author: MR. JUSTICE RYAN

text:
    (No. 51938.
    GATES DIVISION, HARRIS-INTERTYPE CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Linda Hendricks, Appellee).

      Opinion filed January 23, 1980.

      Henry D. Noetzel & Associates, Ltd., of Chicago (John E. Mitchell, of counsel), for appellant.
    James N. Keefe, of Keefe, Snowden, Gorman & Brennan, of Quincy, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this workmen’s compensation case, the employer, Gates Division, Harris-Intertype Corporation (hereinafter Gates Division), appeals directly to this court under our Rule 302(a) (73 Ill. 2d R. 302(a)). The appeal is taken from the Adams County circuit court order confirming the Industrial Commission’s award, which affirmed the finding of the arbitrator that the claimant, Linda Hendricks, is permanently and totally disabled. It is uncontroverted that the employee received injuries which arose out of and in the course of employment. The only issue on review is whether she is entitled to an award for permanent total disability under section 8(f) of the Workmen’s Compensation Act. Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f).

Claimant had been employed by Gates Division as a machine operator for approximately two years. The machine she operated was usually filled with a nonflammable cutting wax. On January 16, 1974, however, the machine was filled with a cutting oil which was composed of a kerosene mixture. While claimant operated the machine, oil sprayed out, wetting her clothing. After working for approximately one hour, claimant took a break.. She lit a cigarette and her shirt ignited. As a result, she received burns over 40% of her body. She sustained third-degree burns on both hands, and first- and second-degree burns on her arms, the upper back of her legs and on scattered areas of her chest, abdomen and back.

The employee was hospitalized from the date of the accident to March 12, 1974. Initially her burns were topically treated with Sulfamylon and Hubbard tank debridement. Approximately three weeks following the accident, skin graft operations were performed on each hand. She was discharged on March 12, 1974, but she continued to receive daily physical therapy as an outpatient.

Claimant was readmitted to the hospital on April 4, 1974, for a resumption of inpatient care. During this second period of hospitalization, she underwent a series of skin-grafting and debridement operations on both forearms, the backs of both thighs and on the ring and middle fingers of her left hand. The employee was discharged from the hospital on July 19, 1974, and she resumed the outpatient physical therapy program.

Range-of-motion data were recorded from July 1974 through January 1976, and the data were submitted at the hearing before the arbitrator to establish the extent of the employee’s loss of use of her hands. The data submitted indicate a marked increase in the range-of-motion measurements from July of 1974. However, by October of 1975 the range of motion of the fingers ceased to improve. Thus, on January 16, 1976, the formal physical-therapy-treatment program was discontinued.

The hospital records were admitted into evidence, and the employee testified as to her physical condition at the hearing before the arbitrator. Claimant stated that her left hand became numb and nonfunctional at times and that both hands were particularly swollen and stiff in the mornings; she continuously exercised her hands throughout each day to reduce the swelling. The employee testified as to the sensitivity of her hands. Housework involving the use of cleaning agents was impossible since they caused her skin to break out. Though she wore special gloves, winter weather would cause her hands to crack and bleed. Her hands also got cold very easily. Exposure to the sun would turn the skin on the hands red and cause it to fester and blister. The employee stated that she applied cocoa butter to her hands during all seasons.

Hendricks testified as to her difficulty in performing basic chores. Due to her inability to grip, she testified specifically as to her inability to care for her daughter’s hair, pick up certain items, comb her own hair, cut meat, drive a car, cook, mop or sweep, open door handles on cars, iron or do laundry. She was able, however, to brush her own hair and teeth and to vacuum and dust. She was also able to write by holding the writing utensil between the thumb and the forefinger. The employee testified as to the discomfort of her condition. She sleeps only on her stomach, with her arms raised above her head. She avoids wearing knit fabrics, as they cling to her bum scars. She cannot walk for an extended period of time due to irritation caused by the rubbing together of the burn scars on her thighs.

Evidence was also presented concerning the employee’s potential for reentry into the job market. Claimant, a high school graduate, had worked primarily as a machine operator. Her only other job experience was that of a fry cook in a restaurant. The employee earned average scores in all rehabilitation-aptitude tests taken, with the exception of her above-average score in the beauty-operator test. She testified that she would be unable to become a beautician, as fine motor movements of the hands would be required and, further, her hands would be exposed to irritating shampoos while washing customers’ hair. The rehabilitation-program staff suggested that she train to become a motel clerk. She took no action on this suggestion.

In view of the nature and extent of her injuries and upon a consideration of her rehabilitation potential, the arbitrator entered an award for permanent total disability under section 8(f) of the Act, finding that the employee had suffered permanent and complete loss of use of both hands in addition to other bodily injuries. The Commission upheld the award, and the Adams County circuit court confirmed the Industrial Commission. The employer contends on this appeal that the employee failed to establish a condition of permanent total disability.

We have often stated that an employee is permanently and totally disabled within the meaning of the Workmen’s Compensation Act when such employee is unable to make some contribution to the work force sufficient to justify the payment of wages. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482; C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; Consoli dated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259.) However, the employee need not demonstrate total physical and mental incapacity or helplessness before an award for permanent total disability can be granted under the Act. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 360.) Thus, we have stated that a person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489.) It is the burden of the employee to establish the extent and permanency of the work-related injuries in order to recover under the Act. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482.

To establish loss of use of a hand, the loss must be shown to be that of the hand rather than mere loss of use of fingers. It must be shown that normal use of the hand has been completely taken away. (Meade v. Industrial Com. (1971), 48 Ill. 2d 215, 219.) The employer contends first that the evidence fails to establish permanent and total disability and, second, that the employee has demonstrated loss of use of fingers only. Thus, it is the employer’s position that the employee failed to sustain her burden of proof in establishing permanent and total disability to her hands. We have examined the record of the proceedings below and find the employer’s position to be without merit. (See National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, in which this court upheld an award for a pension for life due to the permanent and complete loss of use of both hands.) There may be some minimal functional use remaining in the claimant’s hands; however, they are functionally useless for any employment which can be performed by the claimant. Although she had a high mark as a beautician on the rehabilitation-aptitude test, her testimony was to the effect that the injury to her hands prevented her from taking care of her own hair and of her daughter’s. The claimant suffered not only restricted movement of her fingers, but also severe burns over both of her hands and forearms. The sensitive skin on the surface of both hands, coupled with the restricted movement of the fingers, left the hands useless in any type of employment. It should also be noted that the finding of permanent total incapacity was not based solely on the complete loss of use of both hands. The arbitrator, after reciting the finding of loss of use of both hands, stated that such loss, “together with other bodily injuries,” rendered her totally incapacitated. The severe burns over her body left her skin so sensitive and susceptible to irritation that the normal movements, or even sitting, associated with any gainful employment were extremely painful, if not impossible. Even if there are certain occupations, such as motel clerk, that a person with disabled hands can perform, the burns to other parts of claimant’s body could have reasonably been found to prevent her from being employed in those pursuits.

The record contains both subjective and objective evidence concerning the injuries suffered, physical capabilities and rehabilitation potential. There was sufficient credible evidence for the Industrial Commission to conclude that the employee’s injuries were severe enough to prevent her from being gainfully employed in a reasonably stable market for which she was qualified. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259.) The extent of disability is a question of fact to be determined by the Industrial Commission and not to be set aside unless contrary to the manifest weight of the evidence. (Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290, 293; Szabo v. Industrial Com. (1978), 73 Ill. 2d 282, 288.) Inasmuch as the finding of complete and permanent disability was not contrary to the manifest weight of the evidence, we affirm the judgment of the Adams County circuit court.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 51862.
    INLAND ROBBINS CONSTRUCTION CO., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Otha Griffin, Appellee).

      Opinion filed January 23, 1980.

      Galliani & Kuzel, Ltd., of Chicago (William R. Galliani, of counsel), for appellant.
    O’Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., and Vitell, Greenfield, Johnson & Goldstein, Ltd., both of Chicago (Peter B. Carey, Laura Di Giantonio & Phillip J. Johnson, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded claimant, Otha Griffin, compensation based upon a finding of permanent total disability resulting from injuries arising out of and in the course of his employment by respondent, Inland Robbins Construction Co. The Industrial Commission affirmed, and the employer appeals from confirmation of the award by the Cook County circuit court. The sole issue is whether the finding of permanent and total disability is contrary to the manifest weight of the evidence.

On July 24, 1975, claimant, who was employed by Inland as a construction worker, fell from a scaffold onto a concrete floor approximately 8 feet below, landing on his back. Initially, he did not think he was hurt, but when he tried to resume work he felt a sharp pain in his back. Claimant was then taken to the Southwest Industrial Clinic, where he was examined and told to return the following morning. The examining physician, Dr. James Boscardin, subsequently hospitalized claimant and kept him in traction for one week.

