author: MR. JUSTICE UNDERWOOD MR. JUSTICE GOLDENHERSH, MR. JUSTICE CLARK,

text:
    (Nos. 49643, 49645 cons.
    WELLS MANUFACTURING COMPANY, Appellee, v. THE POLLUTION CONTROL BOARD et al.—(The Environmental Protection Agency, Appellant.)

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      William J. Scott, Attorney General, of Springfield (Michael A. Benedetto, Jr., Assistant Attorney General, of Chicago, of counsel), for appellant Environmental Protection Agency.
    Michael R. Berman, of Chicago, for appellant Citizens for a Better Environment.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Joseph S. Wright, Jr., and Dixie L. Laswell, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This case involves consolidated complaints by the Environmental Protection Agency (Agency) and Citizens for a Better Environment (CBE) against Wells Manufacturing Company (Wells). The complaints allege violations of sections 9(a) and 9(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 11114, pars. 1009(a), (b)) concerning air pollution and failure to possess an operating permit. After extensive hearings, the Illinois Pollution Control Board (Board) found Wells guilty of air pollution and failure to possess a permit and levied fines of $8,500 and $500 respectively. The Board additionally ordered that an abatement plan, a performance bond, and periodic progress reports be submitted. On review (Ill. Rev. Stat. 1971, ch. 11114, par. 1041; ch. 110, par. 264 et seq.) the Appellate Court for the First District found the Board had inadequately considered certain statutory factors, and after itself reviewing the relevant criteria, determined the Board’s order was unreasonable, capricious and arbitrary. Accordingly, the appellate court reversed the Board’s order and instructed the Board to grant Wells an operating permit. (48 Ill. App. 3d 337.) We granted leave to appeal.

Wells operates an iron foundry in an industrial area of Skokie, immediately adjacent to Niles Township Community High School, West Division, and about one-half mile from a residen tal section of the village of Morton Grove. The foundry, which employs approximately 500 persons, was constructed in 1947 and produces castings for use in various industries. Wells is, in fact, the sole supplier of certain parts for automobile-power-steering units. A casting is a part formed by adding molten metal to a mold. As relevant here, Wells’ use of phenol-formaldehyde resins to mold the castings in shell molds produces odors characterized as resembling those from burning rubber.

The amended complaints filed by the Agency and CBE against Wells allege these odors violate section 9(a) of the Environmental Protection Act, which specifies that no person shall “[c] ause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois ***” (Ill. Rev. Stat. 1971, ch. 111½, par. 1009(a)). A “contaminant” is defined to include “any odor” (Ill. Rev. Stat. 1971, ch. 111½, par. 1003(d)); and “air pollution” is defined as “the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 111½, par. 1003(b).) The Agency’s amended complaint also alleges a related violation of section 9(b) of the Environmental Protection Act, which proscribes the operation of any facility capable of causing air pollution without a permit (Ill. Rev. Stat. 1971, ch. 111½, par. 1009(b)).

The principal difficulty in cases such as this lies in the need to define the level at which interference becomes “unreasonable” in this statutory context. (See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 76-77.) The Board must balance the costs and benefits of abatement in an effort to distinguish “the trifling inconvenience, petty annoyance or minor discomfort” from “a substantial interference with the enjoyment of life and property.” See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 77, and cases there cited; Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 416-19 (1975).

Section 33(c) of the Environmental Protection Act specifies several factors which the Board must consider in arriving at its decisions:

“In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.
***” (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c).)

The unreasonableness of alleged air pollution of the type involved here must be determined with reference to these statutory criteria. Mystik Tape v. Pollution Control Board (1975), 60 Ill. 2d 330; Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill. 2d 290; City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482.

The Act places the burden of proof on the Agency or other complainant to show that the respondent has caused or threatened to cause air pollution, which in the context of this case means unreasonable interference with the enjoyment of life or property. (Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c); Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill. 2d 290, 300.) This does not mean, however, that the Board must find against the respondent on each of the four statutory criteria of section 33(c), or that the Board is precluded from considering additional relevant factors. (Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 75-77.) Reference to the statutory criteria, in conjunction with the requirement that the Board’s opinions be written and set forth the facts and reasons for its decision (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(a)), insures that consideration of those criteria is undertaken by the Board, provides guidelines to govern the conduct of those affected by the Act, and facilitates meaningful judicial review. See Mystik Tape v. Pollution Control Board (1975), 60 Ill. 2d 330, 336.

On review, the court is entitled to consider all of the evidence presented by the entire record; the findings and conclusions of the Board on questions of fact are prima facie true and correct. (Ill. Rev. Stat. 1971, ch. 110, par. 274; ch. 111½, par. 1041.) The provisions of the Environmental Protection Act make it clear that the Board is possessed of expertise and that it has broad discretionary powers. (See City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 490.) It is equally clear, however, that the Board’s adjudicatory orders and determinations are subject to judicial review (Ill. Rev. Stat. 1971, ch. 111½, par. 1041), and in order to be sustained must not be contrary to the manifest weight of the evidence. (E.g., Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill. 2d 290, 296; City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 488.) Thus our responsibility, as was that of the appellate court, is to evaluate all of the evidence on the record in the context of the section 33 criteria to determine whether the Board’s findings are contrary to the manifest weight of the evidence.

We add, parenthetically, that in holding the Board’s action to be “unreasonable, capricious and arbitrary” (48 Ill. App. 3d 337, 341), the appellate court went beyond the appropriate standard of review. As stated above, adjudicatory, quasi-judicial functions of the Board are reviewed to determine whether the Board’s action is contrary to the manifest weight of the evidence. It is the Board’s rule-making, quasi-legislative functions, not applicable here, which invoke the arbitrary, unreasonable, or capricious standard of review. See Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 288-91.

Applying the statutory criteria to the evidence, a significant portion of the hearings was devoted to “the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people” as specified in section 33(c)(i). The Agency’s case was based largely on the testimony of 22 citizens, including residents and officials from Morton Grove and faculty members of Niles West High School. These witnesses variously characterized the odor as unpleasant, annoying and nauseating, and described interference ranging from minor irritation to loss of use of property and increased respiratory difficulty in persons with lung disorders. Wells, on the other hand, introduced expert testimony as to “odor panel tests” which it contended indicated a dramatic decrease in odorous emissions due to its pollution-control efforts. The Agency sought to rebut this evidence of improvement by additional lay witness testimony that no improvement had occurred.

The Board focused on the citizen testimony (see Hillside Stone Corp. v. Pollution Control Board (1976), 43 Ill. App. 3d 158; Marblehead Lime Co. v. Pollution Control Board (1976), 42 Ill. App. 3d 116; Sangamo Construction Co. v. Pollution Control Board (1975), 27 Ill. App. 3d 949), in concluding there was an odor which it characterized as causing “unpleasantness in most people,” and specifically found the odors “unreasonably interfered with the enjoyment of life and property.” The Board ascribed “relatively less weight” to Wells’ odor-panel tests because they were not conducted strictly according to scientific standards. Conversely, the appellate court characterized the interference as “some mild discomfort” and relied upon the Wells’ tests as showing a reduction in odor. 48 Ill. App. 3d 337, 339-40.

There is no dispute concerning the second factor of section 33(c), “the social and economic value of the pollution source.” Wells employs approximately 500 persons and is an important supplier of parts used in the automotive, agricultural, petroleum, hydraulics, home-appliance, and aircraft industries. The Board specifically found “the unrefuted evidence presented sufficiently establishes the social and economic value of the Wells facility as a source of necessary industrial parts and as an employer,” and this fact was reiterated by the appellate court. 48 Ill. App. 3d 337, 339.

Section 33(c)(iii), concerns “the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved.” Wells is located in an area zoned for heavy-industrial use. It has been operating as a foundry on the premises since 1947, when the surrounding area was a sparsely inhabited “swamp.” While we agree with the complainants that this priority of location does not achieve the level of an absolute defense (see City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 485), we are impressed with its significance in the context of this particular case. (See Gardner v. International Shoe Co. (1944), 386 Ill. 418 (common law nuisance action), and cases there cited; Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 77 (incorporating “something of the objective quality of the common law” into the Environmental Protection Act’s definition of air pollution).) The residential area and school were built after the foundry had begun operation. In fact, the high school was built upon land, part of which was purchased from Wells. We agree with the appellate court that the residents and school were on notice of the possibility that some annoyances present in heavy-manufacturing areas could affect them, and this fact considerably diminishes the potency of their complaints. See Wells Manufacturing Co. v. Pollution Control Board (1977), 48 Ill. App. 3d 337, 339-40.

