text:
    (No. 52526.
    GREATER PEORIA MASS TRANSIT DISTRICT, Appellant, v. THE INDUSTRIAL COMMISSION et al., (Florida Bonds, Appellee).

      Opinion filed May 30, 1980.

      Westervelt, Johnson, Nicoll & Keller, of Peoria (Robert D. Jackson, of counsel), for appellant.
    Vonachen, Cation, Lawless, Trager & Slevin, of Peoria (John A. Slevin, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case involves a claim filed under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). The arbitrator found that petitioner, Florida Bonds, sustained an accidental injury arising out of her employment and entered an award for medical expenses, temporary total disability, and 30% loss of use of her right arm. The Industrial Commission set aside the arbitrator’s award for permanent disability but entered an award for medical expenses and temporary total disability. The circuit court of Peoria County confirmed the decision of the Commission. The employer filed this appeal and Florida Bonds cross-appealed pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

Florida Bonds was a 3 2-year-old bus driver with three years of experience when, on August 23, 1977, she returned from her bus route at approximately 7 p.m. She proceeded to the drivers’ room to leave public schedules and transfers on a window ledge. At the hearing before the arbitrator, she described what happened next:

“As I, you know, went to put them up in window they fell, and so I tried leaning over, I don’t know how I leaned over, but I was hurting, my back was hurting pretty bad. So, I leaned over and I lost my balance and that way I like stumbled, you know, and I tried to catch myself, and that’s when my shoulder hit something. I think it hit, I am not sure you know, but anyway I felt this pain in my shoulder.
And I couldn’t get it out.
THE ARBITRATOR: Which shoulder is that?
THE WITNESS: Right shoulder.”

Upon further questioning by her own attorney, she testified as follows:

“Q. What was it, if you can recall, that your shoulder hit?
***
A. I am not sure because here I was bending over it sort of, you know, to pick up this transfer color, and I leaned over some kind of way and I went to catch myself and I felt this pain in my shoulder, you know. This one was back this way, and here I was picking it up like that (indicating).
Q. Which hand were you referring to?
A. I was reaching with my left.
***
Q. Were you close enough that you could reach out and touch [the wall] ***?
A. I wasn’t close enough to reach and touch it ***.”

On cross-examination she testified that she had bent down slowly to pick up the transfer schedules, that she lost her balance just before she actually picked them up (her testimony is not clear on this point), that she “went over” to the right when she lost her balance, had no bruises or contusions on her body after her loss of balance, and did not know the part of her arm that came into contact with any object.

Later that evening she went to the emergency room of a local hospital where it was determined that her shoulder was dislocated and her physician subsequently decided that surgery was necessary to prevent recurrent dislocations.

The employer argues that there was no evidence that Miss Bonds had bumped her arm and that since her shoulder had degenerated to the point where any minor or insignificant trauma could have caused the dislocation, her employment subjected her to no risks beyond those faced by the general public, making her injury noncompensable. We agree with the employer that because of the preexisting condition of her shoulder, the risk of dislocation was personal to her and her injury is thereby rendered noncompensable under the Act.

An injury is accidental within the Act if a workman’s physical structure, whatever it may be, gives way under the stress of one’s usual labor, and claimants can recover on their own testimony without corroboration. (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137.) Certainly Miss Bond’s testimony traced the occurrence to a definite time, place and cause (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 249) and, as it was uncontradicted, it is sufficient to support a finding of accidental injury even absent any “bumping” of her shoulder. (See also International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 3.) It is also clear that Miss Bonds was in the course of her employment when the injury occurred.

The employer correctly argues, however, that because she had dislocated her shoulder before and was subject to repeated subluxations (where the shoulder partially came out but did not dislocate) prior to the incident at issue, her injury was a result of normal activity rather than a risk incidental to her employment. The surgeon indicated that any episode of minor trauma — reaching for a cigarette or combing hair or turning over in bed while asleep — could have caused her shoulder to dislocate and that her shoulder was a “time bomb” which would go off at an unpredictable time.

In Board of Trustees v. Industrial Com. (1969), 44 Ill. 2d 207, a claimant preparing materials for class in accordance with his duties as a teaching assistant, turned in his chair upon hearing a noise, heard his back “snap,” and thereafter had difficulty walking due to a ruptured disc. Although the Commission affirmed an award, the circuit court reversed and this court affirmed the circuit court’s denial of an award, stating:

“[T] here must be a showing that an injury, to be considered compensable, was due to a cause connected with the employment or incidental to it. There is no evidence here of a causal connection between the appellant’s employment and the injury. The appellant simply turned in his chair and suffered injury. There was no suggestion that the chair was defective or unusual in any way. The medical evidence was that because of its degenerated condition any simple and normal activity would have caused the appellant’s disc to rupture. The injury was not caused by a risk incidental to the employment. [Citation.] ” [Board of Trustees v. Industrial Com. (1969), 44 Ill. 2d 207, 214-15).

Similarly, in County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, a woman arising from her desk to go to lunch suffered a stroke and permanent paralysis. Despite medical testimony that pressure caused by getting out of her chair might have precipitated the stroke and that her job of lifting heavy books might have tended to weaken her heart, she was denied compensation because she was equally exposed to danger apart from her employment (68 Ill. 2d 24, 29). Thus more is required than the fact of an occurrence at the employee’s place of work. Smith’s Transfer Corp. v. Industrial Com. (1979), 76 Ill. 2d 338, 350-52.

The instant case is analogous to these cases because claimant’s doctor testified that her shoulder was a “time bomb ” that could go off at any time and that any normal activity would have precipitated its dislocation. The employer, therefore, merely provided the occasion for its occurrence and did not cause it in any way. Completely absent from the record is any evidence that claimant’s work (1) further deteriorated her shoulder, (2) aggravated it, (3) precipitated its dislocation, or (4) accelerated the occasion for its dislocation. (See 1 A. Larson, Workmen’s Compensation sec. 12.20, and cases therein cited (1978).) There is, in short, no indication from the record that, but for her employment, her shoulder would “have gone on functioning reasonably well for an indefinite time” (1 A. Larson, Workmen’s Compensation sec. 12.20, at 3 — 310 (1978).)

We have previously approved compensation awards where there was evidence that the employment caused the injury (Memorial Medical Center v. Industrial Com. (1978), 72 Ill. 2d 275, 278) even if that evidence was controverted (Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445, 447-49). But claimants have the burden of proof on all of the elements establishing their right to compensation (Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144, 148), and because neither qualitative nor quantitative risks to the claimant were shown to be greater as a result of her employment, the Commission’s determination that this injury arose out of her employment was contrary to the manifest weight of the evidence. For this reason, we do not have to consider claimant’s cross-appeal on the Commission’s decision regarding the existence of permanent disability.

Judgment reversed; award set aside.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 52494.
    MARJORIE JOAN GMELICH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Fred Barth, d/b/a Fred Barth Ford, Appellee).

      Opinion filed May 22, 1980.

      Harlan Heller and Alan D. Spaniol, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Stephen L. Com and Richard C. Hayden, of Craig & Craig, of Mattoon, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This action was brought under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) by claimant, Marjorie Gmelich, seeking recovery for the death of her husband, Donald. The arbitrator found that the accident which caused death did not arise out of and in the course of Gmelich’s employment by respondent, Fred Barth Ford, an automobile dealership in Marshall, and compensation was denied. The Industrial Commission affirmed, and the circuit court of Clark County confirmed the decision of the Commission. Claimant brings the cause to this court under Rule 302(a) (73 Ill. 2d R. 302(a)). We affirm.

Donald Gmelich was an automobile salesman employed by respondent. On December 7, 1976, Gmelich left work at approximately 5:30 p.m., telling Fred Barth, sole owner of the dealership, that he would visit his daughter and do some Christmas shopping in Terre Haute, Indiana, that evening. After having dinner at home, Gmelich set out by car for Terre Haute with his wife at approximately 6:30 p.m. The car in which they traveled was owned by respondent, which customarily allowed its salesmen use of its autos. Fuel and maintenance bills were paid by respondent, and no restrictions were placed on usage. As was typical of Gmelich, he carried business cards, a list of automobiles, specification comparison charts, and other work-related materials with him on the trip to Terre Haute.

Upon arriving in Terre Haute, Gmelich and his wife first visited a friend in a hospital. The friend and her husband had previously bought cars from Gmelich. When testifying before the arbitrator, Mrs. Gmelich could not recall if automobiles were discussed during the hospital visit, and she admitted on cross-examination that the purpose of the hospital visit was personal.

