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06/07/88 Beecher Wholesale v. the Industrial Commission

June 7, 1988





524 N.E.2d 750, 170 Ill. App. 3d 184, 120 Ill. Dec. 720 1988.IL.888

Appeal from the Circuit Court of Will County; the Hon. Thomas W. Ewert, Judge, presiding.


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


Claimant, Chester Mark Kozlowski, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), for a work-related injury which occurred on July 24, 1984, at the premises of Beecher Wholesale Greenhouse, Inc. (respondent). Claimant alleged that he had been struck by lightning while making a business call and, as a result, had suffered debilitating brain damage. On April 3, 1986, the arbitrator found claimant was permanently and totally disabled under the Act. Both the Industrial Commission (Commission) and the circuit court of Will County affirmed the decision. We affirm.

The relevant facts are as follows. Claimant was working as a salesman for the respondent, a wholesale greenhouse. He had worked there since 1977, initially employed in a high school work-study program, and after graduation, as a full-time employee.

On July 24, 1984, claimant was sitting in respondent's office making telephone calls to clients. At approximately 11 a.m., he was talking to Helen DeVries (DeVries) of Momence Produce, a concern which was located about 20 miles from respondent's facilities. DeVries testified that at the time of the call, a rainstorm was producing significant thunder and lightning. After talking with DeVries about an order, DeVries suddenly realized that she was not talking with him. There had been no disconnection on the telephone line; claimant simply was "not there." DeVries further stated that she previously had talked to claimant a number of times and noticed nothing unusual about him with respect to his mental capabilities.

Phillip Nuccio (Nuccio), a co-employee of claimant, testified that at 11 a.m. he was putting plants in trays in respondent's greenhouse. A storm was creating a great deal of thunder and lightning. Nuccio heard a "boom, crash, or something" in the immediate vicinity. His employer, James Dancik (Dancik), called him to the greenhouse office. In the office, Nuccio saw claimant setting before his desk in a state of "shock." Along with Dancik, he attempted to snap claimant out of his dazed condition. An ambulance was called, and Nuccio went with claimant to the hospital, where he noticed red marks on claimant's right palm and right ear.

Michael Klugo, another co-employee of claimant, stated that on the date and time in question, he was called to the office by his employer. Claimant was entirely limp and unresponsive to efforts to rouse him. The telephone receiver was off its cradle and lying next to claimant.

Claimant's mother, Velva Kozlowski, testified that claimant attended both regular and special education classes at high school, from which he graduated in 1980. Prior to July 24, 1984, claimant had a good memory and a positive outlook on life. Following the disputed incident, claimant had difficulty remembering recent events, and his mood was often depressed. Claimant suffered from continuing weakness and lethargy and pains in his right ear and right arm.

Mrs. Kozlowski was told by Dancik that claimant had been talking on the phone when Dancik heard a loud pop and saw claimant put the phone receiver down very slowly. Thereafter, claimant sat dazed and unresponsive.

Claimant testified that he remembered coming to work at 6 a.m. About 9 a.m. he began calling clients and taking orders. The next thing he recalled was waking up in the hospital. Claimant stated that since the accident he experienced a lot of pain and generally felt weak. He suffered from pain in his right ear, severe headaches, and has difficulty both concentrating on and comprehending what he reads.

Dr. Stephen Trobiani, a neurologist, and Lawrence Egel, a clinical psychologist, testified for claimant. After examining claimant at length, each determined that he was permanently and totally disabled. Edward Steffan, a certified vocational rehabilitation counselor, testified that claimant was a poor candidate for employment and should ...

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