The Board further found that Wells has increased its size and capacity and production facilities subsequent to the construction of Niles West High School and some of the houses in the residential area. An industry cannot, of course, substantially increase its odorous emissions and simultaneously rely on its priority of location in the area as a mitigating factor. This sort of changed circumstance would, as the Board points out, undermine the industry’s priority-of-location argument. The sketchy references in the record regarding those increases are, however, simply not sufficient to meet the Agency’s burden of establishing that Wells has substantially increased its emissions, in either volume or offensiveness, subsequent to the development of the high school and residential areas.

Finally, section 33(c)(iv) addresses “the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.” Wells has conceded that economic feasibility has not been a barrier to the installation of any emission-reduction equipment. As to technological practicability, we believe the legislature’s use of the word “unreasonable” in the statute clearly places the burden on the Agency to come forward with evidence that emission reduction is practicable. (Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c); see Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 460-63 (1975).) However, the lack of available technology is not an absolute defense to a claim of air pollution but rather is one of the factors to be considered by the Board. See Chicago Magnesium Casting Co. v. Pollution Control Board (1974), 22 Ill. App. 3d 489, 493.

At the hearings, the Agency introduced extensive evidence, including technical data and expert testimony, as to methods available to Wells to abate the odors. The Board specifically found that either of three methods (ozonation, activated carbon or packed tower) made it technically feasible for Wells to abate the odors. The expert testimony as to these methods was, however, contradictory. Each expert, who was a salesman for the respective system about which he testified, claimed that his particular system would reduce odors; but each expert also raised substantial doubts as to the potential of the other proposed control methods. Thus, as to the implementation of any particular technology, one expert assured success while two raised serious questions as to its practicability. We agree with the appellate court that this conflicting expert testimony does not support the Board’s findings that any of the three methods would abate the foundry odors. We note that one other alternative alluded to by the Board, the purchase of precoated sand for use in the shell-molding process, would apparently eliminate pollution from the sand-coating operation. The difficulty, however, is that the record simply does not establish that this step alone would significantly abate the air pollution involved.

Our review of the record persuades us the Board’s action was contrary to the manifest weight of the evidence and was properly reversed by the appellate court. We also believe that court correctly ordered an operating permit be granted to Wells. Obviously, our opinion should not be read as a condonation of Wells’ emissions. Rather, we believe the Agency failed to establish the unreasonableness of those odors as required in the Environmental Protection Act.

A motion to strike and physically remove portions of Wells’ brief referring to the results of certain odor tests made after the appeal of this case was in process was taken by us for disposition with the case. It is apparent that the appellate court, if it considered those results at all, did so only in the context of deciding Wells’ motion to stay enforcement of the Board’s order, a purpose for which consideration was proper. While the references in question have not been considered by us in resolving the issues in this case, we believe no useful purpose would be served by requiring physical removal of those references from the brief. It is accordingly denied.

Our determination that the Board’s decision is contrary to the manifest weight of the evidence renders it unnecessary to include an extended discussion of the penalties assessed against Wells. Since the Agency has not met its burden in proving a statutory violation, the penalties were erroneously assessed.

The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.

MR. JUSTICE GOLDENHERSH,

dissenting:

I join in the dissent of Mr. Justice Clark, and add the further comment that even were we to allocate the burden of proof in the manner suggested by the majority, the record sustains the Board’s findings. In my opinion the majority’s characterization of the expert testimony as “contradictory” (73 Ill. 2d at 238) is erroneous and the record would support the finding that any of the three methods suggested would substantially abate the foundry odors. The record shows, too, that Marshall Wells, president of the defendant company, admitted the feasibility of one of the methods and expressed the opinion that it merited further exploration. I would reverse the appellate court and affirm the order of the Pollution Control Board.

MR. JUSTICE CLARK,

also dissenting:

After extensive hearings involving numerous disputed questions of fact, the Pollution Control Board (Board) found that the appellee, Wells Manufacturing Company (Wells), had violated sections 9(a) and 9(b) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1971, ch. lll½, pars. 1009(a), (b)), in that Wells had caused air pollution, and had, without a permit, operated a facility capable of causing pollution.

“Air pollution” is defined in section 3(b) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1003(b)) to include the “presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to *** unreasonably interfere with the enjoyment of life or property.” (Emphasis added.)

Under section 31(c) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c)), complainants’ burden of proof was to show that Wells had caused or threatened to cause air pollution. Accordingly, under the theory pursued in this case, complainants’ burden was to show that the odors emitted by Wells’ facility unreasonably interfered with the enjoyment of life or property. (See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 75-77.) The majority apparently holds that the term “unreasonably” in section 3(b) of the Act (defining air pollution) means that the complainant must “come forward with evidence that emission reduction is practicable.” (See 73 Ill. 2d at 237, accord Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 461.) Certainly, the majority cannot contend that the use of the word “unreasonable” in defining the respondent’s burden of proof somehow defines the complainant’s burden of proof. See Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c).

In my opinion, this holding both misconstrues the Act and directly contradicts the unanimous decision of this court in Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 75-77. Section 33(c) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)) requires that, “[i]n making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved,” and goes on.to list several such factors, including “the technical practicability *** of reducing or eliminating the emissions, discharges or deposits” (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)(iv)). In Processing & Books, the appellate court had reversed an order of the Board on the ground that the complainant had failed to meet its burden of proof on the question of the unreasonableness of the odor involved in that case, because the complainant had failed to introduce evidence on several factors stated in section 33(c) of the Act, including the factor which is involved in this case, the technical practicability of reducing or eliminating the odor. See 28 Ill. App. 3d 115, 118-19.

This court unanimously reversed, holding that the word “unreasonable” in section 3(b) of the Act does not include the technical practicability of abatement. Rather, the court unanimously held that the word “unreasonably” was intended only to “exclude the trifling inconvenience, petty annoyance or minor discomfort.” (64 Ill. 2d 68, 77.) The majority’s opinion in the instant case silently overrules the foregoing unanimous holding of this court. Even if it were to do so expressly, however, I would not concur, because I believe that Processing & Books was correctly decided and should not be overruled.

Section 33(c) does not purport to, nor ought it be construed to, allocate burdens of proof. The only provision of the Act relevant to this case which does purport to allocate burdens of proof is section 31(c), which states that a complainant must show that the respondent has caused or threatened to cause air pollution, and which, in this case, means that the complainants were required to demonstrate that Wells’ release of contaminants unreasonably interfered with the enjoyment of life or property. (See Ill. Rev. Stat. 1971, ch. 111½, par. 1003(b).) Contrary to what the majority apparently assumes, the factors listed in section 33(c) as being relevant to the “reasonableness of the emissions, discharges or deposits involved” do not (with the exception of (i) “the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people”) further define the term “air pollution” and therefore are not elements of the complainant’s burden of proof.

Rather, that these factors (as well as “all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits”) must be considered by the Board means only that these factors are available as affirmative defenses in actions before the Board. Thus, not all those factors which the Board must consider in determining the reasonableness of respondent’s conduct need be shown to demonstrate the unreasonableness of the harm caused by that conduct. As a general rule, in an action to enforce a right conferred by statute a complainant’s burden normally is only to demonstrate the injury and its cause (cf., e.g., Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598-99; see generally, W. Prosser, Torts 190, 198-99 (4th ed. 1971))—in this case, that the odor unreasonably interfered with the enjoyment of life or property, and that Wells caused the odor. Matters within the peculiar knowledge of the respondent, e.g., reasons why it ought not be punished for or prevented from causing the odor, such as the impossibility of profitably operating its business otherwise, or, as in this case, the alleged physical impossibility of significantly reducing or eliminating the odor, normally are not elements of a complainant’s burden of proof. Even a massive and highly intrusive amount of discovery frequently would not enable a diligent but inexpert complainant to meet its burden of proof on this question, thereby frustrating the purposes of the Act. I do not believe that the General Assembly intended the remedies provided by this Act to be so illusory; nor do I believe that the General Assembly thought it feasible for complainants to meet the burden of proof established by the majority.

I therefore respectfully dissent.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 50100.
    DU-MONT VENTILATING COMPANY, Appellee, v. THE DEPARTMENT OF REVENUE, Appellant.

      Opinion filed November 22, 1978.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Stephen R. Swofford, and Gregory G. Lawton, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    McDermott, Will & Emery, of Chicago (Hamilton Smith and Mark L. Yeager, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This appeal involves the review of an administrative decision by the defendant, the Department of Revenue (Department), that the plaintiff, Du-Mont Ventilating Company, must pay taxes under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 440 et seq.) and the Use Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 439.1 et seq.) on the cost of materials used in the construction of the intake side of a push-pull air system installed in the Caterpillar Tractor Company’s Mapleton foundry. The defendant issued a final assessment for taxes, penalties and interest in the amount of $27,457.90. On appeal, the circuit court of Peoria County affirmed. The appellate court reversed, with one justice dissenting (52 Ill. App. 3d 59). We allowed the Department’s petition for leave to appeal under our Rule 315 (65 Ill. 2d R. 315).