The second stop made by Gmelich and wife was at a Terre Haute shopping center. While there, Gmelich first purchased a gift certificate for Fred Barth from a men’s clothing store. The certificate was paid for with the receipts from an employee vending machine and was intended as a Christmas present for Barth from Gmelich and his fellow employees. In buying the certificate, Gmelich was served by a young lady who was attending classes with Gmelich’s daughter in Terre Haute. During the course of the transaction, the topic of automobiles was broached, and the young lady commented that her car burned fuel quickly and that she was considering a smaller, more economical car. Gmelich stated that he had recently bought his daughter a small station wagon, and he informed the young lady of the types of cars he had to offer. She stated that her car had a low mileage reading and was in good condition, but the topic apparently was not pursued further.

While at the shopping center, Gmelich and his wife also stopped in a sewing machine store, and they there met a man, an employee of the store, to whom Gmelich had once sold a pickup truck. Gmelich spoke to the man for approximately 10 or 15 minutes. The topic of the conversation does not appear in the record.

The third and final stop in Terre Haute made by Gmelich and his wife was at the home of their daughter, a college student. As appears from the evidence introduced by claimant, Gmelich had recently purchased a car from respondent. He then, as might be inferred from the questions of claimant’s attorney, apparently sold it to his daughter. In her testimony, the daughter said that she did not know whether she or her father was the title owner. During the course of the visit with his daughter, Gmelich took the car to a service station for a fill-up and also had the oil, antifreeze and windshield-washer fluid checked. Mrs. Gmelich admitted in her testimony that the purpose of this visit with her daughter was personal.

In returning home from Terre Haute that evening, Gmelich and his wife were involved in an accident a few miles east of their home shortly after 9 p.m. Gmelich died as a result of the injuries he sustained. This action followed.

In the proceedings before the arbitrator, much evidence was introduced on the question of Gmelich’s work hours and the customs and practices of automobile salesmen. Claimant, Mrs. Gmelich, testified that Gmelich started work early each weekday, at approximately 7:30 a.m., and that he sometimes worked evenings, weekends and even holidays. Gmelich’s daughter testified that he worked 24 hours a day, seven days a week, but she admitted on cross-examination that this was an unrealistic estimate. Fred Barth testified that Gmelich had worked approximately nine hours per day on weekdays and six hours on Saturdays. He stated that he did not require employees to work evenings, but he knew that they often did more than was required of them and that some sold cars to Indiana residents. Finally, Gary Blagg testified as to the custom and practice of automobile salesmen. Blagg, also a car salesman but with a different company, testified that it was common practice for a salesman to attempt to make a sale at every available opportunity.

In seeking reversal of the Commission’s denial of compensation, Mrs. Gmelich argues that the actions of her husband on the evening of his death represented reasonable and foreseeable employment-related activity and that the fatal injuries sustained by him therefore were compensable. We disagree.

This case presents the issue, as Professor Larson puts it, of the compensability of injuries sustained in the course of a “dual-purpose trip” (1 A. Larson, Workmen’s Compensation sec. 18 et seq. (1978)). That author correctly recognizes that Illinois has adopted the rule, first enunciated by Mr. Chief Justice Cardozo in Marks’ Dependents v. Gray (1929), 251 N.Y. 90, 93-94, 167 N.E. 181, 183, that “when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.” (1 A. Larson, Workmen’s Compensation sec. 18.12, at 4 — 218 (1978), citing, at 4 — 221, Boyer Chemical Laboratory Co. v. Industrial Com. (1937), 366 Ill. 635, 641, and Irwin-Neisler & Co. v. Industrial Com. (1931), 346 Ill. 89, 94-95.) This rule, as applied here, advises against awarding compensation. Respondent’s interests may well have been furthered, to some immeasurable extent, by Gmelich’s sales pitch to the young lady from whom he had purchased a gift certificate. This is the only tangible evidence, however, from which we or the Commission could infer that respondent’s interests were furthered by Gmelich’s trip on the evening of his death. The Commission therefore could reasonably conclude that the trip would have been undertaken even if no selling effort were contemplated and that Gmelich’s business motives were incidental to an otherwise personal trip. Compensation was properly denied. Boyer Chemical Laboratory Co. v. Industrial Com. (1937), 366 Ill. 635, 641.

Nickey Chevrolet Sales, Inc. v. Industrial Com. (1967), 37 Ill. 2d 399, relied upon by claimant, involved a car salesman who was struck and killed as he left the dealership’s premises. In affirming an award entered by the Commission, the court held that the Commission could have concluded that the employee had not ceased working. (37 Ill. 2d 399, 403.) Here, by contrast, the employee’s proximity to the employer’s premises was remote, the Commission concluded that his trip to Terre Haute was not of a business nature, and we cannot say that conclusion is against the manifest weight of the evidence. We reject the idea advanced by claimant that a car salesman will take every opportunity to seU a car and that he is therefore always acting within the scope of his employment.

Travelers Insurance Co. v. Mullikin (Tex. Civ. App. 1951), 241 S.W.2d 175, also relied upon by claimant, involved facts substantially simüar to those now before us, and compensation was allowed. The case has been justly criticized, however (1 A. Larson, Workmen’s Compensation sec. 18.41, at 4 — 285 to 4 — 286 (1978)), it is inconsistent with the law as enunciated in the prior opinions of this court, and it will not be followed.

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

Judgment affirmed.


text:
    (No. 50469.
    CHARLES HOWARD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Anderson-Clayton Company, Appellee).

      Opinion filed May 22, 1980.

      Calandrino, Logan & Robeson, P.C., of Springfield (J. Jay Robeson, of counsel), for appellant.
    Robert L. Mueller, of Livingstone, Mueller, Drake & Davlin, of Springfield, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found that claimant, Charles Howard, was disabled as a result of accidental injuries sustained while he was employed by respondent, Anderson-Clayton Company. The arbitrator awarded claimant compensation of $95 per week for a period of 64 weeks for temporary total incapacity, and compensation of $75 per week for a period of 60 weeks for the permanent and complete loss of the use of the left leg to the extent of 10% thereof and the right leg to the extent of 20% thereof. On review, the Commission affirmed the arbitrator’s decision. On January 27, 1975, claimant filed a petition under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(h)) alleging an increase in disability and additional medical expenses. This hearing was held on December 8, 1975, and the Commission found that claimant had failed to demonstrate an increase in his disability. On certiorari, the circuit court of Morgan County confirmed both decisions of the Industrial Commission, and claimant appealed to this court pursuant to our Rule 302(a) (73 Ill. 2d R. 302(a)). Claimant argues in this court that the Commission’s finding that his injury had reached a permanent state, and the Commission’s denial of his section 19(h) petition, are against the manifest weight of the evidence.

On December 4, 1971, claimant was employed by respondent. On this date, while lifting a 30-pound box in a “stooped over” position, claimant experienced a sharp pain in his lower back. He continued to perform his assigned duties, avoiding any tasks that involved additional lifting, and finished the remainder of his shift. The following day, December 5, claimant continued to experience pain in his lower back which radiated down both his legs. As a result, claimant found himself unable to walk. He was taken to Passavant Memorial Area Hospital, where his condition was diagnosed as an “acute dorsal back strain.” He was admitted to the hospital and remained under the care of Dr. Harold Norris through December 8, 1971. On December 16, claimant returned to his regular employment with respondent. He once again experienced pain in his lower back and legs, finished his shift, and informed his supervisor that he could not continue performing his regularly assigned duties. He returned to his employment the first week of January 1972, and at this time was assigned to a position classified as “light work.” He continued working in this position through March 22, 1972, at which time he was laid off. Respondent called claimant to return to work on June 26, 1972, and he was assigned to a position as a line inspector. His duties involved standing for extended periods of time and frequent bending to retrieve articles which had fallen off the inspection line. On June 30, 1972, claimant once again informed his supervisor that he could not work because of the pain in his back and legs, and he has since continued unemployed. There is conflicting evidence concerning an offer by respondent to employ claimant in a clerical position. Claimant states that he accepted the offer, but contends that it was subsequently withdrawn. Respondent contends that claimant declined this offer of employment.

Subsequent to his discharge from Passavant Hospital in December 1971, and throughout the aforementioned period, claimant was treated by several physicians on an out-patient basis. He first sought treatment from Dr. Joseph J. Kozma on January 22, 1972, and continued under his care through April 21, 1972. Dr. Clifford J. Lynch, an orthopedic specialist furnished by respondent, treated claimant from May 10, 1972, through May 16, 1973. In addition, claimant was treated by Dr. Matías R. Castro, a specialist in neurosurgery, from May 23 through September 27, 1973. Claimant did not seek additional treatment for his back injury.

In the proceedings before the arbitrator on January 11, 1974, claimant testified that he continued to experience constant pain in his lower back and both legs, and that this pain increased when standing for periods longer than 30 to 45 minutes. In addition, he stated that he was unable to bend or stoop and that he experienced difficulty in lifting objects. Claimant further stated that he declined Dr. Lynch’s recommendation to undergo a spinal fusion, stating as his reason the lack of assurance that this operation would improve his condition. He did, however, follow Dr. Lynch’s recommendation concerning vocational rehabilitation for a sedentary position, and had enrolled in accounting courses at a local university. Claimant testified that respondent had offered, and that he had accepted, a clerical position which would not involve standing or lifting. He stated further that this offer had been withdrawn. In claimant’s opinion, his injury had progressively deteriorated from December 4, 1971, and continued to deteriorate.

