author: JUSTICE CLARK

text:
    (No. 57344.
    DON CARILLO, Appellee, v. JAM PRODUCTIONS, LTD., Appellant.

      Opinion filed September 23, 1983.

      Theodore A. Shapero, Don E. Glickman, and Reuben A. Bernick, of Rudnick & Wolfe, of Chicago, for appellant.
    William J. Harte, Ltd., Donald J. Brooks, Ltd., Roger F. Mariotote, Ltd., and Schey, Goffen & Associates, of Chicago (William J. Harte and Robert J. Schey, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On June 20, 1980, Sugar Ray Leonard and Roberto Duran fought a championship prize fight in Montreal, Quebec, Canada. The bout was shown throughout the United States via a closed-circuit television transmission arrangement in certain designated places, a number of which were located in Illinois and Indiana. On June 27, 1980, the plaintiff, Don Carillo, filed a two-count complaint in the circuit court of Cook County, on behalf of himself and all others similarly situated, against Jam Productions, Ltd., an Illinois corporation, and Frank Fried. Mr. Fried was apparently never served with a summons, and he is not a party to this appeal.

Count I was a class action which sought a preliminary injunction restraining defendants from dissipating or otherwise disposing of any of the proceeds derived from the sale of the tickets to the closed-circuit telecast of the prize fight. Count II realleged all of count I’s class action claims and sought a refund of the cost of the tickets. The plaintiff alleges that Jam Productions was the Chicago area promoter that sold admission tickets for the event to the general public. As a result of Jam’s efforts, approximately 70,000 tickets were purchased for the telecasting of the event at a cost of either $15 or $20 per ticket. The record does not show why there was a disparity in the ticket prices.

The plaintiff alleged that the defendants violated both expressed and implied promises by failing to provide a clear, distortion-free transmission of the event. It was further alleged that the color was not discernable, the reception was dark and unclear, the outline of the fighters was hazy and undefined, and the audio was disjointed, garbled, unclear, and intermittent.

The plaintiff moved for the entry of a preliminary injunction as to count I, while the defendant moved for a judgment on the pleadings as to count I. On July 9, 1980, oral arguments were heard on the cross motions. During the course of those arguments, the trial judge remarked that he did not believe that the case was appropriate for class certification. The court said: “This is not a class action; I would never certify it as a class action.” “I have had a lot of experience with class actions, and you haven’t got a class action, so what do you want me to do, enter the order so you can start taking an appeal?” The plaintiff had not filed a motion for class certification.

The plaintiff alleges that, because count I of his complaint raises the class action issue and sets forth reasons why a class should be certified, the class certification issue was properly brought before the trial court. We disagree. References to a purported class or reasons set forth that support class certification in the plaintiff’s complaint do not constitute an effective substitute for a motion to certify a class. The plaintiffs also assert the transcript unmistakably shows that the trial court considered and denied class certification in this case. We also disagree with this assertion. While the trial court made reference to the “class action,” it is clear that a motion for class certification was never made and the order entered in the trial court did not address the issue of class certification.

Thereafter, the trial court granted the defendant’s motion for judgment on the pleadings as to count I, and denied plaintiff's motion for a preliminary injunction. Count II of the complaint, which sought only damages, was transferred from the chancery division to the law division of the circuit court of Cook County for further proceedings. The trial court, however, did not strike the class action allegations in count II.

Pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), the plaintiff appealed the denial of his request for a preliminary injunction. In his brief to the appellate court, plaintiff argued that a preliminary injunction should have been issued and that a class consisting of all persons who purchased tickets to the Leonard-Duran championship fight should be certified. In the defendant’s brief to the appellate court, the defendant argued that the trial court did not abuse its discretion in not issuing a preliminary injunction and that the trial court did not err in determining that the class action was not an appropriate method for the resolution of this controversy.

The appellate court affirmed the trial court’s denial of the plaintiff’s motion for a preliminary injunction and also concluded that the trial court erred in refusing to permit the case to proceed as a class action and remanded the cause to the trial court for further proceedings. 108 Ill. App. 3d 126.

We granted Jam Productions’ petition for leave to appeal (73 Ill. 2d R. 315). The issues before us are (1) whether the appellate court should have ruled upon the propriety of bringing this suit as a class action and (2) if the issue was properly before the appellate court, whether the court erred in determining that the class action was an appropriate method for the resolution of this controversy.

The appellate court determined that the statutory prerequisites in bringing a class action were met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of fact or law common to the class which predominate over any questions affecting only individual members; (3) the representative parties will fairly and adequately protect the members of the class; and (4) the class action is an appropriate method for the fair and efficient adjudication of the controversy (Ill. Rev. Stat. 1979, ch. 110, par. 57.2). Concerning the second prerequisite that questions of law or fact common to the class must predominate (over questions affecting only individual members), the court found that “[t]he predominate issues concern the express and implied promises made by defendant to all patrons regarding the type and quality of telecast and whether the telecast was reasonably in conformity with those promises, not whether the telecast fulfilled each class member’s individual expectations.” (108 Ill. App. 3d 126, 129.) The court went on to reason that the determination of whether the class should be subdivided (Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b)), because the telecast was viewed at several locations and the quality may have varied from place to place, is one to be made by the trial court at a preliminary hearing. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 17, cert. dismissed for want of jurisdiction (1982), 456 U.S. 914, 74 L. Ed. 2d 249, 103 S. Ct. 484.) The appellate court remanded to the trial court to determine the feasibility of subdividing the class. However, the appellate court missed a crucial step in not determining whether the issue of certification of the class was properly before it.

Without ruling on the soundness of the appellate court’s detailed reasoning as to the class-certification issue, we have determined that the issue was not properly before the appellate court. We therefore vacate the appellate court order and now remand to the circuit court to make the determination as to whether the prerequisites were met in the bringing of this purported class action.

The plaintiff argues that because Jam Productions did not in its brief to the appellate court raise questions of whether the trial court did rule on the class-certification issue and, if so, whether it was a final and appealable order, Jam Productions effectively waived those issues. There is no support for such an argument, for if an order has not been properly brought before the court, then the appellate court lacks jurisdiction to consider the merits of such an order. (See 87 Ill. 2d R. 301; Atkinson v. Atkinson (1981), 87 Ill. 2d 174.) Thus an objection to jurisdiction is not waived by a prior failure to make it. Wells v. Kern (1975), 25 Ill. App. 3d 93; Village of River Forest v. Ash Realty Co. (1974), 23 Ill. App. 3d 645.

The order of the circuit court reads:

“This matter having come on to be heard on the plaintiff’s Motion for a Preliminary Injunction and the defendant Jam’s Motion for Judgment on the Pleadings, the court having reviewed the pleadings and having heard arguments by counsel and being otherwise advised in the premises:
IT IS HEREBY ORDERED that the defendant Jam’s Motion is allowed and the plaintiff’s Motion is denied.
IT IS FURTHER ORDERED that the Judgment is hereby entered in favor of the defendant Jam and against the plaintiff as to Count I.
IT IS FURTHER ORDERED that the remaining Count II is transferred to the law division.
IT IS FURTHER ORDERED that there is no just reason to delay enforcement or appeal.”

The order disposed of the plaintiff’s motion for a preliminary injunction and the defendant’s motion for judgment on the pleadings as to count I. No motion for class certification was made, and this order does not address that issue. Plaintiff’s claim that the issue was raised and decided by the trial court is based exclusively on the previously mentioned remarks of the trial judge not incorporated into the order.

Because the plaintiff failed to make a motion to certify the class in the trial court, it was not permissible for the plaintiff to seek certification for the first time on appeal, and it was an error for the appellate court to rule on the question. See People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303.

As the court said in Wilcox, in recalling what has been stated frequently in the past, “an issue not raised in the trial court cannot be raised for the first time on review.” (61 Ill. 2d 303, 313.) While the trial judge did make oral remarks about the potential for plaintiff’s claim to lie as a class action, he did not rule on the question of class certification, nor has the defendant had an opportunity to introduce evidence and demonstrate the inappropriateness of class certification.

Accordingly, we vacate the order of the appellate court and remand this cause to the circuit court to conduct an evidentiary hearing to consider whether this action can be maintained by Mr. Carillo, individually and on behalf of all others similarly situated, as a class action.

Appellate court vacated; cause remanded, with directions.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 57413.
    CITY NATIONAL BANK & TRUST COMPANY, Trustee, Appellee, v. THE PROPERTY TAX APPEAL BOARD et al. (The Property Tax Appeal Board, Appellant).

      Opinion filed September 23, 1983.

    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Patricia Rosen and Kathryn A. Spalding, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Curtis D. Worden, Ltd., of Rockford, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, the City National Bank & Trust Company, filed actions under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) to review the decision of the Property Tax Appeal Board (hereafter defendant) denying reductions in the assessments of its real estate in Winnebago County. The circuit court of Winnebago County, upon allowance of defendant’s motions, dismissed the actions on the ground that they were not timely commenced. The appellate court reversed the circuit court’s order and remanded the cause (108 Ill. App. 3d 979), and we granted defendant’s petition for leave to appeal (87 Ill. 2d R. 315).