After his discharge the pain did not subside, and claimant was hospitalized again on September 27 for treatment of a herniated disc resulting from the fall. Following a myelogram and an electromyography, Dr. Boscardin suggested surgery for the herniated disc, but claimant preferred to continue conservative treatment. The pain increased, however, and he was rehospitalized. Dr. Boscardin performed a laminectomy on October 31, but he was unable to remove a large bony spur infringing on the nerve root and disc.

The operation did, however, reduce claimant’s pain, and Dr. Boscardin was optimistic about claimant’s condition. He continued to treat him after his discharge from the hospital until the end of July 1976. When claimant was released to return to work the doctor placed limitations on lifting and pulling and also indicated that claimant should wear a back brace. The doctor also thought claimant had a permanent partial loss of use of his right leg.

During the course of the subsequent hearings before the arbitrator and the Commission, claimant presented the testimony of Dr. Irwin Barnett, who had examined him three times. Dr. Leo Markin and Dr. James Milgram, each of whom had examined claimant once, were called by the employer. Dr. Barnett had also referred to claimant’s hospital records, but neither Dr. Markin nor Dr. Milgram had done so. While disagreeing as to the extent of claimant’s physical disabilities, all of the doctors agreed that he could not do the type of heavy work he had previously done. Dr. Barnett diagnosed claimant as having a herniated disc syndrome and a flattening of the third lumbar disc space. Based on the results of his examinations, which commenced a year after the surgery and continued for a year and a half, Dr. Barnett concluded claimant was incapable of holding down any permanent job. The doctor thought claimant might be able to do some work for a limited time if it did not involve lifting, bending beyond his capabilities, or prolonged walking, but that he would also have to have rest periods every 45 to 60 minutes. In the doctor’s opinion, however, the buildup of pain and tension in claimant’s back and legs would prevent him from working at such a job for a long period of time. Dr. Barnett’s observations indicated that claimant’s condition was deteriorating and that he suffered a major loss of the use of both legs.

Neither Dr. Markin nor Dr. Milgram considered Griffin’s condition that serious. Their measurements of the mobility of Griffin’s back and legs indicated a considerably greater range of motion than those of Dr. Barnett. Both also thought that inconsistencies in some of the measurements indicated claimant was simulating a greater injury than he actually had. On cross-examination Dr. Barnett had testified that he had performed unspecified malingering tests on claimant but that the results were negative. Although both Dr. Markin and Dr. Milgram conceded that the mobility of claimant’s back and legs was less than normal, both thought he could perform light duties such as driving a taxi cab, operating an elevator or working as a crossing guard or elevator operator.

Claimant and his employer also jointly submitted a medical report by Dr. Prem Pahwa. That report indicated some loss of mobility in both the back and legs with considerable pain in the back radiating into the legs, primarily the right leg. Dr. Pahwa thought these results were residual symptoms from the laminectomy which could be helped with conservative treatment in a hospital.

Claimant testified that he had pain in his back which radiated into his legs. When he walked more than two blocks his right leg gave out, and if he sat for very long he developed a burning pain in his lower back and his leg started to tremble. He had tried to help his wife at home once by putting wax on the floor with a mop, but the pain in his back became so severe that he had to be taken to the emergency room at Cook County Hospital for alleviating drugs. The emergency room personnel had also referred him to a clinic which suggested hospitalization, but he did not want to enter a hospital again.

At the time of the accident claimant was 29 years old with a sixth-grade education but did not read or write very well. He had been employed by respondent for approximately one year as a construction worker shoveling concrete and carrying heavy boards. Previously he had worked as a laborer in a steel warehouse but he had never held any skilled jobs or worked on an assembly line. When Dr. Boscardin released him for work, claimant inquired of Inland about obtaining work, explaining the limitations Dr. Boscardin had imposed, but he was told that no work was available for him. Subsequently he applied for work at International Harvester, Dutch Boy Paint Company, and another company without success. The first time he tried to apply to International Harvester they were not accepting applications, but on subsequent occasions they did accept his applications. On all the applications he explained his physical limitations and applied for any work available.

The controlling principle in workmen’s compensation cases is that the Commission’s action will not be disturbed unless contrary to the manifest weight of the evidence. (National Lock Co. v. Industrial Com. (1979), 75 Ill. 2d 259, 264; Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293, 300; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 43.) Such is not the case here. Although the medical evidence concerning the extent of claimant’s incapacity was contradictory, all of the doctors expressing an opinion agreed that he could not do the type of heavy work he had previously done. An employee need not be reduced to total physical incapacity in order to be permanently and totally disabled from work. Rather, an injured employee is totally disabled when the only services he can perform are “so limited in quantity, dependability, or quality that there is no reasonably stable market for them.” (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 488-89.) The Commission, from an evaluation of the evidence concerning the claimant’s injury, the nature of his employment, his age, experience, training, capabilities and unavailing attempts to find work, could have legitimately concluded that claimant, although not totally physically incapacitated, nevertheless was incapacitated to the point that he was totally unable to secure permanent employment. (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 109, sec. 57.61, at 10 — 136, 10 — 137 (1979); E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320; Springfield Park District v. Industrial Com. (1971), 49 Ill. 2d 67, 73.) The employer could have rebutted that conclusion by showing that work within the employee’s limited capacities was reasonably available. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362-63.) No effort was made to do so.

We accordingly affirm the judgment of the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 52143 .

      In re RICHARD LEON CLAYTER, Attorney, Respondent.

      Opinion filed January 23, 1980.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Collins 8c Amos, of Chicago, for respondent.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case presents this court with an opportunity to admonish the bar of this State that it is absolutely impermissible for an attorney to commingle his funds with those of his client or with money he holds as a fiduciary. Unfortunately, many attorneys are either unaware of, or indifferent to, this proscription.

In this disciplinary proceeding the Administrator of the Attorney Registration and Disciplinary Commission filed a one-count complaint charging the respondent, Richard Leon Clayter, with commingling and conversion of earnest money that had been deposited with him by the parties to a contract for the sale of real estate. A hearing panel of the Commission found that the conduct of the respondent constituted a wrongful conversion of funds entrusted to him and a wrongful commingling of funds with his own. It recommended that the respondent be suspended from the practice of law for a period of three months. The Review Board affirmed the recommendation of the hearing panel.

The respondent was licensed to practice law in Illinois in 1957. He had, prior to the incident in question, represented Myma Gulley on various matters and on February 10, 1976, the respondent represented her in the sale of her house to Mr. and Mrs. Sinclair McGaughy. On that date a contract for the sale of the house was executed. The purchaser paid $1,000 as earnest money, which was deposited with and held by the respondent, as provided in the contract. The buyers took possession of the house about March 6, 1976, and were to pay rent in the amount of $270 per month on a month-to-month basis.

On Febmary 11, 1976, the respondent deposited the earnest money check in an account in the Southside Bank and Trust Company in Chicago. This account was in the name of Noel Realty. It was a business account which had been opened for use in the operation of an apartment complex in which the respondent was a partner. The authorized signatures for this account were the respondent’s and his son’s. This was neither a clients’ tmst account nor an escrow account.

The respondent contends that he withdrew $450 from that account on February 20, 1976, and $450 on February 27, 1976, and that he put this $900 in cash, along with another $100, in an envelope which he placed in a safe in his house. According to the respondent, the cash remained in the safe until he deposited it in a savings account in the Harris Trust and Savings Bank in Chicago, along with some other money, on March 17, 1977. This savings account was in the name of the respondent, but he testified that he kept clients’ funds in this account and that he had written “clients trust account” on the face of the passbook in 1978. On January 14, 1978, the respondent filed a complaint for interpleader in the circuit court of Cook County, alleging that he could not make a proper determination between Gulley and the McGaughys as to who should receive the money in dispute, and paid into court the $1,000 earnest money, plus $109 as interest. Respondent contends that he withdrew the $1,000 from the savings account in the Harris Trust and Savings Bank.

Following the execution of the contract to purchase, the seller’s (Gulley’s) interest in the property was foreclosed and sold by the sheriff of Cook County to the mortgagee. Gulley was therefore unable to deliver title pursuant to the contract. The McGaughys, on June 4, 1976, declared the contract cancelled and demanded the return of the $1,000 earnest money. However, the respondent’s client, Gulley, contended that the $1,000 also constituted a security deposit for the payment of rent and instructed the respondent not to return the earnest money to the purchaser until the respective claims of the parties to the contract had been determined.

