text:
    (No. 56803.
    HAROLD BRANCH, Appellant, v. THE INDUSTRIAL COMMISSION et al. (General Telephone Company, Appellee).

      Opinion filed March 25, 1983.

    Scheele, Serkland & Boyle, Ltd., of Chicago (Deborah H. Collander and James C. Serkland, of counsel), for appellant.
    Henry D. Noetzel & Associates, Ltd., of Peoria (Henry D. Noetzel and Steven J. Hohmann, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On December 28, 1978, petitioner, Harold Branch, who was 44 years of age, was employed by respondent, General Telephone Company. On this date he unlocked and pulled open his employer’s heavy metal door and removed his coat. He testified at the arbitration hearing on November 28, 1979, that a “hot poker” type pain hit him as he removed his coat. He also testified that he had a sharp pain which took his breath away as he opened the door, but he never had any pain like that when he removed his coat.

In a deposition filed in the arbitration proceeding, Dr. Limcaco, the treating physician, related the history given to him by petitioner as to the events of December 28, 1978. He indicated that petitioner told him that, “while taking his coat off after arriving at work, he [the petitioner] suddenly felt a hot poker in his back.”

The arbitrator found that on the date of injury the relationship of employee and employer existed between the petitioner and respondent; that on that date the petitioner sustained accidental injuries arising out of and in the course of his employment; and that notice of said accident was given to the respondent within the time required under the provisions of the Workmen’s Compensation Act. He awarded the sum of $175.53 per week for a period of 36 weeks for temporary total disability and $175.53 per week for a further period of 1662/s weeks for the partial disability of petitioner to the extent of SSVs^o thereof.

On review, a statement from petitioner’s examining physician, Dr. Menguy, quoted the petitioner as relating on March 7, 1980, that he had injured his back at work on December 28, 1978, and later, while removing his coat, his back became worse.

The Industrial Commission reversed the arbitrator’s decision, finding that the petitioner had failed to prove that he sustained accidental injuries arising out of and in the course of his employment and the circuit court of Edgar County confirmed the Commission’s decision. Petitioner brings this appeal pursuant to Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)).

The issue on appeal is whether the decision of the Industrial Commission is against the manifest weight of the evidence.

Both petitioner and respondent agree that the decision of the Industrial Commission is unclear as to the true basis of its decision. The Industrial Commission decision never specified whether the petitioner failed to prove he sustained an accidental injury, or whether he had proved that an accidental injury had occurred but failed to prove that the accidental injury arose out of his employment or in the course of his employment, or both.

The petitioner argues that he clearly sustained an accidental injury and, therefore, the Industrial Commission’s contrary decision is against the manifest weight of the evidence. We disagree. The employee testified on arbitration that he felt a sharp pain in his lower back when he opened a door at work. However, in the written report of Dr. Limcaco, the treating physician, is the history “while taking his coat off after arriving at work, he suddenly felt a ‘hot poker’ in his back.” The report is silent as to any other onset. In his deposition, Dr. Limcaco made a similar statement, and on cross-examination the doctor testified that there was nothing in his report regarding any incident of twisting or opening the door.

It is a function of the Industrial Commission to judge the credibility of the witnesses. Watts v. Industrial Com. (1979), 77 Ill. 2d 30.

Here the Industrial Commission considered the testimony not only of the petitioner, but also the seemingly contradictory evidence of his treating physician, and decided the merits in favor of the respondent. Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144.

The matter before us is not unlike the case of Greater Peoria Mass Transit District v. Industrial Com. (1980), 81 Ill. 2d 38, where the petitioner suffered a dislocation of her shoulder when she bent over to pick up transfer schedules and lost her balance. This court noted that in order for the injury to be compensable there must be a showing that the cause is connected to the employment or incidental to it and that more is required than the fact of an occurrence at the employer’s place of work. 81 Ill. 2d 38, 42-43.

In the case at bar, the evidence showed the employee suffered a hot-poker pain when he was in the process of removing his coat, an act that he would have performed no matter where he might be when he came in from the outside or upon returning home at the end of the day. The petitioner has only shown that this occurrence took place at respondent’s place of work, not that the cause of the injury is connected to his employment.

The decision of the Industrial Commission is also supported by the case of Davis v. Houston General Insurance Co. (1977), 141 Ga. App. 385, 233 S.E.2d 479. In that case the claimant was a nurse’s aide. She sustained a back injury while she was putting on her coat before leaving the employer’s premises. There, the court upheld a finding by the administrative law judge that the claimant’s injury did not arise out of her employment, noting an absence of any evidence that the injury was related to or in any way caused by the peculiar nature of her duties.

The petitioner’s arguments concerning the “personal comfort doctrine” and his cited cases have all been adequately distinguished from the facts in this case in the respondent’s brief. Because they do not apply, we need not discuss them here.

There is sufficient evidence to support the decision of the Industrial Commission that the petitioner failed to prove he sustained an accidental injury arising out of and in the course of his employment and, therefore, the Commission’s decision was not against the manifest weight of the evidence. The judgment of the circuit court of Edgar County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 56314.
    DOROTHY BURNS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baskin Clothing Company, Appellee).

      Opinion filed March 25, 1983.

      Melvin Gaines, of Mel Gaines, Ltd., of Chicago, for appellant.
    Robert B. Ulrich and Ronald L. Lipinski, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

This case is before us on appeal from the circuit court of Cook County. On May 18, 1981, there was a hearing before arbitrator Thomas Dillon of the Industrial Commission in the matter of Dorothy L. Burns v. Baskin Clothing Company. On May 29, 1981, arbitrator Dillon filed what is called a “Memorandum of Decision of Arbitrator,” a form in which he filled in blanks in his own handwriting. On July 15, 1981, the “Notice of Decision and Decision of the Arbitrator” was filed with the Industrial Commission. The decision that was filed on July 15, 1981, was a typed version of arbitrator Dillon’s memorandum. As the decision itself stated, unless a petition for review was filed by either party with the Industrial Commission within 15 days after the receipt of the decision of the arbitrator and a review perfected in accordance with the Workers’ Compensation Act and the rules of the Industrial Commission, the decision of the arbitrator would be entered as the decision of the Industrial Commission. (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f).) Neither party filed for review of arbitrator Dillon’s decision, so the decision of the arbitrator thus became the decision of the Industrial Commission.

On September 14, 1981, respondent, Baskin Clothing Company, alleges it tendered a check for $2,438.36 to claimant, representing what it believed was the amount due on the award; $2,375.01, the amount that had accrued and was still owing at the time of the decision, plus medical expenses of $36 and interest as required by section 19(n) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(n)). The claimant’s attorney refused to accept delivery of this check. On September 22, 1981, the same check was again tendered to the claimant and was again refused by the claimant’s attorney.

On October 16, 1981, claimant filed a complaint in the circuit court seeking a judgment on the Industrial Commission award pursuant to section 19(g) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g)). Claimant alleged in the complaint that she was entitled to $11,130.66, rather than the $2,438.36 the respondent had tendered. The respondent filed an answer to the complaint and a motion for summary judgment. The respondent contended that a clerical error had been made and that the award of the arbitrator was for “8%” weeks, not “85” weeks as the claimant had alleged in her complaint. In support of its contention, the respondent attached a copy of arbitrator Dillon’s handwritten memorandum of decision, a copy of the typed decision filed and adopted by the Industrial Commission, and an affidavit by arbitrator Dillon stating that a typographical error had been made in paragraph 7 of page 1 of the typed decision. In his affidavit, arbitrator Dillon stated that he found that petitioner was entitled to 85h weeks of temporary total disability, not 85 weeks, as indicated in the typed version of the decision. Arbitrator Dillon pointed out that the rest of the decision was consistent with a finding of 8% weeks. In paragraph 2 of page 2 of the decision he had found that petitioner had failed to prove temporary total disability beyond October 3, 1979; therefore petitioner was found to be disabled from August 3, 1979, to October 3, 1979, which was a period of 85Ar weeks, not 85 weeks. Also, in paragraph 7 of page 2 arbitrator Dillon had found that petitioner was entitled to receive $2,375.01, being the amount of compensation that had accrued, plus $36 for necessary medical expenses, less the $919.35 which the respondent had already paid to the claimant. According to our calculations, if the claimant was to receive $113.40 for 85h weeks (that being the award for temporary total disability), and $106.03 for 21sk weeks (that being the award for permanent and complete loss of use of the left arm to the extent of 5% and the right leg to the extent of 5%), she was to receive $988.20 in temporary total disability, and $2,306.16 for her permanent disability, for a total of $3,294.36. If the amount of compensation respondent had paid ($919.35) is subtracted from that total, it leaves $2,375.01, which is the total arbitrator Dillon had found owing in paragraph 7 of page 2.