It is alleged in the complaints that plaintiff is the titleholder to certain parcels of real property situated in Winnebago County; that these parcels were incorrectly assessed, and said assessments should be reduced; that the Winnebago County board of review denied plaintiff’s request to reduce the assessments; that on review by defendant the decision was affirmed. On March 20, 1981, defendant rendered its decision and served it upon plaintiff by mail. On April 24, 1981, a Friday, the 35th day after the mailing of the decision, plaintiff’s attorney presented to the office of the clerk of the circuit court of Winnebago County two complaints for administrative review. The summonses were issued by the circuit clerk on the following Monday, April 27,1981.

Affidavits filed by plaintiff’s attorney and the deputy circuit clerk stated that on April 24 the attorney had told the deputy clerk that the summonses had to be issued that day and that the clerk told him that the summonses would not be mailed until the following Monday, but assured him that, in accordance with the procedure in the clerk’s office, although the summonses might not be mailed until later, they would be issued “effective” on the date the complaint was filed. The summonses, however, were dated April 27.

Defendant moved to dismiss on the ground that under section 4 of the Administrative Review Act the actions were not timely filed. Section 4 in pertinent part provided:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1979, ch. 110, par. 267.)

The circuit court found that plaintiff had filed the actions within the 35-day period fixed by the statute, but because the summonses were not issued until after the 35th day, the motions to dismiss were allowed.

The appellate court reversed and remanded, holding that if a plaintiff files his complaint within the 35-day period, and “in good faith attempts to have the clerk issue summons within the same period, he is not deprived of his right to appeal on jurisdictional grounds.” 108 Ill. App. 3d 979, 983.

Defendant contends that the language of section 4 of the Administrative Review Act is explicit and that the issuance of summons within 35 days is a mandatory and jurisdictional prerequisite to commence an action for administrative review. It concedes, however, that when a party has done all that he can to meet the statutory requirements, but there is failure to comply with the statute because of the action or inaction of a third person outside his control, to deny him the right to pursue his administrative remedy would constitute a deprivation of due process. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148.) It suggests that, in the event of intervention of action or inaction of such third party over whom the party seeking administrative review has no control, the party should be required to prove that he has done everything reasonably possible to assure the filing of the complaint and the issuance of summons within the statutory time. Defendant argues that whether plaintiff had done everything reasonably possible to assure the filing of the complaint and the issuance of the summons within the time fixed by the statute is a question of fact. It argues that plaintiff’s efforts here were inadequate in that although its attorney was aware that the complaint was being filed on the 35th day and that summons must be issued on that day, he took no further steps to assure the issuance, such as calling the clerk’s office to determine whether the summonses had in fact been issued. It argues that the cause should be remanded to the circuit court to determine whether plaintiff’s actions were sufficient to comply with the requirements of section 4.

Plaintiff contends that section 4 does not impose a jurisdictional requirement, but a mandatory one which can be excused if the facts warrant it. Plaintiff argues that since it has no control over the circuit clerk, the failure of the clerk to timely perform his ministerial duties should not deprive plaintiff of its right to administrative review.

An established rule of statutory construction in this jurisdiction is that courts will “ ‘liberally construe a right to appeal so as to permit a case to be considered on its merits.’ ” (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403; Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 352.) Cox involved facts similar to those presented here. The plaintiff filed his complaint for administrative review on the 35th day after service, together with unsigned summonses directed to each of the proper parties defendant to the administrative review action and also with affidavits concerning their addresses. The clerk did not sign and send these summonses until the 36th day after service. The circuit court dismissed the action and the appellate court affirmed. We reversed and remanded, holding that “the issuance of summons within the 35-day period was intended to be mandatory and not jurisdictional, and that ‘the purpose of the limitation period was to hasten the procedure in these cases.’ ” (96 Ill. 2d 399, 403-04.) We find the holding of Cox equally applicable in the present case.

We agree with defendant that the question whether plaintiff has done all that it can to comply with the statute is one of fact. We do not agree, however, that remand is required here. In its order of dismissal the circuit court found that the failure to issue the summonses within the time prescribed by the statute occurred “through no fault of the plaintiff and by error entirely within the office of the Circuit Clerk.” We agree and hold that the action was timely commenced.

The judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Winnebago County with directions to consider the administrative review on its merits.

Affirmed and remanded, with directions.


author: JUSTICE MORAN

text:
    (No. 57513.
    MATERIAL SERVICE CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lavonne Murray, Appellee).

      Opinion filed September 23, 1983.

      Gifford, Detuno & Gifford, Ltd., of Chicago (Thomas W. Gifford, of counsel), for appellant.
    Peter D. Corti, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Lavonne Murray, sought workmen’s compensation benefits from respondent, Material Service Corporation, for the death of her husband. The arbitrator found there was a causal connection between a work-related accident and her husband’s death of a heart attack approximately three months later. He awarded the widow $1,750 in burial expenses and $272 per week as specified in section 7(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)). The Industrial Commission affirmed, and the circuit court of Cook County confirmed the arbitrator’s decision. On appeal, respondent maintains the Commission’s decision is against the manifest weight of the evidence.

Claimant’s husband, Theodore Murray, was employed by respondent in 1948 and worked as a crane operator. He suffered from coronary artery disease, and in June of 1978 he was hospitalized for three days because of breathing difficulties and chest pains. His cardiologist, Dr. Mohammad Toor, prescribed medication to control his blood pressure and sent him home.

Shortly thereafter he returned to his job and worked steadily until February 20, 1979. At approximately 7:30 a.m. on that date, the boom of his crane smashed into the crane cabin and pinned him inside. Paramedics were called and extricated him from the cabin. They examined him, took his blood pressure, which was recorded at 152/ 82, and transported him to a nearby hospital emergency room. Examination there revealed he sustained a laceration above the right eyebrow, an injured right wrist, and multiple contusions to his right shoulder and the right side of his chest. He also complained of severe pain in his lower back.

On arrival at 8:10 a.m., his blood pressure was recorded at 140/76. At both 10 a.m. and 11 a.m. it was 170/ 100, but dropped to 130/80 by 2 p.m. At 10 a.m. the following morning, however, it was 180/80. Laboratory data revealed Murray had slightly increased enzyme levels. He informed the emergency room physician of his heart condition, and his blood pressure medications were continued.

Late that afternoon Murray was transferred to a hospital near his home and was treated by Dr. Toor. There, he complained to a nurse of having chest pains and he was given nitroglycerin to relieve it. Over the next two days his blood pressure fluctuated with readings as high as 166/ 86, 162/96 and 160/100. His antihypertensive medications were continued.

An X ray of his right wrist indicated it was fractured, and a cast was placed on it. He was also given whirlpool therapy for his back pain and ultrasound treatments to his lower dorsal spine for relief of muscle spasms. His condition improved, and he was discharged on March 7,1979.

Murray continued to have back pain, however, and on March 23,1979, he went to see Dr. Toor. The doctor found his blood pressure was high (160/86) and increased his blood pressure medication. He attributed the elevation to the persistent pain Murray was experiencing. On May 3, 1979, Murray again went to Dr. Toor complaining of pains in both sides of his chest. He scheduled a treadmill test for Murray to be conducted on May 10. However, on May 9, 1979, Murray suffered an acute myocardial infarction and died.

At the arbitration hearing, claimant testified her husband was in severe pain and perspired profusely when she saw him at the emergency room after his accident and that he continued to have pain thereafter. She said “he never appeared to be the same after the accident.” His face was drawn; he was quiet; she had to help him out of the bathtub. Prior to the accident he had a good appetite, but afterward it declined, causing him to lose weight. He endured sleepless nights because of his pain. While awake, he would move from one chair to another and then would walk around the house. She stated “[H]e was not my husband for those months.”

Dr. Toor testified that, in his opinion, Murray’s death was causally related to the industrial accident on February 20, 1979. He admitted Murray had severe coronary artery disease prior to that date. However, he said the pain and stress associated with Murray’s injuries increased the secretion of stress hormones, which increase, according to his research, was a factor in precipitating a heart attack. He further testified Murray’s chest trauma and pain masked symptoms of the impending myocardial infarction.

Respondent’s physician testified the post-mortem examination showed Murray had an 80-90% occlusion of his coronary artery circulation. With this amount of disease, he exclaimed, “the wonder is not that he died, but rather that he lived.” He stated coronary artery occlusion is not caused by trauma, but instead by the progression of the underlying disease. Moreover, he indicated there was nothing in the hospital records showing Murray sustained any cardiac injury as a result of the accident. He noted no EKG or treadmill tests were conducted at either hospital. In his opinion, there was no relationship between the accident in February and Murray’s subsequent death.

On cross-examination, he said stress could be a precipitating factor in causing coronary thrombosis, but pain alone would not cause or precipitate a myocardial infarction. He disagreed with Dr. Toor as to the role hormonal secretions played in precipitating or aggravating coronary artery disease.

Respondent maintains the finding of causal connection in this case was based solely on an elevation in Murray’s blood pressure. It contends that Murray’s blood pressure was found to be normal (140/76) after the trauma and that there is no evidence of any elevation in the hospital records. It further asserts there is no evidence in the record to establish the February 1979 accident adversely affected Murray’s preexisting heart condition in any way.