Claimant introduced into evidence the records of his military physical examination, the records of his hospitalization at Passavant Memorial Area Hospital, a letter from Dr. Lynch to respondent, and the reports of Dr. Kozma and Dr. Castro. Claimant’s military physical examination indicated that his spine and musculoskeletal system were normal. The records from Passavant indicated that claimant was unable to stand erect at the time of his admission; that he was experiencing sharp pain in his lower back and legs; that his condition was diagnosed as an “acute dorsal back strain”; and that upon discharge his pain had decreased and he was ambulatory. The letter from Dr. Lynch to respondent, dated July 5, 1972, indicated that claimant’s back condition was aggravated by prolonged standing and that it would be beneficial if he could be employed in a job which would allow him to remain seated. The report of Dr. Kozma, dated February 22, 1972, indicated that claimant was suffering from a “low back syndrome”; that straight leg raising was possible only to a 45-degree angle; and that claimant should be examined by a neurosurgeon for further diagnosis of his condition. Dr. Kozma’s report of April 29, 1972, stated that he had examined claimant on March 3, March 23, and April 21, 1972, and that, although claimant continued to experience pain, his straight leg movement had increased to 85 degrees. The reports of Dr. Castro, dated May 23, June 13, and August 24, 1973, indicated that claimant was suffering from “Grade I spondylolisthesis at L5-S1 with associated bilateral spondylolysis.” On August 29, 1973, Dr. Castro reported that the progression of claimant’s “spondylolisthesis is very minimal, if at all.” He recommended a conservative nonoperative management of this condition.

Respondent introduced into evidence the reports of Dr. Lynch. These reports, dated May 16, 1972, April 25, 1972, and November 19, 1973, indicated that claimant was suffering from congenital “spondylolisthesis with pars interarticulares defects bilaterally.” In the report dated November 19, 1973, Dr. Lynch indicated that claimant’s condition remained essentially unchanged, finding no progressive deterioration. This report also stated that Dr. Lynch had recommended a spinal fusion and that claimant had declined.

On May 13, 1974, on review before the Industrial Commission, claimant testified that he continued to experience constant pain in his lower back and both legs. He stated that he occasionally experienced headaches, a “sharp flash of pain” in his lower back, and a “clicking” noise in the small of his back when walking on hard floors. He stated that he had discontinued wearing a back brace recommended by Dr. Castro because this did not reduce his pain. Claimant did not introduce any additional medical reports.

On cross-examination, claimant stated that he was pursuing an associate’s degree in accounting. He stated that his daily activities included driving to and from his classes, occasional light housework, walking the dog, and mowing the lawn when necessary. He also stated that he did not inform his physician of his headaches.

Respondent called Ron Luck, formerly employed as an employee-relations supervisor for the Anderson-Clayton Company, as its only witness. Luck’s testimony substantially corroborated the prior testimony of claimant concerning the sequence of positions that he held after his injury. Luck did testify, however, that claimant had been offered a clerical position but had refused to accept the position because he was enrolled in school. On rebuttal, claimant testified that he had unconditionally accepted the position offered by respondent, stating that the offer was later withdrawn.

The first issue presented is whether the finding by the Commission that claimant’s injury had reached a permanent condition is against the manifest weight of the evidence. Claimant agrees that temporary disability, as distinguished from permanent disability, is a condition which exists until the injured workman is as far restored as the permanent character of his injury will permit. (Consolidated Coal Co. v. Industrial Com. (1924), 311 Ill. 61, 64.) Claimant argues, however, that the resolution of this question requires the opinion of a medical expert, contending that none of the medical reports introduced in the proceeding before the arbitrator contained an opinion as to permanency. Claimant suggests that he is temporarily totally disabled until he completes his associate’s degree in accounting and is able to find sedentary employment. Claimant does not contend that he is permanently and totally disabled.

We agree that temporary disability is a condition which exists until the injured workman is as far restored as the permanent character of his injury will permit. We do not agree, however, that it is necessary for a medical expert to categorically state that the injury has reached a permanent condition in order to support a finding of permanent partial disability. [Page Enterprises, Inc. v. Industrial Com. (1980), 78 Ill. 2d 287, 290.) Whether an employee has sustained an injury which renders him permanently disabled is a question of fact to be resolved by the Commission. Although the Commission’s conclusion must be supported by more than mere conjecture, it is the function of the Commission to resolve conflicting evidence, to draw reasonable inferences from the facts, and to conclude from an evaluation of all of the evidence whether the employee is permanently disabled. Goldblatt Bros. v. Industrial Com. (1979), 78 Ill. 2d 62, 67.

In the present case, claimant introduced the medical reports of Dr. Castro, his consulting physician. Dr. Castro concluded after review of claimant’s medical records, including a comparison of X rays taken immediately after the injury with X rays taken two years later, that any change in claimant’s condition was “very minimal, if at all.” The medical reports of Dr. Lynch, introduced by respondent, were consistent with the opinion of Dr. Castro. Dr. Lynch concluded, after periodic examination of claimant’s condition through the course of one year, that his condition remained essentially unchanged. In addition, the Commission could reasonably infer from claimant’s description of his condition that he was as far restored as the permanent character of his injury would permit. We find, after consideration of the record, that the Commission’s decision on the question of permanent disability is not against the manifest weight of the evidence.

The second issue presented is whether the Commission’s denial of claimant’s section 19(h) petition is against the manifest weight of the evidence. Claimant argues that the preponderance of the evidence demonstrates that claimant was temporarily totally disabled through December 8, 1975, the date of the section 19(h) proceeding.

On December 8, 1975, a hearing was held before the Industrial Commission pursuant to claimant’s petition, alleging an increase in disability, under section 19(h). Claimant testified at this hearing that he had been hospitalized for psychiatric treatment on two separate occasions in 1974. He was uncertain of the dates of his hospitalizations, but he believed that they were in November and December. Claimant was treated by Dr. Philip Woerner and received “shock treatments” and a myleogram while hospitalized. He stated that at this time “I had a lot of trouble with my back and I became very bitter about it and I guess I went overboard.” In reference to his present condition, he stated that he continued to experience difficulty with his back, pain in his legs, and, at times, lapses in memory. Claimant stated that he continued to pursue his degree in accounting.

On cross-examination, claimant stated that the pain that he experienced in his legs and back was essentially the same as the pain that he experienced in May 1974, the date of the first proceeding before the arbitrator. He also stated that the pain that he currently experienced was essentially the same as the pain that he experienced in January 1974, the date of the proceeding on review before the Commission. Claimant stated that he continued unemployed, and that the only treatment that he sought for his condition was from Dr. Woerner. In addition, he stated that he continued to do light housework; occasionally mowed the lawn; walked the dog; and continued to pursue his degree in accounting.

Claimant introduced into evidence, in addition to documents not relevant to this appeal, the evidence deposition of Dr. Woerner. This deposition does not appear in the certified record of the proceedings below, nor is its absence explained by claimant in his brief on appeal. A narrative summary of this evidence does appear, however, in claimant’s abstract of the record. On September 16, 1978, claimant filed in this court a motion to reform the transcript, seeking to include this evidence in the record on appeal. This motion was denied on September 21, 1978. Claimant’s motion for reconsideration of this denial was also denied on November 15, 1978. On March 11, 1980, respondent filed amotion to quash or, in the alternative, to expunge those parts of claimant’s brief and abstract of record which requested this court’s consideration of Dr. Woerner’s deposition. We agree with respondent that this summary of the proceedings below is not properly before us. We therefore do not address the arguments advanced by claimant related to this material.

In a section 19(h) proceeding, the issue presented is whether “the disability of the employee has subsequently recurred, increased, diminished or ended.” (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(h).) A proceeding under this section is not a means by which a prior decision of the Industrial Commission can be reversed. The purpose of a section 19(h) proceeding is to determine whether the disability has changed subsequent to an award or agreed settlement. The evidence presented in the original proceedings is relevant for the purpose of determining whether or not the claimant’s condition at the time of the award has changed. (Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 344.) Claimant’s contention that he was temporarily totally disabled through December 8, 1975, the date of the section 19(h) proceeding, was not an issue properly brought before the Commission by way of a section 19(h) petition. The question of temporary total disability was determined by the Commission’s affirmance of the arbitrator’s award which limited temporary total disability payments to 64 weeks; the Commission concluded that, at that point, claimant’s condition had stabilized and that the permanent nature and extent of the injury could be assessed. That determination could not be reviewed under section 19(h). Claimant does not contend that the Commission’s finding that his disability had not increased from the date of the first award was against the manifest weight of the evidence. Our review of the evidence, even if we were to consider the improperly presented deposition of Dr. Woerner, does not suggest that this finding is against the manifest weight of the evidence. We therefore affirm the decision of the circuit court.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 52593.
    INLAND STEEL COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Gene Bagwell, Appellee).

