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April 22, 1994


Appeal from Circuit Court of Cook County. No. 91L50780. Honorable Alexander P. White, Judge Presiding.

Released for Publication June 7, 1994.

Woodward, Rakowski, Rarick, Stouder, McCULLOUGH

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

On April 6, 1988, decedent, Carol Pellegrino, fell down a flight of stairs while working in a building in which the appellant, William G. Ceas and Company (the employer), was a tenant. As a result of the fall, she suffered a subdural hematoma and died on April 12, 1988. Her surviving spouse, Robert Pellegrino, and youngest son, Douglas Pellegrino (the claimants), sought death benefits pursuant to section 7(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.7(a)). The arbitrator awarded benefits to claimants in the amount of $236 per week to Robert Pellegrino and for the benefit of Douglas Pellegrino, son of decedent, for as long as he remained a full-time student and had not attained the age of 25. Burial expenses were awarded in the statutory amount of $1,750; medical expenses of $20,111 were also awarded. Both parties took a review of the arbitrator's decision to the Commission. The Commission, in an order dated June 14, 1991, affirmed the decision of the arbitrator. The circuit court confirmed the Commission's decision, and the employer now appeals to this court. On March 19, 1993, an opinion was filed by this court reversing the decision of the circuit court. Subsequently, claimants filed a petition for rehearing. The petition for rehearing was granted, and the opinion was withdrawn. After reviewing the entire matter, a majority of this court has reached the Conclusion that the Commission's decision should be affirmed.

At this point, we note that the Dissent gives a lengthy recounting of the case's procedural history. Admittedly, it is one filled with twists and turns. It appears that the Dissent views this as reflective of an arbitrary and capricious approach to the case before us. Our perspective is that this has been an exceedingly difficult case, in which the majority has conscientiously endeavored to achieve a just result.

The following evidence was adduced at the arbitration hearing. We take exception to the Dissent's implication that the following presentation of the facts gives a distorted presentation of the evidence.

Decedent was employed as a secretary by Ceas Mortgage Company. This company was on the second floor of an office building, along with Ceas Development and William G. Ceas and Company. A single oak staircase led up to the second floor. The building had no elevator. The stairway was the only way to get to and from the second floor and was used by employees of Ceas Mortgage Company, Ceas Development, and William G. Ceas and Company.

Part of decedent's duties included putting Federal Express envelopes into the Federal Express box at the end of the day. On April 6, 1988, another secretary, Nancy Horcher, noticed that decedent was in a hurry at the end of the day. Horcher testified that decedent had been running back and forth to get something finished before she left. Horcher heard a noise soon after decedent left the office. Horcher then looked out an interior window and saw that decedent had fallen at the bottom of the stairs. Horcher went to get help from the company comptroller, Kreil Greiter. On cross-examination, she noted that decedent sometimes drank alcoholic beverages during the work day. Horcher sometimes detected alcohol on decedent's breath when passing her at work. She did notice that decedent had been drinking on April 6, 1988.

Virginia Griffith, an employee of another tenant of the building, Fiordalis Associates, testified that at 5 p.m. on April 6, 1988, she had locked up her office to go to the washroom. Upon exiting the washroom, Griffith noticed a woman sprawled out on the floor at the bottom of the stairway. It is undisputed that this woman was decedent. Decedent was bald-headed, a wig lay off to her side. Griffith asked if she could help decedent, who appeared to be nervous and in a great hurry. Decedent said she had to get to the Federal Express box and then get home. About this time, a man from upstairs (Kreil Greiter) came down to offer assistance. Decedent did not say how she had fallen.

Bystanders helped her up, and she rested a few moments. Griffith noticed a gash with dried blood around it on the back of the decedent's head. She refused any medical assistance, namely, calling an ambulance. Decedent put the wig back on her head and left in the direction of the Federal Express box and, subsequently, drove out of the building's parking lot.

On cross-examination, Griffith stated that packages had to be in the Federal Express box at either 5 or 5:30 p.m. for the next day's delivery. Griffith thought she smelled the odor of alcohol on decedent's breath; however, she did not think that decedent was under the influence of alcohol.