Claimant filed a motion to strike and dismiss the respondent’s motion for summary judgment on the grounds that the respondent was attempting to contest the original award and that arbitrator Dillon’s affidavit was an attempt to amend the original award beyond the statutory limitation provided in section 19(f) of the Workers’ Compensation Act (111. Rev. Stat. 1979, ch. 48, par. 138.19(f)). Section 19(f) provides:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f).

Respondent filed a reply to the claimant’s motion to strike, reasserting the arguments it made in its motion for summary judgment. The circuit court judge granted the claimant leave to file an answer to the respondent’s motion for summary judgment. In her answer, claimant once again argued that the award was for 85 weeks and not 8% weeks. Her attorney also filed an affidavit, which was attached to the answer, in which he stated that subsequent to the finality of the decision, he had met with respondent’s attorney and the arbitrator and that the arbitrator after looking at the file had said, “*** he [arbitrator Dillon] did not believe he would have awarded Petitioner 85 weeks temporary total disability and suggested that the parties agree to changing the decision which in his opinion did award Petitioner 85 weeks Temporary Total Disability Compensation.” Claimant’s attorney interpreted that statement to mean that the arbitrator thought he had made a mistake, not the typist. Claimant’s attorney further stated in his affidavit that no other meetings were held between the parties and that arbitrator Dillon issued an affidavit without notice or hearing to him, the contents of which resulted from an argument made by respondent’s attorney outside his presence or claimant’s presence.

The circuit court granted respondent’s motion for summary judgment but entered judgment for Dorothy Bums, the claimant, and against Baskin Clothing, the respondent. However, the court, “based on the affidavits and other information contained within the file,” held that the claimant was entitled to 8% weeks of temporary total disability, instead of 85 weeks, and interpreted the decision accordingly. It is from this judgment of the circuit court that the claimant appeals.

Claimant asserts that this court has jurisdiction over this matter pursuant to Supreme Court Rule 302(aX2) (73 Ill. 2d R. 302(aX2)). Rule 302(aX2) provides for appeals from final judgments of the circuit courts directly to this court “in proceedings to review orders of the Industrial Commission.” (Emphasis added.) We do not agree with the claimant that this court has jurisdiction over this matter under Rule 302(aX2). The arbitrator issued his original decision on May 29, 1981. That decision was filed with the Industrial Commission on July 15, 1981. The parties then had 15 days from the receipt of that decision to petition for review to the Commission or it was to become the final decision of the Commission and conclusive of the dispute between the parties. Since no petition for review was ever filed by either party in this case, the decision became final.

The claimant in this case filed a complaint in the circuit court seeking a judgment on the award, not a review. Therefore, the appeal before us is not a proceeding to review an order of the Industrial Commission. Any appeal of the judgment that was entered in the circuit court should have properly been brought in the appellate court, but in order not to further waste judicial resources, we will proceed to the merits.

It is clear that it was necessary for the circuit court to interpret the award in order to render a judgment. Claimant concedes this point. However, since there was obviously an irreconcilable inconsistency within the decision, it was only logical for the court to try to determine what the arbitrator had actually awarded. The circuit court could have determined what the award was by simply looking at the “four comers” of the document itself. The dollar amount of compensation that had accrued at the time of the decision, less the compensation already paid, was only consistent with a finding of 85/y weeks. Also, the arbitrator found that the period of disability was from August 3, 1979, to October 3,1979 — a period of exactly 85/y weeks.

This case represents a waste of judicial resources. It seems incredible that a typographical error could cause such problems. This whole situation could have been avoided if both parties had been more careful in their reading of the decision in its typed form.

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

Judgment affirmed.


author: JUSTICE MORAN

text:
    (No. 57065.
    CECO CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Alejandro Garcia, Appellee).

      Opinion filed March 25, 1983.

      Wiedner & McAuliffe, Ltd., of Chicago (Russell R Standlee, of counsel), for appellant.
    Fritzshall, Fritzshall & Bensinger, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Alejandro Garcia, sought workmen’s compensation for an injury which he sustained while in the employ of respondent, Ceco Corporation. An arbitrator awarded claimant compensation for permanent partial disability to the extent of 20% of the man as a whole. Both parties appealed, and the Commission found claimant to be permanently and totally disabled. The circuit court of Will County confirmed the decision of the Commission, and respondent brings a direct appeal to this court (73 Ill. 2d R. 302(a)).

The sole issue is whether the Commission’s finding of total and permanent disability is contrary to the manifest weight of the evidence.

On November 4, 1977, claimant was employed by respondent as a welder. On that date, claimant fell on a steel bar, injuring his lower back.

The following evidence was produced at the hearing before the arbitrator. Claimant testified, through an interpreter, that he was in good physical condition prior to the accident, but that immediately thereafter he “hurt all over.” On November 10, 1977, he consulted his family physician, Dr. Spurgeon Green. Dr. Green admitted claimant to Silver Cross Hospital, where he received therapy and pain shots. He was discharged on December 16 and given a corset to wear. Claimant stated that, at the time of his discharge, he continued to “hurt all over” and his right side was numb.

Subsequently, he received outpatient treatment at the hospital, and was readmitted in January of 1978. A myelogram was administered, after which claimant underwent a laminectomy. He was discharged in February but continued physical therapy and consulted his doctor every month.

On September 25, 1978, claimant returned to work at Ceco, but his employment was terminated four days later. He stated that his job required him to bend and use a hammer. He experienced numbness and soreness on his right side, and continues to do so. He further stated that he was susceptible to fainting spells.

On cross-examination, claimant indicated that he was hospitalized for two weeks in September of 1977, following an automobile accident. He also stated that, after he was terminated, his union filed a grievance but he was not rehired. On re-direct examination, claimant testified that he had been employed by Ceco for five years prior to the accident. He also indicated that he did not receive a back injury in the car accident.

Dr. Robert Busch, a physician specializing in traumatic surgery, testified on behalf of the claimant. He stated that claimant suffered from a spasm which “radiated into both sides and down the posterior aspect of both thighs with sciatic radiation of spasm bilaterally.” His legs manifested a stiffness, weakness and resistance to motion. There was also an operative scar in the midlumbosacral area which “was thickened, hypersensitive, roughened, indurated and raised.” In his opinion, claimant suffered from a permanent herniated disc condition and would be in need of further treatment, including possible surgery. Dr. Busch concluded that claimant would be unable to perform heavy work involving bending, turning, lifting, or twisting. He stated that he may be able to do light work on a part-time basis.

On cross-examination, the witness testified that claimant could work as a welder if the job involved no bending, lifting, turning or twisting. However, he stated that he would be unable to work an eight-hour day at any job.

Respondent introduced into evidence two reports prepared by Dr. James Dupre, a neurosurgeon. The reports essentially indicated that claimant was recovering “well” following surgery, and that his operative scar was “well healed.” Other than a defect in the L-4/L-5 portion of the back, he noted no significant abnormalities.

Respondent also introduced into evidence a report indicating that claimant was denied unemployment compensation because he was discharged from Ceco on the grounds of misconduct. Other evidence revealed that the reason given for his discharge was poor work performance.

Both parties introduced additional evidence at the hearing before the Commission. Dr. Archibald McCoy, a neurological surgeon, testified on behalf of the respondent. He stated that, in January of 1978, he performed a laminectomy upon claimant, which involved the removal of a herniated invertebral disc in the lumbar region at L-4/L-5. On September 21, 1978, Dr. McCoy wrote a note for claimant indicating that he was under his care and could return to light-duty work.

This witness examined claimant again in July of 1979. This examination revealed that claimant had a diminished sensation to pinpricks over the entire right side of his body. There was no evidence of muscular atrophy, or neurological impairment, other than an increased hypalgesia in the right leg. At that time, the witness did not believe that further hospitalization was required.

Dr. McCoy opined that claimant was capable of light work but could not perform tasks involving heavy lifting, bending, straining or twisting. He felt that claimant could be safely employed as a welder, as long as no bending or twisting was required.

On cross-examination, he stated that he administered to claimant an electromyelogram (EMC) approximately six months after the surgery. A physician who interpreted the results of the EMG found irritation at the L-5 level and an irregularity at the L-4 and S-l dermatome. In his own report, Dr. McCoy had written that the ligamentum at the L-4/L-5 level was significantly thickened for an individual of claimant’s age. The witness stated that this condition could result in an added strain on the back at this level.

During re-direct examination, Dr. McCoy stated that claimant’s condition was difficult to evaluate because he either exaggerated his pain, had a low threshold for pain, or suffered an anxiety reaction. He admitted, however, that “[t]his is all conjecture.” He believed there was an anxiety factor which could be related to the “legal aspects” of his claim. The witness saw no evidence of arthritic changes but did not review any X rays which could suggest such changes.

