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06/03/87 Continental Drilling v. the Industrial Commission

June 3, 1987

CONTINENTAL DRILLING COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (JESSIE ROSS, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

508 N.E.2d 1246, 155 Ill. App. 3d 1031, 108 Ill. Dec. 669 1987.IL.753

Appeal from the Circuit Court of St. Clair County; the Hon. Milton S. Wharton, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. McNAMARA, WOODWARD, McCULLOUGH, and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The petitioner, Jessie Ross, was injured in an industrial accident while he was working in West Virginia for the respondent company, Continental Drilling (the company). He applied for benefits under the Workmen's Compensation Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator found that the petitioner was permanently and totally disabled and awarded temporary total benefits, medical expenses, and permanent total disability under section 8(f) of the Act. Both the petitioner and the company sought review. The Industrial Commission (the Commission), also awarded temporary total and permanent total disability. It found the petitioner's average weekly wage to be lower and awarded additional medical benefits. On the company's review, the circuit court increased the Commission's finding regarding the petitioner's average weekly wage and otherwise confirmed.

The company's instant appeal raises the following questions: (1) whether the Commission had jurisdiction over this claim; (2) whether the petitioner's claim was barred by the statute of limitations; (3) whether the petitioner had elected a West Virginia remedy so as to preclude an award under the Act; (4) whether the circuit court properly considered and determined the petitioner's average weekly wage; and (5) whether the Commission's findings of causal connection and permanent total disablement are against the manifest weight of the evidence. We affirm.

On September 13, 1977, the date of the accident, the petitioner was an itinerant construction worker, specifically an operating engineer/driller. He was 41 years old, had a ninth grade education, and had always done manual labor.

He had been hired by the company in Chicago in July of 1974. He had no written employment contract but had worked only for the company after his July 1974 hiring. He supervised various drilling projects for the company, operating out of his Chicago labor union local. He worked at jobsites in various states, working as he accepted jobs that became available.

At his various jobsites, the petitioner was paid official wages at the work site's scale. However, with the company's subsidies, the petitioner always was paid the union's Chicago wage rate. Additionally, on the petitioner's behalf the company regularly paid into the Chicago local's vacation, health, and welfare funds.

The accident occurred when the petitioner fell approximately 30 feet down a sloped entrance to a mine shaft in Beckley, West Virginia. The petitioner's major treatment was begun by Dr. Alfredo Velasquez of the General Hospital, Charleston, West Virginia. In September and October of 1977, Dr. Velasquez treated the petitioner for concussion and muscle strain. Dr. Velasquez' diagnosis included paranoid schizophrenia. The petitioner disapproved of Dr. Velasquez' treatment and sought other assistance. Thereafter, he had four surgeries: in February of 1979 a lumbar laminectomy by Dr. John Noonan, in June of 1980 a lumbar laminectomy by Dr. Cully Cob, in April of 1981 a decompressive lumbar laminectomy and discectomy by Dr. Cobb, and in January of 1983 Dr. Cobb's reopening of a prior laminectomy. The petitioner also had on-going physical therapy. He continually complained of pain and sensory loss.

On October 2, 1977, while he was initially hospitalized following the accident, the petitioner signed an application for compensation from West Virginia's Workmen's Compensation Fund (the fund). West Virginia had no hearing on the petitioner's claim, but the fund paid the petitioner temporary total disability from September 13, 1976, to May 13, 1980, and paid his medical bills up to August 15, 1983. Additionally, pursuant to a West Virginia doctor's January 30, 1980, examination, the West Virginia Fund awarded the petitioner permanent partial disability for 35% of the whole man. That award was paid to the petitioner in weekly amounts from May 13, 1980, to January 17, 1983.

The petitioner accepted all the West Virginia award payments. However, pursuant to West Virginia procedures, he objected in writing to the award. He apparently challenged the 35% disability finding. As of August 15, 1983, according to the deposition of the fund's correspondence unit chief, the fund viewed the petitioner's award as a pending matter. Given the petitioner's formal objection, it had not become final automatically upon the petitioner's award notice.

On October 29, 1980, the petitioner filed for Illinois benefits under the Act. The arbitrator awarded benefits on the petitioner's Illinois claim. On both parties' review, the Commission majority found jurisdiction and that there was no dispute about the company's $56,633.74 credit for prior payment. It awarded temporary total benefits. Also, based upon the testimony of Dr. Cobb, it awarded the petitioner benefits for total and permanent disability under section 8(f) of the Act (Ill. Rev. Stat. ...


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