accord, Carter v. Carter (Me. 1980), 419 A.2d 1018.

It is argued, however, that convincing evidence to rebut the gift presumption was presented in this case. Respondent testified that he and his wife, prior to the purchase of the Wheaton house, had conversations regarding the method of holding title to it:

“I remember on many occasions discussing with her the fact that let’s remember that this is an investment in a piece of real estate. It is where I am putting my [inheritance] money, and when you get yours, you can do what you want to do with it. I used the term, I might as well enjoy it while I have the money.”

Petitioner, on rebuttal, testified as follows:

“Q. Mrs. Rogers, did you and your husband ever enter into an oral or written agreement, substance of which would provide that each of you upon receipt of an inheritance, would retain it solely as your own separate and non-marital property?
A. No.”

Respondent and petitioner, moreover, segregated a portion of their inheritances, which tends to indicate that the portion invested in the marital home, used for parties’ mutual benefit, and treated, during the marriage, as joint property, was intended to be marital property. (Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513.) We hold, therefore, that there was no error in refusing to trace respondent’s investment in the marital home and refunding it to him.

The parties agree that the equity in the marital residence was approximately $68,000, and respondent contends that his awarded portion of that equity, $20,000, was not a “just proportion.”

The petitioner, at the time of the hearing, was earning $51 per week as a typist and received approximately $8 per week in tips from her customers at beautician’s school. Petitioner had been attending the school for about one year and was expected to graduate approximately one month after the hearing. She had not yet been licensed and had not found permanent employment. No evidence was presented as to the normal starting salary of a beautician. Petitioner apparently held some stock in her own name at the time of the hearing. Its value was not established on the record, but petitioner guessed it was less than $1,000.

Respondent had lost his job in July 1977 and had left the marital residence in October 1977. He obtained a job in Colorado in March 1978 as a manufacturing manager. His gross salary was $33,000 annually; his monthly take-home pay was $1,535. Respondent’s inheritance was depleted at the time of the hearing. He estimated that $30,000 was spent on the marital residences, $5,000 to $8,000 was spent on home furnishings to which he made no claim, $8,000 was paid in capital gain taxes, and the rest was lost on bad investments.

In determining a just division of marital property, section 503 requires consideration of the following factors:

“(1) [T] he contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1977, ch. 40, pars. 503(c)(1) through 503(c)(10).)

Respondent’s argument primarily centers on the asserted inequity of awarding him a share of the house less than his contribution to its purchase. Although the contribution of respondent was required to be taken into account, it had to be balanced against the other factors listed. (See In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 36-38.) Here, the marriage lasted a long time. The respondent’s economic circumstances, including his occupation and employability and his opportunity to acquire assets and income, were superior to petitioner’s. Although the parties’ daughter, 20, was working full time as a secretary and their son, 18, was working part time at a restaurant, both were living at home, and custody was awarded to petitioner. Under these circumstances, the court’s decision was reasonable.

Nor was the court unreasonable in denying the motion of respondent, through new counsel, to reopen the proofs after the court decision, since, as argued by petitioner, the evidence sought to be introduced was available to respondent at the time of the hearing.

Finally, respondent challenges the award of attorney fees and maintenance. Neither the number of hours petitioner’s attorney billed nor the hourly rate charged was challenged. Under the facts here, the trial court did not abuse its discretion, in considering the “financial resources of the parties,” by awarding petitioner’s attorney $3,500 to be paid for by respondent in 12 monthly installments.

We are also of the opinion that the maintenance award which, at $500 per month for three years, was in an amount slightly in excess of 30% of respondent’s after-tax income for three years, was reasonable.

Accordingly, the judgment of the appellate court is affirmed.

Judgment ajfirmed.


author: MR. JUSTICE SIMON

text:
    (No. 53595.
    KROPP FORGE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (James Daniel Worthey, Appellee).

      Opinion filed June 4, 1981.

      Thomas P. Haugh, of Chicago (Thomas J. Flynn, of counsel), for appellant.
    Stanford L. Lambert, of Cohn, Lambert & Ryan, of Chicago, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

Kropp Forge Company appeals a judgment of the circuit court of Cook County confirming an award of the Industrial Commission.

The claimant, James Worthey, was hurt on the job on June 7, 1977, when a grinding wheel hit him in the leg. The leg was first kept in traction for six weeks, with the wound open; then the leg and the claimant’s torso were put into a cast. When the cast was removed, whirlpool baths for the leg and other therapy started. Eventually, although the leg was still swollen and painful, the doctors released the claimant for light work.

He had been a millwright with Kropp Forge for 22 years; his job was heavy work, requiring climbing and lifting, which he could no longer do. Kropp Forge gave him a job as a timekeeper, which consisted of various paper work, answering phones, and answering questions from foremen. The claimant had never done that kind of work before. Kropp Forge began training him on the job.

The claimant testified that timekeeping made him extremely nervous and uncomfortable. He felt that it was a job he could not perform. The job made the pain in his leg worse. Most of his stomach had been removed some years before, for ulcers; and he found that the timekeeper’s work so upset him that he could hardly eat. After less than a month on that job, he asked for a leave of absence to visit his invalid mother in Tennessee.

