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06/08/88 Marjorie Biggerstaff, v. the Industrial Commission

June 8, 1988

BIGGERSTAFF, DECEASED

v.

THE INDUSTRIAL COMMISSION ET AL. (BEE HILL DRILLING COMPANY, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

MARJORIE BIGGERSTAFF, Surviving Parent of John William

525 N.E.2d 1000, 171 Ill. App. 3d 845, 121 Ill. Dec. 693 1988.IL.896

Appeal from the Circuit Court of Cook County; the Hon. Alexander P. White, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Claimant, Marjorie Biggerstaff, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.), alleging that her son's death arose out of and during the course of his employment with Bee Hill Drilling Company. After a hearing, the arbitrator found (1) that claimant had established that her deceased son had entered into a contract for hire with the employer in Illinois, and (2) that claimant had established that she was totally dependent upon her deceased son for support and was entitled to the sum of $225.95 per week "until the sum of $250,000 [has] been paid or until the period of 20 years [has] passed whichever is greater." (Ill. Rev. Stat. 1983, ch. 48, par. 138.7(b).) In a three-way split decision, the Industrial Commission found that claimant had only established a 50% partial dependency and reduced the award accordingly. (Ill. Rev. Stat. 1983, ch. 48, par. 138.7(c).) The circuit court then reversed the Industrial Commission and set aside the award, finding that Illinois lacked jurisdiction because claimant had failed to establish through admissible evidence the existence of a contract for hire in Illinois. (Ill. Rev. Stat. 1983, ch. 48, par. 138.1(b)(2).) Claimant appeals, alleging (1) that the circuit court erred in finding that claimant had failed to establish the existence of an Illinois contract for hire through admissible evidence, and (2) assuming the circuit court erred on the first issue, that the Industrial Commission erred in finding that claimant was not totally dependent upon her deceased son for support. Due to their nature, the issues will be discussed separately.

A. Jurisdiction

On February 9, 1983, claimant's 20-year-old son, John Biggerstaff, sustained employment-related injuries in Indiana which resulted in death. The decedent's employer, Bee Hill Drilling Company, is a Texas corporation engaged in the business of drilling oil wells. Although Bee Hill was registered to do business in Illinois, its only drilling operations at the time of the accident were located in Posey County, Indiana.

Darrell Nelson, a "tool pusher" (i.e., one who oversees the operation of an oil rig) for Bee Hill, testified that one of his duties was to hire oil drillers. During an October 1981 telephone conversation conducted exclusively in Illinois, Nelson hired Marvin Settle as an oil driller. Nelson testified that because the operation of an oil rig requires three people, it was Settle's responsibility to expeditiously hire the remaining crew members or lose his opportunity to work for Bee Hill. Nelson testified that such delegation of hiring crews is common to the oil drilling business. Bee Hill paid each crew member hired by Settle individually and withheld social security and income taxes from each crew member's pay. According to Nelson, Bee Hill accepted the crew members hired by Settle as employees of Bee Hill.

Since Settle died before the arbitration hearing, and since there was no written contract for hire, the following evidence was admitted in an attempt to reconstruct the circumstances surrounding the contract for hire between Settle and Biggerstaff.

Dean Brands testified that on or about October 13, 1981, Settle hired him to work on Settle's drilling crew. Brands testified that on this same date Settle telephoned Rusty Clevenger and the decedent from Settle's home in Ina, Illinois, to offer them employment on Settle's drilling crew. Brands testified that he, Settle, and Clevenger then drove to McLeansboro, Illinois, where they met decedent at a Hucks store. Decedent then accompanied Brands, Settle and Clevenger on the drive to the Bee Hill oil rig in Indiana. Upon arrival, the crew filled out Illinois and Federal tax forms which had been attached to a note and immediately commenced employment.

Marvin Settle's wife, Barbara, testified that Bee Hill hired her husband to organize an oil drilling crew in October 1981. Barbara testified that she, Dean Brands and Rusty Clevenger were present when her husband phoned the decedent to offer him employment on the drilling crew. At the Conclusion of his conversation with the decedent, her husband said "O.K., John, I'll meet you at Hucks." Her husband then left to meet decedent.

Claimant testified that on October 13, 1981, Settle telephoned claimant's house in McLeansboro, Illinois, and asked claimant if he could speak to the decedent. Claimant then asked Settle what he wanted to speak with decedent about, to which Settle replied "about work." Claimant then told Settle she would try to find decedent and tell him to call Settle. After claimant found decedent, she witnessed decedent telephone Settle from her house. ...


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