Greiter testified that he was the employer's comptroller. On the subject date at about 5 p.m., he opened the office door and saw decedent lying at the bottom of the steps, where Griffith was attending to her. Greiter went down the stairs to see if he could help. Decedent seemed disoriented. He said that he would call an ambulance, but she refused any medical assistance. Greiter helped get her on her feet. He noticed several Federal Express envelopes in her purse. Greiter also observed a lump on the back of her head. Greiter stated that he was aware of instances in which decedent had been drinking at work. Greiter did not smell alcohol on decedent's breath on the subject date.

On cross-examination, Greiter stated that he noticed nothing unusual about the stairs on the subject date. He reiterated that decedent was in a hurry; he did not see her go to the Federal Express box. At about 4:30 p.m. on the day in question, Greiter recalled seeing decedent moving quickly from the typewriter to the printer.

Claimant Robert Pellegrino testified that he had been married to decedent since April 14, 1956. After work on the date in question, claimant noticed that decedent was very upset. He noticed that she had bruises on her body and a bump on the back of her head. Decedent told the claimant that she had fallen at work. She told him that she was very upset about the fall and about her boss's habit of giving her things to do at quitting time. Claimant stated that decedent arrived home at the usual time, about 5:50 p.m.

On April 8, decedent began to complain that she felt like she was coming down with the flu. The following day, she was getting progressively worse and decided to lie down on the couch. When claimant could not awaken her, he summoned paramedics. Decedent was taken to Humana Hospital, where she died on April 12, 1988. The cause of death was listed as fontotemporal epidural hematoma. Experts for both claimant and the employer agreed that the fall was the cause of decedent's death.

Previously, decedent had suffered from breast cancer and had undergone a mastectomy of the left breast. At the time of her death, she was found to have advanced cancer of the breast with metastases to the brain and rib. Decedent had received chemotherapy and radiation treatment for her cancer. Claimant testified that decedent had completed her radiation therapy approximately one month before the date of the accident.

Decedent had been taking the drug Coumadin as an anticoagulant and was also taking Nolvadex, an anti-estrogen breast cancer treatment.

Claimant testified that decedent drank alcohol socially, but was unaware of any instances in which she drank at work. Claimant did not notice alcohol on decedent's breath on April 6, 1988.

Kim Ash, a manager in the employer's executive office, testified that she noticed several incidents when decedent would be drinking around lunch time. Ash noticed the smell of alcohol on decedent several times a week. She did not notice such a smell of alcohol on decedent's breath on the subject day. Ash also testified that the last pick-up time on the Federal Express box outside the building had always been 6 p.m. None of the witnesses testified that they noticed the smell of alcohol on April 6, 1988, and Virginia Griffith stated that she did not believe decedent was under the influence of alcohol.

Dr. William Barnhart, testifying for the employer, opined that decedent's fall could have been a sequence of events which were the result of decedent being on Nolvadex, having been weakened from chemotherapy, and having metastatic cancer into the brain. Barnhart admitted that he could find nothing in the medical record to indicate that decedent was, in fact, weakened by cancer. He also stated that he used the word "potential" because he could not tell from the records whether decedent was suffering any side effects from the medicine.

Dr. Nathaniel Greenberg testified for claimant. In Dr. Greenberg's opinion, the fall was not due to either medication or brain metastases. He did state, though, that it was possible that a person could suffer dizziness from chemotherapy and that it was possible that the brain metastases could cause dizziness.

On appeal, the employer argues that the Commission erred in finding that this was an unexplained fall. In support, the employer argues that the Commission erroneously rejected the idiopathic nature of decedent's fall. Claimant argues that the fall was unexplained, rather than idiopathic. Idiopathic falls result from internal, personal origins, while unexplained falls result from neutral origins. ( Oldham v. Industrial Comm'n (1985), 139 Ill. App. 3d 594, 487 N.E.2d 693, 93 Ill. Dec. 868.) Illinois denies compensation for idiopathic falls ( Elliott v. Industrial Comm'n (1987), 153 Ill. App. 3d 238, 505 N.E.2d 1062, 106 Ill. ...

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