On re-cross-examination, the witness was asked if claimant’s lack of funds to purchase necessary pain medication could produce an anxiety reaction. He responded that it could but further stated that he felt claimant tended to overreact. He no longer believed claimant exaggerated, however, as he did prior to the operation.

Miles Levin, a vocational consultant employed by Crawford Rehabilitation Service, also testified for respondent. He stated that he interviewed claimant, concerning vocational possibilities, pursuant to an order from the Industrial Commission. He felt that claimant was a good candidate for specialized job placement, and that a welding job would be suitable.

Levin further testified that he has attempted to locate a position for claimant, and will continue to do so. However, employment opportunities in the Joliet area were decreasing. He did not believe placing claimant in a retraining program was appropriate because of his limited ability to converse in English.

Dr. E. Thomas Marquardt, an orthopedic surgeon who testified for respondent, stated that claimant was inappropriately treated. He believed that a neurosurgeon should have been consulted earlier. He also stated, contrary to claimant’s doctor, that a person who has numbness in the anterior portion of the thigh could not have sciatica. On cross-examination, the witness conceded that he never examined claimant.

Dr. Spurgeon Green, the family physician, again testified on claimant’s behalf. He stated that claimant suffered from acute sciatica and atrophy, with accompanying weakness and hypalgesia, of the right leg. His condition has deteriorated over time, and there are indications of nerve damage in his legs. Claimant was admitted to a hospital in August of 1979, and was diagnosed as having acute sciatica with right quadricep atrophy and a prolapse disc. He defined a “prolapse disc” as a disc between the vertebrae which protrudes abnormally and compresses nerve roots. In his opinion, claimant’s present condition of ill-being is permanent.

On cross-examination, the witness stated that he was not Board certified as an internist or a “family” practitioner. He also stated that claimant was permanently disabled, and would eventually become crippled.

Dr. Robert Busch again testified on claimant’s behalf, and essentially concurred with Dr. Green’s diagnosis. In response to a hypothetical question, he stated that “this patient could not do [welding work] or any work for that matter.”

Claimant testified concerning his persistant pain, numbness, and frequent hospitalizations. On cross-examination, he stated that he has attempted to find another job, but is continually rejected because of his back injury. His last interview was with Caterpillar Tractor Company.

Respondent then called as a witness Jo Staehely, the personnel assistant for Caterpillar Tractor Company. She testified that claimant prepared an employment application form in October of 1978, and she interviewed him the following month. Although he was not hired, claimant was never given a medical exam and was not rejected on the basis of his health.

Two other witnesses testified for respondent and described the welding operation at the company. The essence of their testimony was that welding required little or no bending and could be performed in a standing or sitting position.

Respondent contends that claimant is not totally and permanently disabled because he is capable of obtaining gainful employment without endangering his health or life. It is argued that, since claimant is not obviously unemployable, the burden was upon him to prove the unavailability of suitable employment. Respondent alleges that claimant failed to produce any evidence of diligent attempts to find work.

Claimant argues that there was clear and convincing medical evidence to support a claim of total disability. Alternatively, he contends that even if his disability is limited so that he is not obviously unemployable, he sufficiently established the unavailability of regular employment. It is therefore argued that the burden was upon respondent to prove the availability of suitable employment, and that this burden was not met here.

This court has frequently held that an employee is totally and permanently disabled when he “is unable to make some contribution to the work force sufficient to justify the payment of wages.” (E.g., Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 268; Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11, 15.) The claimant need not, however, be reduced to total physical incapacity before a permanent total disability award may be granted. (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 176; Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275.) Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable market. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 487.) Conversely, an employee is not entitled to total and permanent disability compensation if he is qualified for and capable of obtaining gainful employment without serious risk to his health or life. (E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362.) In determining a claimant’s employment potential, his age, training, education, and experiences should be taken into account. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 489; E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362.

In considering the propriety of a permanent and total disability award, this court recently stated:

“Under A.M.T.C., if the claimant's disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10— 164.97 (1980)).” (Emphasis added.) Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 546-47; Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 177.

In the instant case, there was sufficient evidence to support a claim for total disability. Claimant testified at length as to his persistent pain, numbness and frequent hospitalizations. Two medical experts agreed that he is permanently disabled. As previously noted, Dr. Busch testified, before the Commission, that an individual in circumstances similar to claimant would be unable to perform “any work,” and may require further surgery. Although respondent’s medical experts rendered contrary opinions, the resolution of conflicting medical testimony is a question of fact for the Commission. Its determination will be upheld unless contrary to the manifest weight of the evidence. E.g., Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99.

Further evidence revealed that claimant is approximately 32 years of age, received a ninth-grade education in Mexico and converses primarily in Spanish. He was employed as a welder for five years prior to the injury, and a witness for respondent testified that retraining was inappropriate.

Because claimant met his initial burden of proof concerning his disability, it was respondent’s duty to prove that suitable employment was reasonably available. This burden was not met here. The most that can be said is that respondent’s evidence indicated claimant was capable of performing his prior job as a welder or other tasks involving “light duty.” However, the availability of such employment was insufficiently established. (See Niles Police Department v. Industrial Com. (1981), 83 Ill. 2d 528, 535 (an employer must prove that there are jobs the claimant can perform and that such jobs are reasonably available); E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 364.) Respondent’s own witness testified that he has been unable to secure employment for claimant, and that employment opportunities have decreased in the Joliet area.

From an evaluation of the evidence and the medical testimony, the Commission could have concluded that claimant is unable to secure permanent employment. This decision will not be set aside merely because this court may draw different inferences from the record. Keystone Steel & Wire Co. v. Industrial Com. (1981), 85 Ill. 2d 178, 185; Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159,164.

Inasmuch as the finding of total and permanent disability was not contrary to the manifest weight of the evidence, the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.


text:
    (No. 57108.
    ANTONINA DIACZENKO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lincoln Manufacturing Company, Appellee).

      Opinion filed March 25, 1983.

      W. Joseph Hetherington, of Lewis & Davidson, Ltd., of Chicago, for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (John P. McAuliffe and Richard J. Leamy, Jr., of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On June 30, 1975, the petitioner, Antonina Diaczenko, a 60-year-old woman who had been employed by the respondent, Lincoln Manufacturing Company, for 20 years, was working as a drill press operator when her hair was caught in the drill. Petitioner filed a claim with the Industrial Commission for the injuries she sustained in that incident. Hearings were held before an arbitrator of the Industrial Commission on December 18, 1979, and May 6, 1980. Petitioner contended that as a result of her accident on June 30, 1975, she was temporarily totally disabled from June 30, 1975, until September 8, 1975, a period of 10 weeks. She also contended that as a further result of her accident she became permanently and totally disabled as of February 17, 1976, and was entitled to compensation for medical bills in the amount of $1,638.40 which had not been paid by the respondent.

On June 9, 1980, the arbitrator filed his decision awarding petitioner 10 weeks of temporary total compensation at $100.90 per week. He also awarded 231/2 weeks of compensation at $80.90 per week for 5% loss of use of each arm. The arbitrator did not award compensation for the unpaid medical expenses.

Petitioner filed a petition for review of the arbitrator’s decision. The Industrial Commission affirmed the arbitrator’s decision on July 22, 1981, finding that petitioner’s permanent disability, if any, in excess of 5% loss of the use of each arm was not a result of the accident on June 30,1975.

Petitioner also sought review of the Industrial Commission’s decision in the circuit court of Cook County. On June 28, 1982, the circuit court confirmed the decision of the Industrial Commission. It is from this judgment that the petitioner appeals.

The sole issue that is before this court is whether the Industrial Commission’s finding that petitioner’s accident did not cause a permanent disability in excess of 5% loss of the use of each arm is contrary to the manifest weight of the evidence. We hold that it is not.

It is not disputed that petitioner was injured on June 30, 1975, when her hair was caught in the drill press she was operating. What is in dispute is the extent of her injuries. After the accident petitioner remained off work until September 8, 1975. During that time she was treated by her physician Dr. Walter Brodech. Dr. Brodech treated the petitioner with analgesics, muscle relaxants, a cervical collar, and moist warm compresses to the back of the neck. The petitioner complained to Dr. Brodech about dizziness and syncopal episodes or blackouts during this period.

On September 3, 1975, Dr. Brodech signed a release for petitioner to return to work. At that time, Dr. Brodech described the petitioner as “asymptomatic,” without symptoms. Petitioner returned to her regular job as a drill press operator on September 8, 1975, working eight hours a day during the week and periodically five hours’ overtime on Saturdays. Dr. Brodech saw the petitioner on September 13, 1975, but the record does not indicate for what reason. He also saw her on September 30, 1975, for a cold. On October 30, 1975, petitioner also saw Dr. Brodech with complaints of pain in the back of her head and neck.

