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05/29/87 Gerald Zbiegien, v. the Department of Labor Et

May 29, 1987

GERALD ZBIEGIEN, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF LABOR ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 422, 156 Ill. App. 3d 395, 109 Ill. Dec. 554 1987.IL.711

Appeal from the Circuit Court of Cook County; the Hon. Lucia T. Thomas, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff, Gerald Zbiegien, brought an administrative review action in the circuit court of Cook County (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) seeking review of a decision of the Illinois Department of Labor, Board of Review (Board). The Board had found that under section 601of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 431), plaintiff voluntarily left work without good cause attributable to the employer and thus was ineligible for unemployment insurance benefits. The circuit court reversed the Board's decision, and the Board appeals, contending that its decision was not against the manifest weight of the evidence. Although plaintiff has not submitted a brief, we elect to reach the merits of this case under the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiff had been employed by the House of Stainless for nearly 15 years and was working as an assistant machine operator when he resigned from his job on June 14, 1985, without giving his employer any notice. He applied for unemployment benefits, stating that it was necessary for him to quit work because of the changes there and because of a visual problem. On July 8, 1985, a claims adjudicator determined that plaintiff was eligible for benefits because he left his job after it became dangerous when his duties were changed. The adjudicator found that plaintiff's reason for leaving was attributable to the employer, plaintiff left for good cause, and he was not ineligible for benefits under section 601of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 431).

The employer appealed the claims adjudicator's decision, and a hearing was held before a referee on August 6, 1985. During this hearing, plaintiff testified that he left the job because he had "been doing the same job and it has been harder to do, gradually" as the result of the deteriorating condition of his eyesight. He said that at the time he left, the company was in the process of changing and moving to another plant and that he would have been assigned to different work which would have been more dangerous in the next few weeks. At a meeting of the entire warehouse staff in early June 1985, he was informed by his supervisor, Mr. Nashioka, that he would be doing different work, but he was not told what his new duties would be. Plaintiff, however, believed that it would be unsafe for him to stay. He said that he had no definite job prospects when he left, but when he resigned he told his supervisor that he had some possibilities of a new job and that it had become too difficult for him to work there. Plaintiff believed that the company knew of his eye problem because he had told a foreman about it "a long time ago," but that supervisor had subsequently been discharged.

A letter from plaintiff's ophthalmologist, Dr. Rajas, was submitted at the hearing, and it stated that plaintiff had been under the doctor's care for myopia of both eyes since 1978. The doctor also stated:

"This patient can perform any work where there is no undue risk of eye injury nor the need for simultaneous binocular vision."

Mr. Nashioka, plaintiff's supervisor, testified at the same hearing on behalf of the employer. He stated that he had been working for the employer for four months at the time plaintiff quit, but he said that to his knowledge, plaintiff's job duties had not changed. If they had changed, Nashioka would have assigned him different duties. The warehouse meeting referred to by plaintiff in his testimony was held by the company's vice-president to inform the employees of the company's financial situation and to let them know that in the future certain employees would have to learn to be back-up operators of some machines, but plaintiff was not singled out. Plaintiff told Nashioka of his resignation on the day he quit and did not give any notice. Nashioka believed that plaintiff quit because of the company's financial situation.

The referee set aside the decision of the claims adjudicator and concluded that plaintiff quit his job without good cause attributable to his employer and was therefore ineligible for benefits under section 601of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 431). She also found that plaintiff quit his job based upon rumors that it would change in the future, although he had not been told that it would be changed nor had he received any information on when it would be changed. Plaintiff then appealed to the Board, which affirmed the referee's decision, stating that plaintiff quit his job in anticipation that his duties would change even though his work assignment had not been altered, and he had not been advised by a physician to leave work nor threatened with discharge.

Plaintiff subsequently filed a complaint for administrative review, and a hearing was held in the circuit court of Cook County in which the court questioned plaintiff, who related that his job duties had changed and that he had to do more climbing and searching for material. This change in work routine resulted in his cutting himself and dropping material on his feet. Plaintiff indicated that he felt that the job was unsafe for him, and his ophthalmologist told him to continue to work as long as he could but advised him to use his judgment. Plaintiff said he spoke to some people with the company about his problems but that they would not listen to him. After hearing plaintiff's statements, the trial court reversed the decision of the Board because it was against the manifest weight of the evidence, concluding that changes in plaintiff's work duties endangered his eyesight and made it unsafe for him to continue working. It is from this decision that the Board appeals.

We agree with the Board's contention that the circuit court erred in considering new evidence presented by plaintiff at the administrative review hearing. Section 3-110 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-110) provides that on administrative review, "[no] new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court." Alternatively, the court may remand the cause to the administrative agency for the taking of additional evidence pursuant to the standards set out in section 3-111(7) of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-111(7)). But the circuit court itself may not entertain additional evidence or conduct a hearing de novo. (Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266.) In the case at bar, the circuit court could not properly consider any new evidence on the ...


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