Appeal from the Circuit Court of Cook County, the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
An arbitrator for the Industrial Commission found that on August 18, 1978, while employed by respondent, Stauffer Chemical Company, Antoni Stanislawski sustained accidental injuries arising out of and in the course of his employment, causing his death. He left surviving his widow, petitioner Linda Stanislawski, and their three minor children. The arbitrator awarded compensation under section 7(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)) and burial expenses under section 7(f) (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(f)) but denied petitioner's claim for additional compensation under section 19(m) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(m)). On review, the Industrial Commission affirmed the decision of the arbitrator. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission and petitioner appealed. Supreme Court Rule 302(a) (87 Ill.2d R. 302(a)).
"(m) If the commission finds that an accidental injury was directly and proximately caused by the employer's wilful violation of a health and safety standard under the `Health and Safety Act', approved March 16, 1936, as now or hereafter amended, in force at the time of the accident, the arbitrator or the Commission shall allow to the injured employee or his dependents, as the case may be, additional compensation equal to 25% of the amount which otherwise would be payable under the provisions of this Act exclusive of this paragraph. The additional compensation herein provided shall be allowed by an appropriate increase in the applicable weekly compensation rate." Ill. Rev. Stat. 1977, ch. 48, par. 138.19(m).
Section 4(d) of the Health and Safety Act in pertinent part provided:
"(d) All federal occupational safety and health standards which the United States Secretary of Labor has heretofore promulgated, modified or revoked in accordance with the Federal Occupational Safety and Health Act of 1970, shall be and are hereby made rules of the Illinois Industrial Commission unless the Illinois Industrial Commission shall make, promulgate, and publish an alternate rule at least as effective in providing safe and healthful employment and places of employment as a federal standard." Ill. Rev. Stat. 1977, ch. 48, par. 137.4(d).
In denying an award for additional compensation claimed under section 19(m) the Industrial Commission, relying on its decisions in Simpson v. Martin-Marietta Corp. (1980), Opinion No. 81 IIC 417(a), and Fleming v. Celotex Corp. (1981), Opinion No. 81 IIC 417, held that by reason of the enactment of the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. § 651 et seq. (1976)) all State enforcement of industrial safety laws was preempted. It found that although Illinois had submitted a plan for the development and enforcement of State occupational and safety health standards the plan was subsequently withdrawn and that OSHA presently enforces the Federal standards in Illinois.
It is petitioner's contention that she should have been permitted to prove that the accident which caused the death of the decedent was directly and proximately caused by the respondent's wilful violation of a health and safety standard in effect under the provisions of the Health and Safety Act and that the award should be increased by 25%. It is, of course, respondent's contention that enforcement of the standards has been preempted under the Federal legislation and that the judgment should be affirmed.
Title 29 U.S.C. § 655 (1976), provides for the adoption of occupational safety and health standards and the procedures for so doing.
Title 29 U.S.C. § 667(a), provides:
"Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title." 29 U.S.C. § 667(a) (1976).
Section 667(b) of title 29 provides that a State which desires to assume responsibility for development and enforcement of occupational safety and health standards with respect to which a Federal standard has been promulgated shall submit a State plan for the development of such standards and their enforcement. (29 U.S.C. § 667(b) (1976).) Illinois had submitted such a plan, but it was withdrawn on June 30, 1975. Section 1901.2 of the regulations adopted by the Occupational Safety and Health Review Commission provides:
"Section 18(a) of the Act is read as preventing any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a Federal standard has been issued ...