The next time Dr. Brodech saw the petitioner was February 17, 1976. On that date Dr. Brodech prescribed blood pressure medication. The petitioner was complaining of a fainting episode. Petitioner testified at the hearing before the arbitrator that she had suffered other such fainting episodes from September of 1975 until February of 1976. However, there was no note in Dr. Brodech’s records of such an episode and no one testified to having witnessed the petitioner suffering such an episode.

On February 18, 1976, petitioner was admitted to Illinois Masonic Hospital by Dr. Brodech. After various tests and examinations, petitioner was found to have a cerebral vascular insufficiency. Dr. Brodech testified on petitioner’s behalf at the hearing before the arbitrator. Dr. Oscar Sugar, a consulting physician at Illinois Masonic Hospital, also testified in her behalf on review. Respondent did not offer any new evidence on review.

Dr. Brodech was of the opinion that the petition’s vascular insufficiency was causally related to the incident of June 30,1975.

Dr. Sugar also testified that “there might or could be a causal connection between her condition of ill-being and the accident.”

Dr. William Brice Buckingham, the respondent’s expert, however, was of the opposite opinion. He was of the opinion that the incident of June 30, 1975, did not cause the petitioner’s vascular insufficiency. Dr. Buckingham stated, “The episode on the previous June of the previous year in my opinion could not be a precipitating, aggravating or contributing factor to the development of the symptomatology in February of the following year.”

This court has consistently held that where medical evidence is conflicting as to causation, it is within the purview of the Industrial Commission to determine which testimony is to be accepted. (E.g., County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 241.) Even if this court might have drawn different inferences from the evidence, an Industrial Commission finding will not be set aside unless it is contrary to the manifest weight of the evidence. White v. Industrial Com. (1982), 88 Ill. 2d 523, 526; Pazara v. Industrial Com. (1980), 81 Ill. 2d 76, 80.

The Commission could have reasonably inferred that the petitioner’s present condition was not caused by the incident on June 30,1975.

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

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 56772.
    VIRGIL HAGGARD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Butternut, Appellee).

      Opinion filed March 25, 1983.

      Warren E. Danz, P.C., of Peoria (Richard G. Leiser, of counsel), for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Rex K. Linder and John Lesaganich, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Virgil Haggard, suffered accidental injuries arising out of and in the course of his employment by respondent, Butternut, and awarded him temporary total disability benefits of $213.33 per week for 104/v weeks. The arbitrator, pursuant to section 19(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)), found that the disabling condition was temporary and had not reached a permanent condition. The arbitrator also awarded $1,867.60 in penalties under sections 19(k) and 19(Z) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), (()). On review, the Industrial Commission set aside the award of temporary total disability benefits and penalties, and remanded the cause to the arbitrator for further proceedings. On certiorari, the circuit court of Peoria County confirmed the Commission’s decision. Petitioner appealed. 87 Ill. 2d R 302(a).

Petitioner was employed as a sanitation worker. On July 4, 1980, while pulling an 850-pound cart, he felt a rip or tear in his back. On July 7, 1980, petitioner consulted Dr. Dickerson, a chiropractor, who released him for light duty. Petitioner’s supervisor would not permit him to work under that restriction, and the next day Dr. Dickerson released him for regular duty. Petitioner performed his regular duties until July 31,1980.

Because of petitioner’s complaints of pain, at respondent’s request petitioner, on August 1, 1980, was examined by Dr. Van Cura, who found him able to work. On August 13, 1980, petitioner consulted a neurosurgeon, Dr. Holden, who found him unable to work.

Following the arbitration hearing on September 19, 1980, at the request of respondent, petitioner was examined by Dr. Adams, a specialist in rehabilitative medicine. His deposition was read in evidence in the hearing on review. Dr. Adams concluded that petitioner’s back was normal and that he was able to work. On review, Dr. Richard A. Flores, to whom petitioner had been referred by Dr. Holden, testified by deposition that petitioner was unable to work. The order of the Industrial Commission on review included the following findings of fact and conclusions of law:

“1. Petitioner was a 24 year old sanitation worker. He was injured on July 4, 1980 while attempting to stop a loaded cart which was rolling away from him.
2. Based on the evidence from Petitioner’s doctor, Dr. Dickerson and Respondent’s doctor, Dr. Van Cura, Petitioner was not totally disabled from work as a result of his accident of July 4, 1980, but was able to do light work on July 7, 1980, and regular work on July 8, 1980.
3. There is no evidence to indicate that the symptoms of upper left flank pain, specifically found by Dr. Holden in August 1980 were causally related to the accident of July 4, 1980.
Based on the above, the Commission finds that the Petitioner failed to prove he was temporarily totally disabled as a result of the accident of July 4, 1980 or entitled to additional compensation under §§19(k) and 19(1) and remands this case to the arbitrator for further proceedings pursuant to Thomas v. Industrial Commission, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).”

Petitioner contends that the second and third findings of the Commission were against the manifest weight of the evidence. In regard to the second finding, petitioner contends that Dr. Dickerson rescinded his original finding that petitioner was able to work on July 8, 1980, and that it was contradicted by Dr. Holden’s testimony. In regard to the third finding, petitioner argues that the testimony of Dr. Holden, a neurosurgeon, established a causal connection.

Citing Quick v. Industrial Com. (1972), 53 Ill. 2d 46, petitioner contends the arbitrator’s award should be reinstated. In Quick, the Commission allowed the employee compensation for temporary total disability for the period of time during which he was hospitalized for surgery due to a work-related accident but denied the arbitrator’s award of medical expenses for the surgery. The circuit court found this result to be inconsistent and against the manifest weight of the evidence, and this court affirmed. Here, the findings of the Commission are not inconsistent, and Quick is, therefore, distinguishable.

This court has held repeatedly that the decision of the Industrial Commission will not be disturbed unless it is against the manifest weight of the evidence. On this record, we are unable to say that the decision of the Industrial Commission is against the manifest weight of the evidence, and the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    (No. 56378.
    INTERCRAFT INDUSTRIES CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Casimer Pecyna, Appellee).

      Opinion filed March 25, 1983.

    Kane, Doy & Harrington, Ltd., of Chicago (Arthur 0. Kane, of counsel), for appellant.
    Casimer Pecyna, of Chicago, pro se.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on February 16, 1978, petitioner, Casimer Pecyna, sustained accidental injuries arising out of and in the course of his employment by respondent, Intercraft Industries Corporation. The arbitrator awarded petitioner worker’s compensation for 56% weeks’ temporary total disability and, finding further that petitioner had sustained physical impairment of the body to the extent of 16% thereof, awarded him compensation for a further period of 80 weeks. On review, the Industrial Commission modified the arbitrator’s decision and found that as a result of the accident of February 16, 1978, petitioner was permanently and totally disabled from work under section 8(f) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)). The circuit court of Cook County confirmed the decision of the Industrial Commission and respondent appealed (87 Ill. 2d R. 302(a)).

Petitioner testified that on February 16, 1978, it rained and water had frozen on the pavement of the inside dock where respondent’s trailers were parked. While hooking up his trailer, petitioner slipped on the ice and landed on his buttocks. Petitioner did not feel any pain at that time, but the next morning when he awoke he felt stiffness in his left shoulder, his left wrist, and his buttocks. Petitioner was sent to Corbett Clinic and was told not to return to work. After three weeks he returned to work. He performed his regular duties, but his left leg became progressively more numb, so at the end of the day he could hardly walk. Petitioner continued working until June 16, 1978. That day, when he awoke his left leg and buttock around the hip were numb. He felt pain in his back, buttocks and left leg. He lay on the floor until about 2 o’clock, when his wife called Dr. Maxwell Corbett, who suggested that petitioner be taken to Gottlieb Hospital. Petitioner testified that he was hospitalized for 26 days. At respondent’s insurer’s request, petitioner submitted to an examination by Dr. William Kane, who advised petitioner to return to work. Petitioner returned to work on April 26, 1979. He performed his regular duties for four hours, but was sent back to Dr. Corbett’s clinic. Dr. Corbett suggested that petitioner return to the hospital, and he was hospitalized for nine days. He returned to work for five days in September, but could not perform his duties. He was again sent to Dr. Corbett’s office. There, Dr. Henry Acuna examined him, recommended that he not return to work, and suggested that petitioner be referred to another doctor by the insurance company. Petitioner was referred to Dr. Marshall Matz, who could find nothing wrong with him and recommended that he return to work. Petitioner returned to work but worked only one or two days per week for approximately four months. Petitioner stated that his last day of work was February 27,1980.