“[Wjhether a claimant’s disability is attributable to a degenerative condition or, because of an accident, to an aggravation of a preexisting condition, is a question of fact to be decided by the Industrial Commission. [Citations.] The claimant’s injury need not be the sole factor that aggravates a preexisting condition, so long as it is a factor that contributes to the disability.” (Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262, 266-67.) Contrary to respondent’s contentions, the Commission’s finding of causal relationship in this case was not based solely on an elevated blood pressure. Rather, it also relied on Dr. Toor’s opinion regarding the increased secretion of stress hormones and on the doctor’s testimony that the chest contusions, back pain, stress, and other injuries adversely affected Murray and masked the heart attack symptoms.

It is the Commission’s function “to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences and to decide which of conflicting medical views is to be accepted.” (Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 541.) In the presence of conflicting medical opinion, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262, 267.

Dr. Toor opined there was a causal connection between the accident and Murray’s death. He indicated it hastened his demise. Claimant testified that prior to the accident her husband worked steadily, but that he never returned to work thereafter. Her testimony regarding the changes in her husband subsequent to his accident also supports the Commission’s findings. We further note the record contains evidence Murray’s blood pressure fluctuated after the trauma and was elevated on several occasions. From our review of the record, we find there was sufficient evidence from which the Commission could conclude the industrial accident aggravated Murray’s heart condition and contributed as a causative factor in accelerating his death. Accordingly, its decision is not contrary to the manifest weight of the evidence and will not be disturbed.

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

Judgment affirmed.


text:
    (No. 57566.
    REVERE COPPER & BRASS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Betty Copher, Appellant).

      Opinion filed September 23, 1983.

      Scheele, Serkland & Boyle, Ltd., of Chicago (James C. Serkland, of counsel), for appellant.
    Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on January 19, 1979, while employed by respondent, Revere Copper & Brass, Inc., petitioner, Betty Copher, was exposed to the hazards of an occupational disease and was temporarily totally disabled for 59% weeks, that her condition was still temporary and had not reached a permanent condition, and awarded compensation under section 19(b) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1979, ch. 48, par. 172.54(b)). The arbitrator also found that petitioner was entitled to necessary rehabilitation, maintenance and medical treatment under section 8(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)). On review, the Industrial Commission affirmed most of the arbitrator’s findings, increased the award to 925h weeks of temporary total compensation, and remanded the cause to the arbitrator for further proceedings, including a determination of appropriate vocational rehabilitation. On certiorari, the circuit court of De Witt County set aside the Commission’s decision on the ground that it was against the manifest weight of the evidence. Petitioner appealed. 87 Ill. 2d R. 302(a).

Petitioner started working for respondent in 1967 on a machine making shell liners. She described shell liners as aluminum cans, each of which she was required to handle individually. After working for approximately six months she “broke out” on her hands and was seen by the company doctors. Initial treatment was unsuccessful, and petitioner was transferred by respondent within the plant to keep her away from contact with metals. Following the transfer, and despite treatment by respondent’s plant physician, petitioner suffered further skin eruptions. In July 1969, one of respondent’s physicians referred petitioner to Dr. Hyman J. Burstein, a dermatologist, who saw her intermittently until 1975 and conducted patch tests to determine whether petitioner was allergic to various substances in the plant. The tests did not show petitioner to be allergic to any of the tested substances. Dr. Burstein did not test petitioner for a reaction to nickel.

In October 1975, respondent referred petitioner to Dr. Robert G. Carney, Jr., a dermatologist, who continued to see her until August of 1979. Dr. Carney performed patch testing on petitioner in October of 1977. Petitioner was determined to be allergic to nickel sulfate, cobalt sulfate and chromic sulfate. Dr. Carney also tested petitioner with a sample of stainless steel provided by respondent and obtained no allergic reaction.

Petitioner testified that- in January 1979, a fan blew particles onto her, causing her to break out on her legs to such an extent that at the end of her shift she was referred to a local hospital. Because of other physical problems, petitioner did not return to work immediately after this occurrence. On October 18, 1979, on the recommendation of her physician, petitioner saw Dr. Robert Wolf, a dermatologist at the Carle Clinic in Urbana, who recommended that petitioner not return to work in respondent’s plant. Petitioner alleges that her disability commenced as of that date.

The order of the Industrial Commission on review included the following findings of fact and conclusions of law:

“1. Petitioner was a 35 year old general factory worker whose duties required her to handle various stainless steel utensils, one component of which was nickel. Based on the medical reports of Respondent’s treating physician, Dr. Carney, and his deposition, in which he indicated that Petitioner was allergic to nickel that will continue to cause eruptions in Petitioner’s skin as her life goes on, and the deposition of Dr. Wolf, Petitioner’s treating physician, which supports this opinion, the Commission finds that Petitioner has proved that she was exposed to the hazards of an occupational disease which caused her disability.
2. Based on the testimony of Petitioner, Respondent’s treating doctor, and Petitioner’s treating doctors that Petitioner should avoid contact with metal, and not return to work where she may come in contact with metals, the Commission finds that Petitioner was temporarily totally disabled to July 28, 1981, the date of Review, and that the $204.58 in medical expenses introduced on Review were necessary to cure or relieve the effects of her exposure to an occupational disease.
3. Petitioner is a high school graduate with no special training or skills, whose work since graduating from high school has consisted solely of that of waitressing and factory work. The Commission finds that because of the open sores on her arm and hand, as noted by the Commission, combined with her allergy to metals, Petitioner is severely limited in the type of work she can perform and has unsuccessfully sought employment within these restrictions. The Commission also finds that Respondent has neither offered Petitioner a job within her capabilities, nor introduced any evidence showing there are jobs available to Petitioner within her capabilities.
Based on the above, the Commission affirms the Arbitrator’s finding that Petitioner was exposed to the hazards of an occupational disease on January 19, 1979, is temporarily totally disabled to July 28, 1981, the date of Review, her condition is still temporary under section 19(b), and she is entitled to additional medical expenses of $204.58 submitted on Review and to vocational rehabilitation and maintenance, under section 8(a) of the Act. The Act does not define ‘maintenance costs’ incidental to such rehabilitation. The General Assembly has determined in section 8(b) the amount of the weekly payment required for temporary total disability in the absence of rehabilitation. There is no proof in this record that the Petitioner requires more or less than this amount for maintenance at this time.
The Commission further finds this case should be remanded to the Arbitrator for further determination of appropriate vocational rehabilitation pursuant to Hunter v. Industrial Commission, docket 53999, filed October, 1981, and for further proceedings pursuant to Thomas v. Industrial Commission, 78 Ill. 327, 399 N.E. 1322 (1980).”

The circuit court set aside the decision of the Industrial Commission on the ground that its finding as to causation was against the manifest weight of the evidence.

Petitioner contends that the circuit court lacked jurisdiction to review the decision of the Industrial Commission because respondent failed to file a proper surety bond for approval by the clerk of the court. In view of our reversal of the judgment of the circuit court we need not reach the question of the sufficiency of the bond.

Petitioner contends next that the circuit court erred in holding that the decision of the Industrial Commission was against the manifest weight of the evidence. Petitioner argues that the Commission’s decision was supported by the lack of proof of preexisting skin problems, the onset of the condition after exposure to nickel at work, the presence of nickel in the stainless steel utensils handled by petitioner, medical proof of the petitioner’s allergic reaction to nickel, and the likelihood that sudden increased exposure to nickel would spark a latent allergy.

Respondent contends that there was no medical evidence to support the Commission’s award, as there was no proof that petitioner was specifically allergic to the stainless steel present at respondent’s plant. The respondent cites the fact that petitioner did not react to the stainless steel which respondent provided for an allergy test. Respondent argues that the testifying doctors were unable to say unequivocally that the allergic reaction to nickel began at work, home, or somewhere else. Respondent asserts that if her allergy were work-related, petitioner would not have suffered allergic reactions during periods when she was laid off.

Simply stated, respondent’s contention, and the reason for the circuit court’s holding that the decision of the Industrial Commission was contrary to the manifest weight of the evidence, is that the medical witnesses conceded the possibility that petitioner’s condition might have resulted from a cause other than exposure at her place of employment. In United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85, the petitioner was awarded compensation for disability resulting from an allergic condition caused by inhaling jet engine exhaust. In affirming the award this court said:

“Respondent argues in the alternative that claimant has failed to prove that his condition of ill-being arose out of his employment. Respondent contends that the finding of the Commission that claimant’s condition was causally connected to his employment is based merely upon speculation, conjecture, or surmise. Respondent asserts that the record is silent as to what substance or chemical irritant claimant had been exposed to and that the decision of the Commission is therefore against the manifest weight of the evidence.
We agree with respondent that the burden is upon the party seeking an award to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment. (Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236, 246.) It is also true, however, that it is within the province of the Industrial Commission to determine disputed questions of fact, to draw inferences from the evidence, and to resolve questions of causal relationship based upon conflicting medical testimony, and a reviewing court will not disturb the finding of the Commission unless it is against the manifest weight of the evidence. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 30.” 81 Ill. 2d 85, 96.

