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09/08/87 F & E Erection Company, v. the Industrial Commission

September 8, 1987

F & E ERECTION COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION (JESSE G. BOND, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

514 N.E.2d 1147, 162 Ill. App. 3d 156, 113 Ill. Dec. 136 1987.IL.1300

Appeal from the Circuit Court of Jefferson County; the Hon. Robert M. Keenan, Jr., Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Claimant Jesse G. Bond sought benefits under the Illinois Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for various injuries sustained when he fell down a 40-foot metal stairwell while working for respondent F & E Erection Company in North Dakota. An arbitrator concluded that no Illinois jurisdiction existed because claimant had failed to prove the existence of an Illinois employment contract. The Industrial Commission reversed, finding an Illinois employment contract and finding a causal connection between claimant's ill-being and the work accident. The Commission awarded medical expenses and temporary total disability benefits of $258.97 per week for 261 3/7 weeks. The Commission found that its award was not a bar to a further award of temporary or permanent disability compensation, and consequently remanded the cause to the arbitrator for further proceedings. On administrative review, the circuit court of Jefferson County granted claimant's motion to quash the review on the basis that no jurisdiction existed where the Commission's decision was not final because it had remanded the cause to the arbitrator for further proceedings.

On appeal, respondent contends that the Commission's decision was final and appealable, and that the decision of the Commission is against the manifest weight of the evidence and contrary to law. Respondent argues that the Commission erred in finding an Illinois employment relationship, erred in finding claimant was not estopped by his election of remedies; and erred in awarding benefits from the date of the accident to the date of review because claimant had not been under active medical treatment and was not actively seeking employment.

In 1977, the 30-year-old claimant began working for respondent as an electrician, building large mining machinery. He filled out a job application at that time. Jack Hockey was respondent's vice-president and was the electrical supervisor in Illinois. Hockey hired claimant in Harco, Illinois, at the Amax-Delta mine. There was testimony regarding several related companies. The three companies, respondent, Adco Electric and CDK Contracting, were all part of the same parent organization called the Commercial Contracting Company of San Antonio, Inc. Claimant had worked for all three companies. The three companies shared the same post office box address in Texas. Adco and respondent were located in Texas, but the recordkeeping functions of CDK were housed in New Mexico. In 1979, Hockey was president of Adco and vice-president of respondent.

Claimant testified that the Harco, Illinois, job for which Hockey had hired him in 1977 entailed building a "drag line" at the Amax-Delta Mine for Amax Coal Company. He worked on that dragline for about 2 1/2 years. During that time, when a union strike took place in the Illinois mine, Hockey sent claimant to Texas to work for Adco. When the strike was over, claimant returned to Illinois and continued working for respondent.

In late spring or early summer 1979, claimant was hired by Amax Coal Company. Claimant testified that typically, when most of the construction work is completed on a dragline, most of the electricians go to work for the coal company. Claimant, therefore, was hired by Amax as an electrician to work at the same site and on the same machinery. Claimant worked for Amax for two or three months, but did not wish to continue, and he gave Amax two weeks' notice. He last worked for Amax on September 14, 1979.

The office trailer of respondent was still on the Amax property, as respondent was completing its work on the dragline. Approximately two weeks before claimant stopped working for Amax, claimant went to the trailer before work to talk with Hockey. Several other men were present, including respondent's president and the job supervisor. Claimant told Hockey he would like to work for respondent again. "Jack said he would hire me." Claimant continued, "He told me he hired me for no specific company at the time. He told me that we would make arrangements later, that he would contact me and I could be in contact with him to make arrangements for me to go to the job that he needed me at and that would best suit my needs." Hockey told claimant that four or five different jobs were available, including several jobs in Texas, one in North Dakota, one in Montana and one in Arizona.

Claimant and Hockey subsequently exchanged several telephone calls. Hockey specified "more clearly which jobs I could go to and he gave me a choice because money was better at some jobs and they could provide room and board for me at other jobs." Claimant told Hockey he preferred to go to North Dakota and Montana jobs instead of the Texas jobs. Hockey told claimant to "go up to North Dakota and check that job out and see how near ready they were for me to come there. And then I was to proceed to the Montana job at Cold Strip, Montana and work there until they were ready for me to come back to the North Dakota job . . .. [From] the time I left I was frequently in contact with Jack."