Various medical reports and records were admitted into evidence. As noted above, respondent’s insurance carrier’s doctors could find nothing objectively wrong with petitioner. Dr. Audley Loughran, who examined petitioner at respondent’s request, diagnosed petitioner as having a grade 2 spondylolisthesis, but found no definite evidence of ruptured disc or nerve root entrapment and recommended that petitioner continue working. Dr. Irwin Barnett diagnosed petitioner as having experienced a low back injury with bilateral sciatic nerve root irritation. The doctor noted that petitioner’s spondylolisthesis would make his back quite susceptible to injury. Dr. Barnett concluded that petitioner had a major loss of use of the left lower extremity, and a minor loss of use of the right lower extremity. On a form apparently sent to the Corbett Clinic by respondent, Dr. Falk indicated that petitioner was capable only of performing “sedentary” work, which on that form was defined as being able to occasionally lift or carry small objects of less than 10 pounds, being able to stand or walk with occasional adequate rest periods, and with adequate rest periods being able to sit for six hours. The form indicated that petitioner could not bend, stoop or operate foot controls, but could occasionally climb.

Respondent contends that an individual who voluntarily removes himself from the employment market and is found by all physicians who examined him to be capable of at least sedentary work is not entitled to an award for permanent total disability. Respondent cites petitioner’s acceptance of retirement benefits from the Teamsters Pension Fund and the lack of evidence in the record that petitioner had sought other work to support its contention that petitioner simply decided to retire at age 60 and that his failure to be employed did not result from his inability to work.

The record shows that each time petitioner attempted to return to work it was as the driver of a semi-tractor-trailer. Petitioner testified that because of the pain in his lower back and left leg, and because his leg became numb after working for any length of time he could not perform his duties as a truck driver. Citing Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, and A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, respondent argues that petitioner has not proved that he was totally disabled because he has not demonstrated the unavailability of a reasonably stable labor market for a person with his disability. We agree. In Valley Mould & Iron Co., this court held that a claimant has the burden to prove that no employment is available for a person with his disability unless he is obviously unemployable, or unless there is medical evidence to support a claim of total disability. (84 Ill. 2d 538, 545-47.) Here, all the medical opinions adduced at the hearing on arbitration and the hearing on review were in agreement at least to the extent that petitioner was capable of sedentary work. Petitioner did not introduce evidence concerning his education or skills, and did not suggest that he fell into an “odd lot’’ category. (See Valley Mould & Iron Co. and Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168.) Thus, in our opinion he did not meet his burden of proving he was totally disabled.

In holding that petitioner was permanently and totally disabled the Commission cited Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273. Sterling Steel is distinguishable in that the claimant went to his employer and asked for light work. On the recommendation of the employer’s physician he obtained a back brace but the physician did not release him for work. Further, the extent of his physical capability was much less than that of petitioner.

For the reasons stated the judgment is reversed and the cause is remanded to the Industrial Commission for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    (No. 56779.
    DAN PETERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Royal Packing Company, Appellee).

      Opinion filed March 25, 1983.

      Jack Randall, of St. Louis, Missouri, for appellant.
    William L. Rogers, of Keefe & De Pauli, P.C., of Fair-view Heights, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

On April 26, 1976, petitioner, Dan Peters, was employed by respondent, Royal Packing Company. On this date, petitioner was handling a portion of meat when it came off a hook, causing a bone in the meat to lacerate his right leg above the knee. The arbitrator found petitioner sustained permanent and serious disfigurement and awarded three weeks of compensation. The Industrial Commission reversed, finding no evidence of permanent disability and that petitioner failed to prove he sustained “any serious and permanent disfigurement.” The circuit court of St. Clair County confirmed the Commission’s decision. Petitioner brings this appeal pursuant to Supreme Court Rule 302(a) (87 Ill. 2d R. 302(a)).

The issue on review is whether the decision of the Industrial Commission is against the manifest weight of the evidence.

Disfigurement to the leg above the knee is not compensable. Section 8(c) of the Workmen’s Compensation Act states:

“For any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee ***, the employee is entitled to compensation for such disfigurement ***.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 138.8(c).

A review of the record indicates the only injury suffered by claimant was a one centimeter scar above the knee. At the time of the injury, petitioner was taken to Sutter Clinic. An X ray showed no foreign body. Two sutures were taken and steristrips were applied. The next day he returned to the clinic and the wound was redressed. On May 5, 1976, the sutures were removed and petitioner was discharged. A medical report from Dr. Vernon Balster of Sutter Clinic stated the wound was healed, there was no disability and “only the skin was involved.”

Petitioner’s examining physician, Dr. Ralph J. Graff, stated in his report that his examination revealed a well-healed one-centimeter scar. Although petitioner complained of a clicking in the knee with flexion and extension, Dr. Graff found “motion at the knee to be normal.”

We hold the Commission’s finding was not against the manifest weight of the evidence. Therefore, the judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 56455.
    PORTEC, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Gary D. Wheat, Appellee).

      Opinion filed March 25, 1983.

      Michael J. Kehart and Albert W. Webber, of Welsh, Kehart, Shatter & Hughes, P.C., of Decatur, for appellant.
    Robert J. Allison, of Bennett, Willoughby & Latshaw, P.C., of Decatur, for appellee.
   JUSTICE SIMON

delivered, the opinion of the court:

This is an appeal by Portee, Inc., of a decision of the circuit court of Macon County confirming an award of temporary total disability payments, medical expenses and rehabilitation in favor of Gary Wheat, one of its employees. At issue are the adequacy and timeliness of the notice given of the alleged accident, the extent and causation of the total disability, and the propriety of an award of medical expenses for treatment by a chiropractor which proved unsuccessful.

Portee, Inc., is engaged in the cleaning and repairing of railroad cars. On March 31, 1978, Wheat was standing inside a trailer car helping to guide U/a-ton steel doors into place from a crane when, according to his testimony, the wind caught a door he was holding, lifting him up and throwing him onto the floor of the car. He testified that he felt pain immediately and told a coworker, "This is hurting,” and that although he did not indicate to the co-worker where the pain was he experienced difficulty climbing down from the trailer. He mentioned the accident to his foreman, stating that he had hurt his left side; the foreman advised him to see a doctor if it felt bad enough. Wheat then went home, as it was the end of his shift. While undressing to take a bath, he noticed blood running down the back of his legs. He called Dr. S. K. Velu, his family doctor, made an appointment for the next day, and informed Portee’s personnel clerk that he would be going to the doctor the next morning. Wheat told the clerk that he had been thrown to the floor of a boxcar by a door he was setting in place and that he was bleeding. According to the clerk’s testimony, he told her the next day that he had hurt his back.

On April 1, 1978, Wheat visited Dr. Velu and told him what had happened at work. Dr. Velu gave him some gauze and referred him to Dr. William Requarth for hemorrhoid surgery, which was performed on April 25, 1978. Dr. Velu treated him for low back strain and sciatica in May and June 1978. Wheat did not return to work from the time of the accident until July 1978. During this time Wheat was given slips of paper by his doctors explaining why he was off work. Wheat delivered the slips to Portee’s personnel clerk.

When Wheat returned to work he began feeling pain in his left side that went down his leg and into his toes. He testified that this was the same pain he had felt before undergoing the hemorrhoid operation, and that it seemed to get worse the longer he stayed at work. Again he notified his foreman and a co-employee of the pain and went home. He tried to go to work the next day but the pain continued. Wheat again told his foreman he was in pain and was directed to report it to Randy Major, Portee’s manager of employee relations. Wheat told Major that he could not stand squarely on his left foot and had to see a doctor. Major told him to see the plant superintendent, according to Wheat’s testimony, and the superintendent in turn told him to tell Portee’s manager of repair services, which he did.

Wheat visited Dr. Velu that day and was sent to Dr. Leonard Strichman, an orthopedic physician. Dr. Strichman administered flexion and leg-raising tests and noted the persistence of sciatic pain and “questionably good flexion and extension, abduction and adduction of both thighs *** and perhaps some decrease of dorsiflexion and eversion of his left foot” in a report dated August 17, 1978. He suggested that the cause of the pain would probably prove to be a herniated disc at L-4, L-5 or S-l, but the myelogram he ordered revealed no herniation. Dr. Harry Bremer, to whom Dr. Strichman referred Wheat, saw him in October 1978 and was unable to determine the cause of the pain. Wheat was off work during this period and was periodically given written explanations of his absence by his doctors, which he transmitted to Randy Major.