We will not reject reasonable inferences of the Commission merely because we might have drawn a contrary inference on the particular facts of a case. (International Harvester v. Industrial Com. (1982), 93 Ill. 2d 59, 65.) The record contains a sufficient basis for the decision of the Industrial Commission. We hold that the decision of the Commission was not contrary to the manifest weight of the evidence, and in reversing it the circuit court erred. For the reasons stated, the judgment of the circuit court is reversed, and the award of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


author: JUSTICE UNDERWOOD

text:
    (No. 57633.
    BENJAMIN BROMBERG, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jewish Family and Community Service, Appellee).

      Opinion filed September 23, 1983.

      Sheldon A. Harris, of Chicago, for appellant.
    Kane, Doy & Harrington, of Chicago (Steven H. Shanok, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant Benjamin Bromberg, an attorney, appeals from an order of the circuit court of Cook County confirming the Industrial Commission’s decision denying his petition to reinstate his workmen’s compensation case which had been dismissed by the Commission on July 21, 1981, for want of prosecution and for failure to perfect review.

Claimant, who had practiced law privately since his admission to the bar in 1938, began his employment with respondent, Jewish Family and Community Service of Chicago, as director of its legal aid department in June 1972. In 1978, he filed an application for adjustment of claim with the Industrial Commission alleging that he was permanently disabled as a result of a heart attack suffered on August 15, 1977, while employed by respondent.

Following five days of hearings between April 1979 and January 1980, an arbitrator found that claimant failed to prove that his ill-being resulted from an accident arising out of and in the course of his employment. Notice of that decision was filed with the Commission on April 3, and claimant filed a petition for review before the Commission on April 15, with a request for a 30-day extension in which to file a transcript of the evidence or an agreed statement of facts. He also indicated that he intended to present additional medical evidence at the hearing on review. The record indicates that the transcript of evidence was filed on April 29, 1980, but it was never authenticated as required by statute (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)) and Commission rules (Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act, sec. 4, Rule 4—(2)(D) (1977)).

Claimant’s case was scheduled for hearing before the Commission on at least eight different dates over a 14-month period before it was dismissed. The first three dates were in 1980, on May 20, September 16 and December 2. (The record indicates that it may also have been scheduled for September 30.) It was continued each time. While there is no record of the reasons for the continuances in 1980 or at whose request they were made, on February 17, 1981, the next scheduled hearing date, respondent’s attorney appeared before the Commission and moved that the proofs be closed. He noted how long the case had been pending on review and that it had been set for hearing on three previous occasions. He further advised the Commissioner that the previously assigned Commissioner had ordered that claimant submit any additional medical evidence by deposition on or before February 17. Claimant’s attorney was not present at this time; however, he had apparently appeared earlier that day and secured a continuance until April 10 from the Commissioner before whom respondent’s attorney was arguing. The Commissioner noted respondent’s motion, indicated that he had no record of the prior proceedings, and stated that an order would be entered that additional evidence by deposition was to be submitted no later than April 10 at 2 p.m.

Claimant’s attorney neither appeared nor submitted additional evidence on April 10. The case was continued until June 9, at which time claimant’s counsel again failed to appear, and respondent’s attorney again objected to any further continuances. Although observing that the case had been on the review call for over a year and scheduled for hearing several times, the Commissioner also noted that claimant’s attorney had not been present at the last hearing, and stated that, to avoid any lack of communication with respect to the hearing date, the case would be continued until June 30, with notice to be sent. Although the case was noted for that date on the file and on the call sheet, apparently notice was inadvertently not sent, and no one appeared on claimant’s behalf. The Commissioner again continued the case until July 21, at 9:30 a.m., over respondent’s objection that it was claimant’s responsibility, as the petitioning party, to pursue his claim on review and ascertain the scheduled hearing dates, and that the Commission did not have a continuing obligation to send out notices after claimant’s repeated nonappearances.

Notice of the July 21 hearing date was given, claimant’s counsel failed to appear, and at approximately 10:30 a.m. on that date the case was dismissed. Claimant’s attorney arrived sometime between 11 and 11:30 a.m. and was informed of the dismissal.

The following day, claimant filed a petition to vacate the dismissal and to reinstate the case, and a hearing was held the following September. Counsel for claimant advised the Commission that the reason for his failure to appear on July 21 was that he was involved in a contested case in the circuit court of Cook County from 9:15 until 10:45 a.m. He had anticipated that the hearing in the circuit court would be completed in a shorter time. Further, he stated that there was a demonstration in the lobby of the State of Illinois Building when he arrived which prevented his access to the elevators for a short time, and that this also contributed to his delay. Following argument by both parties, the Commission noted the number of times the case had been scheduled, and that there had been no effort by claimant to communicate potential problems in proceeding. It also noted that, in any event, there was no indication that claimant had been prepared to proceed on July 21, and denied reinstatement.

In affirming the Commission, the circuit court made the following findings and apt observations:

“I have listened with care to the arguments of counsel. I have reviewed the very extensive briefs that were filed. I find no abuse of discretion by the Industrial Commission. I cannot say that this decision is contrary to the manifest weight of the evidence or contrary to law. *** In the Court’s opinion this is symptomatic of a malaise that grips the entire metropolitan system of justice.
The endless delays, the endless failures of attorneys to appear without excuse, either real or apparent, to inform a hearing officer as to the reasons for delay has reflected for years adversely upon the effective administration of justice and continues to do so and will continue to do so until the Appellate Courts start acting to see to it that lawyers fulfill their responsibilities to their clients and appear on the days and dates set for hearing that move hearings to a proper conclusion.”

Claimant argues here that the Commission’s decision to deny reinstatement, if upheld, results in a denial of substantial justice because of the conclusive effect of the arbitrator’s ruling against him. He accordingly urges that we apply a different standard from that previously announced in assessing the propriety of the Commission’s action. Alternatively, he asserts that the Commission abused its discretion because his failure to appear on July 21 was excusable, and the failure to present an authenticated transcript of evidence on arbitration is not fatal since it may be authenticated prior to or at the time set for hearing before the Commission (see Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act, sec. 4, Rule 4—(2)(D) (1977); Heckard v. Industrial Com. (1933), 353 Ill. 197, 199).

As this court has consistently held, “In a petition for reinstatement before the Industrial Commission, the burden is on the petitioner to allege and prove facts justifying the relief prayed. The granting or denying of the petition to reinstate rests in the sound discretion of the Commission.” (Cranfield v. Industrial Com. (1980), 78 Ill. 2d 251, 255; Shiffer v. Industrial Com. (1973), 53 Ill. 2d 519, 521; Zimmerman v. Industrial Com. (1972), 50 Ill. 2d 346, 349.) While it is true that the Commission dismissed claimant’s petition following a hearing by an arbitrator, in contrast to the cited cases in which the case had been dismissed at the arbitration stage, we consider that the same standard is applicable in reviewing the Commission’s decision which denied reinstatement. Just as a petitioner may lose his right to proceed before the Commission by failing to file a timely petition, resulting in a binding decision by the arbitrator (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b); City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, 103), so, too, may he lose his right to be heard by the Commission after a timely petition has been filed, by failing to proceed in accordance with the statutory requirements and the governing rules. Had petitioner failed to appear on only one occasion under excusable circumstances, we might well agree that a dismissal by the Commission which precludes a review on the merits would be unwarranted. Here, however, we have a 14-month period involving claimant’s failure to proceed or appear despite numerous continuances to enable him to do so, coupled with a failure to present to the Commission an authenticated transcript of the hearings before the arbitrator.

It is entirely clear from this record that claimant failed to appear on April 10, June 9, June 30 and July 21 despite the fact that on April 10 the case had been pending before the Commission for nearly a year. The case had been continued from February 17 at claimant’s request, and it is conceded that all parties had notice of the April 10 hearing date. The only effort by claimant’s attorney to justify his failure to appear on that date was by evidence dehors the record which was not properly before the circuit court. (Zimmerman v. Industrial Com. (1972), 50 Ill. 2d 346, 350.) While counsel complains that the record shows he had no notice of the June 9 or June 30 hearing dates, the responsibility was his to ascertain the status of his case after he failed to appear on the April 10 date to which the hearing had been continued at his request. (See Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 311; Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464; Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act, sec. 4, Rule 4—(2)(D) (1977).) So far as counsel knew, his case might have been dismissed or the proofs closed on that date; he is not entitled to assume that, in the face of his apparent lack of interest, a benevolent commissioner will automatically continue the case, fix a new hearing date and notify him thereof. Given the procedural history of this case prior to July 21, together with counsel’s failure to advise the Commission of the scheduling conflicts or the delay on the morning of the 21st, coupled with the unexplained failure to secure an authenticated transcript, we cannot say the Commission’s dismissal of the case was an abuse of discretion.

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

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 57641.
    GRANITE CITY STEEL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Billy G. Gibbons, Appellee).

      Opinion filed September 23, 1983.

      William L. Rogers, of Keefe & De Pauli, P.C., of Fair-view Heights, for appellant.
    Paul A. Guzzardo, of Calvo & Guzzardo, of Granite City, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The claimant, Billy G. Gibbons, fell in a hole and injured his groin while at work for the respondent, Granite City Steel Company. He reported that this injury left him impotent, and he filed a claim for compensation.