      Opinion filed May 22, 1980.

      Carter Harrison and Elmer Jenkins, of Benton, for appellant.
    Feiger, Quin dry, Molt & Harvey, of Fairfield (Morris Lane Harvey, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An arbitrator awarded permanent total disability compensation to claimant, Gene Bagwell, for an accidental back injury which arose out of and in the course of his employment with respondent, Inland Steel Coal Company. After receiving additional evidence, the Industrial Commission sustained the arbitrator’s decision, and the circuit court of Franklin County confirmed. Respondent now appeals, claiming that the Commission’s finding of total and permanent disability is against the manifest weight of the evidence.

On October 21, 1975, claimant, a 50-year-old underground mechanic for respondent, was lying on his side while working on a piece of equipment called a “joy miner” when an underground mining tractor struck him on the back, head and right shoulder, pinning claimant under the joy miner. Other employees who were in the area helped to extricate him. Although he noticed that his back, shoulder and legs hurt, claimant finished work on the piece of equipment, but then sat down for the remainder of his shift. The next day, claimant saw Dr. Talivaldes Kisle, the company doctor, who gave him pain pills and a heat treatment and sent him back to work. Claimant testified that, upon his return to work, he could not lift anything heavy because of back pain. On December 11, 1975, claimant saw Dr. James Chow, to whom claimant was referred by Dr. Kisle. Upon Dr. Chow’s recommendation, claimant stopped working and subsequently entered the hospital on January 7, 1976, for five days of therapy and treatment. Claimant saw Dr. Chow numerous times thereafter. The day following an examination by Dr. James McClure, to whom claimant had gone on May 10, 1976, claimant returned to work. He worked sporadically until January of 1977. According to claimant, he could not lift anything, he had trouble walking, his right arm hurt, his legs and back often got numb, and he sometimes did not get out of bed because of back pain. Upon the advice of Dr. David Schreiber, who claimant began seeing on December 10, 1976, he stopped working and has not worked since that time.

Claimant testified that his condition has gradually advanced. Sometimes he falls because his right leg gives out, and he has bladder, bowel and sexual problems. Claimant had previously suffered a back injury on February 27, 1973, when a pile of coal fell on him and caused compression fractures to his T-12 and L-l vertebrae. Plaintiff fully recovered from this injury, however, returned to his regular employment and, according to claimant, suffered no back problems until the injury for which he presently seeks compensation.

Depositions of several doctors were introduced at the arbitration hearing. Dr. Schreiber stated that, upon examining claimant, he detected a dorsal gibbous (outward bowing) at the T-12/L-1 level, severe spasm of the lower back muscles, and limited back motion and flexion. Dr. Schreiber ordered X rays taken and, by comparing them to X rays taken after claimant’s 1973 injury, discovered that the degree of compression of the T-12/L-1 vertebrae had approximately doubled. Upon subsequent examination of claimant, Dr. Schreiber found him to be suffering from spinal cord compression and myelopathy, along with continued degeneration of the fractured vertebrae, all resulting from the October 21, 1975, injury. Dr. Schreiber opined, based upon the foregoing and upon the result of a myelogram performed on June 13, 1977, that the instant injury has caused claimant to become totally and permanently disabled, and that he may need surgical intervention and stabilization of the spine.

Dr. Schreiber also testified at the hearing on review before the Commission, where he stated that he had examined claimant twice since the arbitration hearing and again detected the dorsal gibbous, muscle spasm and limitation of motion, as well as hyperactive reflexes. Furthermore, claimant was tested for the Babinski sign with positive results, which, assertedly, reveals progression of the spinal cord injury. Dr. Schreiber again stated that claimant is totally and permanently disabled, unable to do labor or work at a desk job; that the more activity the claimant engages in, the more quickly his condition will advance, which could result in complete loss of the use of his legs. Dr. Schreiber concluded that claimant’s life or health could be endangered if he attempted to return to any type of work.

Respondent contends that the testimony of claimant and of Dr. Schreiber constitute the only evidence favoring an award for total and permanent disability, and that such evidence is repeatedly contradicted by the record. It is respondent’s position that claimant suffered only a minor back injury and, therefore, is only partially disabled. Respondent presented depositions of two doctors who had examined claimant. Although admitting that degeneration can occur over a period of time following spinal cord compression, one of the doctors concluded that claimant could work in a coal mine if he avoided heavy lifting and repeated bending. The other doctor concluded that claimant was not disabled and that he could perform manual labor. On cross-examination, however, this doctor disclosed that he did not perform the Babinski test. Respondent also points to the deposition of Dr. Chow, who concluded that claimant was suffering from a severe soft-tissue injury.

In addition to the evidence adduced from claimant and Dr. Schreiber, claimant presented the deposition of Dr. Raymond Goss, who had treated claimant following the 1973 injury. He stated that the initial compressions from that injury were minimal and that X rays taken during the course of treatment revealed no further compression. In Dr. Goss’ opinion, increased compression of a fracture is often caused by a subsequent severe trauma; that the accident on October 21, 1975, could have caused further compression.

It is the Commission’s function to resolve conflicting medical opinions, and its findings will not be reversed unless they are found to be against the manifest weight of the evidence. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273, 277; Mclntire v. Industrial Com. (1971), 49 Ill. 2d 239, 242; Pillsbury Mills, Inc. v. Industrial Com. (1958), 14 Ill. 2d 23, 27.) The record here discloses sufficient evidence from which the Commission reasonably could have determined that claimant’s injury on October 21, 1975, caused him to become disabled to the point that he is unable to engage in any type of employment. Competent evidence of claimant’s limited activities does not require a contrary finding. An employee need not be reduced to a state of total physical and mental incapacity or helplessness before total and permanent disability can be awarded. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 360; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 488-89.) It was sufficient for the Commission to find that any services which claimant can possibly perform are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 361-62; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278.) The Commission’s determination that claimant is totally and permanently disabled is not against the manifest weight of the evidence. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE

text:
    (No. 52755.

      In re FRANCIS EDWARD SCHLAX, Attorney, Respondent.

      Opinion filed May 22, 1980.

      Mary M. Conrad and Philip Schickedanz, of Chicago, for the Administrator of the Attorney Registration Disciplinary Commission.
    Philip H. Corboy and Nicholas J. Motherway, of Chicago, for respondent.
   MR. CHIEF JUSTICE

GOLDENHERSH delivered the opinion of the court:

In a two-count complaint filed on March 10, 1978, and amended on October 19, 1978, the Administrator of the Attorney Registration and Disciplinary Commission charged respondent, Francis Edward Schlax, who was admitted to practice law in Illinois on November 19, 1953, with conduct which brought the legal profession into disrepute. In count I respondent was charged with wrongful commingling and conversion of a client’s funds, and in count II with dishonesty and misrepresentation before the Inquiry Board. A panel of the Hearing Board recommended that with respect to the conduct charged in count I respondent be censured, but found that no disciplinary action was warranted for the misconduct alleged in count II. The Administrator filed exceptions, and the Review Board affirmed the recommendation of the hearing panel. We allowed the Administrator’s petition for leave to file exceptions to the report and recommendation of the Review Board and permitted the filing of briefs and oral argument. 73 Ill. 2d R. 753.

The testimony shows that respondent became acquainted with James E. Suerth in 1971 when, following the recommendation of a mutual acquaintance in Alcoholics Anonymous, Suerth asked respondent to represent him in divorce proceedings with his first wife. When the divorce litigation was concluded, respondent did not bill Suerth for his services, apparently because he thought Suerth was unable to pay a fee at that time. Suerth, a painter by trade, testified that he subsequently performed decorating and painting services for respondent in payment of the fee. Respondent and Suerth developed an amicable relationship. Respondent advised Suerth concerning both legal and personal difficulties, and occasionally invited him to his home. Suerth testified: “I would have given him [respondent] my right arm.”

In the ensuing years respondent performed a variety of legal tasks for Suerth, including preparation of wills and income tax returns, and representation in traffic cases. Respondent also undertook legal representation of several members of Suerth’s family and of the family of .his present wife. The testimony is in dispute concerning whether Suerth requested those services or accepted responsibility to pay for them. Respondent testified before the hearing panel about the variety and extent of this work. He rendered no bills for services and received no payment. His friendship with Suerth continued until the occurrence of the events which resulted in the complaint to the disciplinary commission.

In December 1975 respondent undertook representation of Suerth in connection with the estate of his deceased aunt and obtained from the estate, for Suerth, an advancement of some $20,000 to $25,000. The testimony shows that Suerth spent the money in a very short period of time. Thereafter, the executor of the estate, seeking to make a final accounting and unable to locate Suerth, who had changed addresses, forwarded to respondent a check for $95,540.57 payable to Suerth, in payment of the balance of his inheritance.