The purchase, employment and transfer of pollution control facilities is not a purchase, use or sale of tangible personal property under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 440a) and the Use Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 439.2a). Thus, the issue is whether the air system involved here is a pollution control facility for purposes of the statutory tax exemption. More specifically, the issue is whether the intake side of a system designed to clean inside air and collect the dust removed from a foundry is a pollution control facility.

The applicable statutory provisions define a pollution control facility as:

“*** any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term ‘air pollution’ or ‘water pollution’ is defined in the ‘Environmental Protection Act,’ *** or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 120, pars. 439.2a, 440a.)

The Environmental Protection Act defines air pollution as:

“*** the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property.” Ill. Rev. Stat. 1975, ch. 111½, par. 1003(b).

The air system installed was a push-pull ventilation system. On the intake side, air is drawn through louvres in the wall of a penthouse which sits on the roof of a work area and encloses a large fan housing, motor, and belt guard. The fan pushes the air through ducts and out into the work area through an outlet in a register which directs the air towards the dust collection system 30 feet away. On the exhaust side, polluted air is pulled through hoods and then ducts to a point outside the building. The ducts carry the exhaust 45 feet into the air and then turn back into the building and terminate at the fan on the dust collector. The fan pulls the air through filter media. After leaving the filter media, the then clean air goes through the fan and discharges into the outside atmosphere.

At issue here is the disallowance of the exemption on the cost of materials used in the construction of the intake side only. Du-Mont installed part of the exhaust side and put together a dust collector furnished by Caterpillar and apparently was not taxed on materials used therein.

The undisputed testimony of witnesses for both the Department and Du-Mont was that the push-pull ventilation system could not work without both an intake and exhaust side. If the exhaust section fails to operate, the building becomes pressurized, and the intake side cannot push more air into the building. If the intake side is not working, the operation of the exhaust side largely ceases for lack of air to pull out; practically no pollutants would be exhausted. If the intake side alone is operating, it would merely blow the pollutants around inside the building. In addition, the air pushed through the registers on the intake side reduces the amount of force necessary to pull the air out on the exhaust side.

In sum, the evidence was that the intake section was part of an overall or single system for the removal of pollutants from the foundry in such a manner that they were filtered through a dust collector. The Department’s hearing disposition concluded:

“*** [T]he evidence does show that such items are related to and connected with the Mapleton pollution control facilities, and that such facilities would not properly operate or fulfill their purpose or purposes of preventing pollution in the foundry *** without the in-take ventilating system.”

The hearing disposition concluded, however, by interpreting rule 6 of article II of the Retailers’ Occupation Tax Act (promulgated by the Department in 1969 pursuant to section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 451)) to bar the exemption because the intake side was not a physical component of the pollution control facilities at the plant. That rule provides that:

“This exemption includes not only the pollution control equipment itself, but also replacement parts therefor, but does not extend to chemicals used in any such equipment, to fuel used in operating any such equipment nor to any other tangible personal property which may be used in some way in connection with such equipment, but which is not made a physical component part of the equipment itself.” (Emphasis added.)

The enabling legislation (Ill. Rev. Stat. 1969, ch. 120, par. 451) authorizes the Department to make, promulgate and enforce reasonable rules and regulations relating to the administration and enforcement of the provisions of the Retailers’ Occupation Tax Act. The rule merely interprets the scope of the statutory exemption provision and as such it is entitled to some respect as an administrative interpretation of the statute, but it is not binding on the courts. See Oscar L. Paris Co. v. Lyons (1956), 8 Ill. 2d 590, 597-98; Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 90.

Administrative rules can neither limit nor extend the scope of a statute. (Standard Oil Co. v. Department of Finance (1943), 383 Ill. 136, 140.) Rule 6 is unduly restrictive in light of the statutory language and must yield to the extent it means that the intake system can be considered a pollution control facility only if it is physically attached to the exhaust and dust collector segments of the facility. The exemption applies not only to systems “used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution” but to systems “appurtenant thereto” as well. (Ill. Rev. Stat. 1975, ch. 120, pars. 439.2a, 440a.) The unrefuted evidence indicated that the intake side was essential to the operation of the exhaust side which removed the pollutants to the dust collectors. It is abundantly clear that the intake system is appurtenant, i.e., appropriate or accessory to the pollution control facility. (Webster’s Third New International Dictionary 107 (1971).) The intake system is an integral part of the mechanism necessary to bring the dust to the collectors and prevent its dispersal into the outside atmosphere. It is irrelevant under the statutory provision that the intake system is not physically attached to the exhaust system or the dust collectors, and the administrative rule to the contrary is void.

The system falls within the tax exemption for “any system *** used or intended for the primary purpose of eliminating” air pollution (Ill. Rev. Stat. 1975, ch. 120, pars. 439.2a, 440a). Du-Mont is not barred from receiving the benefit of the tax exemption because of testimony that the reason for installing the ventilation system was that the dust made it impossible for maintenance people and others to remain in the work area for even short periods of time without special air equipment. Du-Mont’s motive for installing the system had no bearing on the primary purpose for which the system was intended and used: to remove pollutants from the foundry and prevent their dispersal into the outside atmosphere. Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, relied upon by the Department, is clearly distinguishable. There the plaintiff replaced polluting coal-fired boilers with less polluting gas-fired boilers in order to meet environmental protection requirements. The appellate court held the plaintiff was not entitled to the exemption because the primary purpose of the gas-fired boilers was to produce heat needed for the manufacturing or processing of a product rather than to abate pollution caused by the plant operation. By contrast, the hearing disposition here concluded that the intake system was an integral part of the ventilation system used to remove pollutants from the foundry. While the intake side could not alone remove contaminants from the air, the ventilation system, of which it was a part, could. The system included an intake segment, an exhaust segment, and a dust collector which prevented the release into the air outside the foundry of contaminants removed from the work areas.

The Department contends that Du-Mont presented no evidence as to reasons for installing intake systems serving the middle area of the plant and is thus entitled to no exemption for those segments. However, William Williams, vice president of Du-Mont and a mechanical engineer, testified that the air system served “approximately the middle portion of the Caterpillar plant including Pit Two” in which the system was installed to remove dust.

Du-Mont has met its burden of proving that the system fits the exemption. (See Rotary International v. Paschen (1958), 14 Ill. 2d 480, 487.) This conclusion is justified by the evidence presented to and the findings of fact reached by the Department’s hearing disposition. Because of our conclusion that Du-Mont is entitled to the exemption since the intake side was a part of the entire ventilation system which removed dust from the foundry and prevented its dispersal into the outside atmosphere, we need not reach the question raised by the Department of whether the exemption applies to systems wholly limited to removing pollutants from inside air. For the foregoing reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 50199.
    JOSEPH POZNER et al., Appellants, v. FRED A. MAUCK, Appellee.

      Opinion filed November 22, 1978.

      Gaines and Boyer, of Chicago (Alan I. Boyer, of counsel), for appellants.
    William J. Scott, Attorney General, of Springfield (Roger H. Simon, Jr., Special Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an appeal by plaintiffs, licensed insurance solicitors, from a judgment of the circuit court of Cook County upholding Public Act 78—637 which removes all references to solicitors from the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, pars. 1065.36 through 1065.59). A direct appeal to this court was allowed on the ground that the public interest requires that we promptly adjudicate the matter (58 Ill. 2d R. 302(b)).

On February 28, 1974, plaintiffs filed a class action in the circuit court of Cook County on behalf of themselves and all other duly licensed insurance solicitors similarly situated. The complaint sought injunctive and declaratory relief, alleging that Public Act 78—637 arbitrarily, capriciously and unreasonably deprives them of their occupation without due process of law. The Act amends the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, pars. 1065.36 through 1065.59) by, inter alia, removing all mention of solicitors and their licensure. An agreed order was entered on March 1, 1974, restraining defendant Mauck, Director of the Department of Insurance, from commencing administrative actions against plaintiffs under the new law, until further order of the court.

On July 23, 1974, defendant Mauck filed a motion to dismiss plaintiffs’ complaint. The motion was denied, but the circuit court certified that the question presented, the constitutionality of Public Act 78—637, was a proper subject for an interlocutory appeal to the appellate court under Rule 308(a) (58 Ill. 2d R. 308(a)). The appellate court ordered that defendant’s application for leave to appeal be granted, but subsequently vacated the order and denied the application.