The Industrial Commission arbitrator found that the claimant’s injury had arisen out of and in the course of his employment with respondent, and that it had caused him the permanent and complete loss of the use of his testicles. The arbitrator awarded 2 5/7th weeks for temporary total disability and 150 weeks for permanent partial disability. The Commission affirmed this decision on review, and in an appeal to the circuit court of Madison County, the Commission’s decision was confirmed. The respondent appealed directly to this court (87 Ill. 2d R. 302(a)), contending only that the Commission’s decision is against the manifest weight of the evidence.

The only witnesses before the arbitrator were the claimant and his physician, Dr. Lawrence M. Aronberg. The claimant testified that on July 20, 1976, he was walking in a poorly lit area of the respondent’s plant when he stepped in a hole with his left leg and all of his weight fell on his groin. After this fall he was nauseated, had a terrible headache, and had an excruciating pain in the groin area. He also scraped and bruised his right knee, hand, and wrist in the fall.

The claimant testified that he informed the foreman of his injury and was sent to the plant dispensary. The plant physician released the claimant for work, but he was still in pain and felt nauseated, and the foreman allowed him to take the rest of the day off. The claimant returned to work on his next scheduled work day. In the days following the accident, the claimant reported that his testicles were swollen and discolored. He also testified that since the accident he has been impotent.

In September 1976, the plant physician referred the claimant to Dr. Aronberg, a urologist, who had the claimant removed from work for two and a half weeks in order to place him in a hospital for tests. The claimant testified that although he has been continuously under Dr. Aronberg’s treatment since that time, and has received monthly hormone injections, he has not had any improvement in his condition. On review before the Commission, the claimant testified that he has continued to receive monthly injections but has still had no improvement in his condition.

Dr. Aronberg testified, by deposition, that the claimant was referred to him in September 1976, because the plant physician had found blood cells in his urine. Dr. Aronberg had the claimant admitted to a hospital and ran tests which confirmed the presence of blood and pus cells, but he could not locate their source. The initial bleeding stopped near the end of October 1976, but pus cells continued to be present in the samples, and the bleeding recurred periodically.

In a visit on October 1, 1976, the claimant told Dr. Aronberg that he was having potency problems. A laboratory test indicated that the claimant only had a testosterone level of 365 units out of a normal range of 350 to 1,200. Dr. Aronberg began administering monthly injections of testosterone as a treatment for this condition, but the claimant’s testosterone level continued to fall to as low as 231 units in February 1979. When the testosterone level continued to fall after Dr. Aronberg doubled the dosage of the monthly testosterone injection, he switched to another substance, human chorionic gonadotrophin, which was also administered in monthly injections. Dr. Aronberg testified that when he last saw the claimant, his condition was unchanged and he still reported an inability to achieve an erection.

Dr. Aronberg stated that he could not offer an opinion on whether the claimant’s accident caused his condition of impotence. He did, however, place significance on the fact that the claimant had reported a history of normal erection prior to the accident. Dr. Aronberg testified that “if you have a person who, prior to some accident, has been able to function, and following it has been unable to, one would think historically *** they are connected, but that does not prove it” from a medical point of view.

“It is the function of the Industrial Commission to determine the facts and to draw reasonable inferences and conclusions from competent evidence in the record. The function of this court is limited to a determination of whether the findings of the commission are against the manifest weight of the evidence.” (Overland Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 525, 531.) In this case, the respondent contends that the Commission’s decision to award compensation for permanent partial disability is against the manifest weight of the evidence because the claimant failed to establish that the accident caused his impotence and that the condition is permanent. Neither contention has merit.

Concerning the issue of causation, “it has long been established that proof of good health prior to the time of the injury and a subsequent condition of ill being involving injury to the affected area creates an issue of fact as to the causal relationship between the injury and the condition of the ill being in question.” (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245; Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 143.) The claimant here testified that he had no problem with potency prior to his groin injury, but that after the injury he has been impotent. From this testimony, the Commission could reasonably infer that this injury led to the condition of impotence. Dr. Aron-berg’s testimony was not inconsistent with this inference, and in fact he admitted that it might be an appropriate one. Contrary to the respondent’s assertions, there is no requirement that a claimant present affirmative expert testimony on the issue of causation. (See Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 144 (“We know of no case requiring a doctor’s testimony to establish causation and the extent of disability ***.”).) The evidence in the record adequately supports the Commission’s finding that the claimant’s injury caused his impotence.

Concerning the permanence of an injury, this court has observed that “a long period of time without substantial improvement is sufficient time to justify a finding that an injury is permanent.” (Overland Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 525, 531.) In this case the claimant suffered his injury in July 1976 and since that time he has been impotent without any indication of an improvement in this condition. Dr. Aron-berg declined to state an opinion that the claimant’s condition was permanent, but he did not deny that possibility. The respondent did not present any evidence to oppose the reasonable inference from the evidence presented that the claimant’s condition is permanent. Therefore, the Commission’s finding to that effect is not against the manifest weight of the evidence.

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

Judgment affirmed.


text:
    (No. 57662.

      In re ESTATE OF AUGUSTINE GAGLIONE (Margaret G. Ruffo, Appellee and Cross-Appellant, v. Sam Gaglione et al., Appellants and Cross-Appellees).

      Opinion filed September 23, 1983.

      Mack P. Manning, of Chicago, for appellants and crossappellees Sam Gaglione, Michael Gaglione, and Josephine DeStefano.
    Robert R. Wagener, of Morton Grove, for appellant and cross-appellee Mary G. Wagener.
    Dennis M. O'Brien, of Chicago, for appellee and cross-appellant Margaret G. Ruffo.
   JUSTICE CLARK

delivered the opinion of the court:

On November 13, 1980, the circuit court of Cook County, in ruling on a summary judgment motion, denied probate to the will of Augustina Gaglione dated August 28, 1973, and ordered that the joint and mutual will of Nicolo and Augustina Gaglione dated June 27, 1959, be admitted to probate. The circuit court also entered an order on April 20, 1982, denying the claim of Margaret Ruffo as untimely filed. All of those orders entered in the circuit court were reversed by a judgment entered in the appellate court on November 5, 1982. (109 Ill. App. 3d 748.) We allowed the petition for leave to appeal filed by Sam Gaglione, Michael Gaglione, Josephine De Stefano, and Mary G. Wagener.

The appellate court set forth the pertinent facts as succinctly as possible. The facts are as follows.

Nicolo Gaglione and his wife Augustina executed a “Joint and Mutual Last Will and Testament” dated June 27, 1959. Nicolo died on June 21, 1964, at which time the 1959 joint will was filed with the probate division of the circuit court. The will was not, however, offered for probate as Nicolo’s last will and testament.

Augustina executed another last will and testament on August 28, 1973, which revoked and annulled all former wills and codicils made by her. She died on January 1,1980.

Sam Gaglione, decedent’s son, petitioned to probate the 1959 joint will as Augustina’s valid last will and requested the appointment of Michael Gaglione and Josephine De Stefano, as co-executors. The court admitted the 1959 joint will on March 31, 1980, and letters of office were to issue to the named co-executors. Notice was sent by the court clerk advising all interested heirs of their rights under the Probate Act of 1975 to require formal proof of the will pursuant to section 6 — 21 (Ill. Rev. Stat. 1979, ch. 111½, par. 6—21).

On May 9, 1980, plaintiff, Margaret Ruffo, daughter of decedent, and a legatee and devisee under both the 1959 joint will and the 1973 will, filed her petition asking that letters of office issue to the named co-executors in the 1973 will, that the letters of office issued under the 1959 joint will be revoked, and that the 1959 joint will be denied probate. The hearing on the petition was continued to May 12, 1980. Plaintiff’s request for a formal hearing on the 1959 joint will was continued generally, and the hearing for probate of the 1973 will was set for May 16, 1980. On May 16, 1980, the court stated that the most recent will would be admitted, and that the letters of office previously issued (under the 1959 joint will) would be cancelled when the 1973 will was properly admitted. The hearing on the petition to admit the 1973 will was continued to June 9,1980.

On June 9, 1980, plaintiff filed her petition to probate the 1973 will and to have letters of administration with the will annexed issued to her. The named co-executors of the 1973 will, Donald Panarese and Josephine De Stefano, declined to act. Objections to plaintiff’s appointment as administrator with the will annexed were filed by Josephine De Stefano, Sam Gaglione and Mary Wagener. These objections were rejected and the plaintiff was appointed administrator. The 1959 joint will was held in abeyance.

Michael Gaglione filed a petition seeking formal proof of the 1973 will (Ill. Rev. Stat. 1979, ch. 110½, par. 6— 21) on July 7, 1980. At the hearing on August 7, 1980, the court heard the testimony of Marie Sabatino through an interpreter and directed that the testimony of Rev. Angelo Carbone, the other witness to the 1973 will who was a nonresident, be secured at a mutually convenient time. After this was completed on August 21, 1980, the court accepted, on formal proof, the probate of the 1973 will and confirmed the letters of office previously issued to plaintiff on June 9,1980.

There was a formal hearing on the 1959 joint will on September 24, 1980, at which time the court received the testimony of Panarese and Francis Renaldi, witnesses to the 1959 joint will. Over plaintiff’s objections to the court’s authority to conduct a hearing, the court admitted the 1959 joint will to probate, and granted the proponents of the 1959 joint will time to file a motion for summary judgment.

