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08/17/88 Cynthia Paganelis, v. the Industrial Commission

August 17, 1988

JOHNSON, A DISABLED PERSON, PETITIONER-APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 150, 150A, 150B, AND 150C, RESPONDENT, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

CYNTHIA PAGANELIS, Conservator of the Estate of Bennie L.

530 N.E.2d 48, 174 Ill. App. 3d 992, 125 Ill. Dec. 130 1988.IL.1262

Appeal from the Circuit Court of the 1st Judicial Circuit, Cook County, Illinois; the Hon. Alexander P. White, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The petitioner, Cynthia Paganelis, filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) on behalf of her father, Bennie L. Johnson, for injuries he sustained in a January 29, 1983, automobile accident. The arbitrator awarded Bennie medical expenses and permanent total disability. The Industrial Commission, in a split decision, reversed the finding of the arbitrator and denied compensation. The circuit court confirmed the decision of the Commission. The petitioner brings this appeal.

The nature and extent of Bennie's injuries are not disputed. Bennie suffered severe head and brain injuries from the accident rendering him permanently and totally disabled.

At a hearing before the arbitrator, William Dugan was called on behalf of the petitioner. Dugan testified that on the date of the accident, he worked as a business representative for the respondent. Dugan stated that Bennie also worked for the respondent as a business representative. According to Dugan, the respondent supplied Bennie with an automobile equipped with a telephone.

Dugan testified that on January 29, 1983, he had a telephone conversation with Bennie at 5:45 p.m. The conversation concerned union business. Dugan asked Bennie to meet with him later that evening. Bennie replied: "I will call you when I leave here." Bennie did not specify where he was calling from. That was the last conversation Dugan had with Bennie.

The petitioner testified that at the hospital on the morning after the accident, Dr. Robert Gamble told her that he had found a high alcohol content in Bennie's blood. According to the petitioner, Bennie had had a drinking problem, but he had stopped heavy drinking a year and a half prior to the accident. She did, however, recently see Bennie drink a small amount of wine with dinner.

The parties stipulated that witnesses from E & E Hauling would testify that: (1) they met with Bennie in Bloomingdale, Illinois, from 2:30 p.m. until 5:15 p.m. on the day in question to discuss employee grievances; and (2) Bennie consumed no alcohol at any time during the meeting.

The petitioner introduced into evidence the Schaumberg, Illinois, police department accident report. The report indicated that Bennie was involved in an intersection accident in Schaumberg at approximately 6:16 p.m.

The respondent introduced into evidence Bennie's medical records from Northwest Community Hospital where he was taken after the accident. The respondent also introduced the deposition of Dr. Laskowski into evidence. At the deposition, Dr. Laskowski testified that he was the emergency room physician on duty on the date in question. The doctor stated that he had ordered a blood-alcohol test because of Bennie's depressed mental status and because the paramedics had told him that Bennie had been drinking. The arbitrator sustained the petitioner's hearsay objection to the paramedics' statement to the doctor. Dr. Laskowski stated that he did not administer the test. According to the doctor, the test results showed that Bennie's blood-alcohol level was .238. Dr. Laskowski further testified that the blood-alcohol testing ...


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