In February 1979, receiving no relief from his pain or insight into its cause, Wheat visited Dr. Harold Allen, a chiropractor. On Dr. Allen’s advice, Wheat did not go to work during this period of treatment. Dr. Allen’s therapy seemed to relieve the pain at first, but it proved unavailing over time and Dr. Allen recommended that Wheat seek treatment at the Veterans’ Administration Hospital in Indianapolis. Wheat made several trips there, and in November 1979 Dr. Joseph Serletti performed a second myelogram, which revealed a defect at L-5, S-l. Dr. Serletti hypothesized that this was due to a herniated disc and ordered a laminectomy, which was performed on November 15, 1979. No disc irregularities were found, but the laminectomy did reveal an abnormal thickening of the ligamentum flavum, a tissue surrounding the spinal nerve roots, a piece of which was removed. Complications developed as a result of this operation which required Wheat to return to the hospital for further surgery, and he was not discharged until April 1, 1980. After that he visited the hospital as an outpatient twice through August 1980 complaining of pain in his left hip and thigh. Dr. Serletti found nothing clinically wrong with Wheat but recommended an anti-inflammation drug. Wheat continued to have pain and returned several times to see Dr. Serletti through March 24, 1981, the date of the review hearing before the Industrial Commission. As of that date, Wheat had not returned to work.

On October 16, 1980, an arbitrator for the Industrial Commission found that Wheat had suffered a work-related injury on March 31, 1978, and had given timely notice thereof, and entered an award of 1076/? weeks’ temporary total disability benefits. The Industrial Commission modified the award to reflect temporary total disability from March 31, 1978, through May 19, 1981, and to further include medical expenses and rehabilitation benefits. The circuit court of Macon County confirmed the award, and this appeal followed.

Portee first disputes the Industrial Commission’s finding that notice of the alleged accident was adequately given in 1978. It argues that the personnel clerk with whom Wheat communicated on the day of the accident was not the person in charge of handling workmen’s compensation claims, and that by the time Wheat got in touch with the proper person, Randy Major, the statutory 45-day period for giving notice of accidents (Ill. Rev. Stat. 1977, ch. 48, par. 138.6(c)) had expired. Portee also argues that even if the personnel clerk were the proper person to whom accident claims were to be reported, Wheat informed her only that he had hemorrhoids and said nothing to her about the back or leg pain on which his claim depended.

We believe the notice given by Wheat was neither untimely nor inadequate. The personnel clerk testified that at the time of the accident she was temporarily in charge of processing all insurance claims, including group insurance policy claims for workmen’s compensation benefits, that she reported to Portee’s comptroller, and that Randy Major was not her supervisor but was in a different department. Major testified that he was in charge of receiving notice of accidents, the personnel clerk having been fired sometime in 1978. However, Major admitted on cross-examination that the personnel clerk to whom Wheat communicated the accident was handling accident claims at the time Wheat reported his accident to her. From this testimony it was possible to infer that the personnel clerk was a company employee to whom accidents could be reported at the time of Wheat’s accident, even though that may not have been true in July 1978 when Wheat attempted to return to work and dealt with Major for the first time. Factual determinations of the Industrial Commission are not to be set aside unless contrary to the manifest weight of the evidence (Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11), and we will not upset this finding on the record before us.

Portee argues that even if the personnel clerk were a proper person to whom accidents could be reported, the notice Wheat gave her was deficient because it failed to mention back pain. This is contradicted by the record. The clerk testified that Wheat told her on the day after the accident that he had hurt his back, a position which she maintained even on cross-examination. No contrary testimony appears in the record. It is true that Wheat also told the clerk that he was bleeding down his leg, a symptom which was presumably attributable to his hemorrhoids rather than to his back disorder, and that the accident report filled out by Dr. Requarth on June 29, 1978, mentioned no disorder other than hemorrhoids. However, the accident report reveals that Wheat consulted Dr. Requarth only at the suggestion of Dr. Velu, and that Dr. Requarth’s treatment consisted only of a hemorrhoidectomy. Dr. Velu sent Portee a letter on June 20, 1978, certifying that Wheat was under his care for low back pain and sciatica. The evidence supports the inference that Wheat was suffering from two simultaneous disorders, one of which involved back pain, and that Wheat was treated separately for them and communicated news of both to the personnel clerk soon after the accident occurred. We conclude that notice sufficient to inform Portee of the nature of Wheat’s claim was given in timely fashion (Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 41), and that the claim for benefits based on back pain was properly before the Industrial Commission.

Portee maintains that the Industrial Commission erred in finding that Wheat suffered a work-related injury on March 31, 1978. This argument is based alternatively on Portee’s contention that there is no indication that Wheat complained of back pain until long after March 31, and on the absence of evidence either linking the thickening of the ligamentum flavum to the accident or demonstrating some other medical explanation for the back pain.

We have already considered the first of these contentions and concluded that it lacks merit. As to the second, we observe that in a deposition taken on August 27, 1980, Dr. Serletti responded in answer to a hypothetical question that Wheat’s 1978 accident was “a serious injury and of significant magnitude to his back.” He also stated that the complications that developed after the initial surgery he performed on Wheat were attributable to the initial injury because the back pain which he believed was caused by that injury in turn prompted the myelogram which led to his decision to operate. The relationship between an incident at work and a subsequent condition of ill-being is a question of fact, to be resolved by the Industrial Commission on the basis of evidence in the record and inferences reasonably derivable therefrom. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245.) We believe that Dr. Serletti’s testimony, alone or in conjunction with the apparent absence of back or leg pain prior to March 1978 (see Lambert v. Industrial Com. (1980), 79 Ill. 2d 243, 248; A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245) and the fact that the myelogram of November 1979 revealed a defect, would be sufficient to sustain a determination that the incident on March 31 caused the pain, even without affirmative testimony that the pain had a specific medical cause induced by the incident. See Town of Cicero v. Industrial Com. (1949), 404 Ill. 487, 497 (upholding a finding that a death was caused by a heart attack where the surrounding circumstances could have supported such an inference).

Portee points out that the hypothetical on which Dr. Serletti based his testimony was inaccurate in certain respects and therefore urges us to disregard his testimony as to causation. Specifically, Portee claims that Dr. Serletti relied on a statement by Wheat’s attorney that Wheat “was thrown from a boxcar,” while in fact he was merely blown to the floor in a boxcar. We do not view this objection as a valid one. Dr. Serletti went on to testify:

“A. Yes, I have an opinion.
Q [by Wheat’s attorney]. What is that opinion, sir?
A. It is my opinion that, and I state it with a reasonable degree of medical certainty, that if the history as you present it to me is accurate and valid as in regards to his boxcar injury, then all of his treatment in the V.A. facility, both as an out-patient and in-patient is directly, causally related to that injury.
Q. You’re referring of course to the history that you have already testified to that is contained in the hospital record that you’ve referred to here today?
A. Correct. ” (Emphasis added.)

The history “contained in the hospital record” includes several reports which state that Wheat’s troubles began when he was blown “into” a boxcar. Dr. Serletti himself stated at the beginning of the deposition that a discharge summary dated November 1979 mentioned that “a strong wind blew [Wheat] in a boxcar.” The suggestion that Wheat was thrown “from” a boxcar appears at only one point in the deposition and nowhere in the hospital records. In light of Dr. Serletti’s clear assertion that he was relying on those records, which Portee does not allege contain other inaccuracies, we do not believe the Industrial Commission could have been misled by his testimony.

Portee next argues that Wheat failed to prove that he was unable to work for the 1634/? weeks covered by the total disability award, but demonstrated at most that he did not work during that time. It asks us to reverse the award for at least some of that period, on the authority of Ar-buckle v. Industrial Com. (1965), 32 Ill. 2d 581. In Ar-buckle, as in Lehigh Stone Co. v. Industrial Com. (1925), 315 Ill. 431, part of a total disability award was reversed in light of clear testimony that the claimant chose of her own will to remain off work for part of the alleged disability period. The facts of the instant case do not compare, however, with those of Arbuckle or Lehigh Stone. There was no testimony by Wheat or by any eyewitnesses that he was able to work or did anything inconsistent with an inability to work at any time following the accident. The medical evidence relied on by Portee as demonstrating that Wheat was capable of working, two letters by Dr. Bremer dated November 1978 and August 1979, state merely that the patient’s symptoms had subsided somewhat over time and that no neurologic disorder could be found. They noted that Wheat limped on his left leg, prescribed medication for muscle spasms, and recommended further exploratory treatment such as an EMG examination. These letters say nothing about Wheat’s ability to work; if anything, they evidence a belief that Wheat had some ongoing ailment which would eventually be diagnosed. The record also contains a work slip signed by Dr. Strichman, dated July 27, 1978, and taken from Portee’s files, ordering Wheat to remain off work for the month of August 1978; similar orders signed by Dr. Mark O’Meara of the Veterans’ Administration Hospital in August and October 1979; several more off-work orders, covering several months each, signed by doctors at the hospital following the surgery of November 15, 1979; and a deposition in which Dr. Allen testified that he kept Wheat from working from February 23, 1979 until sometime in June of that year. Wheat continued to complain of pain after his discharge from the hospital in 1980, and Dr. Serletti testified in a deposition on May 6, 1981, that he would be unable to perform industrial or manual labor “for the present and the future.” There is ample evidence from which the Industrial Commission could infer that Wheat’s injury disabled him from work for the entire period following his accident, rather than for just those weeks or months represented by work slips. We will not reverse an award based on permissible inferences merely because other inferences would also have been permissible (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19), and we affirm this award accordingly.