Respondent communicated with Suerth and met with him. Suerth stated to respondent that he wanted him to be paid his fees “off the top.” Although the testimony is in dispute as to who initially made the suggestion, it was agreed that respondent would issue a check for $25,000 to Suerth, drawn on his office account, and the check for $95,540.57 would be endorsed over to respondent, who would deposit it in his account. Thereafter respondent, on demand, would issue checks to Suerth until the sum due was paid. The testimony shows that this arrangement was undertaken to protect Suerth from the “spendthrift” tendencies demonstrated by his handling of the earlier advancement. In describing their agreement before the hearing panel, Suerth stated that it was “a personal gesture.”

Exhibits in evidence show that, after depositing the money in his office account, respondent drew several checks on the account for which Suerth’s funds must necessarily have been utilized. Payees on the checks included, among others, the American Express Company, individuals who had made personal loans to respondent, and the Internal Revenue Service.

The testimony shows that Suerth, over a period of seven months, requested additional sums and received checks from respondent. In four instances checks issued to Suerth were returned because of insufficient funds. Thereafter, Suerth requested payment in full from respondent, who presented an accounting of sums held on Suerth’s behalf and a bill in the amount of $10,200 for services rendered, which figure Suerth disputed. Respondent proposed to Suerth, by letter, that in lieu of the attorney fee he be permitted to repay the sum of $21,146.61 remaining due to Suerth in twenty $1,000 monthly installments, and a final payment of $1,146.61. After consultation with his wife, Suerth declined the offer. Suerth subsequently consulted attorney Kevin Gillogley to determine what steps might be taken to obtain payment of the moneys held by respondent. After several unsuccessful attempts by Gillogley either to obtain repayment or have the disputed sums placed in a separate escrow account, Gillogley advised Suerth to contact the Attorney Registration and Disciplinary Commission.

Before the Inquiry Board, respondent stated that he had made full restitution of all sums due by issuing one personal check and endorsing over to Suerth three checks which he had received for legal fees. In fact, only three checks were given to Suerth and only one had been received by respondent in payment of a fee; one was a personal check for $10,829.10 and another was a draft from a loan company, endorsed over to Suerth. These alleged misrepresentations were the basis for the second count of the Administrator’s complaint charging unprofessional and unethical conduct involving dishonesty and misrepresentation before the Inquiry Board.

In recommending that respondent be censured, the hearing panel found that the $95,540.57 check was accepted “as a personal favor between friends” not within the scope of an attorney-client relationship, and therefore no commingling had occurred which would warrant discipline. The hearing panel concluded, however, that respondent could be disciplined for his conduct “outside his professional capacity,” in failing, once a dispute developed, either to promptly return the funds to Suerth or deposit them in a segregated account. The panel concluded that the divergence in testimony before the Inquiry Board and the actual facts regarding the reimbursement of sums to Suerth evidenced no motive of dishonesty or misrepresentation for which discipline was warranted. The Review Board affirmed.

The Administrator argues that commingling and conversion of funds entrusted to an attorney’s care warrant suspension from the practice of law, and that censure is not an appropriate sanction in this case. While recognizing that circumstances exist which might be considered in mitigation in determining the sanction to be imposed, the Administrator argues that respondent nevertheless was guilty of commingling and conversion of funds. Citing In re Brody (1976), 65 Ill. 2d 152, he recommends a period of suspension of at least one year. Respondent, while admitting that his conduct constituted “technical” commingling and conversion warranting censure [In re Sherman (1975), 60 Ill. 2d 590), argues that under the circumstances shown more severe discipline is not justified.

As the court said in In re Sherman (1975), 60 Ill. 2d 590, 593, “Consideration will be given to the reports and recommendations of the Hearing Board and the Review Board, but ‘the ultimate responsibility for determining and imposing discipline rests with this court.’ [In re Wyatt, 53 Ill. 2d 44, 45.)” That respondent commingled and at least temporarily misappropriated funds entrusted to him is beyond dispute. In determining the appropriate sanction to be imposed, mitigating circumstances must be given consideration, and the testimony of three judges, two former presidents of the Chicago Bar Association, and a number of other attorneys shows that, with the exception of this occurrence, respondent’s professional conduct has been beyond reproach. Other testimony shows a substantial contribution of time and effort in the assistance of individuals who had sought assistance from Alcoholics Anonymous.

As the court noted in In re Costigan (1976), 63 Ill. 2d 230, 237, “Determination of the precise discipline to be imposed upon an erring attorney is rarely easy. It is not easy here.” Upon examination of the authorities cited by the respondent and the Administrator, we conclude that factually this case resembles In re Saladino (1978), 71 Ill. 2d 263, and In re Melin (1951), 410 Ill. 332. It is distinguishable from In re Sherman (1975), 60 Ill. 2d 590, upon which respondent relies. We hold that an appropriate sanction to be imposed in this case is that respondent be suspended from the practice of law for a period of three months.

Respondent suspended.


text:
    (No. 52122.
    MORIN ERECTION COMPANY, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Edward Wojtysiak, Appellant).

      Opinion filed May 22, 1980.

      Warren E. Danz, P.C., of Peoria (Richard G. Leiser, of counsel), for appellant.
    Marshall A. Busier and Linda M. Castleman, of Owen, Roberts, Busier & Murphy, of Decatur, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An arbitrator awarded claimant, Edward Wojtysiak, 3% partial disability under section 8(d) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2)). On review, the Industrial Commission affirmed the arbitrator’s award. The circuit court of Macon County reversed, finding the award to be against the manifest weight of the evidence, and claimant appeals.

On August 22, 1975, claimant slipped as he was carrying scaffolding for the employer, Morin Erection Company. The claimant continued to work for a few days but, because he complained of continued abdominal pain and discomfort which had commenced at the time of the slip, he was taken to the emergency room of a local hospital. The doctor there advised him that he had a hernia which required surgery. Claimant elected to return to Yale, Michigan, his home town, where Dr. Kahn performed the hernia operation. Claimant did not complain to either the emergency room physician or Dr. Kahn about anything other than the abdominal injury. However, as the only witness to testify before the arbitrator, claimant at that time stated that his right arm, shoulder and leg had also been injured in the accident and that he had treated himself at home with hot baths and massage. When the claimant returned to work in January 1976 he experienced sharp pains in the right leg and shoulder. In May of 1976, claimant suffered a stroke which affected his speech and caused partial paralysis of the right side of the body.

Prior to the hearing before the arbitrator, the parties stipulated that the accidental injuries arose out of and in the course of claimant’s employment. In addition to his testimony, claimant introduced a medical report from Dr. Horacio Rivero, who examined claimant on February 18, 1976 (prior to the stroke). Dr. Rivero found “tenderness at the level of the right arm and shoulder joint, posteriorly, having 35° to 40° limitation of the right arm to straight-up raising” and “some degree of stiffness to internal rotation.” The right hand showed “some degree of stiffness to make a fist” and “difficulty in bringing the thumb across the palm of the hand.” “Straight up leg raising” showed “the right to be positive at 35°, the left at 65°.”

The only evidence introduced by the employer was a medical report of its Dr. Joseph Schrodt, who examined claimant on May 24, 1977 (subsequent to the stroke). The report stated that claimant “has marked weakness related to this paresis from his stroke and is actually unable to dorsaflex his wrist.” Dr. Schrodt further found “facial motor weakness along with paresis in the right upper extremity and weakness in the right lower extremity.”

No additional evidence was presented on review before the Industrial Commission.

To sustain the trial court’s judgment, respondent argues that claimant failed in his burden of proving that the disability allowed by the Commission was caused by the accident of August 22, 1975. It is respondent’s position that the disabilities claimed at the time of the hearing were the result of the stroke suffered by claimant subsequent to the accident. In this assertion, respondent relies on Dr. Schrodt’s report. Therein, however, Dr. Schrodt merely stated his observations of claimant’s physical condition subsequent to his stroke; no attempt was made to attribute any of such observations to claimant’s earlier accidental injuries, but neither was the possibility of a causal relationship excluded.

On the other hand, in meeting the burden of proof in a workmen’s compensation action, the testimony of the claimant alone can sustain an award. (Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 463.) Herein, the claimant’s testimony was corroborated by Dr. Rivero’s report which was drawn as a result of an examination conducted after the accident and before the stroke.

It is the province of the Commission to draw reasonable inferences from the evidence introduced, and its finding as to the nature and extent of a disability will not be set aside unless against the manifest weight of the evidence. Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479.

Evidence in this case is sufficient to sustain the claimant’s burden of proof, and the Commission could reasonably conclude that the August 22, 1975, accident caused the injury for which an award was granted.

Judgment reversed; award reinstated.


text:
    (No. 52198.
    MICHAEL PAZARA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baldwin Associates, Appellee).

