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Pazara v. Industrial Com.

OPINION FILED MAY 22, 1980.

MICHAEL PAZARA, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (BALDWIN ASSOCIATES, APPELLEE).



Appeal from the Circuit Court of Peoria County, the Hon. Edward E. Haugens, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

In proceedings under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) filed by claimant, Michael Pazara, for injuries he sustained from an assault by a co-employee on March 25, 1977, an arbitrator for the Industrial Commission found that claimant failed to prove that he sustained an accidental injury arising out of and in the course of his employment with respondent, Baldwin Associates. On review, the Commission affirmed, one member dissenting. The majority entered findings, specifically stating:

"1. The record reflects and Petitioner admits that the dispute between Petitioner and Servis, the co-employee who assaulted Petitioner, was purely personal in nature.

2. The record reflects that Petitioner was not in the course of his employment when he returned to the job site where he was assaulted. Petitioner testified that on the day of the incident, he left work at approximately 12:30 P.M., stopped at the VFW Hall and drank beer, did personal errands, stopped at a tavern, met a co-worker, John Troxell, and returned to the job site approximately 30 minutes prior to the end of the shift. Although Petitioner testified that he was waiting for his foreman to tell him what to do, it is difficult to believe Petitioner returned to the job site for the purpose of performing such duties when only 30 minutes were left in the work day. There is no evidence that he did, in fact, do any work after his return.

3. The record does not support Petitioner's contention that his assailant, Servis, had a history of violent conduct. Although the witnesses called in to support this contention testified to incidents of verbal abuse by Servis, there is no competent evidence in the record of physical attacks by Servis prior to March 25, 1977. [Emphasis in original.]

4. The Petitioner's hazard of being attacked by a fellow employee was neither incidental nor peculiar to the Petitioner's employment. Shortly after Petitioner's return to the job site, Troxell, the co-employee with whom Petitioner returned to the job site after a meeting in a tavern, engaged Servis in argument; Troxell and Servis came into the shack where Petitioner then addressed personal comments to Servis. A fight ensued between Petitioner and Servis, caused by those remarks.

5. The risk of harm was not increased by the employment, as the probability of assault was not augmented by the particular character of Petitioner's job or by a special liability to assault associated with the environment in which Petitioner worked."

On certiorari, the circuit court of Peoria County confirmed the decision of the Industrial Commission, and claimant appealed to this court pursuant to Rule 302(a) (73 Ill.2d R. 302(a)). Claimant contends that the decision of the Commission is against the manifest weight of the evidence.

On March 25, 1977, claimant was a concrete laborer employed by respondent at a job site in Havana. Claimant testified that on this date he arrived at work at approximately 8 a.m. and performed his assigned duties until approximately 12:30 p.m., at which time he left the jobsite to pursue personal matters. While away from the jobsite, claimant drank beer at a VFW Hall, shopped for a new automobile, and met a co-employee at a tavern. Though the exact time is not clear from the record, claimant was notified at some point during the day he was being discharged.

Claimant stated that he returned to the jobsite at some time after 3 p.m., perhaps as late as 3:10 or 3:15. He proceeded to the "chain shack," where he asked a foreman to contact his supervisor concerning an assignment for the remainder of the shift. Claimant stated that his shift ended at 4:25 p.m. and that he arrived at the shack with approximately 30 or 45 minutes remaining in the shift. Claimant was told by the foreman to remain in the "chain shack" until he returned with the supervisor. Bill Servis, a co-employee, entered the shack and engaged in a heated discussion with John Troxell, also a co-employee. The topic was a fight which occurred at noon between Servis and another employee, Keith Hagney. At some point in this discussion, claimant gratuitously volunteered his opinion of Servis' altercation with Hagney. Claimant stated that he told Servis, "Bill, that isn't the way I heard it. And I think that you ought to be ashamed of yourself for whacking him." Servis, with both fists clenched, immediately rushed to within two inches of claimant and informed him that he was not concerned with his opinion. Claimant pushed Servis away, and a fight followed in which Servis pulled a knife and stabbed claimant, inflicting three separate chest wounds for which 66 stitches were required.

In seeking reversal of the Commission's decision, claimant argues that the statement was made to further the interests of respondent. Claimant characterizes the statement as a criticism of the practice of fighting among co-employees, suggesting that his injuries therefore arose out of his employment. We do not agree.

Our opinions have consistently held that it is the province of the Industrial Commission to weigh and resolve conflicts in testimony, to choose among conflicting inferences therefrom, and to determine where the preponderance of the evidence lies. (Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill.2d 28, 32.) In reviewing the decisions of the Industrial Commission, this court will not disregard permissible inferences drawn by the Commission, and we will not substitute our judgment for the findings of the Commission unless those findings are contrary to the manifest weight of the evidence. (Malco, Inc. v. Industrial Com. (1976), 65 Ill.2d 426, 430.) Our examination of the testimony fails to provide a basis for holding that the Commission's finding that this dispute was purely personal in nature is contrary to the manifest weight of the evidence.

Claimant nonetheless argues, in reliance on Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill.2d 203, that the risk of physical attack was increased by his employment and that his injury is therefore compensable, even assuming that the dispute resulting in his injury was purely personal in nature. In support of this position, claimant argues that respondent was aware of the risk of assault engendered by Servis and that respondent's failure to discipline or discharge Servis for prior assaultive behavior increased this risk. Respondent rejects the validity of this theory of causation, contending that it is unsupported by our prior cases. Respondent argues in the alternative that if claimant's theory is sufficient to establish the causal link between claimant's injuries and his employment, claimant failed to meet his burden in the proceedings below.

Even if we were to agree with claimant that his theory is a valid one, we would be unable to conclude that his injury is compensable. One of the premises of claimant's theory is that Servis exhibited a propensity to engage in violent conduct, but we do not believe that the ...


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