The evidence clearly establishes that the respondent had commingled the earnest money that had been deposited with him with his personal funds when he deposited the $1,000 in the Noel Realty account in the Southside Bank and Trust Company on February 11, 1976. Also, when the $1,000 was allegedly deposited in the savings account in the Harris Trust and Savings Bank on March 17, 1977, that account was in respondent’s name and had not been designated as a trust or escrow account. The commingling of funds and depositing clients’ funds or other money held by an attorney for another in an account standing in the attorney’s name alone endangers the security of the interests of those to whom the money belongs. Commingling of funds has been the first step in a large number of cases which this court has considered involving wrongful conversion of funds by attorneys. Also, when funds belonging to another are deposited in an attorney’s personal account, there is the danger of the conversion of these funds by operation of law; that is, in case of the death or insolvency of an attorney, these funds could well become assets of his estate, leaving the rightful owner with only a claim of a creditor against the attorney’s estate. For these reasons, it is essential that such money be held in such a manner that there can be no doubt that the attorney is holding it only for another and that the money does not belong to him personally.

This court has consistently condemned the commingling of funds. (See People ex rel. Chicago Bar Association v. Hachtman (1982), 350 Ill. 326, 329-30; In re Lingle (1963), 27 Ill. 2d 459, 463-64; In re Bloom (1968), 39 Ill. 2d 250, 253; In re Sherman (1975), 60 Ill. 2d 590.) These are but a few of the many cases in which this court has been called upon to specifically consider the propriety of an attorney commingling money belonging to others with his personal funds.

The respondent here contends that he withdrew $900 from the Noel Realty account and placed this amount, along with another $100, in an envelope and placed it in his safe at home, thus holding the earnest money segregated in this manner. In In re Lingle this court, in addition to discussing the ethics of commingling, also considered the propriety of an attorney segregating a client’s money in this manner, and holding it in a safety deposit box. The court stated:

“And while technically, perhaps, there was no commingling of funds when respondent put his client’s money in the safety deposit box, we are of the belief that such a covert method of handling a client’s funds is highly unprofessional and one which can only create suspicion and harmful inference. A lawyer’s clients, the courts and public alike, have a vital interest in his integrity and are entitled to require that he shun even the appearance of any fraudulent design or purpose. [Citation.] ” In re Lingle (1963), 27 Ill. 2d 459, 463-64.

The hearing panel and the Review Board found not only that the respondent had wrongfully commingled the earnest money with his own funds, but also found that he had wrongfully converted the money. This conclusion was based upon the fact that the balance in the Noel Realty account, following the deposit of the earnest money, on several occasions dropped below $1,000. The respondent contends, however, that the balance in the account never dropped below $1,000 prior to February 27, 1976, when he contends he had withdrawn $900 from the account and deposited this amount in cash, along with another $100, in an envelope which he placed in his safe at home. The findings of the hearing panel specifically state, however, that it did not believe the respondent for the following reasons: The withdrawals were to cash, they were made on two different dates approximately one week apart, and the total of the two withdrawals did not amount to $1,000. Although the ultimate responsibility for determining and imposing discipline rests with this court, consideration will be given to the findings of the hearing panel and the Review Board. (In re Wyatt (1972), 53 Ill. 2d 44, 45.) (For a discussion concerning the role of the judiciary in supervising attorney discipline, see Seidenfeld, Professional Responsibility Before Reviewing Courts, 25 De Paul L. Rev. 264, 282-83 n.87 (1976); Swett, Illinois Attorney Discipline, 26 De Paul L. Rev. 325, 325-26, 331-35 (1977).) We find clear and convincing evidence in the record to support the findings leading to the conclusion that the respondent commingled the earnest money with his personal funds and converted it to his personal use.

While there has been both a technical commingling and a technical conversion of the funds, the record is devoid of any evidence of dishonest motive. The respondent had been instructed by his client, who also claimed an interest in the earnest money, not to return it to the McGaughys until the respective interests in the earnest money of the parties to the contract could be determined. Although an immediate commencement of the inter-pleader action would have been preferable, the attorney’s failure to file the complaint as soon as the conflicting claims to the money became apparent was not the result of any dishonest motive. While this court has held that it is not necessary that there be evidence of dishonest motives to justify the imposition of discipline (In re Bloom (1968), 39 Ill. 2d 250, 254; In re Abbamonto (1960), 19 Ill. 2d 93, 98), we find it appropriate to consider this factor in determining the nature and severity of the sanction to be imposed. This court considered facts similar to those present in this- case in In re Sherman (1975), 60 Ill. 2d 590. In that case this court censured the respondent. Although we recognize that each disciplinary case is unique, where facts are strikingly similar to those in another case, a degree of uniformity in the discipline imposed should be sought. We therefore conclude that censure is the appropriate sanction in this case. This conclusion is warranted by a record which discloses no evidence of dishonest motive; that the respondent had practiced law for almost 20 years with no other complaints of ethical infractions; that he has an outstanding record of involvement in community service programs; and that there was testimony as to his good reputation by character witnesses of undeniable integrity.

Respondent censured.


author: MR. JUSTICE WARD

text:
    (No. 51998.
    DEAN P. JONES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Phoenix Closures, Inc., Appellee).

      Opinion filed January 23, 1980.

      Beermann, Swerdlove, Woloshin & Barezky and Jordan Teplitz, Ltd., both of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellant.
    Richard W. Baum, of Burgeson, Laughlin, Cunningham & Smith, of Chicago, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Dean Jones filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries sutained on a parking lot provided for employees by Phoenix Closures, Inc. (Phoenix), his employer, when he accidentally closed a car door on his hand while alighting from his automobile. The arbitrator and the Industrial Commission denied an award and the circuit court of Cook County confirmed the Commission’s decision. The claimant brought a direct appeal to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

The facts are not in dispute. The claimant, at the time of his injury, had been employed by Phoenix for two years. At about 3:45 p.m. on July 14, 1975, he arrived at the parking lot prepared to begin work at 4 o’clock. He parked his car and as he was leaving it he accidentally closed the door on his right hand. Upon reporting his injury to his supervisor and a company nurse, he was sent to a hospital where X rays revealed a fracture of the fifth metacarpal of the right hand. The claimant was hospitalized for five days and required to wear a cast for two months. He returned to work on September 2, 1975.

This court has held that an accidental injury of an employee on an employer’s parking lot within a reasonable time before or after work is sustained in the course of employment. (See, e.g., Aaron v. Industrial Com. (1974), 59 Ill. 2d 267, 269; De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110.) An injury, however, must also have arisen out of the employment to come within the provisions of the Workmen’s Compensation Act. The question here was whether the injury arose out of the employment. In Chmelik v. Vana (1964), 31 Ill. 2d 272, the court discussed the nature of the term:

“The words ‘arising out of’ refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury, (Ceisel v. Industrial Com. 400 Ill. 574; Math Igler’s Casino, Inc. v. Industrial Com. 394 Ill. 330,) and in order for an injury to come within the act it must have had its origin in some risk connected with, or incidental to, the employment, so that there is a causal connection between the employment and the injury. (Dunham Co. v. Industrial Com. 16 Ill. 2d 102; Chicago Hardware Foundry Co. v. Industrial Com. 393 Ill. 294.) The injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. (Permanent Construction Co. v. Industrial Com. 380 Ill. 47.) Ordinarily, an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected, (Lacomarcino-Grupe Co. of Iowa v. Industrial Com. 383 Ill. 95;) however, if an employee is exposed to a risk common to the general public to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. Payne and Dolan v. Industrial Com. 382 Ill. 177; Hinckley & Schmitt v. Industrial Com. 391 Ill. 577; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 68 L. Ed. 366.” 31 Ill. 2d 272, 277-78.

The injury sustained here was not causally connected with the claimant’s employment. The possibility of slamming a car door on one’s hand was not peculiar to the claimant’s employment nor was it a risk to which he was exposed to a greater degree than the general public.

We conclude that the circuit court did not err in confirming the finding of the Commission. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51956.
    PAGE ENTERPRISES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kenneth Hamm, Appellee).

      Opinion filed January 23, 1980.

      Gordon, Schaefer 8c Gordon, Ltd., of Chicago (Gilbert W. Gordon, of counsel), for appellant.
    Klohr, Braun, Lynch & Smith, Ltd., of Chicago (Mark A. Braun, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to section 8(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)), an arbitrator for the Industrial Commission awarded petitioner, Kenneth Hamm, compensation for the complete and permanent loss of use of his right leg to the extent of 65% thereof. On review, without taking additional evidence, the Industrial Commission affirmed the arbitrator’s decision. On certiorari the circuit court of Lake County confirmed the ruling and respondent appealed. 73 Ill. 2d R. 302(a).