      Opinion filed May 22, 1980.

      Harvey & Stuckel, Chartered, of Peoria (R. Wayne Harvey, of counsel), for appellant.
    Cohn, Lambert & Ryan, Ltd., of Chicago (Louis J. Cohn, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) filed by claimant, Michael Pazara, for injuries he sustained from an assault by a coemployee on March 25, 1977, an arbitrator for the Industrial Commission found that claimant failed to prove that he sustained an accidental injury arising out of and in the course of his employment with respondent, Baldwin Associates. On review, the Commission affirmed, one member dissenting. The majority entered findings, specifically stating:

“1. The record reflects and Petitioner admits that the dispute between Petitioner and Servis, the co-employee who assaulted Petitioner, was purely personal in nature.
2. The record reflects that Petitioner was not in the course of his employment when he returned to the job site where he was assaulted. Petitioner testified that on the day of the incident, he left work at approximately 12:30 P.M., stopped at the VFW Hall and drank beer, did personal errands, stopped at a tavern, met a co-worker, John Troxell, and returned to the job site approximately 30 minutes prior to the end of the shift. Although Petitioner testified that he was waiting for his foreman to tell him what to do, it is difficult to believe Petitioner returned to the job site for the purpose of performing such duties when only 30 minutes were left in the work day. There is no evidence that he did, in fact, do any work after his return.
3. The record does not support Petitioner’s contention that his assailant, Servis, had a history of violent conduct. Although the witnesses called in to support this contention testified to incidents of verbal abuse by Servis, there is no competent evidence in the record of physical attacks by Servis prior to March 25, 1977. [Emphasis in original.]
4. The Petitioner’s hazard of being attacked by a fellow employee was neither incidental nor peculiar to the Petitioner’s employment. Shortly after Petitioner’s return to the job site, Troxell, the co-employee with whom Petitioner returned to the job site after a meeting in a tavern, engaged Servís in argument; Troxell and Servís came into the shack where Petitioner then addressed personal comments to Servís. A fight ensued between Petitioner and Servís, caused by those remarks.
5. The risk of harm was not increased by the employment, as the probability of assault was not augmented by the particular character of Petitioner’s job or by a special liability to assault associated with the environment in which Petitioner worked.”

On certiorari, the circuit court of Peoria County confirmed the decision of the Industrial Commission, and claimant appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)). Claimant contends that the decision of the Commission is against the manifest weight of the evidence.

On March 25, 1977, claimant was a concrete laborer employed by respondent at a job site in Havana. Claimant testified that on this date he arrived at work at approximately 8 a.m. and performed his assigned duties until approximately 12:30 p.m., at which time he left the jobsite to pursue personal matters. While away from the jobsite, claimant drank beer at a VFW Hall, shopped for a new automobile, and met a coemployee at a tavern. Though the exact time is not clear from the record, claimant was notified at some point during the day he was being discharged.

Claimant stated that he returned to the jobsite at some time after 3 p.m., perhaps as late as 3:10 or 3:15. He proceeded to the “chain shack,” where he asked a foreman to contact his supervisor concerning an assignment for the remainder of the shift. Claimant stated that his shift ended at 4:25 p.m. and that he arrived at the shack with approximately 30 or 45 minutes remaining in the shift. Claimant was told by the foreman to remain in the “chain shack” until he returned with the supervisor. Bill Servís, a co-employee, entered the shack and engaged in a heated discussion with John Troxell, also a coemployee. The topic was a fight which occurred at noon between Servís and another employee, Keith Hagney. At some point in this discussion, claimant gratuitously volunteered his opinion of Servís’ altercation with Hagney. Claimant stated that he told Servís, “Bill, that isn’t the way I heard it. And I think that you ought to be ashamed of yourself for whacking him.” Servís, with both fists clenched, immediately rushed to within two inches of claimant and informed him that he was not concerned with his opinion. Claimant pushed Servís away, and a fight followed in which Servís pulled a knife and stabbed claimant, inflicting three separate chest wounds for which 66 stitches were required.

In seeking reversal of the Commission’s decision, claimant argues that the statement was made to further the interests of respondent. Claimant characterizes the statement as a criticism of the practice of fighting among coemployees, suggesting that his injuries therefore arose out of his employment. We do not agree.

Our opinions have consistently held that it is the province of the Industrial Commission to weigh and resolve conflicts in testimony, to choose among conflicting inferences therefrom, and to determine where the preponderance of the evidence lies. (Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, 32.) In reviewing the decisions of the Industrial Commission, this court will not disregard permissible inferences drawn by the Commission, and we will not substitute our judgment for the findings of the Commission unless those findings are contrary to the manifest weight of the evidence. [Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430.) Our examination of the testimony fails to provide a basis for holding that the Commission’s finding that this dispute was purely personal in nature is contrary to the manifest weight of the evidence.

Claimant nonetheless argues, in reliance on Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill. 2d 203, that the risk of physical attack was increased by his employment and that his injury is therefore compensable, even assuming that the dispute resulting in his injury was purely personal in nature. In support of this position, claimant argues that respondent was aware of the risk of assault engendered by Servis and that respondent’s failure to discipline or discharge Servis for prior assaultive behavior increased this risk. Respondent rejects the validity of this theory of causation, contending that it is unsupported by our prior cases. Respondent argues in the alternative that if claimant’s theory is sufficient to establish the causal link between claimant’s injuries and his employment, claimant failed to meet his burden in the proceedings below.

Even if we were to agree with claimant that his theory is a valid one, we would be unable to conclude that his injury is compensable. One of the premises of claimant’s theory is that Servis exhibited a propensity to engage in violent conduct, but we do not believe that the Commission’s finding to the contrary is against the manifest weight of the evidence.

In the proceedings before the arbitrator, claimant called as his first witness Raymond Martin, a coemployee. Martin testified that at noon on March 25, 1977, he observed an argument and subsequent fight between Servis and a coemployee, Keith Hagney. He stated that this dispute began in the “chain shack” and that Servis struck Hagney while in the parking lot of the employer in front of a security guard and two office personnel. Martin also related the circumstances of the subsequent fight between Servis and claimant. His version of the events which led to claimant’s injury corroborated claimant’s. Martin stated further that he had never had an argument with Servis and that, to his knowledge, Servis was 61 years old. On cross-examination, Martin stated that the altercation between Servis and Hagney arose out of a disagreement over a trailer that Hagney rented from Servís.

Claimant testified, in addition to matters not relevant to this issue, that this was his first dispute with Servís. He stated further that he had listened to Servís engage in verbal disputes with other employees for the previous two years. On cross-examination, claimant stated that he was aware of the fact that Servís had a bad temper.

Claimant called as his next witness Robert Tiger, also a coemployee. Tiger testified that he had observed the argument in the “chain shack” between Hagney and Servís. He stated that Servís was discussing coronary problems when Hagney came up to him and informed him that he had “some pills that make you have a heart attack.” Tiger stated that, in response to this comment, Servís told Hagney, “I’m going to kill you, you little sonofabitch.” He stated that this discussion took place before several foremen. On cross-examination, Tiger stated that Servís never killed anyone to his knowledge and that he was aware of the fact that Servís had a bad temper. On redirect examination, Tiger testified that he had never seen Servís physically attack a coemployee in his presence, but that Servís had boasted of a prior fight with Hagney.

Claimant called as his last witness Pete Paz ara, claimant’s uncle, employed by Baldwin Associates as a general foreman of the laborers. Paz ara stated that Servís was generally belligerent and argumentative, and that he had observed Servís boasting about an altercation with Hagney. He also stated that, approximately one month prior to claimant’s injury, Servís had threatened a safety supervisor after he was informed of the regulation that all employees must wear safety glasses. On this occasion Servís threatened to “beat him up and there were four of us guys that jumped on Bill and held him back.” On cross-examination, Pazara stated that he had never observed Servís fight with other employees. He also stated that the incident with the safety supervisor was not reported to his superiors or the union and that Servís was not disciplined on this occasion.

On review, in proceedings before the Industrial Commission, claimant called Gary Logue, an employee of respondent, as a witness. Logue stated that he had worked with Servís from April through June of 1975. On two occasions, in the course of unloading two-by-fours from a truck, Servís threatened to knock Logue’s “------- head off.” These threats arose out of a disagreement as to how their work should be performed. On at least one occasion, Servís was holding a two-by-four when the threat was made. After the second dispute, Logue contacted his supervisor and requested a transfer. This request was granted. On cross-examination, Logue stated that he was never involved in a fight with Servís.

