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09/10/87 Freeman United Coal Mining v. the Industrial Commission

September 10, 1987

FREEMAN UNITED COAL MINING COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (IVARENE J. ROEMER, WIDOW OF AUBURN BAISIL ROEMER, DECEASED, ET AL., APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

513 N.E.2d 555, 160 Ill. App. 3d 524, 112 Ill. Dec. 141 1987.IL.1320

Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, 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

Freeman United Coal Mining Co. appeals from a circuit court order affirming the Industrial Commission's award of worker's compensation benefits to petitioner Ivarene Roemer as surviving widow of Auburn Baisil Roemer. On appeal, Freeman United maintains that the finding of the Commission that Roemer's death arose out of and in the course of his employment is against the manifest weight of the evidence.

Decedent was employed by Freeman United as a watchman on its property near Farmersville, Illinois. On December 24, 1980, decedent worked the 3 p.m. to 11 p.m. shift. He was relieved of duty at approximately 11 p.m. by Jack Evans. When Evans arrived, decedent was in his truck ready to leave. Evans did not notice anything unusual about decedent driving away. Evans did not leave the building to which he was assigned until 5 a.m. At that time, Evans found decedent lying on the ground near the entrance gate to the property. The right side of the gate was closed, while the left side remained open. Decedent was on the inside of the gate by the left side. Decedent's truck was stopped on the outside of the gate with the gate against it, the truck engine was running, and the headlights were on. Evans testified that part of the duties of the night watchman was to close and lock the gate upon leaving.

Evans further testified that the temperature that night was approximately 9 degrees below zero, visibility was poor, the wind was blowing, and it was snowing. The ground where decedent fell was on a small incline and was slick, snowy, and a little icy. According to Evans, the ground was rough in places, with rocks. The gate where decedent was found was approximately 200 yards from the shop where the watchman sits and the gate area is unlighted. Evans also testified that he found a quart bottle of liquor, with a few glasses remaining, in the office where decedent had been on duty. Evans did not know whether decedent drank on the job.

When Evans found decedent on the ground, he was still alive, although unconscious. Decedent died at a medical center just before 8 a.m. on December 25. Dr. John Dietrich testified by deposition that death was due to exposure. The post-mortem examination revealed a blood alcohol level of .155% and a urine alcohol level of .306%. This examination also revealed recent superficial abrasions on the bridge of decedent's nose and a bruise on his forehead. Dr. Dietrich testified that he could not give an opinion on intoxication or state whether decedent could have performed his duties without having observed him prior to the accident.

The arbitrator, without mentioning the intoxication defense, found the evidence did not establish that decedent sustained accidental injuries arising out of and in the course of his employment, causing death by exposure. The arbitrator denied petitioner's claim for compensation.

On review, the Commission reversed the findings of the arbitrator, holding that decedent sustained accidental injuries arising out of and in the course of his employment resulting in his death and that petitioner was entitled to survivor's benefits and expenses. The Commission held that decedent experienced an unexplained fall while closing the gate in the course of his employment and that the weather and road conditions at the site of the accident were such that it is probable they caused decedent to fall. The Commission further found that the employer failed to sustain the defense of intoxication because there was no evidence that decedent was so intoxicated that he could not perform the duties of his employment. The circuit court of Macoupin County confirmed the decision of the Commission.

On appeal, the employer contends that the finding of the Commission that petitioner was entitled to benefits because decedent's accident arose out of and in the course of his employment is against the manifest weight of the evidence.

It is not disputed between the parties that decedent was performing his duties as a night watchman at the time of the accident. Decedent's co-worker, Evans, testified that it was part of those duties to close and lock the gate when leaving. The employer argues, however, citing a number of exposure cases, that decedent was not subject to a risk of exposure greater than the risk to which the general public is subject and, therefore, petitioner should have been denied compensation. The employer essentially argues that intoxication is the only explanation for decedent's fall and if decedent had not been intoxicated, he would not have fallen or would have been able to get up after falling, and would not have been exposed to the elements for over six hours. We do not agree.

Evidence in the record established that the weather conditions and the ground where decedent fell may have caused his accident. The temperature was below zero and it was snowing. The ground was on a slight incline, rough, snow covered and a little icy. Evans testified that when he entered through the same ...


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