When the claimant returned, he asked for a different job; but Kropp Forge told him nothing was available. The claimant refused to continue as a timekeeper. Apart from the few weeks on the timekeeper’s job, he did not work from the day of his accident to the day of the hearing before the Commission. He did ask Kropp Forge from time to time about jobs he heard might be available; but each time, Kropp Forge turned him down. One job was tied to the wrong union; another was filled exclusively from a labor pool; another was not a full-time job; several were too strenuous for the claimant’s medical condition. In its brief in this court, Kropp Forge says that in a telephone call approximately 2lh months after the arbitration hearing, the claimant inquired about a job in the stockroom, but did not specifically ask if he could have it. He was told that he had already been offered the timekeeper’s job.

The arbitrator awarded the claimant payments for temporary total incapacity for a period ending when he was pronounced fit for light work and started the timekeeper’s job. The arbitrator also found the claimant permanently disabled to the extent of a 60% loss of use of the leg. The Commission found that at the time of the hearing the claimant’s condition had not yet become stable, and awarded temporary total compensation from the accident to the date of the hearing, except for the period when the claimant was working as a timekeeper.

On appeal, Kropp Forge complains mainly of another part of the Commission’s order, requiring Kropp Forge to pay for any necessary vocational rehabilitation of the claimant. That issue, says Kropp Forge, was not properly before the Commission, and no evidence was presented.

We find the Commission’s order in this regard to be entirely harmless and uncontroversial. It simply incorporates the statutory language requiring the employer to pay for necessary rehabilitation (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). No specific program of rehabilitation has been directed, and Kropp Forge has not been ordered to pay for anything in particular. The details of what training and instruction, if any, may be necessary and appropriate cannot be settled until the claimant’s prognosis becomes clearer. As the circuit court recognized, whatever disputes Kropp Forge may have with the claimant and the Commission on this subject are for the future. And, Kropp Forge to the contrary, the company has not been ordered to provide rehabilitation, only to pay for it; the word “provide” appears in the Commission’s decision only casually, in an introductory paragraph devoted primarily to the issue of total incapacity.

In summary, details of the specific type of training and the extent of the training for which Kropp Forge would be required to pay were left for future determination by the Commission in the event the parties could not agree. Any objections that Kropp Forge may have to any particular type of rehabilitation on the ground that it is unnecessary can be advanced at a future hearing.

Kropp Forge also contests the Commission’s finding that the claimant was temporarily totally incapacitated during the time when he refused to work as a timekeeper. That finding, however, was not against the manifest weight of the evidence, and will not be overturned.

The Commission had before it evidence of the claimant’s medical history, heard him describe his symptoms and physical disabilities during the time in question, and inspected the leg itself. On appeal, Kropp Forge stresses that the claimant received no treatment from a doctor after he left the timekeeper’s job. However, with proper home care, a person may continue to heal even without professional help. The Commission’s finding that the claimant’s condition had not yet stabilized, but at the time of the hearing was still improving, thus still “temporary,” was not against the manifest weight of the evidence.

Neither was the finding that the temporary incapacity was total against the manifest weight of the evidence. Kropp Forge insists that the claimant could and should have continued to work as a timekeeper. But there was evidence that that job aggravated the claimant’s leg and stomach ailments to the point of extreme physical discomfort and perhaps danger. While there was no medical evidence that the job caused the problems, expert testimony is not needed to support such a conclusion. When effects commonly associated with stress appear as someone is shifted from a heavy laboring job to one requiring a volume of paperwork, attention to detail, and response to numerous inquiries, and then disappear when he stops that work, an inference of causation is so apparent that even laymen can draw it. (See Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312 (Act does not require objective findings of disability or of the effect of any injury upon the claimant); Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244 (medical testimony not required to establish causation and disability).) Kropp Forge presented no evidence suggesting that the claimant’s increased distress was unrelated to the demands made upon him by the timekeeping job.

Nor does the claimant’s failure to seek medical treatment when, he says, the job worsened his condition cast such doubt on his story as to require the Commission to conclude that the claimant is lying about the job’s effects on him, as Kropp Forge hints. The claimant recognized and removed the source of his distress by leaving the timekeeper’s job, and his condition improved. His failure to see a doctor in those circumstances was not totally unbelievable. Assessing the credibility of witnesses is the Commission’s function, not ours. (Jacobson v. Industrial Com. (1981), 84 Ill. 2d 153, 156.) The Commission believed the claimant; we cannot say that its conclusion was against the manifest weight of the evidence. A person does not need a doctor to know when he is nervous and in pain and unable to eat; and there is no evidence to refute the claimant’s testimony that he suffered from these problems during his stint as a timekeeper.

Kropp Forge provided no work for the claimant that he could perform without danger to his health, and appeared to shun claimant’s inquiries about the availability of other jobs that might be suitable. It is likely that other employers would hesitate to hire and train a man with a bad leg who was oversensitive to stress for a kind of job he had never done before, knowing that, based on the timekeeping experience, he might be unable to do even “light” work, and that, in any case, he would probably quit as soon as his condition improved enough for him to handle a heavier job. We must accept the Commission’s finding that “Petitioner has made a prima facie case that he *** can not do the only job available to him, that of timekeeper, due to his *** condition.” As Kropp Forge made no attempt to show what kind of work the claimant could obtain and perform until he was better, the Commission could properly find that there was no steady work available to the claimant that he could perform without endangering his health.

Apart from details of proof, this case is much like Firestone Tire & Rubber Co. v. Industrial Com. (1979), 76 Ill. 2d 197. In that case, this court upheld an award of temporary total compensation for a claimant who had injured an arm, although the employer gave him work that could physically be done with one arm, and although the claimant was able to paint his house.

Worthey was, therefore, temporarily totally incapacitated for work, and was entitled to payments under section 8(b) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)).

The judgment of the circuit court is affirmed.

Judgment affirmed.