Upon denial of his application, and with the cause now pending in the circuit court, defendant filed a motion in that court for judgment on the pleadings. The court granted the motion on October 27, 1977, and stayed enforcement of its order pending appeal.

The major concern of the plaintiffs here is the effect of Public Act 78—637 on their livelihood. The Act, in effect, requires that plaintiffs meet licensing requirements once imposed only on agents and brokers if they wish to continue in their calling. In determining the propriety of such legislative action, we are guided by ample precedents and the language of the court in Klein v. Department of Registration & Education (1952), 412 Ill. 75, 78-79:

“An inherent feature of our form of government is that every citizen has the inalienable right to engage in any legitimate trade, occupation, business or profession which he sees fit. His labor is his property and is bulwarked by the full and equal protection of the law afforded by the due process clause of the Federal constitution. It is also embraced within the constitutional provision which guarantees to everyone liberty and the pursuit of happiness. [Citation.] The right to pursue a trade or calling is, however, subordinate to the right of the State to limit such freedom of action where the public health, safety or welfare may require. [Citations.] In instances where the police power is invoked to regulate and supervise a legitimate occupation, the restraint imposed must be reasonable. The legislative determination that regulations are needful is not conclusive and is always subject to review. In order for such regulations to be lawfully imposed upon the constitutional rights of the individual to pursue his trade, profession or business, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained. [Citations.] ”

Properly authorized legislative enactments are presumed valid, however (Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 12; Board of Library Directors v. City of Lake Forest (1959), 17 Ill. 2d 277, 281), and a party attacking a law has the burden of showing that it is unreasonable (Rios v. Jones (1976), 63 Ill. 2d 488, 497; Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 591). The court’s only inquiry is whether the legislation represents a rational means to accomplish a proper purpose. (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 488, 99 L. Ed. 563, 572, 75 S. Ct. 461, 464; Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 541-42.) We will not substitute our judgment for that of the legislature. Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 591; Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 95.

Having set forth the standards by which Public Act 78 — 637 is to be scrutinized, we turn to plaintiffs’ arguments against the validity of the law. Plaintiffs first argue that prior statutory restrictions on their profession were sufficient, and that no need for further regulation therefore exists. Under the previous regulatory scheme, agents and brokers would merely vouch for the competency of solicitors and assume responsibility for their actions. No examination was required of solicitors.

The fault in plaintiffs’ argument is their basic premise that previous law was unquestionably adequate. Defects in the law were noted in the Report of the Illinois Insurance Study Commission to the Seventy-Seventh General Assembly 5-6:

“The Commission will seek to establish rules and regulations for the licensing of insurance brokers and salesmen in order to raise the level of professional competence. The Commission believes that many individuals are selling insurance who have no right to be involved in such a complex endeavor. As an adjunct to this upgrading, the Commission favors greater statutory emphasis upon the responsibility of the insurance companies for the misrepresentations of their agents.”

A need for corrective action arose, and the legislature properly responded.

Plaintiffs point to language in Scully v. Hallihan (1936), 365 Ill. 185, 192, stating that a citizen should not be legislated out of his trade where such a measure is not definitely related to the purpose of the law. We agree with the rule set forth therein, but feel that the requisite relationship exists here. As defendant has shown, the purpose of Public Act 78—637 is to better insure that only qualified individuals sell insurance, and to make insurance companies more responsible for the representations of their agents. We cannot say that the law seeks to achieve this proper purpose in an irrational way. Where a need affecting the public interest is present, the State may implement reasonable measures to meet that need. Rios v. Jones (1976), 63 Ill. 2d 488, 497.

Plaintiffs also argue that the legislation is invalid because the General Assembly could have chosen less restrictive means such as requiring solicitors to take an examination appropriate to the services rendered by them. Our task, however, is not to substitute our judgment for that of the legislature, but rather to determine the reasonableness of those measures enacted. Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 591.

As important as their interest in protecting their livelihood is plaintiffs’ interest in maintaining their licenses as solicitors. Such a license may well constitute a property interest within the protection of due process principles (Burden v. Hoover (1956), 9 Ill. 2d 114, 118-19), but it is equally subject to reasonable regulation or revocation in the proper exercise of the police power. In Rios v. Jones (1976), 63 Ill. 2d 488, 497, we said:

“The fact that the plaintiffs possess property rights and are entitled to due process protection, however, does not mean that those rights cannot be affected by State legislation. As the United States Supreme Court declared in Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 44 L. Ed. 2d 572, 588, 95 S. Ct. 2004, 2016: ‘[T]he States have a compelling interest in the practice of professions within their boundaries, and *** as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.’
The demands of due process are proportional to the weight of the interest being protected in balancing that interest against the countervailing interests of society. (Powell v. Jones, 56 Ill. 2d 70, 78.) If, after balancing these interests, the State’s exercise of its police power is deemed to be reasonable, the legislation in question must be upheld.”

Plaintiffs finally contend that the legislation impermissibly interferes with their ability to renew their licenses. They claim that renewal was granted virtually automatically under prior law. Having determined that plaintiffs’ licenses may be extinguished by reasonable legislation, we find no merit in plaintiffs’ present argument.

Plaintiffs have argued that even an expectancy that their licenses would be renewed may be entitled to due process safeguards, citing Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694. Plaintiffs apparently have misread Perry, as the court there clearly rejected the argument that an expectancy is protected by due process, requiring something more in the nature of a “legitimate claim of entitlement” (Perry v. Sindermann (1972), 408 U.S. 593, 602, 33 L. Ed. 2d 570, 580, 92 S. Ct. 2694, 2700).

Moreover, the safeguards delineated in Perry and other cases cited by plaintiffs (see, e.g., Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586) are procedural in nature and lend no assistance to us in addressing plaintiffs’ arguments concerning substantive aspects of Public Act 78—637. Admittedly, adequate procedural safeguards are of some concern in administrative actions such as license-revocation actions under the Insurance Code (Patchett v. Baylor (1976), 62 Ill. 2d 426, 432-33).. In their brief in this court, however, plaintiffs do not argue that procedural due process requirements have not been met, but only argue that the legislation is arbitrary, capricious and unreasonable in light of the purpose to be served. The holding of Perry that an individual is entitled to a hearing when the State deprives him of a property interest is therefore not in point.

For the foregoing reasons, we hold that Public Act 78—637 is not. an unreasonable exercise of the State police power as it affects plaintiffs, insurance solicitors. The judgment of the circuit court is affirmed and the cause is remanded to that court with directions to vacate its injunction order of March 1, 1974, and its stay order of October 27, 1977, restraining defendant from enforcing the provisions of Public Act 78—637.

Affirmed and remanded, with directions.

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


text:
    (No. 50295.
    ARTHUR AHLERS, Conservator, Appellee, v. SEARS, ROEBUCK COMPANY, Appellant.

      Opinion filed November 22, 1978.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson and William N. Krucks, of counsel), for appellant.
    Roger J. Boylan, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an appeal from the appellate court, which affirmed judgments of the circuit court of Cook County holding that defendant, Sears, Roebuck and Company, is obligated under the terms of a 1971 settlement agreement to make payments accruing from April 1, 1975, through June of 1976 for nursing services for the plaintiff’s ward, Anna Ahlers. (54 Ill. App. 3d 638.) We allowed Sears’ petition for leave to appeal under Supreme Court Rule 315 (65 Ill. 2d R. 315).

In 1969, Anna Ahlers sustained serious, permanent head injuries in the course of her employment with Sears, Roebuck and Company. A claim for compensation was filed before the Industrial Commission. The incapacitating nature of the accident necessitated the appointment of her husband, Arthur, as conservator. In addition to medical attention immediately following the accident, continuous nursing care was recommended because Mrs. Ahlers could not care for herself. On June 4, 1971, a settlement contract executed by the parties was approved by the Commission. As part of the agreement, Sears became obligated to pay $725 per month for nursing care.

Two conditions subsequent were included in the agreement; the occurrence of either would relieve Sears of its duty of payment of $725 per month. It was agreed that payments would be discontinued if nursing care was no longer required or if the Commission determined that Mrs. Ahlers required different nursing care.

On March 14, 1974, Sears filed a petition to reopen the case before the Commission, alleging that nursing services were no longer being provided and that its payment obligation had therefore terminated. Sears honored its obligations under the agreement until April 1, 1975, at which time it unilaterally terminated payments. The petition to reopen the case was eventually denied on January 6, 1976. Sears did not seek review.

On June 3, 1976, Arthur Ahlers, husband and conservator of Anna, filed suit in the circuit court of Cook County for amounts accrued under the agreement but not paid since April 1, 1975. The action was filed under section 19(g) of the Workmen’s Compensation Act (Ill. Rev. St'at. 1975, ch. 48, par. 138.19(g)), which provides:

“Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall render a judgment in accordance therewith.”