The testimony shows that petitioner, while employed as a carpenter by respondent, Page Enterprises, Inc., sustained an injury to his back and legs. While working on the second story of a house being constructed by respondent, petitioner attempted to lift a beam being raised by fellow workers. He experienced pain in his back and legs. He advised his foreman of the occurrence and continued to work the remainder of that day. He did not work the next two days. Several weeks thereafter he underwent back surgery. The pain in his back and legs persisted, and at the request of respondent’s insurer, he was examined by another physician, who told petitioner that nothing further could be done for him. Petitioner obtained an opinion from yet another physician and again underwent surgery. He recovered well and with his physician’s approval returned to work for respondent. Petitioner received temporary total disability payments, which were terminated upon his return to work. Thereafter he continued to experience intermittent pain in his back and legs and, pursuant to orders from his physician, requested “light work.” He continued to perform these tasks until he was assigned some “rough” work and his pain increased dramatically. Following examination, surgery was again performed. Petitioner has not returned to work.

The testimony showed that prior to the accident for which compensation was claimed, petitioner had sustained a back injury while working for another employer. Following three surgical procedures, a settlement agreement was negotiated providing compensation for a “back” injury. It is undisputed that these surgical procedures had enabled petitioner to work without pain, and that, on the date of the occurrence out of which the present claim arose, he was able to perform his work in a normal manner.

Respondent contends that petitioner failed to meet his burden of proving the nature and extent of his injury and that it was permanent. Additionally, respondent contends that it was entitled to credit for the prior approved settlement.

Respondent argues that the only relevant medical evidence presented is the letter report received from Dr. William J. Kane, who performed a laminectomy on petitioner, and that it contained no statement which supports the finding of permanency. We do not agree. The record contains the record of Northwestern Hospital covering petitioner’s period of confinement, and supplies ample proof as to the nature of the injury and the surgery performed. It is not necessary in all cases that a medical expert make the categorical statement that the disability is permanent (Gould v. Industrial Com. (1968), 40 Ill. 2d 548, 552), and as we have said repeatedly, it is the province of the Industrial Commission to determine the facts and draw reasonable inferences from the record. Petitioner’s testimony, corroborated by the medical records of the hospital and the report of the operating surgeon, sufficiently support the award.

Respondent argues that there is no evidence of objective conditions or symptoms of the petitioner’s injury as was formerly required by section 8(b)(7) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(b)(7)). As was stated in Martin Young Enterprises, Inc. v. Industrial Com. (1972), 51 Ill. 2d 149, 153-54:

“It was the injury which had to be proved by competent evidence, including objective conditions or symptoms. The Act does not require an objective finding of disability or of the effect of the injury upon the employee. Such finding can only be a conclusion based upon a proper evaluation of objective conditions or symptoms. [Citation.] There was ample objective proof of the petitioner’s injury and condition.”

We consider respondent’s contention that under the provisions of section 8(e)(17) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(17)) it is entitled to credit on this award for the payment made under the settlement contract approved by the Industrial Commission with respect to an injury suffered approximately 12 years before the injury in question. So far as can be determined from the record, the settlement contract in question involved an injury to petitioner’s back. Implicit in the Industrial Commission’s denial of credit in computing the award is its finding that it did not involve the same “member,” as is required for credit under the provisions of section 8(e)(17). This finding is not contrary to the manifest weight of the evidence. For the reasons stated, the judgment is affirmed.

Judgment affirmed.


text:
    (No. 51518.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARVIN DALE YOST, Appellee.

      Opinion filed January 23, 1980.

      William J. Scott, Attorney General, of Springfield, and Bruce W. Black, State’s Attorney, of Pekin (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa), for the People.
    Robert Agostinelli, Deputy Defender, and Peter A. Carusona, Assistant Defender, of the Office of State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Marvin Yost was found guilty of the murder of his wife after a jury trial in the circuit court of Tazewell County on February 8, 1977, and was sentenced to a term of 18 to 60 years. In his motion for a new trial Yost restated the contention he made at trial that evidence of a prior conviction for felonious assault in 1965 had been improperly admitted to impeach his testimony. The trial court denied the motion, but on appeal the appellate court reversed the conviction and remanded for a new trial (65 Ill. App. 3d 386). We granted the People’s petition for leave to appeal.

After the defendant had testified at trial, the prosecution, over objection, was permitted, for the purpose of impeaching his testimony, to have the jury informed of a conviction of the defendant 10 years and 10 months earlier in Michigan for felonious assault. The defendant had been given a sentence of not less than two and not more than four years, but the records introduced by the prosecution, though indicating the date of conviction, did not state the date of the release of the defendant from confinement or whether the defendant had in fact been confined. The prosecution contends that there was a presumption that the defendant served at least the minimum term of two years and hence his release from confinement was within the 10-year time limit for impeaching a witness by evidence of conviction of crime which this court discussed in People v. Montgomery (1971), 47 Ill. 2d 510. In that case the prosecution had introduced evidence of a 21-year-old conviction for robbery to impeach testimony of a defendant charged with a narcotics offense. It was held that the statute (Ill. Rev. Stat. 1967, ch. 38, par. 155 — 1) providing that if the defendant in a criminal case takes the stand a prior conviction may be introduced into evidence to impeach his credibility, vested in the trial court, not in the prosecutor, the right to determine whether evidence of a particular prior conviction should be admitted into evidence. In the opinion, the court discussed the version of Rule 609 of the Federal Rules of Evidence relating to impeachment by evidence of conviction of crime which had been proposed by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The second section of the proposed rule i.e. Rule 609(b), at that time read:

“(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.” (47 Ill. 2d 510, 516.)

In the last paragraph of Montgomery it was said: “In our opinion, the provisions of this Rule should be followed in

future cases.” 47 Ill. 2d 510, 519.

The defendant argues that evidence of his almost 11-year-old conviction should not have been admitted under the holding in Montgomery. He says that the version of Rule 609(b) cited in Montgomery should have been applied, not any of the versions which were subsequently proposed.

Rule 609 was not adopted by Congress in the form set out in Montgomery. A different version was later proposed by the Supreme Court of the United States, and other versions were proposed by the House Committee on the Judiciary and the Senate Committee on the Judiciary before Rule 609 was adopted in its present form.

The prosecution argues that the provisions of Rule 609 as set out in Montgomery were not current at the time of the trial here and, as evidence that this court did not intend to adhere to the version appearing in Montgomery, calls attention to the opinion in People v. Ray (1973), 54 Ill. 2d 377, 383, in which the court quoted the version of Rule 609(b) which had been later proposed by the Supreme Court. That version, which was not adopted, provided: “Time Limit. — Evidence of conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.” 54 Ill. 2d 377, 383.

It was not the court’s intention that the standards for impeachment announced in Montgomery would be changed from time to time to correspond to whatever changes might subsequently be proposed for Federal Rule 609. The court considered that the provisions of the rule as it was proposed when the opinion in Montgomery was adopted should be followed in future cases. It would have been unreasonable to propose that a possible future version or versions with provisions which of course could not then be known were to be followed. We believe this can be gathered from the opinion in Ray. The court observed in Ray that the version of Rule 609 approved by the Supreme Court did not contain the provision giving the trial judge discretionary powers in allowing or denying impeachment by evidence of conviction. It said that when the court stated in Montgomery that “Rule 609 was to be followed in future cases” (54 Ill. 2d 377, 383) it did not of course anticipate the elimination of the provision giving judges discretionary power. It clearly noted, however, that the Montgomery holding declaring that judges did have such discretionary authority was to be followed in future cases. The court also said the “reference to Rule 609 [in Montgomery] was a shorthand expression of our holding, as well as an expression of our view that other provisions in the rule, not concerned in Montgomery should be followed.” (54 Ill. 2d 377, 383.) The court’s quotation of Rule 609(b) according to the version which the Supreme Court had proposed at the time Ray was written was a regrettable inadvertency. The 10-year time limit for impeachment stated in Montgomery, which we have set out earlier in this opinion, is the standard to be applied.

We would observe that decisions handed down since Ray have continued to cite the version appearing in Montgomery as the governing authority on this question of time limitation on evidence of convictions. (See, e.g., People v. Preston (1978), 61 Ill. App. 3d 434; People v. Owens (1978), 58 Ill. App. 3d 37; People v. Mikrut (1974), 19 Ill. App. 3d 516; People v. Overturf (1973), 12 Ill. App. 3d 441.) In at least one decision, People v. Warmack (1979), 73 Ill. App. 3d 783, however, this court’s inadvertent quotation in Ray from the later version of Rule 609(b) was misleading, and it also apparently led the trial court here to believe that Rule 609 as it was finally adopted should be applied.

Applying the standard set out in Montgomery, it is clear that evidence of the defendant’s nearly 11-year-old conviction for felonious assault should not have been admitted for impeachment purposes. The People argue, however, that since the defendant was sentenced to a term of two to four years, we should presume that at least the minimum period of two years of the sentence was served. If we do make that presumption, the People say, then under the standard of Montgomery the defendant’s release from confinement would have been within the 10-year time limit and the evidence admissible.