Our cases have held that the term “in the course of employment” concerns the time, place, and circumstances of the injury, and the term “arising out of the employment” refers to the required causal link between the employment and the injury. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 277.) Proof that an employee is present at the place of his employment when he is injured is not by itself sufficient to sustain his burden of proving that the injury arose out of the employment. [W.K.I.D. Broadcasting Co. v. Industrial Com. (1969), 42 Ill. 2d 236, 239.) An injury may be said to arise out of the employment “when, upon consideration of all of the circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work is to be performed and the resulting injury.” [Brewster Motor Co. v. Industrial Com. (1967), 36 Ill. 2d 443, 449.) It is the province of the Industrial Commission, however, to draw reasonable inferences and conclusions from competent evidence in the record. On review, the function of this court is limited to a determination of whether findings of the Commission are against the manifest weight of the evidence, and we will not set aside a finding solely because we might have made a finding different from that of the Commission or because we might draw inferences other than those reasonably drawn by the Commission. Gubser v. Industrial Com. (1969), 42 Ill. 2d 559, 562.

In the present case, the Commission could conclude that claimant’s employment had not increased the risk of injury to claimant. The record reveals that Servís’ first physical attack on a coemployee on the premises of respondent was at noon on March 25, 1977. Claimant’s injuries were sustained on the same afternoon. Two years preceding claimant’s injuries, Servís had angrily threatened a fellow employee without any resulting physical attack. No further specific incident of abusive or threatening behavior by Servís occurred until approximately one month preceding claimant’s injuries. On this occasion, Servís once again angrily threatened a fellow employee. Once again, no physical attack ensued, although four fellow employees were required to prevent the situation from escalating.

In summary, we believe that the Commission could find that the risk posed to respondent’s employees was no greater than that to which the general public was exposed. Though we might reach a different finding on this issue, we do not believe that the Commission’s conclusion is contrary to the manifest weight of the evidence, and we therefore do not disturb its decision to deny compensation.

Because we affirm the Commission’s finding that claimant’s injury did not arise out of his employment, we do not address the Commission’s finding that claimant was not in the course of his employment.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    (No. 52403.
    UNITED AIRLINES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (John R. Bender, Appellee).

      Opinion filed May 22, 1980.

      MORAN, J., took no part.
    Wiedner & McAuliffe, of Chicago (William J. Harte, of counsel), for appellant.
    Jacob N. Gross, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found that claimant, John R. Bender, was disabled as a result of accidental injuries sustained while he was employed by respondent, United Airlines, Inc. The arbitrator awarded claimant compensation of $204.53 per week for a period of 9 4/7 weeks for temporary total incapacity, and compensation of $204.53 per week for a period of 20 weeks for permanent partial disability of the person to the extent of 4% thereof. On review, the Commission set aside the decision of the arbitrator and awarded claimant $204.53 per week for a period of 99 5/7 weeks for temporary total incapacity, and compensation of $181.20 per week for the duration of his disability for his partial incapacity to pursue his usual employment. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission, and respondent appealed to this court pursuant to our Rule 302(a) (73 Ill. 2d R. 302(a)). Respondent argues in this court that the decision of the Industrial Commission is against the manifest weight of the evidence.

In the proceedings before the arbitrator on November 29, 1976, claimant was called as the first witness. He testified that on January 2, 1964, he had been employed by respondent as a ramp serviceman. As a ramp serviceman he was responsible for the loading and unloading of aircraft. In 1969, claimant was promoted to the position of lead ramp serviceman. As a lead ramp serviceman, he was responsible for the supervision of a crew of 1 to 12 employees in addition to his responsibilities as a ramp serviceman. Claimant continued to be employed intermittently in this position through June 25, 1976.

On June 25, 1976, claimant stated that he arrived at O’Hare International Airport at 1:15 p.m. At this time, he proceeded to the United Airlines Medical Facility to meet with Dr. Gaskill, an employee of respondent, to undergo a physical examination. The purpose of this examination was to determine whether claimant was fully able to return to his duties as a lead ramp serviceman. Claimant had been unable to work as a result of an asthmatic and allergic condition. Dr. Gaskill released claimant to return to his job, and he began his shift at 2:15 p.m. Claimant stated that at approximately 4 p.m. he began to experience dizziness; he became unresponsive; his complexion became bright red; hives appeared over his entire body; his eyes itched and closed from swelling; his chest began to heave; and he found himself gasping for air. His supervisor was immediately informed of his condition, and claimant was taken from the ramp area to the radio room. When it became apparent that his condition would not improve, respondent’s ramp operations crew rushed claimant by car to Resurrection Hospital. He arrived at the hospital at approximately 4:45 p.m., and emergency treatment was rendered. Intravenous fluids and a series of injections were administered to relieve claimant’s condition. At approximately 7:45 p.m., he was released to the care of his physician, Dr. Marvin J. Salzmann. Dr. Salzmann had treated claimant for his asthmatic and allergic condition since September of 1973. Claimant continued treatment of his condition with Dr. Salzmann, consisting of daily medication and biweekly examinations.

Claimant also described the environmental conditions to which he was exposed on June 25, 1976. He stated that jet aircraft were continually arriving and departing in the vicinity of the ramp area in which he worked. In addition, this area was directly in line with the “blast engines” of aircraft located at an adjacent terminal. He stated that it was the practice of the pilots of these aircraft to start the engines approximately 5 minutes prior to departure. Claimant stated that on June 25, 1976, he noticed dust and dirt particles in the air, the constant odor of jet fumes, and “field pollution.” He stated that these were the ordinary circumstances under which he worked and that these conditions would persist throughout his shift.

Claimant also stated that on two prior occasions he had experienced “attacks” at work. The first “attack” occurred on April 2, 1974. Claimant stated that the symptoms that he had experienced on this occasion were similar to the symptoms that he experienced on June 25, 1976. On this occasion in 1974, he was taken to Resurrection Hospital and admitted for treatment. He was treated by Dr. Robert J. Lappe, a specialist in pulmonary functions. He remained hospitalized for approximately one week. He was released to the care of Dr. Salzmann and returned to work after approximately three weeks. He worked intermittently for the remainder of the year. He stated that throughout this period he experienced dizziness, difficulty in breathing, and noticed that he was allergic to substances to which he had not previously reacted. On April 29, 1975, claimant experienced substantially similar symptoms and was once again taken to Resurrection Hospital. On this occasion, he remained in the hospital for approximately three hours and was released to the care of Dr. Salzmann. Claimant continued to work intermittently through 1975.

In addition, claimant stated that he served in the United States Air Force as a clerk typist prior to his employment with respondent. While in the Air Force, he completed his general education. He also stated that he had not sought alternative employment. On cross-examination, he stated that he had never experienced an “attack” prior to working for respondent.

Claimant called as his next witness Dr. Marvin J. Salzmann, his treating physician. Dr. Salzmann stated that he was certified by the American College of Physicians and Internists as a specialist in internal medicine and that approximately one-third of his practice was devoted to the treatment of pulmonary diseases. Claimant first sought treatment from Dr. Salzmann in September 1973 for an asthmatic condition and a sore throat. On October 8, 1973, Dr. Salzmann conducted allergy tests and determined that claimant was allergic to inhalent allergins, i.e., weeds, trees, molds, dust, and dog dander. Dr. Salzmann diagnosed claimant’s condition as allergic rhinitis (hayfever) and asthma. Claimant was examined by Dr. Salzmann 27 times in 1974, 22 times in 1975, and 22 times in 1976. In addition to these examinations, Dr. Salzmann reviewed the medical records of claimant’s admissions to Resurrection Hospital following his attacks at work. He stated that on the basis of his treatment of claimant, his review of the records of claimant’s hospitalizations, his knowledge of the causes of bronchial constriction, and the medical history that he had obtained from claimant, it was his medical opinion that claimant’s bronchial constrictions at work were caused by allergic asthma and chemical irritants. He stated that these chemical irritants were nitric and sulfuric acids. Dr. Salzmann also stated, in response to a hypothetical question which incorporated the facts surrounding claimant’s employment, including the exposure to pollutants, that, based upon a reasonable degree of medical and surgical certainty, these asthmatic attacks might or could be causally connected to the employment. In addition, he stated that this condition totally and permanently disabled claimant from pursuing his employment as a lead ramp serviceman but did not prevent him from pursuing otherwise gainful employment with the company.

On cross-examination, Dr. Salzmann stated that he had not tested claimant for allergic reactions to substances encountered at work and that his records did not indicate that this condition was employment related. He stated that in formulating his opinion, he did not visit claimant’s work site, did not sample the air to determine which pollutants were present, did not consider the weather conditions on June 25, 1976, did not determine what type of plant life existed in the fields surrounding O’Hare Airport, did not sample the exhaust fumes of any jet engine at O’Hare Airport, and he was not aware of the substances to which petitioner could have been exposed prior to his arrival at work on June 25, 1976. Dr. Salzmann stated that he had, however, studied the properties and mechanics of jet engines while he was a flight surgeon in the United States Air Force. In addition, he stated that, at the time of arbitration, November 29, 1976, claimant’s condition had improved. He attributed this improvement in part to claimant’s absence from work, and in part to the medication prescribed.