Proponents of the 1959 will filed their motions for summary judgment with supporting briefs. Plaintiff answered, and replies were filed. On November 13, 1980, the court ordered the only will to be probated was the 1959 joint will. The 1973 will was denied probate, letters of office issued under that will were revoked, and all further proceedings were ordered to be conducted under the 1959 joint will.

An appeal was filed from the court’s order refusing to vacate the order admitting the 1959 joint will to probate. A notice of cross appeal was filed by the 1959 joint will proponents on December 29, 1980. Plaintiff had previously, on November 26, 1980, filed her claim in court and with the co-executors under the 1959 joint will, for services rendered to the decedent. De Stefano, a co-executor, moved to strike and dismiss the claim as being untimely. The circuit court ruled that the claim had not been filed within the six-month period from the date of initial issuance of letters of office under the 1959 joint will, and it was dismissed as untimely filed. An appeal was filed from this order, and on plaintiff’s motion for consolidation, these two appeals were consolidated in the appellate court.

The appellate court found that it was error for the circuit court to conduct the further proceeding that it did under sections 6 — 4 and 6 — 21 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, pars. 6 — 4, 6 — 21) on the 1959 joint will, since the court had already accepted proof of the 1973 will which had revoked the 1959 joint will. The appellate court further found that the circuit court improperly advised the proponents of the 1959 joint will to file a motion for summary judgment. In determining that the 1973 will was duly proved to have revoked all former wills, the appellate court concluded it should have been admitted to probate as the last valid, unrevoked will, further finding that the appropriate action for the opponents of the 1973 will would be to initiate a will contest in compliance with statutory requirements. The appellate court also determined that a consideration of whether plaintiff’s claim for services was timely filed becomes moot, since her claim was filed within six months of the issuance of letters of office to her under the 1973 will. In so finding, the appellate court remanded the matter with directions to the trial court to vacate its order granting summary judgment admitting the 1959 will to probate, vacate its order denying plaintiff’s claim as being untimely filed, and enter an order admitting the 1973 will to probate.

We now affirm the judgment of the appellate court.

The critical juncture in these complex, somewhat convoluted, proceedings occurred after the probate court confirmed the admission of the 1973 will pursuant to section 6 — 21 of the Probate Act of 1975, which provides:

“Formal proof of will. If a will has been admitted to probate before notice in accordance with Section 6 — 4, any person entitled to notice under Section 6 — 10 may file a petition within 42 days after the effective date of the original order admitting the will to probate to require proof of the will pursuant to this Section. The court must set the matter for hearing upon such notice to interested persons as the court directs. At the hearing the proponent must establish the will by testimony of the witnesses as provided in subsection 6 — 4(b)(1) or Section 6 — 5 or other evidence as provided in this Act, but not as provided by subsection 6 — 4(b)(2) or subsection 6 — 4(b)(3), as if the will had not originally been admitted to probate. If the proponent establishes the will by sufficient competent evidence, the original order admitting it to probate and the original order appointing the representative shall be confirmed and are effective as to all persons, including creditors, as of the dates of their entries, unless there is proof of fraud, forgery, compulsion or other improper conduct, which in the opinion of the court is sufficient to invalidate or destroy the will. The time for filing a petition to contest a will under Section 8 — 1 is not extended by the filing of the petition under this Section if the order admitting the will to probate is confirmed, but if that order is vacated, the time for filing the petition under Section 8 — 2 runs from the date of vacation of the order admitting the will to probate.” Ill. Rev. Stat. 1979, ch. 110½, par. 6-21.

Section 6 — 4 of the Probate Act of 1975 provides:

“Admission of will to probate-Testimony or affidavit of witnesses.
(a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
(b) The statements of a witness to prove the will under subsection 6 — 4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.” Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 4.

After confirming the admission of the 1973 will, the circuit court directed a hearing to receive formal proof on the 1959 joint will. It was improper for the circuit court to accept proof under section 6 — 4 or section 6 — 21 as to the validity of an alleged contract embodied in the 1959 will.

As this court stated in In re Estate of Marcucci (1973), 54 Ill. 2d 266, 270: “The purpose of this section [then section 69 of the Probate Act (Ill. Rev. Stat. 1967, ch. 3, par. 69), now section 6 — 4 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 4)] is to expeditiously admit a will to probate and appoint an executor to marshal and protect the assets of the estate. The usual issue presented at such proceedings is a determination of which is the last, valid, unrevoked will of the testator. Any attempt to prove the existence of a contract not to revoke at such proceedings is irrelevant since it is tantamount to an attempt to prove a contractual claim against the estate before the appointment of an indispensable party, the executor.”

In the instant case, the probate court went beyond the limitations of a section 6 — 4 hearing. The question before the probate court was to consider which of the two instruments was the last valid, unrevoked will of Augustina Gaglione executed pursuant to the requirements of the statute. In its inquiry, the probate court properly looks to determine if the will to be admitted has been revoked, “[b]e-cause, as a matter of law, a probate court will not admit a revoked will.” (In re Estate of Millsap (1979), 75 Ill. 2d 247, 253.) This court has clearly articulated that a joint and mutual will executed pursuant to an agreement not to revoke, “is revocable at any time prior to death in any of the manners prescribed by statute.” (In re Estate of Baughman (1960), 20 Ill. 2d 593, 602.) However, because we find the admission of the 1973 will to be proper does not mean that further proceedings to determine the will’s validity are foreclosed. The validity of a will may be chailenged in a will contest pursuant to section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 8-1).

While it is true that this court has recognized that a properly executed joint and mutual will establishes a presumption in favor of a contract between the two parties who have executed the will (Jusko v. Grigas (1962), 26 Ill. 2d 92; In re Estate of Edwards (1954), 3 Ill. 2d 116), distribution according to the terms of an equitable contract is not the subject of inquiry in a section 6 — 4 proceeding and was improperly considered once the 1973 will was formally admitted to probate by the circuit court.

While the distribution of the estate under the 1973 will may be delayed pending resolution of the equitable contract claims against the estate, such claims should not work to defeat admission to probate of the 1973 will in a section 6 — 4 proceeding under the Probate Act of 1975.

Because we have affirmed the appellate court’s finding that the 1973 will was properly admitted to probate as the last valid, unrevoked will, we also find that plaintiff’s claim for services was timely filed within six months from the issuance of letters of office to her under the 1973 will.

In sum, we affirm the appellate court in reversing the circuit court and remanding the cause with directions to (1) vacate the circuit court order granting summary judgment admitting the 1959 will to probate, (2) vacate the circuit court order denying plaintiff’s claim as being untimely filed, and (3) enter an order admitting the 1973 will to probate.

Judgment affirmed.


text:
    (No. 57729.
    QUALITY WOOD PRODUCTS CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Oliver P. Morrison, Appellee).

      Opinion filed September 23, 1983.

      Richard C. Hayden and Michael K. Lulich, of Craig & Craig, of Mattoon, for appellant.
    Scheele, Serkland & Boyle, Ltd., of Chicago (Stephen M. Cornelius, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Oliver R Morrison, suffered a compression fracture of the L-l vertebra on January 9, 1980, and a compression fracture of the L-3 vertebra on September 6, 1980, while at work as a factory foreman for respondent, Quality Wood Products Corporation. After a hearing held pursuant to an application for adjustment of claim in relation to the first injury, an arbitrator awarded claimant 16% weeks of compensation for temporary total disability and 30 weeks of compensation for permanent loss of use of 15% of his left leg under section 8(e) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)). Respondent was also ordered to pay $8,401.39 for necessary first aid, medical, surgical and hospital services. In connection with the second fracture, the arbitrator, after finding that claimant’s condition was temporary and not yet permanent in nature, awarded compensation for a period of 21% weeks, as well as necessary first aid, medical, surgical and hospital expenses. Both parties sought. review and the Commission, after consolidating the claims for consideration, increased the arbitrator’s award of 30 weeks of compensation in connection with the first injury to 60 weeks of compensation under section 8(d)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2)). The Commission also increased claimant’s compensation for the second injury to 38% weeks and ordered respondent to pay interest to claimant under section 19(n) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(n)). In all other respects the arbitrator’s award was affirmed. On review by writ of certiorari, the circuit court of Shelby County confirmed the Commission’s decision and respondent appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

According to claimant’s undisputed testimony, the first fracture occurred when he attempted to assist a fellow employee in carrying a generator owned by respondent which weighed between 450 and 500 pounds. The second fracture occurred nine months later when claimant was sliding a 25-pound sack of dog food used in feeding respondent’s guard dogs from the trunk lid of his car onto a cart on respondent’s premises. Claimant had recently been advised by his orthopedist that he could begin increasing his lifting activities beyond an earlier-imposed 20-pound limit, but when claimant attempted to hold the full weight of the sack while turning to set it down, he felt two snaps and immediate pain in his back.