On June 25, 1976, the circuit court entered judgment in favor of Ahlers for $10,150, representing the $725 monthly payments withheld by Sears between April 1, 1975, and June 1, 1976. A $2,000 judgment for attorneys’ fees was entered on September 1, 1976. Also, on that date, Ahlers recovered a judgment for $1,450, representing payments due in June and July of 1976, and attorneys’ fees of $290. Sears appealed the judgments for arrearages to the appellate court, but also, in December 1976, filed its second petition to reopen the case with the Commission. The award of attorneys’ fees is not contested.

In the appellate court, Sears filed a motion to dismiss on August 29, 1977. The appellate court was informed that Sears had commenced new proceedings in the Commission, that those proceedings were then pending, and that the same issues were before the Commission. The appellate court was also informed of Arthur Ahlers’ concession in those proceedings that nursing care had not been provided since early 1974. Medical testimony was also given to the Commission by Dr. Israel Zivin that, since early 1974, Mrs. Aiders’ condition had not required such constant care as was previously provided.

Sears ’ motion to dismiss was denied, and the appellate court soon thereafter, on October 30, 1977, rendered its decision in favor of Ahlers, from which Sears has taken this appeal. The appellate court denied a petition for rehearing on November 30, 1977.

Two days later, on December 2, 1977, the Commission, in response to Sears’ second petition to reopen the case, entered an order which reduces Sears’ payment obligation from $725 to $325 per month as of November 23, 1977. That decision is presently in the circuit court on a writ of certiorari under section 19(f) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f)), and is not being reviewed herein. The circuit court’s judgments of June 25 and September 1, 1976, for arrearages, as well as its authority to enter these judgments, form the basis of the present appeal. We shall first address Sears’ argument that the requirements of section 19(g) have not been met, and then the argument that the circuit court improperly entered judgment on the 1971 Commission order of approval without first being apprised of the current status of the parties.

Section 19(g) confers authority upon the circuit courts to render judgment in accordance with an award or other decision of the Commission when a certified copy thereof is presented to the court. We see no problem in concluding that the Commission’s order of approval constitutes a decision of the Commission or is the equivalent of an award within the meaning of section 19(g), as we see no reason for drawing a distinction between a decision reached after full adversary proceedings and an order of approval of the parties’ settlement agreement such as that entered here. Commission approval of such agreements is both authorized (Ill. Rev. Stat. 1975, ch. 48, par. 138.23) and encouraged (Hartford Accident & Indemnity Co. v. Industrial Com. (1926), 320 Ill. 544, 546), and previous cases recognize that Commission approval of a settlement agreement may be, in legal effect, an award (Harrison Sheet Steel Co. v. Industrial Com. (1950), 404 Ill. 557, 565; Michelson v. Industrial Com. (1941), 375 Ill. 462, 468; Dyer v. Industrial Com. (1936), 364 Ill. 161, 163; Hartford Accident & Indemnity Co. v. Industrial Com. (1926), 320 Ill. 544, 546). We now hold that Commission approval of a settlement agreement constitutes a decision of the Commission and is, in legal effect, the equivalent of an award within the meaning of section 19(g). We accordingly hold that an action on an approved settlement agreement may properly be commenced in the circuit court under section 19(g).

Sears argues, however, that the circuit court erred in entering judgment on this particular approval order. By the statute’s own terms, only final orders of the Commission may be presented to the circuit court under section 19(g), and no action lies under that section if proceedings for review are pending. It is Sears’ contention that these requirements have not been satisfied. Sears first contends that the Commission order of approval is not a final order because it is subject to modification according to the conditions set forth in the parties’ approved settlement agreement. It is also Sears’ contention that the circuit court erred in entering judgment under section 19(g) because proceedings were pending before the Commission. We will address the two arguments in order.

Sears’ argument that the Commission’s approval order is not a final order is prompted by the following provision of the parties’ agreement:

“In the interest of resolving the dispute as to the extent of the obligation of respondent to provide nursing home care, respondent agrees to pay the sum of 1725.00 a month beginning with July 1, 1970 to reimburse the conservator for the nursing home or its equivalent costs borne by him, which said monthly payment shall continue until nursing care and attention is no longer required or until it is determined by the Commission that it is in the best interests of petitioner that other or different nursing care is required by petitioner.”

Contrary to Sears’ argument, we do not believe that the inclusion of conditions in the parties’ agreement requires us to conclude that the Commission’s order of approval is not final. An order of the Commission becomes final when the rights and obligations of the parties are determined. (South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 121.) We do not feel that inclusion of conditions in the agreement renders the Commission’s order of approval nonfinal or unenforceable. Additionally, we note, as did the appellate court, that any judgment entered under section 19(g) is, by the statute’s own terms, subject to modification (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(g)). The possibility of modification, however, does not preclude, in the first instance, entry of judgment under the section.

We also note the similarity between the present settlement agreement and child-custody decrees. Both are subject to modification in the best interests of the individual who is the subject of the judgment or decree. Notwithstanding the possibility of modification, child-custody decrees are considered final and enforceable. (Gleiser v. Gleiser (1949), 402 Ill. 343, 345.) In the same way, we feel that the Commission’s order of approval in the case now before us is a final order for the purpose of entering a judgment thereon under section 19(g).

Sears also argues that the circuit court erred in entering judgment under section 19(g) because review proceedings were then pending in the Commission. The statute specifically provides that entry of judgment is not possible when review proceedings are pending.

Our examination of the record reveals that no proceedings involving the issue of nursing care were pending in the Commission when the circuit court entered its judgments on June 26 and September 1, 1976. It seems that a petition by Ahlers may have been pending on these dates, but unrelated matters were at issue. It appears that the issue of nursing care was placed before the Commission after these dates. In Sears’ motion to dismiss filed in the appellate court on August 29, 1977, Sears admits that the proceedings were commenced after the perfection of appeals to the appellate court. In short, no proceedings involving the issue of nursing care were pending when the circuit court entered its judgments, and Sears’ argument on this point must fail.

In addition to questioning whether the Commission order of approval meets the requirements of section 19(g), Sears argues that the circuit court erred in entering judgment without admitting evidence on the issue of the parties’ current status. Specifically, it is Sears’ contention that the Commission is the only proper fact-finding body in this case, that only the Commission can resolve conflicts in medical testimony on an issue such as that presented here of whether the injured employee requires medical care, and that the circuit court therefore erred in entering judgment without first requiring Commission determination of the parties’ current status. Under Illinois cases, it is argued, an action under section 19(g) will lie only where, unlike here, the record indicates the current status of the parties. (See, e.g., Gerish v. Feldman (1943), 381 Ill. 635; Dyer v. Industrial Com. (1936), 364 Ill. 161; Hartford Accident & Indemnity Co. v. Industrial Com. (1926), 320 Ill. 544.) The record now before us contains the parties’ 1971 settlement agreement and the Commission’s order of approval, but the current status of the parties is not reflected. Although offered, no evidence was admitted on the issue of Mrs. Ahlers’ present need for nursing care.

Our reading of the statute, our understanding of its purpose, and previous decisions of this court convince us that the circuit court did not err in entering judgment without first determining whether Mrs. Ahlers is presently in need of nursing care. The statute provides in absolute terms that, upon presentation of a certified copy of an award or decision to the circuit court, “the court shall render a judgment in accordance therewith.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(g).) Recognizing the purpose of the section to permit speedy entry of judgment (Franklin v. Weelco Co. (1972), 5 Ill. App. 3d 731, 734, cert. denied (1973), 411 U.S. 932, 36 L. Ed. 2d 392, 93 S. Ct. 1901), previous cases have held that the circuit court’s inquiry under section 19(g) is limited to a determination of whether the requirements of the section have been met (McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 223). The court may not, for example, question the jurisdiction of the Commission or the legality of its actions (Gerish v. Feldman (1943), 381 Ill. 635, 636-37; Bernstein v. Brothman (1916), 275 Ill. 290, 291; Fitt v. Central Illinois Public Service Co. (1916), 273 Ill. 617, 619-20), and it may not review the Commission’s decision or construe the statute (St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 478; Friedman Manufacturing Co. v. Industrial Com. (1918), 284 Ill. 554, 558). Especially relevant to the issues presented herein is the Schorr case in which it was held that the circuit court must, if a certified copy of an award or decision is properly presented, enter judgment even though the award may be too large (St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 479). The circuit court may refuse to enter judgment only, for example, when a lack of jurisdiction appears on the face of the record (Fico v. Industrial Com. (1933), 353 Ill. 74, 79).