It would be improper in the context of this question to presume that the defendant served the minimum term or any portion of the term to which he was sentenced. There are, of course, instances in which persons receiving sentences are not in fact incarcerated. A court should not presume confinement or the date of a release from confinement. The party seeking to impeach testimony has the responsibility of presenting proper evidence of an impeaching conviction.

The decisions cited by the People [People v. Dixon (1970), 46 Ill. 2d 502; People v. Herzic (1956), 9 Ill. 2d 572; People v. Meier (1954), 3 Ill. 2d 29) to support the argument that we should presume that the sentence of the defendant was served concern situations relating to previous habitual criminal statutes. They do not have a bearing on the issue here.

The appellate court properly held that the trial court erred in permitting the impeaching of the defendant’s testimony.

The People do not contend that, if the evidence was erroneously admitted, it was error that was harmless.

Other issues raised by the defendant need not be considered in view of our affirmance of the reversal.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 51629.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LEE ARTHUR SMITH, Appellant.

      Opinion filed January 23, 1980.

      Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Thomas E. Holum, Melbourne A. Noel, Jr., and Marcia L. Friedl, Assistant Attorneys General, of Chicago, and James Fitzgerald, law student, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In each of two separate jury trials before different trial judges in the circuit court of Kankakee County, the defendant, Lee Arthur Smith, was convicted of robbery and intimidation. In the first case, which involved a Montgomery Ward (Ward) store, the defendant was sentenced to 6 to 20 years for robbery and to a concurrent sentence of 3 to 10 years for intimidation. In the second case, which involved a K Mart store, the defendant was sentenced to 6 2/3 to 20 years for robbery and to a concurrent term of 3 1/3 to 10 years for intimidation. In entering sentence in the K Mart case, the trial court directed that those sentences were to be served consecutively to the sentences entered in the Ward case. The appellate court affirmed both robbery convictions but vacated the intimidation convictions, holding that intimidation is a lesser included offense of robbery. (66 Ill. App. 3d 957.) We granted the defendant leave to appeal.

The defendant contends that (1) the offense of robbery was not established since there was no taking from the victim’s person or presence; (2) the trial court, in the Ward case, improperly excluded the testimony of a defense witness, Randy Wicks, which testimony would have impeached the credibility of a State’s witness, Glenn Dickerson; and (3) the trial court abused its discretion in ordering consecutive sentences for the two convictions.

The State seeks cross relief contending that the appellate court erred in holding that intimidation is a lesser included offense of robbery.

On Saturday, October 16, 1976, at 1:15 p.m., Donald Baumgartner received a telephone call at the K Mart store which he managed. The caller stated that he was a member “of the PLA” and that bombs and firearms had been placed in the store and would be set off in 12 minutes unless the caller’s demands were met. Baumgartner was told to put $10,000 in a bag, remove his coat, walk out of the store, deposit the bag of money in a telephone booth near the K Mart parking lot entrance, and return to the store to receive a second phone call. Baumgartner placed $4,500-all he could obtain — in a bag and followed the caller’s instructions. He returned to the store to await the second call, which never came. A K Mart security man who kept watch on the phone booth saw a man, later identified as the defendant, go to the booth, pick up the bag, and walk away with it. The guard pursued the man but lost him after a few blocks.

On Saturday, October 23, 1976, at 1:30 p.m., Terry Claudnic, on duty as assistant manager of the Ward store, received a phone call. The caller said he was a member “of the PLA” and threatened to detonate three bombs that had been planted in the store and two planted in a nearby police station unless $10,000 were delivered within six minutes. The caller said the bombs would be detonated if Claudnic attempted either to call the police or to evacuate the store. Claudnic was instructed to place $10,000 in a bag, exit the building, walk to a specific nearby location, leave the bag, and then to retrace his steps without looking back. Claudnic immediately notified the police. Paper was placed in a store money bag and a police surveillance was set up near the designated site. The defendant was observed in a blue and white Buick, watching Claudnic’s movements as the latter went through the motions of meeting the caller’s demands. Shortly after Claudnic left the drop site, the defendant approached, crossed the street away from the bag while looking around, moved back toward the bag and finally picked it up. When he returned to his car, he was arrested.

Defendant argues that his actions amounted only to theft by threat (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(c)), and that, consequently, he was improperly charged with the crime of robbery. Assuming, arguendo, that the defendant could have been charged with theft by threat, the State is not precluded from exercising its option to charge him with robbery as long as the necessary elements of the latter offense are properly pleaded and proved. (People v. Vriner (1978), 74 Ill. 2d 329, 344-45; Brinkley v. United States (8th Cir. 1977), 560 F.2d 871, 873, cert, denied (1977), 434 U.S. 941, 54 L. Ed. 2d 302, 98 S. Ct. 435.) We therefore address the question of whether the defendant was properly charged and proved guilty of the crime of robbery.

The defendant first contends that, in both cases, the evidence failed to show a taking from the person or presence of a victim, an essential element of robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1.) The Criminal Code of 1961 provides:

“(a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1.)

The requirement that there be a taking “from the person or presence” is not, however, limited to removal of the property from the victim’s person or from the immediate presence of the owner, possessor or custodian.

In People v. Braverman (1930), 340 Ill. 525, the victims were locked in a back room of a drug store while property was taken from the store. This court found that the requirement of a taking from the person or presence was met when the property was in the possession or control of the victim and the robber used violence or fear of violence as the means to take it. People v. Braverman (1930), 340 Ill. 525, 531. See People v. Sicks (1921), 299 Ill. 282; Welch v. State (1975), 235 Ga. 243, 219 S.E.2d 151; Clements v. State (1890), 84 Ga. 660, 11 S.E. 505; State v. McDonald (1968), 74 Wash. 2d 141, 443 P.2d 651.

While no Illinois case has addressed the issue in the context of the factual pattern here presented, a similar situation was addressed in Brinkley v. United States (8th Cir. 1977), 560 F.2d 871, cert, denied (1977), 434 U.S. 941, 54 L. Ed. 2d 302, 98 S. Ct. 435. There a bank manager received a call from the defendant, who threatened to set off a bomb at the manager’s home unless $75,000 were delivered to the caller. Following the caller’s instructions, the manager went to two different phone booths and was ultimately directed to throw the money over a specific viaduct. He complied and drove away. Although the defendant never gained possession, the court found that the telephone call “was as much of a personal confrontation as if [the offender] had entered the bank with a gun and demanded that [the victim] hand over the bank’s money.” Brinkley v. United States (8th Cir. 1977), 560 F.2d 871, 873, cert, denied (1977), 434 U.S. 941, 54 L. Ed. 2d 302, 98 S. Ct. 435. Contra, United States v. Culbert (9th Cir. 1977), 548 F.2d 1355, rev’d on other grounds (1978), 435 U.S. 371, 55 L. Ed. 2d 349, 98 S. Ct. 1112; People v. Moore (1974), 184 Colo. 110, 518 P.2d 944.

The presence requirement of the robbery statute relates to the property taken; it must have been in the presence or control of the victim. The offense of robbery is complete when force or threat of force causes the victim to part with possession or custody of property against his will. In this case, the property was in the actual control and in the presence of each of the managers, and each was compelled, by the defendant’s threats of force, to give up such property. The elements of robbery were therefore present.

The defendant next contends that the trial court erred when, in the Ward case, it refused to allow a defense witness to testify for the purpose of impeaching the credibility of a prosecution witness.

In its case in chief, the State called Glenn Dickerson, who had met the defendant while both were incarcerated in the county jail. Dickerson testified that the defendant offered him $10,000 to confess to the two offenses with which the defendant was charged; that the defendant wrote out the confession and had Dickerson copy and sign it. Dickerson later retracted the confession. On cross-examination, the defense asked Dickerson if he had talked with Wicks about the defendant’s case while in the county jail. Dickerson replied, “No.”

The defense proposed to call Randy Wicks as a witness to impeach the testimony of Dickerson. The State objected on the grounds that a proper foundation had not been laid. The court recalled Dickerson to allow defense counsel to lay the proper foundation. Again, defense counsel failed to do so and the State renewed its objection. Thereupon, defendant, outside the presence of the jury, introduced a formal offer of proof relating that, while in the county jail, Dickerson told Wicks that the State had offered him (Dickerson) “a deal” if he would retract his confession and testify against defendant. The court excluded the testimony of Wicks due to the fact that a proper foundation for the impeachment of Dickerson had not been laid by defense counsel.

