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08/26/87 the County of Cook, v. the Industrial Commission

August 26, 1987

THE COUNTY OF COOK, APPELLANT AND CROSS-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (MARTY WILLIAM WITCOFF, APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

513 N.E.2d 870, 160 Ill. App. 3d 825, 112 Ill. Dec. 261 1987.IL.1246

Appeal from the Circuit Court of Cook County; the Hon. Mary M. Conrad, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

This case involves a cross-appeal from an order of the Commission, confirmed by the circuit court, denying additional penalties and attorney fees under sections 19(k) and 16 of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 138.19(k), 138.16). The underlying appeal by the employer from the Commission order was settled between the parties and dismissed by prior order of this court. The issue is whether the Commission erred in failing to award additional penalties and fees because of the unreasonable refusal of the employer to pay any benefits in contravention of its statutory duty.

The facts are straightforward. On February 24, 1983, claimant, an off-duty deputy sheriff with the Cook County Department of Corrections, Sheriff's Department, was dining in a Chicago restaurant. Two men entered the restaurant with a dog, demanding service which the waitress refused because of the presence of the dog. The men refused to leave. Claimant came to the aid of the waitress, identified himself as a police officer, and escorted the two men from the restaurant. They resisted and one man punched claimant in his left eye. That individual was arrested by Chicago police officers.

Claimant received emergency treatment for a corneal abrasion. Subsequent treatment was rendered by Dr. Kohn, an ophthalmologist, who medicated and bandaged the eye. Claimant's eye injury substantially healed by April 1, 1983, although claimant was required to continue eye drops and occasionally suffered minor flare-ups of disability to the eye. In addition, one week after the assault claimant began suffering severe headaches and was referred by Kohn to Dr. Glassenberg, a neurologist. For 11 months, Glassenberg prescribed a variety of medication and muscle relaxants for claimant's headaches. Eventually they subsided and claimant was released to return to duty in February of 1984.

Claimant testified that on February 25, 1983, he called respondent's chief security officer, Ruiz, and notified him of his injury. He also claimed he called one of his shift commanders, Nelson, on March 2, 1983, to explain his absence. He stated he mailed copies of the police report to Jean Dolan, safety coordinator for respondent, two to three weeks after his injury. He also made a telephone call to Dolan in which he told her he was involved in a duty injury. He asked that she mail accident forms to him because he was too ill or medicated to travel to the office. In response, Dolan allegedly told claimant he had to come to the office to fill out the reports and refused to mail him forms. On his return to work, claimant was reinstated to duty, although he was refused status as a deputy sheriff allegedly because of unspecified mental problems. Although he filled out the accident forms, the department refused to pay benefits to him.

Claimant denied having any prior eye problems or headaches and denied any accident occurring after he was punched in the eye in February 1983. Claimant was required to call the duty officer every day to explain his absence from work. The department never asked him to return to work. No department doctor ever examined him. Claimant acknowledged receiving a reprimand in 1982 for conduct unbecoming an officer when he verbally abused hospital personnel for giving metal silverware to a prisoner in his charge. He claimed, however, the charges were false and had not been proved. Claimant also stated he did not apply for duty-related disability benefits because he did not know they existed.

Jean Dolan, safety coordinator, processed all duty injury claims for respondent. She insisted the first report she had of any duty accident involving claimant was February 7, 1984, when the State's Attorney's office made an inquiry of her. Claimant later came into the office that day and filled out the reports. At that time claimant also gave her police reports and certain medical bills which she forwarded to the committee which made recommendations concerning temporary total disability payments. Dolan also acknowledged that in June of 1983 an inquiry was made by a supervisory officer as to claimant's status. At the time, Dolan ascertained claimant had not filed for disability with the pension board. She also stated that if an officer suffered a duty injury and was hospitalized or bedridden, she would personally go to his location to have him fill out the reports. She stated, however, this situation had never arisen. Dolan acknowledged receiving a bill from Dr. Kohn in August 1983, which she returned because she did not know claimant's injury was duty-related.

On cross-examination, Dolan was confronted with petitioner's exhibit No. 17, which included various documents, medical bills, and a health insurance claim form. All related to claimant and were prominently denominated as workers' compensation matters. All were stamped "Received by the Department of Corrections March 9, 1983." Dolan maintained she never received the documents. Also admitted were copies of letters and bills sent from various doctors to the department from March through September 1983. Dolan maintained she never received any of these documents either, although they would normally be routed to her.

Russell Nelson, chief of security, denied having any conversations with claimant. He also stated claimant was aware of a department regulation requiring submission of a written report of the accident. On cross-examination, Nelson admitted he did not know if claimant had called Officer Ruiz and further admitted that since Nelson only works the night shift, claimant might not have been under his direct command prior to 1984. Documentary reports showing claimant was officially reprimanded for unbecoming conduct were admitted.

The deposition of Dr. Glassenberg, the neurologist, was admitted. Glassenberg initially saw claimant on April 7, 1983, for severe headaches. Claimant related that he had been beaten up by three youths in January of 1983, with injuries to his shoulder, neck, and nose. Claimant also suffered headaches. Due to the punch in the eye in February, claimant temporarily lost his eyesight, saw "light flashes" and suffered daily, constant headaches. Glassenberg diagnosed claimant's headaches as "migraine syndrome" and believed the flashes were the result of these headaches. It was Glassenberg's opinion that although claimant had headaches after his January injury, most of that condition had been resolved by the time of the second assault in February ...


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