Portec’s final complaint concerns the award of medical expenses. It contends alternatively that it should be immune from all liability for such expenses because Wheat’s back and leg problems were not shown to have resulted from an accident at work, and that Dr. Allen’s bill was not a proper item of medical expense under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)) because he was a chiropractor rather than a medical doctor and his treatment did not help Wheat. We have already dealt with the former contention at length, and we find no merit in the latter. Nothing in section 8(a) of the Workers’ Compensation Act limits compensability to treatment which is successful or which is rendered by a medical doctor rather than a chiropractor. The Act requires only that where there is no agreement between employer and employee concerning physicians available to employees, “[when] as a result of [an] injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required” (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)). In this case Portee did not attempt to limit Wheat’s choice of physicians to medical doctors; Wheat saw Dr. Allen only after conventional medical treatment failed to relieve his pain, and Wheat testified that Dr. Allen’s treatment did relieve his pain somewhat at first although not over the long run. There is no basis for us to dispute the Industrial Commission’s determination that Wheat considered Dr. Allen’s therapy reasonably necessary when he consulted him.

Accordingly, the judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.


text:
    (No. 56276.
    RODNEY STEVEN RILEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clay Equipment Corporation, Appellee).

      Opinion filed March 25, 1983.

      Mike McElvain and Robert Williams, Ltd., both of Bloomington, for appellant.
    Goldsworthy & Fifield, of Peoria (Robert W. Bach, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Following a consolidated hearing on two separate applications for adjustment of claim, an arbitrator for the Industrial Commission found that on October 25, 1974, petitioner, Rodney Steven Riley, suffered accidental injuries arising out of and in the course of his employment by respondent, Clay Equipment Corporation, and awarded workmen’s compensation for 144/v weeks of temporary total incapacity. On the second claim the arbitrator found that on March 11, 1975, petitioner suffered accidental injuries arising out of and in the course of his employment by respondent which caused petitioner to become wholly and permanently incapable of work. On review, the Industrial Commission set aside the arbitrator’s awards. The Commission found that on October 25, 1974, petitioner sustained accidental injuries arising out of and in the course of his employment which rendered him temporarily totally disabled for a period of 144/? weeks and as of March 11, 1975, rendered him totally and permanently disabled, and awarded benefits accordingly. The Commission found that petitioner failed to prove that he sustained accidental injuries on March 11, 1975. The decision of the Commission concerning the accident of March 11, 1975, was not further reviewed. On certiorari the circuit court of Tazewell County vacated the award of the Industrial Commission and remanded the cause with directions to determine the period of temporary total disability. On remand, the Industrial Commission, pursuant to the remanding order, found that petitioner was totally disabled for at least 64 weeks as a result of the accident of October 25, 1974 — the maximum period of disability which could be considered temporary. The Industrial Commission also found that there was no permanent total disability and that “under the provisions of the Workmen’s Compensation Act in effect, no other permanent disability had been established by the record.” On certiorari, the circuit court set aside the award for temporary total disability.

The testimony shows that petitioner had been a “brittle” juvenile diabetic since age 13, and since he was 17 had taken insulin for his condition. At the time of the accident he was 31 years of age. Petitioner began smoking at age 17 and was smoking IV2 packages of cigarettes per day before the October 25 accident. Petitioner suffered from elevated serum cholesterol and admitted to heavily salting his food.

Petitioner started working as a welder for respondent in 1964. On October 25, 1974, petitioner was welding a 10,000-bushel grain cleaner. Petitioner had to move a 500-pound generator-type welder to the grain cleaner. The generator was mounted on a steel frame, on steel wheels. Petitioner testified that it was necessary to “manhandle” the generator and welder to get them into place. The area in the grain cleaner where he was required to work was small, approximately 2% feet in diameter, and it was necessary that he crawl into that space. In order to complete the job he was required to lie curled up for about eight minutes. When he crawled out of the grain cleaner, he was out of breath, felt weak, and his left arm hurt. He sat down on a bench for a short while, and then helped his partner move some 25-to 30-pound iron legs and bolt them to the grain cleaner in order that the cleaner could be stood upright and its upper side welded. He moved the bench to the welder, jumped up on the bench, and started to jump into the grain cleaner when he felt a severe pain in his chest. He was sent home. Petitioner’s wife then took him to their family doctor, Dr. Patton, who performed several tests. The tests indicated that petitioner was having a coronary occlusion or a myocardial infarction. Dr. Patton hospitalized petitioner. Dr. Thomas Clark diagnosed petitioner as having suffered an acute myocardial infarction.

Petitioner returned to work on February 3, 1975, for about two hours per day and gradually increased his work day to five hours. On March 11, 1975, petitioner performed various chores, including turning a 250-pound “14-head” on its side and moving the 500-pound welder 60 to 70 feet. While hammering on a valve, he noticed he was getting wheezy and shortwinded and his fingers and left arm were starting to tingle. He was taken to Dr. Patton’s office, who diagnosed petitioner’s condition as acute pulmonary edema. Petitioner was hospitalized that day.

The hospital’s final summary for petitioner’s hospitalization from March 11, 1975, to March 19, 1975, indicated that petitioner related to his doctor that on Monday, March 10, 1975, petitioner had consumed a jar of pickles and that evening he drank a half gallon of iced tea. Petitioner was diagnosed as having pulmonary edema secondary to coronary artery disease with possible dietary indiscretions.

After his release from the hospital, petitioner did not return to work with respondent, nor did he work elsewhere. Testimony was adduced as to the extent of his disability and his employability.

Petitioner was again hospitalized on May 6, 1975. Dr. T. S. Shay’s “Final Summary” states that because petitioner had recently developed more symptoms of congestive heart failure, it was determined that he should have a triple coronary bypass operation. During the operation it was discovered that the left anterior descending coronary artery was too thin and thus unsuitable for grafting, but two other coronary arteries were grafted. Extensive deterioration due to atherosclerosis was noted.

Several reports from physicians and Dr. Patton’s evidentiary deposition were admitted into evidence. Reports to respondent’s director of health services indicated that petitioner’s diabetes, cigarette smoking, and severe hyperlipemia contributed to petitioner’s coronary proneness. These reports concluded that petitioner’s myocardial infarction was caused by his diabetes and atherosclerosis and was not work related. Dr. Clark’s medical summary stated that petitioner’s atherosclerosis was accelerated by his diabetes, smoking, and high levels of cholesterol, and explained that physical activity causes an increased demand on the heart muscle which in turn requires an increased blood supply to these muscles. Dr. Clark further explained that where severe coronary artery disease is present, this blood supply cannot be delivered, and thus physical activity may “precipitate” myocardial infarction. Dr. Patton opined that moderate to heavy lifting could precipitate a myocardial infarction in a person with moderately severe vascular disease.

In oral argument, respondent conceded that the Industrial Commission’s determination that petitioner’s work aggravated his heart condition and precipitated the myocardial infarction is not against the manifest weight of the evidence. Respondent argues, however, that the issue in this case is whether petitioner’s permanent disability was caused by this “accident” on October 25, 1974, or was the result of the rapid progression of his atherosclerosis. Respondent notes that all of the hospital summaries and doctors’ letters refer to the atherosclerosis as the reason for his present condition.

Petitioner argues that the reports submitted by respondent are not persuasive because none of them indicate that the physicians were aware of the specific physical activity engaged in by petitioner on October 25, 1974. Petitioner notes that Dr. Heller’s report states that the myocardial infarction was the cause of his subsequent cardiac problems:

“Once the extensive heart muscle damage had occurred, the patient’s subsequent cardiac problems were inevitable. Given the extensive degree of heart muscle damage from the myocardial infarction, an excessive intake of salt and fluid would have been expected to produce overt heart failure. This was, in fact, what happened in the March 1975 episode, and this episode cannot in any way be considered work related.”

Petitioner argues that this statement, when considered with Dr. Patton’s and Dr. Clark’s opinions that physical stress could have precipitated the myocardial infarction, adequately proves that his permanent disability was caused by the accident arising out of and in the course of his employment by respondent, and the decision of the Commission was not contrary to the manifest weight of the evidence.

When the circuit court remanded the cause following the first decision of the Industrial Commission, jurisdiction was restored to the Commission subject to the requirement that it follow the directions contained in the remanding order. (Stockton v. Industrial Com. (1977), 69 Ill. 2d 120.) The decision of the Commission, made pursuant to the remanding order, was final and reviewable, and upon review this court may review the entire record and determine the correctness of the circuit court’s original order. Mid-American Lines, Inc. v. Industrial Com. (1980), 82 Ill. 2d 47.