The first time claimant went to North Dakota, he stayed with a supervisor. John Glover, the electrical supervisor, met with claimant and later showed him the jobsite in order "to see if that machine was ready for more electricians to come in and work on the crew." Claimant denied that he stopped in North Dakota to see if any work was available. "I stopped because Jack told me to check in and see if they were ready for me then or should I proceed on to Montana." Claimant denied that a supervisor such as Glover had the power to say whether or not he could work, e.g., because he did not have the experience or did not have the green card necessary for mining electrical work. "No, not in this case because Jack Hockey was above him and I did have the green card and he already told me to go to work and Mr. Glover knew I was coming." The machine was not ready, and thus, according to Hockey's instructions, claimant proceeded to the other jobsite in Montana.

In December 1979, claimant began working in Montana for CDK Construction Company, where he worked until March 28, 1980. He was paid on CDK payroll checks. Claimant filled out a W-2 form and insurance papers in Montana. Claimant paid his own travel expenses between Illinois, North Dakota and Montana.

Claimant was in frequent contact with Hockey while in Montana. He denied telephoning Hockey inquiring about jobs, because they "had already established that [claimant] was going to North Dakota." Claimant telephoned Hockey "mainly to let him know each week how that job was going and he said he would let me know when I was supposed to go up" to North Dakota. Hockey had told claimant "in Illinois even before I went to Montana" that he was to go to North Dakota.

One telephone call from claimant in Montana to Hockey in Texas concerned problems claimant was having with the machine. "[We] tried to get it straightened out and then Jack sent another man that works for him, Roger Codanti, up to check it out from what I had told Jack to see what all was going wrong." In addition, Glover "came down from North Dakota and checked it out also after I had talked to Jack on the phone. Then when it started going more smoothly, I talked to Jack and he said, well, it would be time for me to go up to North Dakota. Then I contacted John Glover in North Dakota and he said, yes they were ready to have me and I went on up there." This occurred in April 1980. During this period, claimant returned to Illinois to visit his family several times.

Claimant did not recall filling out a job application "other than the one at F & E Erection in Harco, Illinois." He filled out W-2 and insurance forms in North Dakota. His paychecks carried the name of respondent. Claimant again met with Glover, but denied that he had to see Glover before he could go to work. Glover did tell him, however, "which jobs I was supposed to work on." Claimant also denied that Glover hired him. He emphasized that Hockey had hired him, and that he knew he would be working in Montana and North Dakota before he went to the jobsites. Claimant testified further that when he went to the Montana and North Dakota jobsites he was not subjected to any interviews. Instead, he was simply shown the jobsites.

Hockey testified that the F & E operation in Illinois was closed in September 1979. When Hockey returned to the F & E corporate office in Texas, he took charge of Adco. Hockey had no responsibility for hiring electricians for respondent in 1979 or 1980 after he left Illinois. Hockey believed claimant was still working for Amax Coal at the Illinois mine when Hockey left Illinois in early September.

Hockey testified further that he vaguely remembered a conversation between himself and claimant in respondent's trailer in 1979, a few weeks before claimant left Amax. Hockey recalled claimant saying he was not happy at Amax. He planned to quit Amax, and wanted to know if respondent had any available jobs. "I advised Jesse that there were other jobs at F & E and various other associated companies had going and whenever he made his commitment and did whatever he had to do, he could give me a call in San Antonio and we could see what we could do about finding employment for him at that point." Hockey denied promising claimant a job at any time.

Hockey testified that at some point claimant telephoned him saying that he had quit Amax and was looking for employment. In the "Fall, or probably about November of 1979," Hockey received a call from the vice-president of CDK inquiring about electricians for the job in Montana. Hockey spoke on the telephone with claimant in Illinois. "I can't verify who called who. All I know is we had conversations." Hockey then told claimant that "CDK, our sister organization, in Farmington had a drag line going in Montana and that they were looking for electricians out there, would he be interested in that particular job." Hockey told claimant to contact CDK's vice-president in New Mexico "to discuss the particulars of this employment, i.e., salary and whatever arrangements were to be made." Hockey ...


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