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Chicago Transit Auth. v. Industrial Com.

OPINION FILED JUNE 2, 1975.

CHICAGO TRANSIT AUTHORITY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (WILLIAM H. KEOUGH, APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Edward F. Healy, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Claimant, William H. Keough, sought workmen's compensation for injuries purportedly arising out of and in the course of his employment with the Chicago Transit Authority (C.T.A.) on August 5, 1971. The arbitrator found that claimant had sustained injuries which completely disabled him and rendered him wholly and permanently incapable of work. Claimant was therefore granted an award which included a pension for life. (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(f).) The Industrial Commission sustained the award, and on certiorari to the circuit court of Cook County the Commission's decision was confirmed with the exception that a portion of the award was reduced which related to claimant's reimbursement for medical expenses. The C.T.A. appeals to this court (50 Ill.2d. R. 302(a)) contesting the evidentiary sufficiency of the Commission's determinations that the injuries arose out of and in the course of claimant's employment and the nature and extent of those injuries.

Claimant was 62 years old at the time of the accident. He had worked for the C.T.A. for 35 years and was assigned as a supervisor at Post 24, which was located at Archer and Cicero avenues in Chicago. His duties were to maintain bus schedules, and his functions included the rerouting of buses if delays developed in his assigned area. Post 24 consisted of a "shanty" which contained a telephone enabling the supervisor to report any necessary information. All written reports compiled by claimant were left at this location and were picked up by another supervisor who drove about the area in a car.

On the date of the injury claimant worked a "split shift" from 6:25 a.m. to 9:30 a.m. and from 2 p.m. to 6:30 p.m. He completed his morning shift and traveled to the C.T.A. garage at Archer and Rockwell, about 4 miles from Post 24. There the C.T.A. maintained a "train room" where its employees could eat and read. Toilet facilities were also provided.

Claimant testified that near the end of his work shift on the evening of the accident a traffic delay developed due to a railroad train which blocked the bus route two blocks east of claimant's station. Claimant said that he remained about 20 minutes beyond the scheduled termination of his duties in order to reroute buses around the obstruction. Evidence was introduced by the C.T.A. which tended to refute claimant's representation concerning the delay that evening. However, recitation of these facts is unnecessary for in its briefs and during oral argument the C.T.A. has advanced the theory that at the time of the accident claimant had terminated his employment that day and the "case went off in a tangent on the question of reroutes."

Claimant asserted that because of this delay he realized that he would be unable to reach the commuter train that he normally would take to his home in the evening. Therefore, after leaving Post 24, he boarded a bus and rode to a "carry out" restaurant where he purchased a dinner. He intended to eat at the "train room" that evening as he had previously done in similar situations and then take a later commuter train. Claimant's counsel has informed this court during oral argument that claimant would board the train in downtown Chicago, some distance from the C.T.A. garage.

Claimant arrived at the C.T.A. garage and entered the premises. When he walked in front of a wash bay, a bus was driven from this area by a C.T.A. employee and struck claimant. The accident occurred between 6:55 p.m. and 7:05 p.m., according to C.T.A. and hospital admission records.

Claimant was hospitalized for 44 days with a broken left arm and right leg. Multiple contusions resulted from the accident and claimant also complained of difficulty with his vision. Surgery was performed, and hospital records indicated that a "carpenter type screw" was inserted in the left elbow. Claimant has not worked since the accident. He testified before the arbitrator that he had difficulty turning his left arm and experienced pain in his left elbow. He also claimed that his leg gave out at times and that he walked with the assistance of a cane. Finally, he complained of present difficulty with his vision.

A medical report compiled in September 1972 was introduced by claimant. It indicated that he limped and that there was muscular atrophy in the left biceps. Pronation and supination were limited. This physician, who made the report, observed "marked spasticity" of the lumbar muscle groups and body restriction of the "lumbar level" in all directions. Straight leg raisings were also restricted as were movements at the hip and knee.

About this time another physician apparently retained by the C.T.A. examined claimant. In his report he concluded that claimant had made a "very good recovery and could be engaged in suitable employment." He also observed the claimant's use of the cane for walking was unnecessary.

In May 1973 claimant was again examined by a physician at the request of the C.T.A. This physician's diagnosis indicated a "healed fracture of the left olecranon with considerable restriction of motion" and "considerable osteoarthritis of the right knee." The physician observed that improvement would occur if the screw was removed from the elbow and the "overlying bursa resected." After discussing the matter with counsel for the C.T.A. this physician later concluded that there was no reason "why this man [claimant] should not have been able to carry on his work for a substantial period of time prior to my examination."

The C.T.A. maintains that claimant's work had terminated for the day when he left Post 24 at Archer and Cicero avenues, thereby permitting him to travel anywhere he wanted. It also argues that there was no explanation for his appearance at the C.T.A. garage 4 miles distant from Post 24 on the evening of the accident that was reasonably related to his employment activities or incidental thereto. Thus the C.T.A. concludes that claimant's injuries are not compensable under the Workmen's Compensation Act for they did not arise out of and in the course of his employment and that the Industrial Commission's contrary determination was erroneous.

The C.T.A. initially suggests, in support of its position, that the record in this case presents only a question of law in relation to the issue of whether the injuries arose out of and in the course of employment because there is agreement to the relevant facts or they are uncontradicted. We must reject this contention. It is only where no factual matters are disputed or conflicting inferences capable of being drawn therefrom that a question of law is presented. (Newgard v. Industrial Com., 58 Ill.2d 164, 170, and cases therein cited.) The record herein permits the conclusion that conflicting inferences do exist. See Morgan Cab Co. v. Industrial Com., 60 Ill.2d 92, 97.

In order to sustain an award for workmen's compensation an injury must arise out of and in the course of employment. (Technical Tape Corp. v. Industrial Com., 58 Ill.2d 226, 230.) This determination involves a factual evaluation by the Industrial Commission which will not be set aside on appeal unless contrary to ...


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