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Godare v. Sterling Steel Casting Co.

OPINION FILED DECEMBER 23, 1981.

GEORGE GODARE, PLAINTIFF-APPELLEE,

v.

STERLING STEEL CASTING CO., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. RICHARD P. GOLDENHERSH, Judge, presiding.

PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff, George Godare, brought this action in the Circuit Court of St. Clair County to recover pension benefits allegedly due from his former employer, Sterling Steel Casting Co. Defendant filed a counterclaim alleging that the complaint was subject to a mandatory arbitration procedure pursuant to a provision in the pension agreement. The trial court dismissed the counterclaim and on appeal we affirmed, holding that the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) was not applicable to the proceedings. (Godare v. Sterling Steel Casting Co. (1981), 96 Ill. App.3d 601, 421 N.E.2d 925.) On remand, the circuit court of St. Clair County entered judgment for the plaintiff and awarded him compensatory damages, prejudgment interest and punitive damages, finding that the decision of the Illinois Industrial Commission awarding plaintiff compensation for total and permanent disability, which award was confirmed by the circuit court and affirmed by the supreme court was res judicata as to the instant controversy. From that judgment, defendant takes this appeal.

On appeal, Sterling Steel denies that the award of workmen's compensation is res judicata with respect to plaintiff's entitlement to a pension. Defendant also denies that plaintiff has fulfilled the necessary conditions precedent for eligibility under the collectively bargained pension plan and denies that the trial court properly awarded prejudgment interest and punitive damages.

Plaintiff injured his back during the course of employment on July 10, 1975. At the time, plaintiff was an employee of defendant and a member of the United Steel Workers of America Local 1095, AFL-CIO. Plaintiff had been in defendant's employ for over 25 years and was 54 years of age at the time of his injury.

After leaving his employment, plaintiff filed an application for workmen's compensation benefits. He was examined by Dr. Lloyd Hill, an orthopedic surgeon, on May 20, 1976. Dr. Hill was of the opinion that plaintiff was permanently disabled from doing any work requiring physical labor. On July 7, 1976, a hearing was held before an arbitrator of the Illinois Industrial Commission. On July 9, 1976, the commission found that the plaintiff suffered from a total and permanent disability. This decision was affirmed by the Illinois Supreme Court. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill.2d 273, 384 N.E.2d 1326.) Defendant has made all workmen's compensation payments to plaintiff in full compliance with the decision of the Industrial Commission.

On October 26, 1977, plaintiff applied for a disability pension pursuant to the pension plan between the Steel Workers Union and defendant. This plan has been in effect since 1957 and has been periodically amended to reflect increases in the amount of benefits payable.

Paragraph 2, section I of the pension agreement provides that an employee with 15 years of continuous service who, through some unavoidable cause, becomes "permanently incapacitated," shall be entitled to a disability pension. "Permanently incapacitated" is defined in the same section and paragraph as follows:

"a) if he has been totally disabled by bodily injury * * * so as to be prevented thereby from engaging in any occupation or employment for remuneration or profit and,

b) after such total disability shall have continued for a period of six consecutive months and, in the opinion of a qualified physician, it will be permanent and continuous during the remainder of his life * * *."

Paragraph 2, section I, also provides:

"* * * such pension for permanent incapacity shall continue only so long as such petitioner shall be permanently incapacitated. The permanency of incapacity may be verified by medical examination prior to age 65 at any reasonable time."

Paragraph 2, section V, provides:

"If any difference shall arise between the Company and any Employee as to whether such Employee is or continues permanently incapacitated within the meaning of Section I, Paragraph 2, such difference shall be resolved as follows: The Employee shall be examined by a physician appointed for the purpose by the Company and by a physician appointed for the purpose by a duly authorized representative of the International Union. If they shall disagree concerning whether the Employee is permanently incapacitated, that question shall be submitted to a third physician selected by such two physicians. The medical opinion of the third physician, after examination of the Employee and consultation with the other two physicians, shall decide such question. The fees and expenses for the third physician shall be shared equally by the Company and the Union."

Upon receipt of plaintiff's application for disability pension, defendant raised a question as to whether plaintiff was or continued to be permanently incapacitated within the terms of the pension agreement. Defendant wrote to plaintiff four times between October 27, 1977, and April 6, 1979, requesting plaintiff to submit to a medical ...


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