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Wirth v. Industrial Com.

OPINION FILED MAY 29, 1974.

R. ADELE WIRTH, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (LAWLOR INDUSTRIES, INC., APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Edward J. Egan, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 28, 1974.

This appeal is from a judgment of the circuit court of Cook County which confirmed a decision of the Industrial Commission denying a claim for death benefits because of the death of the claimant's husband. The case was appealed to this court pursuant to Supreme Court Rule 302(a)(2). 50 Ill.2d R. 302(a)(2).

The appellant presents three issues on this appeal: (1) whether the Industrial Commission erred in permitting the respondent, which had introduced no evidence whatsoever at the arbitration proceedings, to present evidence at the hearing on review before the Commission; (2) whether the Industrial Commission erred in permitting the respondent's medical experts to answer hypothetical questions which excluded allegedly undisputed and material facts, and (3) whether the decision of the Industrial Commission is against the manifest weight of the evidence.

The deceased, Frank E. Wirth, at the time of his death, and for 2 1/2 years immediately preceding, had been employed by Lawlor Industries, Inc. (hereafter respondent), which had succeeded to the business of the S.C. Lawlor Company, a bankrupt. Wirth had worked for that company since 1965. There was testimony by officers and employees of respondent or its predecessor company that the deceased worked long hours, and was, as a practical matter, in charge of the company through this difficult business period, and that he was under much job-related mental stress in connection with production deadlines and financial difficulties. This testimony was presented before the arbitrator at hearings on May 20 and 21, 1970. At this time the claimant's medical expert, Dr. Albert G. Miller, testified briefly as to his background and in part as to his qualifications as an expert witness. The respondent did not present any witnesses at any hearing before the arbitrator.

The final hearing before an arbitrator took place on October 7, 1970. At that time the only witness to testify was Dr. Miller, who, after being qualified as an expert, answered a hypothetical question based on the testimony of previous witnesses as to the stress resultant from the deceased's occupation. Dr. Miller testified that in his opinion death was due to a myocardial infarction, and that there was a causal connection between that myocardial infarction and the deceased's occupation. Counsel for the respondent explained later that he offered no evidence at that time because he believed that the claimant had not put forth sufficient evidence to justify an arbitrator's award. However, the arbitrator entered an award for the claimant and the respondent sought review before the Industrial Commission.

At the hearing before the Commission, the respondent was allowed to present the testimony of two medical experts, over the objection of the claimant that the Commission was only empowered to hear "additional evidence" by statute and that, since the respondent had put forth no evidence below, it was precluded from presenting evidence before the Commission. After the hearing, the Commission set aside the arbitrator's award in favor of the petitioner. The Commission's decision was confirmed by the circuit court.

The problem of statutory construction raised by the appellant involves section 19(e) of the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.19(e)). The pertinent language is:

"(e) If a petition for review and agreed statement of facts or transcript of evidence is filed, as provided herein, the Commission shall promptly review the decision of the Arbitrator or committee of arbitration and all questions of law or fact which appear from the statement of facts or transcript of evidence and such additional evidence as the parties may submit. * * *

If a reporter does not for any reason furnish a transcript of the proceedings before the Arbitrator in any case for use on a hearing for review before the Commission, within the limitations of time as fixed in this Section, the Commission may, in its discretion, order a trial de novo before the Commission in such case upon application of either party." (Emphasis ours.)

We believe that the appellant is correct in her contention that, since there is a record before the Commission in this case, the proceedings before the Commission may not be a trial de novo. This court further defined proceedings before the Commission in Meade v. Industrial Com. (1971), 48 Ill.2d 215, 220-221, as follows:

"The jurisdiction of the Commission to review the evidence taken before the arbitrator and to consider any further evidence properly presented to it is original as opposed to appellate jurisdiction. Such a review is neither a trial de novo nor simply a review of the record, but is sui generis. The award of the arbitrator becomes final by its entry upon the records of the Commission if it is not contested. If it is contested before the Commission, the jurisdiction of the Commission to review is original jurisdiction."

Under the circumstances of this case, the jurisdiction of the Commission was not appellate but original, and we hold generally that whether or not the additional evidence should be heard by the Commission is a question within its sound discretion.

The procedure before the Commission was not a trial de novo, for such a trial takes place when the hearing at the review level "* * * is a trial had as if no action had been instituted in the court below." (Burstein v. Millikin Trust Co. (1954), 2 Ill.2d 243, 245; Bley v. Luebeck (1941), 377 Ill. 50, 60.) Here the ...


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