Before a witness may be impeached by a prior inconsistent statement, it is required that a proper foundation have been established by directing the attention of the witness to the time, place and circumstances of the statement, as well as to the substance of the statement in order to avoid unfair surprise and to give the witness an opportunity to explain. (People v. Sanders (1974), 56 Ill. 2d 241, 251; People v. Moses (1957), 11 Ill. 2d 84, 87.) Defendant, however, argues that the formal requirements for establishing a foundation may be relaxed where the purposes of the foundation have been satisfied. He points out that, since Dickerson had denied speaking to Wicks about the defendant’s case, he could not have been unfairly surprised by a statement he had already denied making. Defendant cites People v. Henry (1970), 47 Ill. 2d 312, wherein the formal foundation requirement was relaxed. Henry, however, is distinguishable in that, there, the foundation requirements were substantially satisfied. The witness was asked whether she had had a prior conversation with the impeacher specifically regarding the statement she had given to the police during their investigation of the subject crime. The purposes of the foundation requirement were satisfied, for the witness was alerted to the substance of the remark and to the identity of the person to whom it was allegedly made. The element of unfair surprise was eliminated. Since, in this case, defense counsel only asked Dickerson generally if, while at the county jail, he had spoken to Wicks about the defendant’s case, the foundation requirement was not met. Despite a second opportunity on Dickerson’s recall, defense counsel still failed to substantially satisfy the foundation requirements. The foundation in this case was too general and inadequate to qualify under the Henry exception.

The State, in its brief for cross relief, contends that the appellate court erred in finding that intimidation is a lesser included offense of robbery.

Intimidation is defined in the Criminal Code of 1961:

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
(1) Inflict physical harm on the person threatened or any other person or on property; or
***
(3) Commit any criminal offense; ***.” (Ill. Rev. Stat. 1975, ch. 38, par. 12-6(a).)

An included offense is defined by statute as an offense which “(a) [i] s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or (b) [c] onsists of an attempt to commit the offense charged or an offense included therein.” (Ill. Rev. Stat. 1975, ch. 38, par. 2 — 9.) In order to be classified as a lesser included offense, “all the elements of the lesser must be included within the greater.” People v. King (1966), 34 Ill. 2d 199, 200.

Intimidation requires specific intent to cause another to perform or omit the performance of certain acts. (Ill. Rev. State. 1975, ch. 38, par. 12 — 6(a).) Specific intent is not, however, an element of robbery. (People v. Banks (1979), 75 Ill. 2d 383, 392.) Intimidation is not, therefore, a lesser included offense of robbery, for it requires proof of an element that is not required for the offense of robbery. People v. Vriner (1978), 74 Ill. 2d 329, 347.

The defendant’s final contention is that the second of the trial judges abused his discretion in ordering that the sentence imposed in the K Mart case be served consecutively with the sentence imposed in the previous Ward case. Section 5 — 8—4(a) of the Unified Code of Corrections gives the court discretion to impose consecutive sentences “when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state ***.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—4(a).) Since the defendant was subject to sentence from the Ward case, it was clearly within the trial court’s discretionary authority in the K Mart case to order a consecutive sentence. The guidelines for imposition of such sentence are set forth in section 5 — 8—4(b) of the Unified Code of Corrections:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court may set forth in the record.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—4(b).)

The trial court, here, took into consideration that, on two occasions within one week, the defendant ordered two store managers to turn over large sums of money under threats of bombing crowded stores. Additionally, the defendant’s presentence report showed a lengthy history of crimes in California. In 1959, as a juvenile, defendant was convicted of grand auto theft, for which he served one year in a vocational institution. In 1960 defendant was convicted of armed robbery of a grocery store and was sentenced to five years to life. He was returned to the vocational institution where he served one year. In 1962, defendant was convicted of four counts of armed robbery which were subsequently reversed. Three of the robbery counts were dismissed after the defendant pleaded guilty to the fourth count, for which he received a sentence of six months to life. While incarcerated in 1971, defendant had a physical encounter with a correctional officer which confrontation led to the imposition of an additional term of one to three years. Based upon the seriousness of the offenses before us and the past criminal record of the defendant, we find the trial court did not abuse its discretion when it imposed consecutive sentences.

We conclude that the appellate court erred in vacating the convictions and sentences for the offenses of intimidation. That portion of the judgment is reversed and the circuit court’s judgments are affirmed. In all other respects, the judgment of the appellate court is affirmed.

Appellate court affirmed, in part and reversed in part; circuit court affirmed.


text:
    (No. 51841.
    STANLEY MAKOWICZ, Appellant, v. THE COUNTY OF MACON, Appellee.

      Opinion filed January 23, 1980.

      Vernon H. Houchen, Special Assistant State’s Attorney, of Decatur, for appellant.
    Patrick M. Walsh, State’s Attorney, of Decatur, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

In protest of her discharge as a secretary in the office of the Veterans Assistance Commission of Macon County (Commission) by Stanley Macowicz, the Commission’s superintendent, Mrs. Brad Collins filed a complaint with the county board of Macon County (Board) claiming that the Commission had no authority to discharge her. When the Board decided that it alone had the authority to dismiss Mrs. Collins, Stanley Makowicz, the plaintiff here, brought a complaint for declaratory judgment in the circuit court of Macon County on September 8, 1977, claiming authority to appoint and discharge employees of the Commission under the provisions of “An Act to regulate the granting of assistance to indigent war veterans ***” (Ill. Rev. Stat. 1977, ch. 23, pars. 3081 through 3090). The trial court held that persons appointed or hired by the Commission were to be considered its employees and subject to its employment procedures and not to those of the Board. The appellate court reversed, with one judge dissenting. (68 Ill. App. 3d 322.) Though the court judged that the superintendent’s express right to hire under the statute included an implied authority to discharge, it held that the appointment of the superintendent by the Commission, which the court considered to be a private body, was unconstitutional. We granted the Commission’s petition for leave to appeal.

The statute here, commonly known as the Bogardus Act, was enacted in 1907 and authorizes the establishment of county veterans’ assistance commissions in counties where there are two or more recognized veterans’ associations (Ill. Rev. Stat. 1977, ch. 23, par. 3089). Delegates to a commission are designated by the various veterans’ organizations, and they “elect” or appoint a superintendent for the commission. The commission and the county board are to have “general oversight of the distribution of all moneys and supplies appropriated by the county for the benefit of the indigent veterans ***.” (Ill. Rev. Stat. 1977, ch. 23, par. 3089.) The decision as to the monies to be spent and to whom they should be distributed are based upon recommendations made by the local veterans’ organizations. (Ill. Rev. Stat. 1977, ch. 23, par. 3082). The Act also provides that the commission shall recommend to the county board what salaries should be paid the superintendent and employees of the commission. (Ill. Rev. Stat. 1977, ch. 23, par. 3090). The actual decision as to the funds to be expended following recommendations of the commission is made by the county board. Ill. Rev. Stat. 1977, ch. 23, par. 3082, 3090. See also Ickes v. Board of Supervisors (1953), 415 Ill. 557.

The superintendent, in addition to directing the operation of the commission, is authorized to appoint a secretary to the commission and other employees, if necessary, and to maintain an office. The office is to be provided by the county, along with necessary supplies, telephone, stationery, printing and postage. (Ill. Rev. Stat. 1977, ch. 23, par. 3090.) Should the county board fail to appropriate “just and necessary” funds for aid to the indigent veterans, the superintendent may petition the circuit court for a writ of mandamus ordering the county to provide such funds. (Ill. Rev. Stat. 1977, ch. 23, par. 3082.) The Act specifically provides that employees of the commission, including the superintendent, shall be exempt from the provisions of any civil service act or laws of the State of Illinois. Ill. Rev. Stat. 1977, ch. 23, par. 3090.

We must decide whether the appellate court was correct in holding that the appointment of the plaintiff as superintendent of the commission was an appointment, as the appellate court held, by a private body and invalid, and whether the discharge of a secretary of the Commission was to be governed by rules or guidelines of the Commission or of the Board.

The Act was enacted in 1907, and the commission here has operated in Macon County since 1949. The plaintiff invites attention to this court’s holding in People ex rel. Schlaeger v. Jarmuth (1947), 398 Ill. 66, 76, where it was said that “[w] hile the passage of time is not conclusive as to the validity and constitutionality of the statute, it creates a strong presumption against its invalidity.” (See also People v. Avery (1977), 67 Ill. 2d 182; Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437.) The constitutional challenge here has not heretofore been raised. No other constitutional challenges to this statute have been reported, save for the question raised in Ickes v. Board of Supervisors (1953), 415 Ill. 557.

We cannot accept the Commission’s argument that under the decision in Ickes we should consider as res judicata the question now presented as to the Act’s constitutionality. The provisions and questions examined there were entirely different from those here. Though this court in Ickes did by way of broad, general description state that the case “involv[es] the construction, interpretation and constitutionality of the Indigent War Veterans Act ***” (415 Ill. 557, 558), the question for decision was whether the county board had any discretion in the setting of salaries recommended to it by the commission. The court held that the county board did have discretion, stating:

“The act does not say that the appropriation must be in the amounts recommended by the commission. It states purely and simply that the board shall appropriate such amounts as may be deemed necessary to properly compensate employees. What is proper compensation is certainly within the discretion of the board.” 415 Ill. 557, 562.