In summary, we hold that the Commission’s order of approval of the parties’ settlement agreement may be the basis of an action under section 19(g), and that the circuit court did not err in entering judgment thereon. We express no opinion on the Commission’s order reducing Sears’ monthly payment obligation from $725 to $325 per month, as that decision presently is being reviewed by the circuit court. We note, however, as did the appellate court, that section 19(g) would allow Sears to seek modification of the present judgments for arrearages if it is ultimately determined that Mrs. Ahlers’ need for nursing care has, in fact, diminished.

The judgment of the appellate court, affirming the judgments of the circuit court of Cook County, is affirmed.

Judgment affirmed.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 50526.
    KEYSTONE STEEL AND WIRE COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al.—(Kenneth E. Becker, Appellant.)

      Opinion filed November 22, 1978.

      Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Jeffrey B. Rock, of Swain, Johnson & Gard, of Peoria, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Kenneth E. Becker, suffered accidental injuries while employed by respondent, Keystone Steel and Wire Company, and awarded him compensation for a period of 18 2/7 weeks of temporary total incapacity for work and compensation for the permanent loss of 15% of the use of his right leg. On review, without taking additional evidence, the Industrial Commission affirmed the award. Respondent sought certiorari and the circuit court of Peoria County, finding that the decision of the Industrial Commission was against the manifest weight of the evidence, set aside and reversed the decision of the Industrial Commission. Petitioner appealed. Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)).

Petitioner was employed by respondent as a rigger-welder. On April 15, 1976, while repairing a locomotive engine with a torn gear box, he was standing under the locomotive in a pit area holding a 20-pound metal patch over his head and at that time “twisted his back out.”

On the day following the injury, petitioner complained of pain in his lower back and upper thigh area. He was examined by respondent’s physician, Dr. Paul Palmer, who diagnosed his ailment as a lumbosacral strain. Dr. Palmer prescribed heat treatments, and petitioner received those treatments at respondent’s medical center for a half hour each day for approximately four weeks. He was also placed on a modified “work release” in which he was restricted from lifting anything which weighed more than 10 pounds.

On July 9, 1976, at Dr. Palmer’s direction, petitioner was hospitalized. During nine days in the hospital he was placed in traction and given “muscle relaxers.” Following his release from the hospital, he remained at home until August 22 and then returned to his job for respondent. Since that date he has resumed the same duties and responsibilities that he had at the time of the accident. He testified that he was still involved in lifting heavy objects, though he complained that his back tightens up and becomes stiff after any bending or squatting. He also testified that he has received no medical treatment since his release from the hospital.

By agreement of the parties the reports of three physicians were admitted into evidence before the arbitrator. Dr. Palmer’s report, filed on June 7, 1976, in addition to the diagnosis of a lumbosacral strain, stated that “X-rays revealed small spurs of the L—5 area and increased narrowing of the L—5 S—1 interspace in the past four (4) or five (5) years.” He offered no opinion concerning any permanent injuries.

Dr. Hugh Cooper examined petitioner for respondent on August 11, 1976. He stated that he “was unable to find evidence on physical examination or X-ray to suggest that active orthopedic pathology exists at this time.” Furthermore, that “There was no evidence to suggest that disability must be anticipated as a result of a back injury in April of this year. ”

Dr. Lorin Whittaker, following an examination of petitioner for respondent on December 3, 1976, stated: “My impression is that he sustained a musculature low back strain at the time of his injury in April, 1976. His objective examination was normal. His subjective examination is that of only an occasional stiffness of his back which should clear completely.”

Petitioner contends that the evaluation of the evidence and the conclusions to be drawn therefrom are within the province of the Industrial Commission and that the circuit court erred in holding that the decision of the Commission was against the manifest weight of the evidence. It is respondent’s position that there is no evidence to sustain a finding of a permanent loss of use of petitioner’s leg to any extent whatsoever.

It is well settled that “To recover benefits under the Workmen’s Compensation Act, a claimant has the burden of proving all elements of his case *** by a preponderance or greater weight of the evidence, and an award that is not supported by substantial evidence must be set aside.” (Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 585.) Upon examining the record we are unable to say that the circuit court erred in holding that the decision of the Commission was against the manifest weight of the evidence. Petitioner testified that he has returned to work and has resumed the duties and responsibilities that he had before the accident. There is no basis in the reports of the physicians to support either the holding that petitioner suffered an injury to his right leg or that it was permanent in nature. His testimony concerning the stiffness in his back when he is bending or squatting is inconclusive and fails to show any permanent and complete loss of the use of his right leg.

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

Judgment affirmed.


text:
    (No. 50193.
    LESTER GREENWAY, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Fitz Simmons and Connell Dredge and Dock Division, Appellee.)

      Opinion filed November 22, 1978.

      Raymond C. Rose and Larry T. Frantz, of Peoria, for appellant.
    Strodel & Kingery, of Peoria (Arthur R. Kingery and Edward R. Durree, of counsel), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Holding that it was not filed within the time provided in the statute (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(h)) the Industrial Commission dismissed the petition filed by petitioner, Lester Greenway, to review an award entered on December 28, 1973. On certiorari the circuit court of Peoria County confirmed the order and petitioner appealed (Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a))).

The record shows that on May 8, 1970, petitioner, Lester Greenway, was injured while in the course of his employment by respondent, Fitz Simmons and Connell Dredge and Dock Division. An application for adjustment of claim was filed with the Industrial Commission and a hearing was held. On December 28, 1973, the decision of the arbitrator was rendered, and on January 9, 1974, notice of that decision was sent by the Industrial Commission to petitioner’s attorney. It was received by the attorney on January 14, 1974. No review was sought by either party.

On July 7, 1976, pursuant to section 19(h) of the Workmen’s Compensation Act, petitioner filed a petition for review of the award. Section 19(h) in pertinent part provides:

“[A]s to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(h).)

Holding that the date of the award was December 28, 1973, the Commission found that the section 19(h) petition was not timely filed and ordered it dismissed. On certiorari the circuit court of Peoria County confirmed, and this appeal followed.

Petitioner contends that under the provisions of section 19(b) of the Workmen’s Compensation Act the date of the award was January 9, 1974, and that the petition filed under section 19(h) within 30 months of that date was timely filed. Section 19(b) in pertinent part provides:

“Unless a petition for review is filed by either party within 15 days after the receipt by such party of the copy of the decision and notification of time when filed, and unless such party petitioning for a review shall within 20 days after the receipt by him of the copy of the decision, file with the Commission either an agreed statement of the facts appearing upon the hearing before the Arbitrator or committee of arbitration, or if such party shall so elect a correct transcript of evidence of the proceedings at such hearings, then the decision shall become the decision of the Commission and in the absence of fraud shall be conclusive.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b).)

It is the respondent’s position that where no review was sought, it was clearly the legislative intent that the arbitrator’s decision, including its date, be the decision of the Commission.

Although several prior cases have presented the question when the time for filing an application for review under paragraph (h) of section 19 of the Workmen’s Compensation Act begins to run (Big Muddy Coal & Iron Co. v. Industrial Com. (1919), 289 Ill. 515; City of Chicago v. Industrial Com. (1936), 363 Ill. 298; Cuneo Press, Inc. v. Industrial Com. (1972), 51 Ill. 2d 548), this court has not previously considered the precise question here involved. It is clear from the statute that transforming the award of the arbitrator into the decision of the Commission requires no action by the Industrial Commission, and we have held that installments of workmen’s compensation benefits, and interest, commence to accrue from the date of the award (Wirth v. Industrial Com. (1976), 63 Ill. 2d 237). In view of the explicit statutory provision no reason appears why the date of the award, along with its other component parts, should not become a part of the decision of the Commission.

As we noted in Cuneo Press, Inc. v. Industrial Com. (1972), 51 Ill. 2d 548, section 19(h) provides that when the Industrial Commission orders that compensation payable in accordance with an award or settlement contract be paid in a lump sum, the right of review under this section is terminated. In view of the fact that the right of review provided is so easily extinguished, we find no basis for a statutory interpretation which would serve to enlarge the period.

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

Judgment affirmed.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 49835.
    PHILLIP J. SCUDERI, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Boros Reliable Erectors, Inc., Appellee.)

      Opinion filed November 22, 1978.

      Richard J. Troy, of Sneider & Troy, of Chicago, for appellant.
    John P. McAuliffe, of Weidner & McAuliffe, of Chicago, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The claimant, Phillip Scuderi, sustained accidental injuries on March 4, 1974, while employed as a millwright by the respondent, Boros Reliable Erectors, Inc. An arbitrator for the Industrial Commission found he 'was entitled to compensation for 10 weeks of temporary total incapacity, 25% permanent loss of use of both legs, and 15% permanent loss of use of his right arm. The Commission increased the award for temporary total incapacity to 16 weeks, but set aside that portion of the award for partial permanent loss of use of the claimant’s legs and right arm. The circuit court of Cook County confirmed the award as amended, and the claimant appealed directly to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)).