Respondent first contends that the Commission’s award of compensation is contrary to the manifest weight of the evidence because claimant’s physical condition had deteriorated to the point where even normal exertion would produce injury. In support of that argument, respondent relies on the deposition of Dr. James McKechnie, claimant’s orthopedic surgeon, who testified that claimant suffered from osteoporosis, a condition which weakens bone structures and makes them more susceptible to compression fractures. Dr. Barry Samson, an orthopedist who examined claimant at respondent’s request after his second injury, also noted in his report that claimant suffered from osteoporosis. Pointing to the fact that claimant’s second injury resulted from a relatively minor lifting effort within a relatively short time after the first injury, respondent argues that claimant’s condition was such that he could have sustained the same injury in the everyday course of events and that it was merely coincidental that he happened to be engaged in work-related activities when he suffered the fractures.

It is, of course, elementary that a claimant under the Workers’ Compensation Act must prove that his injury arose out of and in the course of his employment. (See, e.g., Jones v. Industrial Com. (1983), 93 Ill. 2d 524, 526; Rogers v. Industrial Com. (1980), 83 Ill. 2d 221, 223; Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill. 2d 331, 337.) An employer takes his employees as he finds them (Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 549), and the fact that a preexisting condition contributed to the injury does not bar compensation if the employment was also a. causative factor. (Williams v. In dustrial Com. (1981), 85 Ill. 2d 117, 122; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18; Cossident v. Industrial Com. (1974), 57 Ill. 2d 33, 37; Okaw Homes, Inc. v. Industrial Com. (1968), 40 Ill. 2d 81, 84.) “The sole limitation to the above general rule is that where it is shown that the employee’s health has so deteriorated that any normal daily activity is overexertion, or where it is shown that the activity engaged in presented risks no greater than those to which the general public is exposed, compensation will be denied.” County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18. See Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 550.

Resolution of these questions involves factual determinations by the Commission, and its decision will not be overturned unless it is contrary to the manifest weight of the evidence. (Portec, Inc. v. Industrial Com. (1983), 95 Ill. 2d 303, 310; Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 551; Williams v. Industrial Com. (1981), 85 Ill. 2d 117, 122.) Although Dr. McKechnie testified that claimant’s osteoporosis was more advanced than in most men of his age, he also stated that he thought it probable that attempting to carry the generator and the 25-pound sack of dog food caused claimant’s fractures. Furthermore, there was no indication in the medical evidence that claimant’s condition had deteriorated to the point where any activity would present a risk of fracture. Obviously, lifting the generator and maneuvering the sack onto a cart were duties of claimant’s employment, and it seems clear that the Commission’s conclusion that claimant’s injuries were employment related must remain undisturbed.

Respondent also contends that the portion of the Commission’s decision which ordered respondent to pay all of an $8,401.39 bill issued by Sarah Bush Lincoln Health Center must be reversed because it is contrary to the manifest weight of the evidence. Respondent unsuccessfully objected to the admission of this bill, which was not itemized, on the grounds that the amount shown due included charges for treatment of some preexisting conditions not shown to have been aggravated by the employment.

After his first accident, claimant had immediately gone to Shelbyville Memorial Hospital for treatment, but had not been admitted. During the following 10 days, he suffered continued pain in his back and also noted the symptoms of an intestinal blockage, and again sought medical attention. He was admitted to Shelbyville Memorial Hospital on January 19, 1980, but was discharged and transferred to Sarah Bush Lincoln Health Center on January 25 into the care of Dr. Suthikant, who is identified in the record as a psychiatrist. The discharge report issued by Shelbyville Memorial Hospital indicates that the transfer was due to the onset of delirium thought to be the result of withdrawal from alcohol. Claimant remained at Sarah Bush Lincoln Health Center until February 18.

Neither party introduced any direct evidence concerning Dr. Suthikant’s treatment of claimant, but claimant did introduce the depositions of Dr. McKechnie, his orthopedic surgeon, and Dr. Kasturi Tuli, an internist, both of whom acted as consultants at Dr. Suthikant’s request and continued to treat claimant following his discharge from the hospital. Their testimony indicates that in addition to medical attention for his lumbar fracture, which alone would have required only a week-long stay in the hospital, claimant was treated for an intestinal blockage known as a paralytic ileus, pulmonary emboli, acute bronchitis superimposed on emphysema, ischemic heart disease and congestive heart failure. The testimony of both doctors indicates that claimant received psychiatric care. Dr. McKechnie testified that claimant’s ileus condition was probably caused by the lumbar fracture and that the symptoms caused by the ileus could have contributed to his mental confusion. Dr. McKechnie further stated that the treatment for claimant’s ischemic heart disease, congestive heart failure, bronchitis and emphysema was not connected with the lumbar fracture. Dr. Tuli testified in a similar vein, noting that the lumbar fracture, by creating the need for bedrest, could have indirectly caused the pulmonary emboli, and that the emboli or the heart disease could have indirectly caused claimant’s hallucinations by lowering the oxygen level in his blood. Other than the fracture, the bronchitis and the emboli, however, claimant’s infirmities were characterized by Dr. Tuli as chronic and neither caused nor aggravated by the lumbar fracture.

As earlier noted, claimants bear the burden of proving by a preponderance of the evidence all elements necessary to sustain an award of compensation. (Bemis Co. v. Industrial Com. (1981), 85 Ill. 2d 291, 297; Caterpillar Tractor Co. v. Industrial Com. (1980), 83 Ill. 2d 213, 216-17.) Under section 8(a) of the Workers’ Compensation Act, respondents may only be ordered to pay for treatment which is “reasonably required to cure or relieve from the effects of the accidental injury.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a). See Furlong Construction Co. v. Industrial Com. (1978), 71 Ill. 2d 464.) In view of the undisputed testimony indicating that claimant received treatment for ailments unrelated to his first lumbar fracture, the cost of which was apparently included in the unitemized bill, respondent’s objection thereto should have been sustained. Since the Commission’s finding that respondent should pay the entire cost of claimant’s treatment is thus contrary to the manifest weight of the evidence, and there is in this record nothing enabling us to separate the eligible from the ineligible expenses, the cause must be remanded for the purpose of determining the extent to which the hospital charges represent expenses for which respondent is chargeable.

The judgment of the circuit court is accordingly affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part; came remanded, with directions.


text:
    (No. 57745.
    NATIONAL TEA COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph M. McFalls, Appellee).

      Opinion filed September 23, 1983.

      Robert W. Scott, of Swain, Johnson & Gard, of Peoria, for appellant.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Robert D. Jackson and Jeffrey W. Jackson, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Joseph McFalls, sought workmen’s compensation for an injury which he sustained while in the employ of the respondent, National Tea Company. An arbitrator awarded claimant compensation for temporary total disability and permanent partial disability to the extent of 8% of the man as a whole. On review, the Industrial Commission found that claimant’s condition was still temporary and reversed the arbitrator’s award for permanent partial disability. The Commission also determined that claimant was entitled to vocational rehabilitation and remanded the cause to the arbitrator to consider an “appropriate” rehabilitation program. The circuit court of Peoria County confirmed the decision of the Commission, and respondent brought a direct appeal to this court. 73 Ill. 2d R. 302(a).

The issue presented is whether the Commission’s determination that claimant is entitled to vocational rehabilitation is contrary to the manifest weight of the evidence. A related question concerns the procedure by which the Commission determines whether, and to what extent, rehabilitation is necessary.

The claimant was the only witness to testify at the hearing before the arbitrator. He stated that, on July 14, 1978, he was employed by respondent as a meatcutter. On that date, he slipped while unloading a meat truck and experienced pain and discomfort in his lower back. Claimant consulted Dr. Edward Smith, an orthopedic surgeon. After administering conservative treatment, he performed a lumbar laminectomy upon claimant in October of 1978.

Subsequent to the surgery claimant returned to his employment with respondent, but was unable to continue work because of his back condition. Pursuant to Dr. Smith’s recommendation, he sought other employment and obtained a managerial position at an Aamco transmission shop. His duties entailed test-driving cars and writing repair estimates. At the time of the hearing before the arbitrator, he was employed in the same position at a different Aamco shop.

Claimant further testified that he continues to experience back pain and is unable to perform activities which require heavy lifting or bending. However, he stated that he feels “pretty good if I am lifting up and down all the time. But, if I have to stand for a long period of time my left leg gets numb.”

During cross-examination, claimant indicated that he has not consulted Dr. Smith for several months. He relieves the pain associated with his back condition by taking aspirin and doing certain prescribed exercises.

Claimant also introduced into evidence two letters written by Dr. Smith. The first letter, dated November 21, 1978, stated that claimant suffered from a lumbosacral strain, and that the length of his disability was undetermined. Claimant was placed on a bending restriction and a 15-pound lifting restriction. In Dr. Smith’s opinion, he would be unable to continue work as a meatcutter due to his back condition.

In the second letter, dated September 15, 1980, Dr. Smith stated claimant’s condition was improved, but he still could not perform activities requiring heavy lifting or excessive bending. He further indicated that claimant has “some small permanent disability” and that there is evidence of a degenerative disc disease in his lower spine. He did not believe claimant would require further medical treatment as long as he obtained employment which did not strain his lower back.

