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Board of Education v. Industrial Com.

OPINION FILED JANUARY 20, 1981.

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (BEATRICE L. ROBINSON, APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

These consolidated workmen's compensation cases are before us on direct appeal from the circuit court of Cook County pursuant to our Rule 302(a). 73 Ill.2d R. 302(a).

Beatrice L. Robinson, claimant, was employed by the board of education of the city of Chicago in March 1971 as a stenographer in the legal department. She filed two applications for adjustment of claims pro se with the Industrial Commission. The claims were heard together in a prolonged series of hearings before three different arbitrators. Although the applications were filed pro se, the claimant was represented by counsel during most of the hearings. However, before their conclusion, she discharged her attorney and proceeded pro se. Although the claims were heard as a consolidated case, the arbitrator issued two separate findings and orders as did the Industrial Commission on review. In this opinion we will refer to the two claims as the 1971 claim and the 1972 claim.

As to the 1971 claim, the arbitrator found that the claimant had suffered accidental injuries arising out of and in the course of her employment on the 1st, 20th, and 29th days of October and on the 14th day of December 1971. The claimant was awarded 7 4/7 weeks of compensation for temporary total disability and 43 1/2 weeks of compensation as permanent disability for 10% loss of use of her right arm and 10% loss of use of her right leg. She was also awarded $1,200.72 medical expenses. In the 1972 case the arbitrator found that the claimant had suffered an accidental injury arising out of and in the course of her employment on October 3, 1972, and awarded her 64 weeks of compensation for temporary total disability. Although the arbitrator found that the necessary medical expenses had not been provided by the employer, no order was made with regard to the payment of them.

On review of both of the cases, the Industrial Commission, by way of adjustment, set aside the awards of the arbitrator. In both cases it found that the claimant had suffered accidental injuries on the same dates that the arbitrators had found. However, the awards for 10% permanent loss of use of the right arm and right leg were removed from the award in the 1971 case and added to the award in the 1972 case. Thus in the 1971 case the Commission found that the claimant suffered accidental injuries on the 1st, 20th, and 29th days of October and the 14th day of December 1971, and besides the medical expenses, awarded her 7 4/7 weeks of compensation for temporary total disability. In the 1972 case, the Commission found that the claimant suffered an accidental injury on October 3, 1972, and awarded her 64 weeks' compensation for temporary total disability and 43 1/2 weeks of compensation for 10% permanent loss of use of her right leg and 10% loss of use of her right arm. The Commission likewise made no award for medical expenses in the 1972 case. The circuit court of Cook County confirmed the award as to the 1971 case, but reversed the award as to the 1972 case.

While it is primarily within the province of the Industrial Commission to determine the credibility of the witnesses and to determine issues of fact, it is nevertheless the duty of the court to weigh and consider evidence in the record, and if it is found that the decision of the Commission is against the manifest weight of the evidence, it will be set aside. (Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill.2d 439, 443.) The burden is upon the claimant to establish the essential elements of her claim by a preponderance of credible evidence, particularly the prerequisite that her injury arose out of and in the course of her employment. (Hannibal, Inc. v. Industrial Com. (1967), 38 Ill.2d 473, 475.) Even though there is evidence in the record which, if undisputed, would sustain the claim, such evidence is not sufficient if, on a consideration of all the testimony and circumstances shown in the record, it appears that the manifest weight of the evidence is against such finding. (Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill.2d 439, 443; State House Inn v. Industrial Com. (1965), 32 Ill.2d 160, 164.) Although the testimony of the claimant standing alone is sufficient to sustain an award, that testimony must be considered with all the evidence in the record. The burden of proof is upon the claimant, and unless the evidence, considered in its entirety, shows the injury arose out of and in the course of the employment, there is no right to recover under the Act. (Revere Paint & Varnish Corp. v. Industrial Com. (1968), 41 Ill.2d 59, 63.) The established principles of compensation law stated in these cases compel us to hold that the decisions of the Industrial Commission in both the 1971 case and the 1972 case were against the manifest weight of the evidence.

It is difficult to determine the nature of the injuries for which the claimant seeks to recover and the circumstances in which they were incurred. In her application for adjustment of claim in the 1971 case, she referred to "incident - injuries," and not accidental injuries over a three-month period and alleged that she was "verbally assaulted" by various co-employees. Her testimony covers a wide range of complaints. She testified that she was overtrained and overexperienced for the job and was a speedy typist. According to her testimony, the other stenographers in the pool were inefficient. She contends that there was a conspiracy among the other stenographers. She said that they were vulgar and would stand over her and shout, using obscene and racist language, bump against her typewriter and even exchange her "fast typewriter" for a "broken-down" one, all in order to harass her and lessen her work efficiency.