On redirect examination, Dr. Salzmann stated that in order to formulate his opinion that claimant’s condition was work connected, it was not necessary that he consider and test all of the factors suggested by respondent on cross-examination. He stated that to his knowledge claimant had not suffered an attack since June 25, 1976, nor had he been exposed to any jet exhaust fumes.

Claimant called as his next witness Dr. Theron G. Randolph, a specialist in internal medicine and the treatment of allergies. Dr. Randolph stated that since 1937 his work had focused primarily on the treatment of allergies. He further stated that in the course of his experience as a physician he had become familiar with the combustion of fuels from various types of engines, including aircraft engines. In addition, he stated that one of the end products of the combustion of fuel is hydrocarbon. Dr. Randolph examined claimant on two occasions. On June 19, 1977, after obtaining claimant’s medical history, Dr. Randolph conducted a “provocative hydrocarbon test” to determine whether claimant’s allergic reactions were related to the inhalation of jet engine exhaust. Dr. Randolph described this test as the injection intraderm ally of diluted synthetic alcohol in varying concentrates. Three injections were administered in 20-minute intervals. Dr. Randolph stated that, after the first injection, claimant complained of dizziness. As the dosage was increased, claimant complained of drowsiness, continued dizziness, a burning sensation in his arm at the site of the injection, and heart palpatation. On claimant’s second visit, he informed Dr. Randolph of his delayed reactions to the injections. Dr. Randolph did not testify regarding these reactions. He did state, however, that on the basis of the immediate and delayed responses, he was of the opinion that claimant was highly intolerant to environmental exposure to jet fuel or its combustion products. In addition, he stated that the hydrocarbon present in the test administered is substantially similar to the hydrocarbons produced by the combustion of fuel. In his opinion, the provocative hydrocarbon test is a reliable indicator of susceptibility to jet fuel or its combustion products. In response to a hypothetical question which incorporated the conditions surrounding claimant’s employment, including the inhalation of jet aircraft fumes, Dr. Randolph stated that the “chemical environmental exposure” at work could, to a reasonable degree of medical and surgical certainty, be causally connected to the conditions of ill-being experienced by petitioner while working. He also stated that, in his opinion, claimant was totally and permanently disabled from pursuing his occupation as a lead ramp serviceman.

On cross-examination, Dr. Randolph stated that he did not examine the jet engines in use at O’Hare International Airport, that he had not inspected respondent’s work area, that he had not tested claimant’s reaction to the residuals of combusted jet fuel, that he was not aware of the type of antipollution devices used on the jet engines on June 25, 1976, and that he was not aware of the weather conditions on June 25, 1976. Dr. Randolph also stated that there were no collateral allergic symptoms resulting from the provocative hydrocarbon testing administered to claimant. He stated that claimant did not experience burning of the eyes, discharge from the eyes, swelling of the eyes, sneezing, labored breathing, fever, blotchiness of the skin, or tachycardia as a result of the tests he conducted. He also stated that there was no evidence of wheezing, sputum, post-nasal discharge, purulent discharge, exemia or dermatitis after the injections. In addition, he stated that on the basis of claimant’s medical history and the results of the hydrocarbon test, it was his opinion that claimant’s condition of ill-being was related to the inhalation of jet fumes.

On redirect examination, Dr. Randolph stated that it was not necessary to examine all of the factors referred to on cross-examination to determine whether claimant was sensitive to hydrocarbon inhalation. In addition, he stated that there was little significance to the fact that claimant did not experience symptoms similar to those experienced on June 25, 1976, after injection of the synthetic alcohol. He stated that the reactions obtained vary with the route of administration. On re-cross-examination, he stated that his opinion was based upon the subjective responses given by the claimant after administration of the injections. He also stated, however, that the timing of these responses was significant in interpreting these results.

Respondent called as its only witness Dr. William Brice Buckingham, a board certified specialist in internal medicine with a subspecialty in pulmonary diseases. Dr. Buckingham examined claimant on January 21, 1977. This examination consisted of a physical examination, chest X ray, pulmonary function testing, and a blood chemistry screen. Dr. Buckingham stated that the results of this examination showed that claimant’s physical condition was within normal limits in all respects. He stated that he found no objective evidence of bronchial asthma. In addition, he stated that he found no evidence or symptomatology that related to the inhalation of hydrocarbons, nor evidence to support a finding of a chemical irritant of any kind. He also stated that the fact that claimant worked in an open area, as opposed to inside a hangar, was significant in his conclusion that there existed no evidence of a chemical irritant.

On cross-examination, Dr. Buckingham stated that the prior findings of claimant’s treating physician were consistent with the diagnosis of bronchial asthma. He stated, however, that his findings were limited to the date on which he examined claimant, and he suggested that his opinion was therefore consistent with these prior findings.

On review before the Industrial Commission on December 9, 1978, claimant was the only witness to testify. He stated that he had unsuccessfully sought alternative employment. He had applied for eight positions. The types of employment sought included unskilled factory labor, manual labor, and clerical work. In each instance, claimant was prevented from pursuing these positions because of his inexperience in the field or his inability to physically perform the work. He stated that he continued to experience difficulty in breathing and, as a result, he could not exert himself beyond a rapid-paced walk. In addition, he stated that he continued under the care of Dr. Salzmann. On cross-examination, he stated that he was taking the same medication that was originally prescribed for his condition in 1973.

Respondent initially contends, assuming sufficient proof of causal connection to the employment, that the Commission’s finding that claimant was temporarily and totally disabled for a period of 99 5/7 weeks is against the manifest weight of the evidence. Respondent argues that the acute stage of claimant’s condition had stabilized after 9 4/7 weeks, the period of temporary incapacity determined by the arbitrator. Respondent suggests that any additional disability is the result of claimant’s preexisting asthmatic and allergic condition. In addition, respondent suggests that claimant’s efforts to secure alternative employment, and to obtain unemployment compensation, are further evidence that the temporary nature of claimant’s disability had ceased.

We have consistently held that the determination of disputed facts and the drawing of reasonable inferences from the evidence in workmen’s compensation cases are the province of the Industrial Commission. In reviewing findings of the Commission, the function of this court is limited to determining whether they are against the manifest weight of the evidence. This standard of review applies to findings of the Commission regarding the nature and extent of the injury. County of Cook v. Industrial Com. (1979), 78 Ill. 2d 320, 321.

In the present case, claimant testified on November 29, 1976, before the arbitrator that subsequent to his “attack” on AprE 2, 1974, he was able to resume his employment but only on an intermittent basis. This was also true foHowing his “attack” on AprE 29, 1975. Claimant estimated that, from AprE 29, 1975, through the remainder of that year, he was able to work for a total of four months. He stated that he continued intermittently employed through June 25, 1976. Claimant was unable to work on a regular basis throughout this period despite the fact that his condition was not, as respondent describes, in an acute stage. In the proceedings before the Industrial Commission on December 19, 1978, claimant testified that he continued to experience difficulty in breathing and that he could not exert himself beyond a rapid-paced walk. In addition, claimant stated that he had secured employment as a landscaper but that he was terminated after the first day of work because of his inability to perform the physical labor involved. While we agree with respondent that claimant’s efforts to secure employment and his application for unemployment benefits may be relevant to the issue of temporary incapacity, we do not agree that we should disturb the finding of the Commission in this case. Allis Chalmers Manufacturing Co. v. Industrial Com. (1974), 57 Ill. 2d 257, 262; Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168, 179.

Respondent argues in the alternative that claimant has failed to prove that his condition of ill-being arose out of his employment. Respondent contends that the finding of the Commission that claimant’s condition was causally connected to his employment is based merely upon speculation, conjecture, or surmise. Respondent asserts that the record is silent as to what substance or chemical irritant claimant had been exposed to and that the decision of the Commission is therefore against the manifest weight of the evidence.

We agree with respondent that the burden is upon the party seeking an award to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment. (Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236, 246.) It is also true, however, that it is within the province of the Industrial Commission to determine disputed questions of fact, to draw inferences from the evidence, and to resolve questions of causal relationship based upon conflicting medical testimony, and a reviewing court will not disturb the finding of the Commission unless it is against the manifest weight of the evidence. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 30.

In the present case, claimant testified that he was aware of the odor of jet fumes on June 25, 1976. In addition, he stated that the ramp area was directly in line with the “blast engines” of the aircraft located at an adjacent terminal. Claimant’s treating physician testified that there was a causal relationship between the pollutants to which he was exposed on the ramp area and claimant’s condition. Claimant’s examining physician testified that it was his opinion that the inhalation of jet fumes was causally related to claimant’s condition. He also stated that claimant was highly susceptible to the combustion products of jet fuel. We do not find that the decision of the Commission was against the manifest weight of the evidence.

For the reasons stated, we therefore affirm the judgment of the circuit court.

Judgment affirmed.

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