Another letter written by Dr. Smith, dated July 31, 1979, was introduced into evidence by respondent. It was stated therein that “a bizarre element of emotional overlay was entering the picture,” implying that part of claimant’s problem was psychological. Dr. Smith also noted that the ankle jerk on claimant’s left side was depressed, and that there was a spasm in the lumbosacral region of his spine. In his opinion, claimant was both physically and emotionally unable to return to his previous employment and should seek vocational rehabilitation.

Respondent also introduced into evidence two letters written by Dr. John Henderson, a neurosurgeon, dated October 9, 1979, and July 1, 1980. Dr. Henderson indicated that claimant’s “complaints are certainly not anatomical in nature,” and he found no objective symptoms to support the complaints.

Claimant again testified on his own behalf at the hearing before the Commission. He stated that he had been employed by Aamco until January 30, 1981, at which time he was laid off. Other individuals in the same position as he were not laid off. During February and April of that year, his attorney wrote letters to respondent inquiring as to the possibility of employment, and requesting rehabilitation. Respondent did not offer claimant a job and did not contact him concerning the possibility of rehabilitation.

Claimant further stated that he made numerous attempts to secure other employment but was unsuccessful. Some of the job applications which he was required to complete requested information concerning his medical history. He also underwent a college aptitude test. The individuals who administered the exam recommended that claimant study business management or computers.

The Commission subsequently held a second hearing for the purpose of determining whether claimant was entitled to vocational rehabilitation. James Ragains, a rehabilitation counselor with the Institute of Physical Medicine and Rehabilitation, testified on behalf of the claimant. He stated that he interviewed claimant in December of 1980 and administered to him a number of academic achievement, personality, and interest tests. The test results indicated that claimant had a low average I.Q., was depressed, and experienced difficulty “being goal-oriented.”

Ragains further testified that he was unaware of any job claimant could obtain, without training, in which he would be compensated at a rate similar to his pre-injury earnings. On the basis of the testing, and his counseling experience, Ragains opined that claimant should receive vocational rehabilitation and participate in a remedial training program. Ragains stated that he would aid claimant in seeking employment, and would concentrate on business administration or marketing positions in the meat-cutting business. During cross-examination, the witness stated that it would be difficult for a person of claimant’s age, and with his back condition, to obtain any employment except as an unskilled worker.

Claimant testified that his physical condition has not improved. He experiences pain in his back and numbness in his legs and hands. He expressed an interest in participating in a rehabilitation program. During cross-examination claimant stated that he was not currently receiving medical treatment for his condition.

Respondent does not dispute that claimant sustained a compensable injury or that he is now incapable of working as a meatcutter. Rather, it is argued that he is not entitled to vocational rehabilitation because he could, and did, obtain other employment. Respondent contends that claimant was laid off from Aamco as a result of general economic conditions, and for that reason he did not obtain the other jobs for which he applied.

There is no evidence that claimant lost his position at Aamco as a result of a depressed economy. That economic conditions precluded him from obtaining other employment is simply a conceivable inference. It is at least as probable that claimant’s age, training and medical condition accounted for his unsuccessful attempts to secure employment.

Claimant is approximately 42 years old, has a low average intelligence, and has worked as a meatcutter for 20 years. As previously related, Dr. Smith stated in his letter that claimant should not perform activities which would cause stress to his lower back, and he should not resume employment as a meatcutter. Claimant’s uncontradicted testimony indicates that he diligently, but unsuccessfully, sought alternate employment. Both Dr. Smith and Ra-gains determined that claimant should receive vocational rehabilitation. In contrast, respondent failed to produce any evidence that vocational rehabilitation is unnecessary. Under these circumstances, the Commission’s finding that claimant could not obtain suitable employment, and is therefore eligible for rehabilitation, was not contrary to the manifest weight of the evidence. See C. D. Turner & Sons, Inc. v. Industrial Com. (1983), 96 Ill. 2d 231; McLean Trucking Co. v. Industrial Com. (1983), 96 Ill. 2d 213; Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489.

We recognize, as respondent points out, there was evidence that claimant’s condition was partially psychological in nature. However, “the possibility of psychiatric or emotional implications [will] not affect an award for disability resulting from physical injuries.” (Allis Chalmers Manufacturing Co. v. Industrial Com. (1974), 57 Ill. 2d 257, 263; cf. Kropp Forge Co. v. Industrial Com. (1981), 85 Ill. 2d 226 (wherein claimant was deemed entitled to disability benefits and rehabilitational though his inability to perform light-duty work was primarily stress-related).) Further, the Commission was not required to adopt Dr. Henderson’s apparent diagnosis that claimant’s condition is completely psychological. See, e.g., Vestal v. Industrial Com. (1981), 84 Ill. 2d 469 (it is the Commission’s province to resolve conflicts in medical evidence).

Respondent briefly contends that the Commission erred in extending claimant’s temporary total compensation because his condition has reached permanency. This argument is not persuasive. “Until the claimant has completed a prescribed rehabilitation program, the issue of the extent of permanent disability cannot be determined.” Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, 501; cf. McLean Trucking Co. v. Industrial Com. (1983), 96 Ill. 2d 213, 220 (a claimant may be awarded the costs of rehabilitative training prior to a ruling on the permanency of his disability).

The Commission, as in other cases where the claimant was deemed “vocationally handicapped,” remanded the cause to the arbitrator to determine an appropriate rehabilitation program. We have noted in the past that section 8(a) of the Workmen’s Compensation Act merely provides, in relevant part, that an injured employee be afforded all “treatment, instruction and training necessary for *** vocational rehabilitation ***.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The legislature has failed to set forth any procedures or standards to aid the Commission in determining the extent to which rehabilitation is “necessary.” In view of the frequency with which this issue arises, it seems evident that some flexible guidelines should be established. A step in that direction was taken by the Commission when it adopted a rehabilitation rule. (See Gianforte, Industrial Rehabilitation In Illinois — An Evolving Process, 71 Ill. B.J. 668 (1983).) The rule reads:

“The employer or his representative in consultation with the injured employee and if represented with the employee’s representative, shall prepare a written assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment: (1) when it can be reasonably determined that the injured worker will as a result of the injury be unable to resume the regular duties in which he was engaged at the time of the injury, or (2) when the period of total incapacity for work exceeds 120 continuous days, whichever comes first.”

However, this rule appears to handle only situations in which the employer and employee agree to a course of rehabilitation.

In Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, this court noted that a number of States, by statute, require employees seeking rehabilitation to be evaluated by State medical personnel or by a rehabilitation agency. The examiner then recommends whether, and what form of, rehabilitation assistance is necessary. (See 86 Ill. 2d 489, 498, and statutes cited therein.) This procedure, which to a certain extent was followed in the instant case, could prove invaluable in assessing the feasibility of a program in which the claimant wishes to participate. It will also alleviate the concerns that rehabilitation costs will be “routinely” awarded (Zenith Co. v. Industrial Com. (1982), 91 Ill. 2d 278, 288), or based solely upon the claimant’s wishes. See Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, 499.

Courts in other jurisdictions have set forth certain factors to consider in determining the reasonableness of a rehabilitation award. Generally, a claimant has been deemed entitled to rehabilitation where he sustained an injury which caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity. (E.g., Sidel v. Travelers Insurance Co. (1980), 205 Neb. 541, 288 N.W.2d 482.) Related factors concern a claimant’s potential loss of job security due to a compensable injury (see Aldrich v. Cianbro Corp. (Me. 1978), 387 A.2d 744), and the likelihood that he will be able to obtain employment upon completion of his training. (Lancaster v. Cooper Industries (Me. 1978), 387 A.2d 5.) In contrast, rehabilitation awards have been deemed inappropriate where the claimant unsuccessfully underwent similar treatment in the past (Wilson v. Lewis (W. Va. 1980), 273 S.E.2d 96); where he received training under a prior rehabilitation program which would enable him to resume employment (Leaton v. State Accident Insurance Fund (1976), 27 Or. App. 669, 556 P.2d 1375); where he is not “trainable” due to age, education, training and occupation (J. S. Walton & Co. v. Reeves (Ala. Civ. App. 1981), 396 So. 2d 699); and where claimant has sufficient skills to obtain employment without further training or education (Saunders v. State Accident Insurance Fund (1979), 40 Or. App. 169, 596 P.2d 1316).

Other factors which we consider appropriate are “the relative costs and benefits to be derived from the program, the employee’s work-life expectancy, and his ability and motivation to undertake the program, [and] his prospects for recovering work capacity through medical rehabilitation or other means.” (Lancaster v. Cooper Industries (Me. 1978), 387 A.2d 5, 9.) Whether a rehabilitation program should be designed to restore claimant to his pre-injury earning capacity depends upon the particular circumstances. However, as this court suggested in Hunter, such a standard should not be inflexibly applied.

We do not mean to imply, by the foregoing discussion, that the Commission should consider only the interests of the employee in determining an appropriate rehabilitation program. Because the employer is required to “underwrite” the expenses attendant to rehabilitation, it is essential that any program selected be reasonable and realistic. Consequently, where rehabilitation is ordered, the Commission should establish boundaries which reasonably confine the employer’s responsibility.

For the above-stated reasons, the judgment of the circuit court of Peoria County is affirmed, and the cause is remanded to the Commission for further proceedings consistent with this opinion.

Judgment affirmed; cause remanded.