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Keystone Steel & Wire Co. v. Ind. Com.





Appeal from the Circuit Court of Cook County, the Hon. James C. Murray, Judge, presiding.


An arbitrator for the Industrial Commission awarded petitioner, Raymond King, Sr., compensation for permanent and total disability suffered as the result of an accident while in the employ of the respondent, Keystone Steel & Wire Company. On review the Industrial Commission affirmed the award, and on certiorari the circuit court of Cook County confirmed. No appeal was taken. Subsequently respondent filed a petition under section 8(f) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)) to modify the award. The petition is not included in the record, but it may be assumed that it was alleged that petitioner was gainfully self-employed and was no longer permanently and totally disabled. After hearing evidence the Industrial Commission denied respondent's petition. The Commission also found that there had been an unreasonable and vexatious delay by respondent in the payment of compensation for the period from September 23, 1978, to October 18, 1979, and that under section 19(k) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)) petitioner was entitled to an additional sum of compensation. Pursuant to section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16) respondent was ordered to pay petitioner's attorney fees in the amount of 20% of the compensation payments due. Respondent was also ordered to pay interest as provided in section 19(n) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(n)). On certiorari the circuit court of Cook County confirmed and respondent appealed (73 Ill.2d R. 302(a)).

At the hearing on respondent's section 8(f) petition, three employees of Scrap Corporation of America, called by respondent, testified that over a 10-month period between August 1, 1977, and May 30, 1978, petitioner, under the business name of "Ray King and Sons," contracted with and was paid by their company for work which included painting, replacing floor tile, carrying 50-pound steel lockers, and putting sealant on the roof of an office building. They testified that they had personally observed petitioner perform manual labor; that on some days petitioner worked periods of four to five hours; some days he worked a little more, on other days a little less, some days not at all, and on some days with one or more helpers.

Petitioner and his two sons testified that petitioner did very little physical work on these jobs and that his involvement in the business was primarily supervisory. Neither son was a full-time employee of the petitioner during the 10-month period. Neither party presented medical evidence.

Respondent contends that the Industrial Commission and the circuit court erred as a matter of law in finding that respondent had failed to prove that petitioner was no longer permanently and totally disabled. It argues that the error resulted from the failure to properly construe and follow E.R. Moore Co. v. Industrial Com. (1978), 71 Ill.2d 353, and A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill.2d 482. It argues that the findings and conclusions contained in the Commission's decision show that it had erroneously concluded that in order for an award for permanent and total disability to be modified, it was necessary to prove that the employee had engaged in regular or steady employment involving physical labor over an extended period of time for a particular number of hours each day. Respondent contends, too, that the Commission required proof by respondent that an offer of steady employment had been made to petitioner or that there had been an offer and rejection of vocational rehabilitation or retraining. In support of this last contention respondent cites the following statement found at the end of the Commission's order and decision to deny respondent's section 8(f) petition:

"This order shall not be a bar to further proceedings whenever the respondent can establish that petitioner has been offered steady employment within his physical and mental capabilities, skills and training, or has been offered and rejected an appropriate program of vocational rehabilitation or retraining."

Citing E.R. Moore Co. v. Industrial Com. (1978), 71 Ill.2d 353, the Commission stated in its order:

"The law is clear that Petitioner's age, the nature of disability, training and work experience must be considered in determining permanent total disability. * * * Petitioner has completed only one year of high school and absent from the record is any evidence showing Petitioner has any kind of specialized training. Petitioner was employed as a painter at the time of his injury and prior to that time had worked as a laborer. Prior to his injury [from which the permanent disability arose] as a result of which Petitioner underwent a surgical laminectomy, Petitioner had already had two earlier laminectomies. In addition, Petitioner had a traumatic amputation of four fingers on his left hand prior to his industrial accident.

Evidence which shows that an employee has been able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of only partial disability. A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. Jones v. Industrial Commission, 71 Ill.2d 368, 375 N.E.2d 1306 (1978), Firestone Tire & Rubber Co. v. Industrial Commission, 28 IL. Dec. 548, 76 Ill.2d 197, 390 N.E.2d 907, (1979), E.R. Moore v. Industrial Commission. Respondent did not show, nor does the record reflect, that Petitioner was performing or could perform services on a regular basis for which there is a reasonably stable labor market.

The Commission therefore finds that Respondent failed to prove that Petitioner was no longer permanently and totally disabled. The record does suggest that Petitioner has the desire to be regularly employed and might benefit from a program of vocational rehabilitation and counseling paid to by Respondent."

The Industrial Commission correctly construed our holding in Moore.

Respondent attempts to review now the correctness of the Commission's rulings made in the hearing on review of the original award. Respondent contends that certain medical reports were erroneously admitted into evidence. The award became final upon being confirmed by the circuit court. The Commission, of course, had before it the entire record in the case, and the reference in its order to the nature of the surgical procedures performed on petitioner and his injuries does not serve to open up for review evidentiary rulings in the earlier arbitration and review.

Citing Perry Coal Co. v. Industrial Com. (1931), 343 Ill. 525, as "a case factually on all fours with the instant case," respondent argues "This court must reach the inescapable conclusion that King was capable of some form of regular or steady employment which did not seriously endanger King's health or life." Perry Coal Co. is clearly distinguishable in that there the Commission found that the employee was no longer totally disabled and further there was medical testimony which supported that finding. Respondent's ...

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