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12/03/87 Lynette Fugate, v. the Industrial Commission

December 3, 1987

LYNETTE FUGATE, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (MARVIN CARTER ET AL., APPELLEES.)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

516 N.E.2d 987, 163 Ill. App. 3d 303, 114 Ill. Dec. 832 1987.IL.1785

Appeal from the Circuit Court of Montgomery County; the Hon. Mark M. Joy, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Claimant, Lynette Fugate, appeals from an order of the circuit court of Montgomery County confirming the decision of the Industrial Commission awarding her compensation from respondent Marvin Carter, but denying her compensation from the respondents Security Savings & Loan Association of Hillsboro and Hillsboro Hospital.

On August 6, 1982, Security Savings & Loan (hereinafter Security) entered into a contract for deed with Hillsboro Hospital (hereinafter Hillsboro) whereby Security purchased from Hillsboro grounds and a building thereon which had formerly been used as a hospital. Pursuant to the terms of the contract for deed, the title to the property remained in Hillsboro until such time as all of the payments under the contract had been made, although Security was placed in possession of the premises. The contract did provide that Security could have the building removed and could sell the fixtures and/or parts of the building upon written permission from Hillsboro. Subsequently, Hillsboro gave permission to Security to remove the building.

On October 1, 1982, Security entered into a contract with Marvin Carter. The contract provided that for the payment of $1, Security sold to Carter the hospital building and all of the contents but not the real estate. As stated in the contract, the purpose of the sale was for the removal of the building, which Carter agreed to do by demolition.

Claimant was hired by Carter on October 15, 1982, to maintain records of bills of sale, show people through the hospital, show things that were for sale, quote prices, and actually begin demolishing the building itself when she had time. As compensation, she was to receive 50% of the proceeds from the items she sold. Carter established her hours, provided for her use and provided T-shirts that said, "I work for Marvin Carter."

On November 12, 1982, while working in the building, claimant tripped over a piece of panelling and fell, injuring her right elbow, right wrist, and both knees. It was later determined that she had suffered a fracture of the radial head of the right arm and a possible navicular bone injury in her right wrist. She also suffered permanent damage to both knees resulting in permanent restrictions.

Claimant informed Carter of her accident. He informed her that he did not carry worker's compensation insurance. Inquiries to the Illinois Industrial Commission revealed that there was no insurance listed for Carter. Security had never inquired of Carter whether or not he carried worker's compensation insurance.

Claimant sought benefits from Carter, Hillsboro, and Security. At the hearing before the arbitrator, Carter did not appear; however, both Hillsboro and Security appeared and filed motions to dismiss. The arbitrator found that the claimant had sustained an accidental injury arising out of her employment and had suffered permanent partial disability to the extent of 15% in each leg and 20% to the right arm. She was awarded $285.25 per week for 107 weeks to be paid by her employer, who the arbitrator determined was Marvin Carter. The arbitrator found that no employer-employee relationship existed between claimant and either Hillsboro or Security. He also found that section 1(a)(3) of the Workers' Compensation Act, which is hereinafter set forth, was not applicable to either Hillsboro or Security:

"Any one engaging in any business or enterprise referred to in subsections 1 and 2 of Section 3 of this Act

The arbitrator determined that section 1 of the Act was not applicable for the reason that Carter had possession of the hospital building at the time of claimant's injury and, in effect, became the owner of the building. Both ...


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