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11/02/88 County of Cook, v. the Industrial Commission

November 2, 1988

COUNTY OF COOK, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (MICHAEL FAJDICH, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

532 N.E.2d 280, 177 Ill. App. 3d 264, 126 Ill. Dec. 595 1988.IL.1589

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Claimant, Michael Fajdich, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for injuries received in an accident on January 5, 1983. The accident occurred while claimant was a passenger in his employer's truck returning from his day's tasks to the employer's garage. At the hearing before the arbitrator on September 29, 1983, claimant contended that his accident occurred while in the course of his employment, which claim the respondent, Cook County Highway Department, disputed. After hearing testimony and considering the exhibits received into evidence, the arbitrator, in her order of October 10, 1983, determined that claimant's injuries were incurred in the course of his employment and awarded claimant temporary total disability payments for 10 6/7 weeks, benefits for permanent partial loss of 20% of the use of his right arm (47 weeks) and benefits for serious and permanent disfigurement of the face (10 weeks). The arbitrator further ordered the respondent to pay $1,732.80 for claimant's necessary medical expenses. The Industrial Commission affirmed the arbitrator's decision, and on review, the circuit court confirmed the Industrial Commission's order. The respondent appeals.

On appeal, respondent raises two primary issues: First, that claimant's injuries did not arise out of the course of his employment as claimant was intoxicated at the time of the accident, and second, that the arbitrator's award of temporary total disability and for permanent partial disability were against the manifest weight of the evidence. Before considering these issues, a statement of the facts is necessary.

At the hearing before the arbitrator, claimant testified that he was hired as a truck driver and a laborer by the respondent on October 12, 1982. On January 5, 1983, claimant worked the 7 a.m. to 3:30 p.m. shift. He reported to work slightly before 7 a.m. and was assigned the task of placing gravel on the soft shoulder along the road. On that date, he worked with Sandy Simmons, who was assigned as driver of the county truck.

Claimant worked at his required tasks until approximately noon that day, whereupon he and Simmons picked up a sandwich and a six-pack of Old Style beer for lunch. Because they were required to stay with their vehicle, they ate their lunch in the cab of the truck. According to claimant's testimony, he drank two cans of beer with his lunch, Simmons drank two cans of beer at lunch, and two full cans of beer remained. Claimant resumed his tasks after lunch.

Sometime after 2 p.m. that afternoon, claimant and Simmons had finished their work for the day and were returning to the county's garage. As they came onto a ramp to get onto I-55, another vehicle cut in front of their truck, causing it to swerve off the ramp and into a ditch. The truck overturned, and claimant lost consciousness. He regained consciousness at the hospital.

Claimant was taken by ambulance to La Grange Community Memorial General Hospital, where he was treated for his injuries. As a result of the accident, claimant had lacerations above his right eye and on his right cheek, a small laceration under his tongue, an abrasion over his right clavicle, and a broken right clavicle. The hospital records revealed that claimant had an acetone odor (ethanol) on his breath. It was noted that claimant had slurred speech and moderate disorientation. The emergency room doctor applied a clavicle strap (shoulder harness) and cleaned and sutured the lacerations. X rays and blood tests were taken. The results of the blood test revealed that claimant had an ethanol blood level of 0.25. Claimant was released for work by his doctor on March 21, 1983. At the time of the hearing before the arbitrator, claimant was on suspension from his employment.

Claimant testified that on the evening prior to the accident, he watched television and drank 10 to 12 cans of beer, a long-standing daily habit of his for the past 20 years. Claimant stated that he had felt no ill-effects the next morning from his previous night's drinking. Claimant denied consuming any alcohol prior to lunch on the day of the accident.

Claimant's wife, Carmen Fajdich, testified that she had been married to the claimant for 22 years. She corroborated claimant's testimony that he habitually consumed 6 to 12 cans of beer each day for the past 20 years.

Vernon Volke, an assistant chief engineer for the Cook County Highway Department, testified that he went to the scene of claimant's accident on January 5, 1983, at approximately 4:30 p.m. He inspected the scene of the accident and took photographs of the area. Inside the cab of the truck he observed approximately a half dozen Old Style beer cans, two of which were unopened. According to Volke, two of the cans of beer were 16 ounce cans and the other cans were 12 ounces. Volke was unable to state with certainty whether the beer cans inside the cab were from claimant and Simmons ...


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