The claimant was injured when a steel conveyor weighing approximately one ton slid across his back as he was working on a mail chute installation. One of the conveyor’s angle irons deeply lacerated the flesh and muscle of the lower left portion of his back, causing the claimant to fall to the cement floor and strike his right arm and elbow on the ground. After a company nurse had bandaged the claimant’s back wound, he was rushed to the hospital where he underwent immediate surgery. He had two subsequent surgical procedures to aid the healing of the wound, the final one as an outpatient.

The only question presented is whether the Commission’s finding, which reversed the arbitrator’s award for partial permanent loss of use of the claimant’s legs and right arm, is contrary to the manifest weight of the evidence. (There is no dispute over the claimant’s increased award for temporary total incapacity.) The claimant argues that his own testimony before the arbitrator, coupled with that of his medical expert, compels the conclusion that he suffered residual disability of his legs and right arm, and that the medical testimony of the respondent’s three witnesses was insufficient to overcome that conclusion.

The claimant testified before the arbitrator that he is troubled by cramps after driving for more than 15 minutes, and that it is difficult for him to step out of an automobile. He tires after work and when walking up the stairs of his home. His back frequently cramps up and he suffers from numbness in the back of his legs and knees. He said he has constant pain in his right elbow and arm. On cross-examination, he testified that his right arm was not put in a cast or sling, and that he had not been given a back brace, traction, whirlpool treatments, shoelifts, tests or other physiotherapy for his arm or legs during his 20-day hospitalization or following his release. With the exception of several periods when he did not work, for which he received the award for temporary total incapacity, the claimant continued working full-time as a supervisor, millwright, or welder for the respondent and other employers on various jobs obtained through his union. At the time of the arbitrator’s hearing, the claimant was working eight hours a day, five days a week, at a construction site as a welder. He was able to drive his own automobile between his home and the job site, a 35-minute trip each way.

Dr. Robert Busch, a specialist in industrial medicine and surgery, testified on behalf of the claimant, whom he had examined twice. His conclusion was that there was “impaired motility of both arms” and “weakness and stiffness of the right leg,” conditions which he judged to be permanent and causally related to the accident. The witness did not note any impairment of the claimant’s left leg. On cross-examination, however, he testified that the claimant’s pain was a subjective response, that his sensations and reflexes had tested normally in both arms and legs, and that there was no evidence of atrophy, or wasting of the extremities. He said he had not reviewed the claimant’s hospital records or consulted with the claimant’s treating physician or other doctors who had also examined the claimant.

The respondent offered evidence from three physicians, two of whom had initially been the claimant’s physicians. Dr. Robert Emanuele, who alone had treated the claimant, testified for the respondent that all treatment given the claimant was directed to the area of his laceration, with the exception of unspecified treatment to the right leg because he had complained of pain as the result of the injury. He testified that there was no evidence of neurological involvement in either leg or arm, no evidence of injury to the spinal column, and that the claimant had not complained of pain in his arms. His testimony incorporated the findings of Dr. George Hallenbeck, the roentgenologist who had interpreted the claimant’s hospital X rays.

Dr. Daniel Grizadas, an orthopedic surgeon, had conducted an examination at the request of the claimant’s attorney. He testified for the respondent that the usual tests produced negative findings, and that there was no evidence of neurological involvement of the lower extremities. There were no symptoms of loss of use of the claimant’s arms, the witness testified. He stated that certain degenerative changes of the spine were, in his opinion, compatible with the claimant’s age and body structure, although they could have been aggravated by trauma. The respondent also introduced the report of its physician, Dr. Clarence Zurfli, which tended to substantiate the testimony offered by Drs. Emanuele and Grizadas.

The testimony of the claimant and the expert witnesses relating to the existence, extent and permanency of any injuries to the claimant’s legs and right arm was in part conflicting. Questions of fact, including the resolution of conflicts in medical testimony, are within the province of the Industrial Commission (Long v. Industrial Com. (1976), 62 Ill. 2d 289, 292; Seay v. Industrial Com. (1976), 62 Ill. 2d 241, 244), even where the Commission’s findings differ from those of the arbitrator and no further evidence has been taken by the Commission (Crane v. Industrial Com. (1974), 57 Ill. 2d 158, 164). The Commission’s decision will not be disturbed by a court unless it can be said to be contrary to the manifest weight of the evidence, although the court might have drawn other inferences from it. (C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251, 257; Chicago Transit Authority v. Industrial Com. (1975), 61 Ill. 2d 78, 85; Martinez v. Industrial Com. (1974), 59 Ill. 2d 258, 260.) We cannot say the Commission’s finding here was contrary to the manifest weight of the evidence, and accordingly we affirm the judgment of the circuit court of Cook County confirming that finding.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 49860.
    SUZANNAH SZABO, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Parkway Bank and Trust Co., Appellee.)

      Opinion filed November 22, 1978.

      Perz & McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellant.
    Kane, Doy Be Harrington, of Chicago (Arthur O. Kane and John S. Hayes, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded the claimant, Suzannah Szabo, compensation for 64 weeks of temporary total disability, 50% permanent loss of use of the right leg and $2,826.93 of medical expenses unpaid by the respondent employer, Parkway Bank and Trust Co. The Commission, after hearing additional testimony, affirmed the awards for temporary total disability and medical expenses, but disallowed the award for 50% permanent loss of use of the right leg. The circuit court of Cook County confirmed the Commission’s decision. The claimant has appealed, alleging that the Commission’s finding of no permanent disability was against the manifest weight of the evidence and the law and that she is entitled to compensation for permanent total disability. She further assigns as error the Commission’s failure to award her certain medical expenses.

The claimant was 42 years old at the time of the accident. It is undisputed that an injury arose out of and in the course of her employment by respondent. At the hearing before the arbitrator, claimant testified that on December 28, 1972, she was working as head teller at the bank. Her job included lifting bags of coins and distributing them to the tellers. On the morning in question claimant was lifting a bag containing $900 in loose quarters when she felt a sharp pain originating in her lower back and running down the back of her right leg. Later in the day the pain extended to the right heel and around to the great toe. Despite increasing pain radiating upwards and downwards from the lower back, she continued to work until January 12, 1973. At that time a vice president at the bank told her to call her own doctor, Dr. Michel. She later came under the care of Dr. Varzino, an orthopedic surgeon, and Dr. Cascino, a neurosurgeon.

Claimant testified that she was admitted to Mother Cabrini Hospital in February 1973 and spent almost three weeks in traction. She was transferred to Loyola Hospital, where she remained for three to four weeks, receiving medication, injections, ultrasound and shortwave therapy and whirlpool treatments. She then received outpatient therapy for two months at Resurrection Hospital. In July 1973, she returned to work on Dr. Varzino’s advice, but left after four days because an air conditioner was making her pain worse. In December 1973, Dr. Varzino prescribed a steel back brace. In January 1974, Dr. Cascino had her admitted to St. Anne’s Hospital for gastrointestinal bleeding caused by taking large quantities of aspirin for her pain. She continued to see Dr. Cascino throughout 1974. She was also examined by Dr. Scuderi at the request of her employer’s insurance company.

Claimant testified at the hearing that she still experienced severe pain in the lower back running down the right leg to the foot and that the great toe and the top of the foot were numb. She testified that she could not engage in sexual relations and that she could not walk without a limp.

Dr. Cascino, a neurosurgeon, testified that he first examined the claimant on February 28, 1973. He diagnosed her condition as a low back syndrome with radicular involvement on the right side. During 1973 and 1974, two myelograms and three electromyograms were performed on the claimant; none of these tests revealed abnormalities. Dr. Cascino testified that the “myelograms rule out surgical intervention involving her complaints. The EMG ruled out direct nerve involvement.” In March 1973, Dr. Bumlik, head of the neurology department at Loyola Hospital, found no evidence of disc disease and diagnosed claimant’s condition as sacroiliac ligament strain on the right side. Dr. Cascino testified that he continued to see the patient throughout 1973 and 1974, during which her complaints and his findings remained essentially the same, except that in May 1973 he felt that the patient was improving.

On the basis of his findings over the two-year period Dr. Cascino made the following diagnosis at the hearing:

“Number one, that the patient has a chronic low back strain; number two, the patient has a right sacroiliac strain; number three, the patient has a hypertrophic gastritis secondary to the ingestion of aspirin; and, number four, that in my opinion this patient has a neurosis or a hysteria.”