Claimant alleges that, as a result of these verbal assaults and harassments, she suffered extreme nervousness. In Pathfinder Co. v. Industrial Com. (1976), 62 Ill.2d 556, this court reviewed its previous holdings where recovery had been allowed under the Workmen's Compensation Act for psychological disabilities, noting that in those cases recovery had only been allowed where the psychological disability arose from an accident that also involved physical contact or injury. In Pathfinder, this court, for the first time, allowed recovery on the basis of a psychological injury alone. There is in our case simply no evidence that will support a claim for a psychological disability under either the holding in Pathfinder or the decisions of this court prior to that case. The claimant's testimony was the only evidence as to her physical injuries. Her complaints are all subjective, and there is no objective evidence of any injury or disability. Likewise, her testimony is the only evidence that connects her nervous disorder with her employment.

In the 1971 case the Commission found that the plaintiff sustained accidental injuries on four dates: October 1, 20, and 29, and December 14, 1971. The evidence concerning the occurrences on these dates is conflicting. The claimant contends that on October 1, 1971, she was in the library of the legal department of the board of education talking on the telephone to an attorney about a "very important matter" when her supervisor, Mrs. Loretta Mikula, shouted and screamed at her to get off the telephone and to go to take dictation from one of the attorneys in the office. She stated that Mrs. Mikula followed her down the hall to the attorney's office and stood outside of the door shouting at her until another attorney came out of his office and told Mrs. Mikula to leave. This attorney then explained to the claimant that Mrs. Mikula acted this way because she hated her. Mrs. Mikula testified that she did tell the claimant to take dictation from one of the attorneys and that she had to go back to the claimant a second time and ask her to hang up the phone and take dictation, but that she did not shout at her and she did not follow her down the hall to the attorney's office. Also, the attorney for whom the claimant was to take dictation and the attorney who supposedly told Mrs. Mikula to leave denied hearing any commotion. Claimant said that on this date there was no physical contact between her and Mrs. Mikula.

On October 20, 1971, the claimant stated that she was approaching the door to the room where the Xerox machine was kept when Mrs. Mikula stood in the doorway blocking her passage. Mrs. Mikula said nothing, but as the claimant attempted to go through the door, she struck the claimant on the right arm with her elbow and kicked her. As a result the claimant's right arm and right leg were sore. She also stated that the next day her back hurt her. Mrs. Mikula testified that she could not recall standing in the door, or striking the claimant.

On October 29, 1971, the claimant contends, an attorney in the office asked her to make some copies of a large volume of work on the Xerox machine. She contends that while she was doing so she was interrupted several times by other people in the office and had to stand on her feet three hours or more. This, she contends, caused her to suffer pain in the left side of her abdomen. On different occasions she related the pain in her left side to "where the tubes are." Mrs. Mikula testified that she was the one that had assigned the work to the claimant to be copied on the Xerox machine on October 29. She stated the work consisted of only about 120 pages and should have taken about one hour to copy. This is work that was normally done by the stenographers, and they were not required to stand up all the time but could take a break if one became necessary.

The claimant alleges in her application for adjustment of claim that on December 14, 1971, she was forced to type standing up and was subjected to verbal assault as a result of which she suffered extreme nervousness and sustained a painful backache. There is very little, if any, testimony specifically relating to December 14, although there were vague references injected into the testimony concerning other alleged incidents with regard to being required to type standing up.

All of these occasions involved what the claimant has described as verbal assaults and harassments, which, she contends, made her nervous. We have read this entire record, which is quite lengthy and very difficult to follow, and find nothing in it that will support recovery for a nervous disorder or psychological disability brought about by such conduct alone. The evidence does not prove that the claimant has suffered "a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm," which this court held in Pathfinder constituted an accidental injury within the meaning of the Act. (62 Ill.2d 556, 563.) The same must be said of any alleged nervous disorder that may have been associated with a physical injury. The claimant has not proved that her nervous disorders arose out of and in the course of her employment or that they were the consequence of an accidental injury. We reach the same conclusion concerning the claimant's alleged physical injuries. Her proof in this regard relates to injuries she claimed she received on October 20, when Mrs. Mikula allegedly struck and kicked her, ...


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