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12/21/89 Cynthia Paganelis, v. the Industrial Commission

December 21, 1989





CYNTHIA PAGANELIS, Conservator of the Estate of Bennie

548 N.E.2d 1033, 132 Ill. 2d 468, 139 Ill. Dec. 477 1989.IL.2006

Appeal from the Industrial Commission Division of the Appellate Court; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Alexander P. White, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case. JUSTICE RYAN, Concurring.


Claimant, Cynthia Paganelis, as conservator of the estate of Bennie L. Johnson, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, pars. 138.1 through 138.30), seeking compensation for accidental injuries allegedly sustained by Johnson while an employee of the respondent, the International Union of Operating Engineers, Locals 150, 150A, 150B, and 150C. Following a hearing, the arbitrator allowed the claim, finding that Johnson was permanently and totally disabled as a result of injuries arising out of and in the course of his employment. On review, the Industrial Commission denied compensation, ruling that the injuries did not arise out of and in the course of Johnson's employment. The circuit court of Cook County confirmed the Commission's decision. The appellate court, Industrial Commission division, reversed the judgment of the circuit court and reinstated the arbitrator's decision awarding compensation. (174 Ill. App. 3d 992.) The appellate court certified the cause for further review, and we allowed the respondent's petition for leave to appeal (107 Ill. 2d R. 315(a)).

The employee, Bennie L. Johnson, was severely injured on January 29, 1983, in an automobile accident in Schaumburg. According to the police report, Johnson was making a left turn from Route 72 onto Plum Grove Road when his car was struck on the passenger side by an oncoming vehicle. The accident occurred at 6:16 in the evening; it was raining, and the pavement was wet. The intersection was controlled by stop lights, but there is no evidence in the record indicating which lanes of traffic had the right-of-way. Neither Johnson nor the driver of the other car was ticketed. The police report indicated that Johnson's consumption of alcohol was undetermined but that there was no evidence that the other driver had been drinking.

Johnson was the only occupant of his vehicle, and he was taken immediately to Northwest Community Hospital, in Schaumburg. There, a test revealed Johnson's blood-alcohol level to be .238%, and various reports made in the course of his medical care noted his apparent intoxication. Johnson remained in a coma for almost two weeks. Following his release from the hospital on March 1, 1983, Johnson underwent treatment at a number of rehabilitation centers for disabilities resulting from the severe head injuries he suffered in the accident. There is no dispute that Johnson is permanently and totally disabled as a consequence of his injuries.

Johnson was 52 years old at the time of the accident, was unmarried, and did not have any dependent children. He was employed as a business agent in the Waukegan office of the International Union of Operating Engineers, Locals 150, 150A, 150B, and 150C. The job entailed extensive traveling, and each agent was provided with a car and car telephone. The union also maintained a separate telephone line at each agent's residence for use in connection with union business. The agents were on call at all hours, and they frequently worked on weekends and at night.

At the hearing conducted before the arbitrator, the parties presented evidence concerning Johnson's activities on the day of the accident. Union business agents Bill Rucker and William Dugan testified that shortly before noon on January 29, 1983, a Saturday, they called Johnson at the union office in Waukegan to enlist his aid in resolving a union member's employment grievance. Johnson agreed to help; he was familiar with the employer, E&E Hauling, Inc., and was acquainted with one of its executives.

According to the parties' stipulation of evidence, Johnson met with a representative of E&E Hauling that afternoon from 2:30 to 5:15 at the company's office in Bloomingdale. During that time Johnson also spoke with the company's president by telephone. The parties stipulated that the company's representative would testify that in the course of the meeting Johnson "had nothing of an alcoholic nature to drink." The witness did not see Johnson following the Conclusion of the meeting at 5:15.

William Dugan testified that Johnson called him at home around 5:45 that evening on the union telephone line. According to Dugan, Johnson explained that he had had a "row with our buddy," asked Dugan to meet him at 7 o'clock, and said, "I will call you when I leave here." Johnson did not say where he was or identify "our buddy." Johnson did not call back later, and Dugan learned of the accident at 6:30 that evening, when another union business agent telephoned him with the news.

Johnson's conservator and daughter, Cynthia Paganelis, testified concerning the nature and extent of Johnson's injuries and introduced evidence of his medical expenses. On cross-examination Mrs. Paganelis was asked about her father's drinking habits. She said that following the accident one of the hospital physicians mentioned that a high level of alcohol had been found in Johnson's system and asked her whether the staff should be on the alert for symptoms of alcohol withdrawal. Paganelis testified that she told the doctor that Johnson "was not drinking in a year and a half." At the hearing, Paganelis explained that her father previously had had a drinking problem. She stated that in October 1981 her father told her that he was going to stop drinking because he had been experiencing irregular heartbeats and his doctor had advised him to quit. Paganelis testified that Johnson "had wine with dinner. He didn't finish it, the whole glass of wine, he wouldn't finish it." She acknowledged that she did not know what her father did outside her presence.

At the hearing before the arbitrator the respondent introduced into evidence Johnson's medical records from Northwest Community Hospital. The respondent also presented the evidence depositions of Dr. Chester Laskowski, the emergency room physician who treated Johnson, and Dr. Donal O'Sullivan, whom the respondent had retained as an expert witness. Dr. Laskowski, in his deposition, explained that he had ordered a blood-alcohol test because Johnson's mental state was depressed at the time of his admission to the hospital. Dr. Laskowski did not himself draw the blood sample for the test or perform the laboratory work. He later learned that the test showed that Johnson had a blood-alcohol level of .238%, which, he said, would indicate moderate to severe intoxication. Dr. Laskowski stated that Johnson would have had difficulty driving. Dr. Laskowski attested to the accuracy of the type of machine that was used to determine Johnson's blood-alcohol concentration. The claimant objected to Dr. Laskowski's testimony concerning Johnson's blood-alcohol level and the effects of such a degree of intoxication.

The respondent also presented the evidence deposition of its expert witness, Dr. O'Sullivan. From a review of Johnson's medical records and of Dr. Laskowski's evidence deposition, Dr. O'Sullivan concluded that Johnson had a blood-alcohol concentration of .238% at the time of his hospitalization following the accident. Dr. O'Sullivan acknowledged that the precise effects of such a level on a 52-year-old male would depend on the person's habits, his previous experience with alcohol, and the condition of his organs, particularly his liver. Dr. O'Sullivan stated, however, that an ordinary person would be noticeably intoxicated with a blood-alcohol level of that amount and that his coordination would be impaired and his judgment clouded. Dr. O'Sullivan also said that such a person would be driving in an erratic manner and would not be able to properly control his vehicle. Dr. O'Sullivan described the operation of the type of machine used in the present case to determine Johnson's blood-alcohol level and said that the entire procedure is automatic. Dr. O'Sullivan also stated that the test results would not be significantly affected if an alcohol swab or alcohol-soaked needle were used in drawing the patient's blood sample. He explained that the presence of isopropyl alcohol, the variety of alcohol used on swabs and for other medical purposes, would not influence the ...

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