The witness explained that some of the patient’s manifestations could not be explained on an organic basis and that he attributed them to a neurosis or hysteria traceable to the accident. In response to hypothetical questions, Dr. Cascino testified that because the patient was still incapacitated her condition could be permanent and that she was not capable of performing work involving walking, sitting or bending. On cross-examination the witness testified that he had found no atrophy of the patient’s muscles, such as might be expected in a patient who had lost the use of an extremity because of a neurosis. He did not rule out the possibility that a psychological syndrome common in middle age played some part in the patient’s mental condition. Dr. Cascino also testified that at some periods during 1973 the patient had walked with a normal gait and that some form of work commensurate with her abilities would be good for her neurosis. He stated further that he did not believe she was malingering.

The report of Dr. Scuderi was received into evidence. The report diagnosed claimant’s condition as low back strain “resulting in considerable functional overlay.” Dr. Scuderi noted that it was 16 months since the injury and the patient’s condition had become stationary. He also noted the negative findings in the neurological examination and the absence of gross atrophy of either leg.

At the hearing before the Commission to review the arbitrator’s decision, the claimant testified and also introduced into evidence the report of an examination by Dr. Busch, made since the earlier hearing. Claimant testified that since the date of the hearing before the arbitrator she had been receiving treatment from the Gonstead Chiropractic Clinic in Mt. Horeb, Wisconsin. She admitted on cross-examination that she had not notified respondent in advance about visiting the clinic. Claimant introduced bills from the clinic and a bill for the earlier treatment of the gastrointestinal bleeding, which she stated had not been available at the time of the prior hearing.

Dr. Busch’s report stated that his examination revealed bilateral lumbosacral and paravertebral tenderness and spasm on palpation and pressure, spasm radiating into both sides and down posterior aspect of right thigh, increased spasm on motion extremes with stiffness and resistance to motion and some atrophy of musculature of right thigh and right calf. Dr. Busch found that claimant was still unable to return to work and in need of treatment.

The major issue before us is the extent of disability. Whether a claimant is permanently disabled is a question of fact peculiarly within the purview of the Industrial Commission, and this court will not set aside the Commission’s finding unless it is contrary to the manifest weight of the evidence. (South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489; Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289, 294.) Here the evidence most favorable to the claimant indicated that she suffered from a chronic low back strain and continuing pain in her back and right leg. Dr. Cascino testified that this condition could be permanent. The evidence most favorable to respondent, also from Dr. Cascino’s testimony, indicated that there was no organic basis for the claimant’s complaints; furthermore, there was no atrophy of the muscles, which might have been expected in a patient suffering loss of use of a limb because of a traumatic neurosis. The report of Dr. Busch, on the other hand, did find atrophy of the muscles of the right leg. In addition, respondent’s contention is that the death of claimant’s son in 1973 and the marriage of her daughter in 1974 reduced or eliminated her need or incentive to return to work.

Where the evidence is conflicting, or of such a nature that different inferences may reasonably be drawn therefrom, we will not disregard permissible inferences drawn by the Commission merely because it or we might have drawn other inferences from the facts. (Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, 295; Meade v. Industrial Com. (1971), 48 Ill. 2d 215, 219-20.) We concur with the finding of the circuit court that the claimant’s credibility as a witness primarily was a question for the Commission and that there was enough evidence of the claimant’s neurosis to cause the Commission to consider her testimony very closely. Accordingly, we hold that the Commission’s finding of no permanent disability was not against the manifest weight of the evidence.

Likewise, the Commission’s failure to award claimant compensation for the medical expenses that she incurred at the Gonstead Clinic was proper. Pursuant to a statute in effect when the services were rendered, an employee could “secure his own physician, surgeon and hospital services at his own expense.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a).) Here claimant was being treated by Dr. Cascino with the authorization of her employer and its insurance carrier, and her decision to seek treatment at the Gonstead Clinic without notice to her employer must be regarded as her election under the statute.

The case is otherwise, however, with regard to the expenses that claimant incurred during her two hospitalizations for gastrointestinal bleeding early in 1974. Dr. Cascino testified that the gastric condition was caused by the ingestion of large amounts of aspirin, and the claimant testified that she was taking this aspirin on account of the pain caused by the injury. Having allowed the claimant temporary total disability compensation for the period during which she was hospitalized, it was inconsistent for the Industrial Commission not to allow in addition medical expenses incurred during hospitalization and incidental to the injury. Quick v. Industrial Com. (1972), 53 Ill. 2d 46, 49.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part and reversed in part and the cause is remanded to the Industrial Commission with directions to enter an award in accordance with this opinion.

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


text:
    (No. 50527.
    KEYSTONE STEEL AND WIRE CO., INC., Appellee, v. THE INDUSTRIAL COMMISSION et al.—(Daryl M. Bouton, Appellant.)

      Opinion filed November 22, 1978.

      Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Jeffrey B. Rock, of Swain, Johnson & Gard, of Peoria, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded the claimant, Daryl M. Bouton, compensation for 12 6/7 weeks temporary total disability and for 15% permanent loss of use of both legs resulting from an accident that arose out of and in the course of his employment by the respondent, Keystone Steel and Wire Co. The Commission affirmed the award after considering additional evidence. The circuit court of Peoria County reversed the decision of the Commission as against the manifest weight of the evidence and contrary to law. The claimant has appealed.

The claimant was injured in the course of his employment at Keystone on March 1, 1976, when he slipped into a knee-deep pit of water used to cool hot steel. He remained in the water, which he described as boiling, for two or three minutes. Claimant was hospitalized for three or four weeks and treated with “dressings and regular soaks” for bums on his legs and feet. He was then followed as an outpatient for approximately four months. Claimant returned to work on modified work release on July 7, 1977, and was provided with a special parking space near his place of work for a period of six months. On January 7, 1978, he was given a full work release by his doctor and relieved of the special parking space.

At the hearing before the arbitrator, held on February 23, 1977, claimant testified that when he drove his car his right foot habitually went to sleep and his right calf muscles tightened and went to sleep. He also testified that when he stood for an extended period his feet swelled up and that he had had to buy larger shoes to accommodate the swelling. Claimant also noticed weakness in his ankles when he walked on uneven ground and sensitivity to cold in his feet and legs. He admitted on cross-examination that he had burned his feet in the course of his employment in 1968, for which he had been awarded 10% permanent loss of use of both feet, and that his legs were still “shaky” from this injury at the time of the later accident.

At that hearing claimant introduced into evidence the examination report of Dr. Edward Law. On review by the Commission, respondent introduced the examination report of Dr. Lorin Whittaker. Dr. Law, the director of the bum unit at Memorial Medical Center in Springfield, found visible scarring and discoloration extending over the claimant’s ankle areas, as well as tightness of the ankle bilaterally. He noted that the claimant’s second, third, fourth and fifth toes drew into dorsiflexion when the feet were plantar flexed, this being more marked on the right. Dr. Law found further that knee and ankle reflexes were intact and burnt areas from the ankles to the knees had healed completely without scars.

Dr. Whittaker, who examined claimant four months after Dr. Law, found slight redness of both legs to the mesial calf. The deep tissues of the lower legs were normal and no atrophy was present. Dr. Whittaker noted some loss of pigmentation around both ankles, but no fixation of the skin, no crusting, scaling or keloid formation. He found that claimant had a full range of motion and that no edema was present in the claimant’s legs, ankles or feet. Dr. Whittaker concluded that the claimant’s objective examination was normal.

Whether a claimant is permanently disabled is a question of fact, and the finding of the Commission on this issue should not be set aside unless it is contrary to the manifest weight of the evidence. (South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489; Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289, 294.) Here the claimant’s testimony, if believed, would support an award for permanent partial disability. It is peculiarly within the province of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. (Spiegel, Inc. v. Industrial Com. (1976), 64 Ill. 2d 226, 229; Allen v. Industrial Com. (1975), 61 Ill. 2d 177, 182.) The medical evidence in this case was such that differing conclusions could be drawn from it. Where the evidence is conflicting, or of such a nature that different inferences may reasonably be drawn therefrom, we will not disregard permissible inferences drawn by the Commission merely because it or we might have drawn other inferences from the facts. Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, 295; Meade v. Industrial Com. (1971), 48 Ill. 2d 215, 219-20.

We find nothing in the record of this case to remove it from the general rule that the evidence and the conclusions to be drawn therefrom are within the peculiar province of the Industrial Commission (Spiegel, Inc. v. Industrial Com. (1976), 64 Ill. 2d 226, 230), and we do not agree that its findings are contrary to the manifest weight of the evidence. The judgment of the circuit court of Peoria County is accordingly reversed, and the award of the Commission is reinstated.

Judgment reversed; award reinstated.