Citing People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, the Board says the statute here is unconstitutional, as it would grant the power to appoint the superintendent to a private body or group. The reliance on the holding in Rudman, however, is misplaced.

The plaintiff has asserted that the Commission is not a private body but is a local governmental unit, and to that the Board has not responded. The plaintiff points out that in section 2 — 14 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 2 — 14) county veterans’ assistance commissions providing general assistance to indigent war veterans and their families under section 12 — 21.13 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 12 — 21.13) are identified as local governmental units. (Section 12 — 21.13 provides for the levying for assistance to indigent war veterans and their families by counties of less than 3 million population having county veterans’ assistance commissions.) Those sections referring to county veterans’ assistance commissions and local governmental units antedate our constitution of 1970, but it is to be noted that the local government article of our constitution, that is, article VII, provides in section 1 for “units of local government,” an almost identical term. Section 1 states:

“ ‘Municipalities’ means cities, villages and incorporated towns. ‘Units of local government’ means counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.”

Section 8 of article VII of the 1970 Illinois Constitution states that the General Assembly shall provide for the selection of officers of units of local government.

It may be that the Commission, identified by statute as a “local governmental unit, ” is to be considered a unit of local government exercising limited governmental powers in respect to limited governmental subjects. It will not be necessary, however, for us to make that specific determination, because it is obvious that in any event the Commission is not a private body or group as the Board and the appellate court regarded it. We consider that the General Assembly did not exceed constitutional limitations in granting the Commission authority to select the superintendent. The method of appointment provided for here was within the discretion of the legislature. (Zisook v. Maryland-Drexel Neighborhood Redevelopment Corp. (1954), 3 Ill. 2d 570. See also Betts v. Village of Calumet Park (1960), 20 Ill. 2d 524; People ex rel. Gutknecht v. Chicago Regional Port District (1954), 4 Ill. 2d 363; People v. Chicago Transit Authority (1945), 392 Ill. 77.) And this authority is apart from that conferred in section 8 of article VII on the General Assembly to provide for the selection of officers of units of local government.

We would parentheticaHy observe that it is not necessary to consider here whether there may be exceptions to what this court said in People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, regarding the invalidity of delegations of power, including grants of authority to appoint, to private parties. See Freedman, Delegation of Power and Institutional Competence, 43 U. Chi. L. Rev. 307 (1976); Annot.; 97 A.L.R.2d 361 (1964); Davis, Administrative Law Treatise sec. 2.14 (1958); Davis, Administrative Law of the 70’s sec. 2.14 (1976).

The Board argues that even if the Act is to be considered constitutional, employees of the Commission, other than the superintendent, must be discharged from employment according to the personnel practices of the Board and not those of the Commission. The Board says that Ickes, in declaring that the county board had discretion to determine the amount of funds to be distributed as salaries for commission employees, was in effect a recognition .that the county board could “discharge” employees by simply failing to provide funds for the positions involved. The Board argues too that the fact that the Act gives the superintendent the power to appoint a secretary and other employees does not necessarily mean he has the power to discharge employees.

The conclusion the Board would reach from the decision in Ickes is unwarranted. The holding there was simply that the county board had discretion to accept or modify salary recommendations made to it by the Commission. There was in fact an observation by the court contrary to the contention the Board makes here. 415 Ill. 557, 562.

We are not persuaded by the Board’s contention that the superintendent’s power to hire the Commission’s secretary does not include the implied power to discharge.

Section 10 of the Act specifically provides that the “[s] uperintendents, subject to rules formulated by the commission, shall select *** secretaries and other employees *** and the secretary of the commission shall be appointed by the superintendent.” (Ill. Rev. Stat. 1977, ch. 23, par. 3090.) This section seems to make it clear that persons employed by the Commission were to be employees of the Commission and not of the Board. No portion of the Act provides or suggests that the employees of the Commission were to be subject to the employment procedures of the Board. One must conclude that the superintendent had authority to discharge Mrs. Collins. This conclusion is supported by section 10 of the Act which, as noted earlier, exempts all commission employees from any civil service act or laws of the State of Illinois. On the record here it cannot be said whether there were proper grounds for the secretary’s discharge and whether Commission guidelines, if any, were followed. We answer only the question presented, viz., whether the superintendent has the authority to discharge, as well as to appoint, the secretary for the Commission. The cases the Board offers in opposition to the claim of a power to discharge (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129; People ex rel. Wojcik v. Village of Harwood Heights (1974), 17 Ill. App. 3d 477) are plainly distinguishable.

For the reasons given, the judgment of the appellate court, reversing the circuit court of Macon County, is reversed. The judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 52195.
    HAROLD BISHOP, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Freeman United Coal Mining Company, Appellee).

      Opinion filed January 23, 1980.

      Harold G. Lindholm, of Peoria, for appellant.

      Elmer Jenkins and Carter Harrison, of Benton, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

On October 14, 1974, the claimant, Harold Bishop, injured his back while lifting a heavy object in a coal mine where he was employed by the respondent, Freeman United Coal Mining Company. At the hearing before the arbitrator, only the nature and extent of the injury were in dispute. The arbitrator awarded the employee compensation for 64 weeks of temporary total incapacity and, in addition, entered an award for 214% loss of use of both legs. The employee sought review by the Industrial Commission, which affirmed the award of the arbitrator. The employee then perfected a writ of certiorari to the circuit court of Franklin County, which confirmed the decision of the Industrial Commission. The employee has appealed directly to this court. 73 Ill. 2d R. 302(a).

The employee acknowledges that it is within the province of the Industrial Commission to draw inferences from the evidence, resolve conflicting testimony and determine the credibility of the witnesses. However, he argues that this court has not hesitated to alter awards which were unjust or unreasonable. In support of his contention that the award in this case is unjust, the employee argues that this court has upheld substantially larger awards for injuries similar to his, citing Peavey Co. Flour Mills v. Industrial Com. (1976), 64 Ill. 2d 252, and Swift & Co. v. Industrial Com. (1972), 52 Ill. 2d 490. In both of these cases there had been an award by the arbitrator which was affirmed by the Commission and confirmed by the circuit court. The award in each case was challenged by the employer. This court, in affirming the circuit court in each case, stated the accepted rule that it is primarily the responsibility of the Industrial Commission to determine questions of fact, including the nature and extent of the disability, to draw reasonable inferences from the evidence, and to determine the credibility of the witnesses. In these cases this court further acknowledged the general rule that the court is limited to the consideration of whether the Industrial Commission’s determinations are against the manifest weight of the evidence. The cases cited do not support the claimant’s contention. The fact that this court upheld awards of the Industrial Commission does not require that we set aside an award by the Commission simply because it does not conform to the awards approved in the cited cases. We are here reviewing the decision of the Industrial Commission to determine whether or not its finding is against the manifest weight of the evidence, and not to determine whether or not its finding conforms to other awards in similar cases. Also, it is not our function to disapprove of an award simply because it may not conform to our personal opinion as to the nature and extent of the injury.

The claimant was 24 years old when he was injured. He was a repairman in a coal mine. He had 12 years of schooling but did not graduate from high school because he lacked credit in one or two required subjects. Following his injury, he was hospitalized for three days. The hospital progress notes state that he improved rapidly, was able to get out of traction often, and that he was discharged with almost no pain and no difficulty with his back other than slight soreness. The final diagnosis, as reflected by the hospital records, was “acute lumbosacral strain.” He was again hospitalized at a later date for two days because of pain in his back which was incurred when he stepped off a step.

The doctor who had treated the claimant at the hospital referred him to Dr. John Barrow, who examined him and took X rays of his back. Dr. Barrow prescribed medication and a back brace, which the claimant wears only periodically. He has remained under Dr. Barrow’s care. For the first year he saw Dr. Barrow about once a month. After that he saw the doctor only every two or three months. Dr. Barrow’s deposition was introduced at the hearing before the arbitrator. The doctor testified he had recommended a gradual exercise program to strengthen the claimant’s back muscles. The doctor stated that the claimant could not continue to do the heavy work in the mine that he had been doing, but that he could do any reasonable type of work that would not require lifting of over 20 to 30 pounds, and would not require repeated bending or climbing. The doctor recommended that the claimant engage in some type of light work within his tolerance limits and stated that there were many types of work he could do. When questioned about garage work, the doctor acknowledged that the claimant may not be able to do some type of work in a garage, but asserted that there were many “reasonable mechanical jobs he could do. ”

The claimant testified that, although he has had no formal mechanical training, he does know how to repair automobiles. He stated that since his injury he has done some work in his father’s garage for which he has received compensation. He also stated that he had a racing car on which he had worked. He is also a licensed used-car dealer and does work on the automobiles before he sells them. He stated that he went fishing about once a week. He fishes from a boat which he tows behind his automobile to and from the lake. He also hunts squirrels and quail; however, he testified that when the weather gets cold he has difficulty in walking because of arthritis in his hip. He did not relate this disability to the pain which he testified he has in his lower back as a result of the accident. He has never attempted to return to work at the mine, and he has not sought any other type of employment.

