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01/27/88 Associates Corporation of v. the Industrial Commission

January 27, 1988





522 N.E.2d 102, 167 Ill. App. 3d 988, 118 Ill. Dec. 647 1988.IL.80

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

Rehearing Denied May 15, 1988.


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


Claimant, Mary McDonnell, filed an application for adjustment of claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), alleging that her husband's death arose out of and during the course of his employment with Associates Corporation of North America. After a hearing at which evidence was submitted on the merits of the claim, the arbitrator denied benefits on the ground that the Industrial Commission lacked jurisdiction. The Industrial Commission affirmed the arbitrator but was reversed by the circuit court. No appeal was taken from this judgment. On remand, the Industrial Commission awarded claimant $78,766 per year for each of four years remaining on his employment contract, $769.23 per week pursuant to section 7(a) (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a)), and $1,750 for burial expenses pursuant to section 7(f) (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(f)). The Industrial Commission further found that Associates Corporation of North America was the decedent's employer at the time of death. The circuit court confirmed the Industrial Commission's findings. The employer appeals. The facts are as follows.

George F. McDonnell, the decedent, entered into an employment contract in Indiana with Associates Corporation of North America, a Texas corporation, to coordinate and direct its various insurance companies, including the Providence, Rhode Island-based Providence Washington Insurance Company. On May 13, 1976, while on a business trip to Providence, Rhode Island, Mr. McDonnell suffered an acute myocardial infarction which caused his death. Mr. McDonnell, who was 49 years old at the time of death, was a resident of Illinois during the entire period of his employment contract.

The decedent's job required that he travel extensively. The employer acknowledges that during the year prior to his death, the decedent spent 58 working days in Providence, Rhode Island, 37 working days in South Bend, Indiana, 7 working days in New York, New York, 20 days in other cities, and 55 days traveling from one city to another. This is a total of 177 days.

Claimant testified that on several occasions during the previous year the decedent held business meetings in an office located in the master bedroom of their home. Furthermore, decedent received business mail at his home address. Although the decedent had phone numbers where he could be reached in Providence and South Bend, claimant testified that she received 5 to 7 business phone calls per day on decedent's telephone in their home. She would take messages from those calling and relay these messages to decedent when he called her. Claimant would often type memos for the decedent which decedent would take with him on his travels.

Paul J. Ochs, who was president of Providence Washington Insurance Company from approximately May 1, 1975, through the date of the decedent's death, testified in an evidence deposition that he became acquainted with the decedent shortly after Ochs became president. Ochs stated that decedent, as vice-chairman of the board of Providence Washington, was his superior. When Ochs needed to contact decedent, he did so by either phoning or writing decedent at his home in Wilmette, Illinois. Although Ochs had office space and secretarial services set aside for decedent's use, the decedent had neither a permanent office nor secretary in Providence. According to Ochs, the decedent received very little business mail at the Providence office. Ochs testified as follows regarding the days immediately prior to May 13, 1976.

On May 3, 1976, Ochs met with the decedent at the decedent's home in Wilmette, Illinois, to prepare a presentation for Associates and its parent company, Gulf & Western. The purpose of this presentation was to show that Providence Washington had corrected its serious problems under the leadership of decedent and Ochs and that it had become a viable entity. According to Ochs, the decedent related at this time that decedent felt he was under pressure and that he was concerned about being "pushed out" of his job.

On May 10, 1976, the decedent met with Ochs at the Providence Washington offices in Providence, Rhode Island, to continue preparation for the presentation. Ochs testified that he and the decedent were determined to finish their preparation during this week since they were not going to see each other again until the date of the presentation, approximately 2 weeks hence. The May 10 meeting began early in the afternoon and lasted until sometime after 6 p.m. The following morning, May 11, they met at the office and continued their preparations until late in the afternoon. They continued working over dinner, finishing up about 9 to 9:30 p.m. On May 12 they met at the office at about 8:30 a.m. and worked until 5 or 6 that evening. They did not eat together that night.

At approximately 8:30 a.m. on May 13 the decedent called Ochs at the office, told Ochs that he was not feeling well, and asked Ochs to come and see him in his room as soon as possible. Ochs left the office immediately, and when he arrived at decedent's hotel the decedent was pacing around the room. The decedent told Ochs that he had not been sleeping well lately and that he had an intermittent pain in his right arm which he had had since arriving in Providence. When Ochs asked decedent whether he had a medical problem, the decedent told Ochs that his annual physical had found high blood pressure, which was now under control, and that his physician had told him to slow down and lose weight. ...

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