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05/13/94 LUCIOUS LEE v. INDUSTRIAL COMMISSION

May 13, 1994

LUCIOUS LEE, APPELLANT,
v.
INDUSTRIAL COMMISSION OF ILLINOIS AND TOOTSIE ROLL INDUSTRIES, INC., APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Alexander P. White, Judge Presiding.

Rehearing Denied June 8, 1994.

Rakowski, McCULLOUGH, Woodward, Slater, Rarick

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Lucious Lee (claimant) filed an application for adjustment or claim pursuant to the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) alleging that he sustained accidental injuries on December 10, 1984, which arose out of and in the course of his employment with Tootsie Roll Industries, Inc. (employer). The arbitrator's finding that claimant's accident was not work related, was affirmed by the Commission, and on administrative review, the circuit court confirmed the Commission's determination. The issue on appeal is whether the Commission erred in concluding that the claimant's injuries, which were sustained when he was coming from a doctor's appointment for treatment of a prior work-related injury, were not compensable. We affirm.

The claimant testified that at the time of the accident he worked for the employer doing general labor. On December 10, 1984, the claimant had an appointment at the clinic to have a cast removed from his thumb which he had injured while at work the previous month. Although the claimant testified that he left work around 1 p.m. for a 2 p.m. appointment and that he intended to return to work, a copy of his time card from the day in question indicated that he punched out at 3:32 p.m. which was the time he usually ended his shift. The clinic records also indicated that the claimant arrived at 4:14 p.m. and left at 4:39 p.m. After the claimant left the clinic, he started to cross the street but was hit by an on-coming vehicle and thrown to the ground. According to the police report, the time of the accident was 4:45 p.m.

The employer presented the deposition testimony of the claimant's supervisor, Edward Stephens, that he had not given the claimant a pass to leave work early for a doctor's appointment on the day of the accident.

The claimant contends that the accident which occurred on December 10, 1984, was compensable because he was engaged in an activity which was incident to his employment where he was receiving treatment for a prior work-related injury at a time and place that was determined by the employer. The Commission, however, reached the contrary Conclusion that the claimant was not engaged in a work-related activity when he was injured because he completed a full shift prior to leaving work for his clinic appointment. Therefore, the claimant's injuries, which occurred after he left work, were not compensable.

The claimant first argues that the determination of the Commission that the claimant left work at the end of his shift was against the manifest weight of the evidence. The claimant maintains that he left work at 1 p.m. for a 2 p.m. appointment and that he was in the process of returning to work when he was injured. However, the Commission found that the claimant left work at 3:30 p.m. which was when his shift ended and that he did not intend to return to work when he left the clinic.

In Dexheimer v. Industrial Comm'n (1990), 202 Ill. App. 3d 437, 442-43, 559 N.E.2d 1034, 147 Ill. Dec. 694, the court stated:

"It is the province of the Commission to weigh and resolve conflicts in testimony, including medical evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside."

See also O'Dette v. Industrial Comm'n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221, 38 Ill. Dec. 133.

"A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission's findings are against the manifest weight of the evidence."

( Martin v. Industrial Comm'n (1992), 227 Ill. App. 3d 217, 219, 591 N.E.2d 108, 169 Ill. Dec. 228.) It has been observed that "'the manifest weight of the evidence is that which is "the clearly evident, plain and indisputable weight of the evidence." In order for a finding to be contrary to the manifest weight of the evidence, an opposite Conclusion must be clearly apparent."' ( Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276, 55 Ill. Dec. 902 quoting In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499, 375 N.E.2d 553, 16 Ill. Dec. 680.) Finally, "'if the undisputed facts permit an inference either way * * * then the Commission alone is empowered to draw the inference and its decision as to the weight of the evidence ...


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