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John S. Barnes Corp. v. Board of Review

JANUARY 20, 1965.

JOHN S. BARNES CORPORATION, PLAINTIFF-APPELLANT,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR, STATE OF ILLINOIS, AND WALTER BERNARD ERICKSON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County; the Hon. ARTHUR V. ESSINGTON, Judge, presiding. Affirmed.

MORAN, J.

This is an appeal by John S. Barnes Corporation from an order of the Circuit Court of Winnebago County entered pursuant to the provisions of the Administrative Review Act, affirming a decision of the Board of Review of the Department of Labor of the State of Illinois. The Board of Review had held that Walter Bernard Erickson was entitled to receive unemployment compensation benefits from April 29, 1962, through May 19, 1962.

The order was first appealed to the Supreme Court of Illinois. Upon that Court's own motion the cause was transferred to this Court for determination.

The record discloses that the defendant Erickson, herein referred to as claimant, is 27 years of age and resides with his wife and three-year-old child. In 1956, while working for the General Motors Company, he injured his right hand and received an award under the Wisconsin Workmen's Compensation Act. The injury left Erickson with a partially crippled right hand in that the joints of the right ring finger were stiff with the finger flexed towards the palm. After leaving General Motors in 1957, he was employed for a year as a vacuum cleaner salesman and subsequently held various industrial jobs. On January 13, 1961, he started to work for the appellant employer and was employed as a pump assembler at a rate of pay of $1.55 per hour. On January 15, 1962, at his request, he was granted a medical leave of absence in order to have corrective surgery performed on his hand. His former employer, General Motors Corporation, agreed to pay his medical expenses and weekly benefits. The surgery was performed and consisted of fusing each of the interphalangeal joints at approximately 40 degrees flexion. The claimant's personal physician, who performed the operation, estimated the resulting condition as approximately a fifty percent impairment to the right ring finger. This treating physician released the claimant to return to work on April 5, 1962, however, the president of the appellant corporation and the physician employed by appellant as plant doctor did not find him able to resume his duties and the treating physician agreed to extend the time for discharge to return to work to a later date.

In the latter part of April 1962, General Motors Corporation terminated the compensation payments. On April 30th, claimant went to see the president of the Barnes Corporation who indicated he felt that because of the condition of the finger claimant was not able to resume his regular duties and that the finger constituted an industrial hazard. Claimant requested permission to seek another job and was granted permission to do so. Claimant then pursued a course of job seeking and filed for unemployment compensation. Approximately one month later he was hired by a discount store as a stock man at a rate of pay of $1.25 per hour.

After claimant filed for unemployment compensation the appellant filed a notice of possible ineligibility dated May 5, 1962. The appellant contended that the claimant was still employed by the company, that the claimant was still unable to perform the work of assembling pumps and that due to corrective surgery, the claimant was not available for work.

A Deputy of the Division of Unemployment Compensation made an investigation of the claim. He found that the claimant was eligible for unemployment compensation in that he left work voluntarily with good cause and that he was available for work.

Appellant company appealed the Deputy's determination. A hearing was held before a hearing Referee, who affirmed the Deputy's decision and the Board of Review affirmed the decision of the Referee. The decision of the Board of Review concludes as follows:

"The claimant left his particular job in January of 1962 in order to undergo surgery and this, we hold, constitutes good cause for voluntarily leaving work. There was considerable discussion at the hearing as to whether the claimant was physically able to continue on his previous job as pump assembler and it would appear that he could no longer perform such work. Later he attempted to secure other work to support himself and his family. According to the record he finally did secure a job at a substantially lower wage and was so working at the date of the hearing. The claimant, thus, has manifested his continued attachment to the labor market and interest in working. To be sure, the claimant was physically handicapped and this without fault of the employer herein. Nevertheless, he was able to perform other work and has since then been doing so. On the basis of the evidence we find that the claimant was able to work, available for work and actively seeking work. He is, therefore, eligible for benefits."

The company filed suit in the Winnebago County Circuit Court pursuant to the Administrative Review Act. After hearing oral argument and considering written briefs, the court affirmed the decision of the Board of Review and this appeal follows.

The pertinent statutory provisions are found in Sections 601 and 500 of the Unemployment Compensation Act. Section 601A (Ill. Rev Stats 1961, c 48, § 431) provides:

"Section 601. Voluntary Leaving. A. An individual who has been paid wages within each of at least three calendar quarters of his base period for insured work shall be ineligible for benefits for the week in which he has left work voluntarily without good cause and, thereafter, until whichever of the following shall first occur: (1) He is not an `unemployed individual' as defined in Section 239 by reason of having accepted bona fide work; or (2) six consecutive weeks have elapsed which begin on the first day of the first week with respect to which he has filed a claim."

Section 500C (Ill. Rev Stats 1961, c 48, § 420) is:

"Section 500. Eligibility for Benefits. An unemployed individual shall be eligible to receive benefits with respect to any week ...


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