In addition to all of the above facts, the arbitrator had the opportunity to observe the claimant and to note his movements and actions throughout the hearing. The evaluation of all of this evidence properly lies with the Industrial Commission. The determination of the degree of disability is a question of fact to be resolved by the Industrial Commission. (A. O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224, 227; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 260.) Although the allowance of 214% loss of use of both legs appears to be a rather nominal award, we cannot say that following the 64 weeks of temporary total disability this finding by the Commission is against the manifest weight of the evidence. Although the claimant cannot return to the same type of work he did prior to the injury, it is apparent that his permanent disability is not substantial; that there are many types of work in which he can engage, and that he has made no effort to find regular employment since the accident. For these reasons the judgment of the circuit court of Franklin County is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE MORAN,

text:
    (No. 51624.
    THE COUNTY OF COOK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ronald Nowocin, Appellee).

      Opinion filed December 20, 1979.

      MORAN, J., dissenting.

      Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Leonard N. Foster, Assistant State’s Attorney, of counsel), for appellant.
    Creswell & McLaughlin, of Chicago (William P. Landon, of counsel), 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, Ronald Nowocin, was disabled as a result of an accident sustained while he was employed by respondent, the County of Cook, Department of Highways. The arbitrator awarded claimant compensation for $165 in medical and hospital expenses, $118.61 per week for 6 6/7 weeks for temporary total incapacity, and $118.61 per week for 8214 weeks for the 35% loss of use of the right arm. On review, the Commission affirmed the arbitrator’s decision. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission, and respondent appealed to this court pursuant to Rule 302(a) (58 Ill. 2d R. 302(a)). Respondent contends that the judgment must be reversed and the matter remanded to the Industrial Commission for a redetermination of claimant’s award for the reason that it is excessive.

On November 18, 1975, while working along the side of a road, claimant was struck on the left side by an automobile and thrown into a ditch. He testified that immediately following the accident he experienced pain in both arms and one leg and soreness in his back. He was taken to a hospital and treated for scratches and bruises, and his left arm was placed in a sling for two weeks. A week after the accident, he noticed stiffness and soreness in his right elbow. For the next four weeks he received treatment for the soreness in the elbow by exercising and soaking it in hot water. On January 5, 1976, claimant returned to his former job, with complaints of pain and stiffness and an inability to straighten out his right arm. His complaints remained essentially the same up to and including his hearing on September 15, 1976. In his testimony, he stated that he experiences pain in the right arm when lifting heavy objects. He also stated that he is no longer able to throw a bowling ball and that he once attempted to lift a baby but the arm “gave out” on him.

The only issue presented to this court is the nature and extent of claimant’s right elbow injury, all other issues having been stipulated to by the parties. Claimant’s testimony and the medical reports of Dr. Robert C. Busch, representing claimant, and Dr. Oliver V. Renaud, respondent’s physician, were the only evidence presented as to the extent of claimant’s injuries. Dr. Busch examined claimant on March 15 and April 3, 1976. His summary report indicated that claimant complained of stiffness and weakness in the right elbow, difficulty in lifting, and an inability to straighten the right arm. Dr. Busch’s physical examination of claimant revealed tenderness and a spasm in his right elbow, and X rays showed irregular translucent structural lines and calcification in the right elbow, which he diagnosed as a fracture.

Dr. Renaud’s report indicated that, as to his right arm, claimant complained of loss of strength, recurring stiffness, and inability to straighten out the arm. Dr. Renaud also noted that the X rays showed an increase in soft tissue densities in the right elbow.

Although both physicians agree that there is some damage to claimant’s right elbow and that he experiences difficulty, respondent argues that the award of $118.61 per week for 82% weeks for the 35% loss of use of his right arm is grossly excessive. Respondent acknowledges that it has found no decision of this court in which a cause was remanded to the Commission for a redetermination of an award on the ground that the award was grossly excessive. It does cite Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, in asking us to compare the present award with prior awards. In Hiram Walker, said by respondent to be “a superficially similar case involving injury to a wrist,” we affirmed an arbitrator’s award for the 15% loss of use of an arm. Respondent also asks us to consider that the award for 82% weeks exceeds that which might be recovered for the complete loss of a thumb, a finger, a toe, or other injuries enumerated in the schedule of benefits. Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e).

In considering respondent’s argument, we are not convinced that we should approach the subject in so mechanical a fashion. To a great extent, we interpret respondent’s argument as a disagreement with the schedule of benefits enacted by the legislature, but this is an area in which we cannot interfere.

Nor are we convinced that the award is otherwise improper. In the Hiram Walker case, we explained the reviewing court’s only function in these cases, stating:

“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, and its findings regarding the nature and extent of a disability will not be set aside unless they are contrary to the manifest weight of the evidence. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 246; Parris v. Industrial Com. (1977), 69 Ill. 2d 31, 37-38; Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445, 448-49.) In reviewing those findings and conclusions the function of a court is limited to determining whether they are contrary to the manifest weight of the evidence. Only in the event they are may the courts intervene. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245-46.)” (Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479.)

Significantly, we note that the same standard of review is applied where a claimant contends that an award is inadequate. Shockley v. Industrial Com. (1979), 75 Ill. 2d 189, 193.

Measured against this standard, we find no defect in the award. There is ample evidence that claimant is experiencing difficulty in manipulating the arm, in lifting heavy objects, and in pursuing recreational interests. The only evidence arguably inconsistent with the award is that claimant returned to work approximately six weeks after the accident and has since remained on the job. The fact is, however, that many disabled individuals choose to return to work for many reasons, be it the inadequacy of health insurance, personal preference, or other cause. In any event, the crucial inquiry in determining specific loss is not whether the employee has returned to work, but whether he has sustained some lasting injury. In this regard, we do not believe that the Commission’s decision is against the manifest weight of the evidence.

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

Judgment affirmed.

MR. JUSTICE MORAN,

dissenting:

The factual background within the opinion is generally correct, except that the record does not support the statement that claimant’s right elbow was fractured. When claimant was asked what treatment had been prescribed by his doctor, he responded, “He told me to soak it in hot water, warm water and move it up and down.” This claimant did for four weeks.

It is the rule that, on review, the circuit court will not set aside the findings of the Industrial Commission unless those findings are contrary to the manifest weight of the evidence. I am of the opinion that this rule applies to the amount of the award as well as to the finding of liability.

Respondent posited that the instant award exceeds that which is recoverable, according to the schedule of benefits, for the complete loss of a thumb, finger, or toe (among other injuries). The opinion characterizes this approach as “mechanical” and a disagreement with a schedule of benefits enacted by the legislature. I find respondent’s statement to be mere emphasis to show the excessiveness of the present award even as it is compared to the awards allowable for significantly more serious injuries.

Claimant’s counsel has stated he found no case in which this court set aside an award because of its excessiveness. Because it has not been done does not mean that it should not or, indeed, could not have been done. I feel that the majority’s formalization of such a limitation undermines a purpose of review and makes the court’s consideration of awards merely a “mechanical” rubber-stamping of the Commission’s discretion.

The trial court reluctantly felt compelled, because of the absence of precedence in the reduction of Commission awards, to confirm the determination. It stated, however:

“Counsel for the applicant here is correct when he states that the rule in Illinois is not whether or not this Court would come to the same conclusion as the Industrial Commission but whether or not the Industrial Commission’s decision is obviously and clearly wrong.
This case is as close to being in my opinion obviously and clearly wrong as any case I have seen on the question of nature and extent of disability. I find the conclusion to be gross quite frankly. I suggest if this kind of case were brought in the Municipal Division of the Circuit Court and if the proofs were presented in the Municipal Court, the award would not exceed $800 let alone $8,000.
Here they have determined that this bruise and this hurt to this arm is the equivalent of thirty-five percent of a loss of the right arm although I think that is outrageous.

If, to find a Commission’s decision in error, it must be found that such decision is “obviously and clearly wrong,” the extravagance of the instant award would, in my estimation, clearly meet that condition.

I would reverse the judgment of the circuit court and remand the cause to that court with directions to set aside the findings of the Industrial Commission and for such further proceedings as may be provided by statute. Taylor Coal Co. v. Industrial Com. (1922), 301 Ill. 548, 553.