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Werries v. Industrial Com.

OPINION FILED SEPTEMBER 16, 1985.

DONALD D. WERRIES, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (R.T. ATKINSON ELECTRIC, APPELLEE).



Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Donald D. Werries filed an application for adjustment of his claim under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained while he was employed by R.T. Atkinson Electric Company. An arbitrator denied Mr. Werries workers' compensation benefits on the grounds that Mr. Werries failed to prove that he had sustained injuries arising out of and in the course of his employment by R.T. Atkinson Electric Company. The Industrial Commission affirmed the arbitrator's decision, and the circuit court of Sangamon County confirmed the decision of the Industrial Commission. Petitioner has perfected this appeal, in which he contends that the Commission erred in not allowing petitioner to present additional evidence pursuant to Industrial Commission Rule 4-(4)(B)(3).

Petitioner was the sole witness to testify before the arbitrator. He stated that on January 23, 1979, while employed by R.T. Atkinson Electric Company, he slipped and fell off a semitrailer. Mr. Werries estimated that he fell approximately 5 feet and said he felt pain in his left hip, back and shoulder. According to petitioner, he reported the incident immediately to Robert Beasley, the general foreman. Mr. Werries testified that he sought medical help from Dr. Ernest C. Bone the next morning and later was treated by a chiropractor, Dr. Arthur K. Beams, and other physicians. Various medical reports were presented to the arbitrator.

The arbitrator specifically noted that there were "no records in evidence showing any medical or chiropractic treatment to [Mr. Werries] from the alleged date of accident until June 29, 1979," and found that Mr. Werries had failed to prove that an accident occurred which arose out of and in the course of his employment by R.T. Atkinson Electric Company.

In his petition for review of the decision of the arbitrator, Mr. Werries indicated his intention to introduce additional medical and lay evidence before the Industrial Commission.

On September 20, 1983, this cause came on for hearing before a single commissioner, Ted Black, Jr. At that hearing Mr. Werries, over the objection of R.T. Atkinson Electric Company based upon Industrial Commission Rule 4-(4)(B), sought to introduce the testimony of Robert Beasley. The following colloquy occurred:

"THE COMMISSIONER: * * *

The gentleman [Mr. Beasley] was available to testify at the time of arbitration, is that correct?

MR. CALANDRINO [Attorney for Mr. Werries]: He would have been but he wasn't subpoenaed at the time because he was foreman for the Respondent.

THE COMMISSIONER: Did the Petitioner testify — did the Petitioner's testimony mention this foreman at the time of arbitration in any kind of way relating to an accident or reporting of an accident?

MR. MUELLER [Attorney for R.T. Atkinson Electric Company]: I don't remember, your Honor. I read it last night. I think it did.

MR. CALANDRINO: I think it was to Mr. Beasley that he reported the accident or that he knew of the accident.

MR. MUELLER: This man was available at the time, your Honor.

THE COMMISSIONER: And nobody called him?

MR. MUELLER: Nobody called him.

MR. CALANDRINO: But the issue again was created when the Arbitrator makes a new finding that needs substantiation. Now, this issue was not — we had sufficient evidence in the record at that time.

THE COMMISSIONER: Well, you say that Mr. Calandrino. Evidently, the Arbitrator didn't feel that you had a sufficient amount of evidence in there to support your position.

MR. CALANDRINO: I think that's why the issue was created, your Honor, at the time she made the decision so it necessitates additional information.

THE COMMISSIONER: Well —

MR. CALANDRINO: All information in every situation, we can't present every witness of evidence that's available in every case because we'd never finish these cases, but the man — the company had notice and they deny notice, so that's an issue of fraud.

MR. MUELLER: We deny that.

MR. CALANDRINO: Well, that's what this witness would show.

MR. MUELLER: I think the rule remains, your Honor, and decisions remain that this witness should not be allowed to testify.

MR. CALANDRINO: It's never been based on fraud, the rule that he is quoting to you has never been based on fraud. Fraud ...


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