We are of the opinion that the circuit court erred in setting aside the Industrial Commission’s initial finding that the October 25, 1974, accident arose out of and in the course of petitioner’s employment and that it rendered him permanently and totally disabled. While there was no dispute as to petitioner’s preexisting conditions or the various causes of petitioner’s myocardial infarctions, different inferences could be drawn concerning the cause of petitioner’s permanent and total disability. “[A] preexisting heart condition does not render a compensation award contrary to the manifest weight of the evidence where the Commission, from the evidence, could have inferred that the employee’s work-related incident was a causative factor.” (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 174.) The Industrial Commission could have drawn the inference that the myocardial infarction caused such extensive damage to petitioner’s heart muscles that his ensuing disability was causally related to the infarction or the inference that while petitioner’s myocardial infarction was caused by physical stress at work, it rendered him only temporarily totally disabled and that his diabetes and vascular diseases were the cause of his permanent total disability. Where different inferences can be drawn from the facts presented to the Commission, it is for the Commission to decide which inference to draw and its findings will not be disturbed unless they are contrary to the manifest weight of the evidence. (Peoria Motors, Inc. v. Industrial Com. (1982), 92 Ill. 2d 260, 265; Martin v. Industrial Com. (1982), 91 Ill. 2d 288, 293-94; Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 551.) The judgment is reversed and the original decision of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 54980
    RUSSELL DEAN SHARP, Appellee, v. ROBERT GALLAGHER et al., Appellants.

      Opinion filed March 25, 1983.

      Hinshaw, Culberton, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson and Charles H. Cole, of counsel), for appellants.
    Cooney & Stenn, and William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
    John M. Cannon, Susan W. Wanat, and Ann P. Sheldon, of Mid-America Legal Foundation, of Chicago, for amici curiae Chicago Association of Commerce and Industry, Illinois Construction Industry Committee, Association of Commerce and Industry of McLean County, and Mid-America Legal Foundation.

      George W. Gessler, Terence E. Flynn, and David M. Levy, of Rooks, Pitts, Fullagar & Poust, of Chicago (Benjamin F. Cornelius and Douglas F. Stevenson, of counsel), for amicus curiae United States Steel Corporation.
    Wayland B. Cedarquist, George E. Bullwinkel, and Henry C. Szesnay, of Chicago (Boodell, Sears, Sugrue, Giambalvo & Crowley, of counsel), for amicus curiae Republic Steel Corporation.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Russell Dean Sharp, filed a two-count complaint against the defendants, Robert Gallagher and Daniel Henry, individually and as partners doing business as Orchard Hill Building Company (Orchard Hill). Count I alleged violations of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Count II was based on common law negligence. Defendants moved to dismiss both counts, contending they were plaintiff’s employer and, therefore, the suit was barred by section 5(a) of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a)). The circuit court of Cook County granted defendants’ motion. A majority of the appellate court reversed on the basis of the dual-capacity doctrine (94 Ill. App. 3d 1128), and we allowed defendants leave to appeal.

On January 16, 1978, plaintiff was working as a carpenter-helper at a residential construction site. While building a garage, he slipped and fell from an icy scaffold and was injured. He filed an application for adjustment of claim before the Industrial Commission, naming Farmingdale Millwork (Farmingdale) as his employer. He then brought the instant suit against defendants.

Defendants filed a motion to dismiss, contending Orchard Hill and Farmingdale were the same legal entity and that the partnership, doing business as Orchard Hill, was plaintiff’s employer. On this basis, defendants argued the instant suit was barred by the Act. In response, plaintiff argues that Orchard Hill and Farmingdale were separate legal entities. In the alternative, plaintiff claims the partners acted in different capacities under these assumed names and, therefore, defendants should be liable under the dual-capacity doctrine.

In support of his position, plaintiff attached a copy of defendant Gallagher’s deposition in which Gallagher stated Orchard Hill was the general contractor for the job and owned, through a land trust, the beneficial interest in the construction-site property. Gallagher described Farmingdale as a service organization, a “conduit” by which Orchard Hill obtained windows. He said that while Farmingdale was plaintiff’s employer, Orchard Hill owned Farmingdale, and Orchard Hill and Farmingdale were “the same thing.”

Both parties filed affidavits. Plaintiff’s attorney attached to his affidavit quarterly Federal income tax withholding forms which showed that Farmingdale and Orchard Hill had separate Federal identification numbers for tax purposes.

Defendant Gallagher’s affidavit stated that Orchard Hill absorbed all of Farmingdale’s losses and profits and paid the premiums for Farmingdale’s workmen’s compensation insurance policy. Defendants also submitted an affidavit of Orchard Hill’s accountant which stated that no Federal or State income tax return was prepared on behalf of Farmingdale. Farmingdale was not a separate business entity for general accounting or Federal income tax purposes, and it never had any reportable income for tax purposes. Its costs and expenses were reimbursed in total by Orchard Hill.

The trial court found that the Gallagher and Henry partnership doing business as Orchard Hill and Farmingdale were the same, as a matter of law, and granted defendants’ motion to dismiss. The appellate court agreed with the trial court that they were the same and that Orchard Hill was plaintiff’s employer. However, the court reversed, concluding that under the dual-capacity doctrine, defendants’ capacity as landowners conferred upon them a duty independent of that owed to plaintiff as an employer.

Initially, we note the record supports the trial and appellate courts’ determination that Farmingdale and Orchard Hill were the same and that the partnership doing business as Orchard Hill was plaintiff’s employer. The parties do not question this finding in their briefs. Indeed, in response to a question at oral argument, plaintiff admitted there is only one legal entity — the Gallagher and Henry partnership doing business as Orchard Hill and Farmingdale. The remaining question is whether a contractor-employer that also owns the land on which an employee is injured is immune from common law or statutory suits under the exclusive-remedy provision of the Act.

The legislature enacted the Workmen’s Compensation Act to abrogate the common law rights and liabilities which previously governed an injured employee’s ability to recover against his employer. The Act established a new “system of liability without fault, designed to distribute the cost of industrial injuries without regard to common-law doctrines of negligence, contributory negligence, assumption of risk, and the like.” (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460, 463.) “Balanced against the imposition of no-fault liability upon the employer are statutory limitations upon the amount of the employee’s recovery, depending upon the character and the extent of the injury. As part of this ‘balancing,’ the Act further provides that the statutory remedies under it shall serve as the employee’s exclusive remedy if he sustains a compensable injury.” McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 356.

Section 5(a) of the Act provides in relevant part:

“No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).

Plaintiff argues the Gallagher and Henry partnership held itself out as a business having two capacities, one as employer under the Farmingdale Millwork designation and the other as landowner under the name Orchard Hill Building Company. He supports this contention by again asserting that Farmingdale and Orchard Hill had separate Federal identification numbers for purposes of the employer’s quarterly Federal income tax withholding forms. On this basis, plaintiff maintains the defendants’ partnership existed in a dual capacity and the instant suit against defendants in their capacity as landowners is not barred by the Act. Plaintiff relies on Reed v. Steamship Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349, Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, and Marcus v. Green (1973), 13 Ill. App. 3d 699.

In Reed, a longshoreman was injured loading a ship his employer had chartered. The court held the exclusivity provision of the Federal Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. sec. 901 et seq. (1976)) did not preclude suit against the employer, as ship charterer, for injuries caused by the unseaworthiness of the vessel. The court’s holding hinged upon peculiarities of maritime law and the lack of congressional action to change the court’s long line of cases in this area. However, as noted in Kottis v. United States Steel Corp. (7th Cir. 1976), 543 F.2d 22, cert. denied (1977), 430 U.S. 916, 51 L. Ed. 2d 594, 97 S. Ct. 1328, not only did Congress limit the Reed decision by amending the Longshoremen’s and Harbor Workers’ Compensation Act, but in addition, Reed does not control the interpretation given to a State statute by the courts of that State.

Smith, and Marcus are distinguishable from the case at bar. There the doctrine of dual capacity was applied to the defendants on the basis that the employer, in each instance, was found to be acting as a separate legal entity. As this court has earlier noted, “A mere separate theory of liability against the same legal person as the employer is not a true basis for use of the dual capacity doctrine; the doctrine, instead, requires a distinct separate legal persona.” (Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 319.) The underlying rationale for this statement has been stated by Professor Larson:

“It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structual work acts.
Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is an obvious practical reason requiring this result. An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to a shambles.” 2A A. Larson, Workmen’s Compensation sec. 72.82 (1982).

Since the facts in the instant case reveal but one legal entity, the application of the dual-capacity doctrine is unavailable to the plaintiff.

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

Appellate court reversed; circuit court affirmed.