Appeal from the Circuit Court of Cook County. No. 92 L 50046. Honorable John A. Ward, Judge Presiding.
Slater, McCULLOUGH, Woodward, Rarick, Egan
The opinion of the court was delivered by: Slater
JUSTICE SLATER delivered the opinion of the court:
Claimant Eugene Dechter filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) alleging that he was injured as a result of an altercation. The arbitrator found that claimant was permanently and totally disabled as a result of an accident which arose out of and in the course of his employment. On review, the Industrial Commission (the Commission) affirmed the arbitrator's decision. The circuit court confirmed the Commission and the employer, Chicago Park District, appeals.
Claimant began working for the employer in 1961 as an assistant general attorney. His duties included preparing ordinances and contracts and dealing with bond issues and condemnations. He was eventually promoted to second assistant general attorney. In 1982 claimant began working under Rick Halprin, who was then employer's general counsel. Prior to that time, claimant had never received a reprimand or criticism of his work. Halprin found claimant's work unsatisfactory, however, and his written evaluations of claimant were well below average. According to claimant, Halprin would occasionally refer to other attorneys in the office in a derogatory manner and at one time he indicated that he expected claimant to testify that a particular attorney was incompetent. Claimant indicated that he would not do so and Halprin became angry. Thereafter, Halprin changed his work assignments and gave him duties that were usually performed by law clerks or paralegals.
On September 19, 1985, Halprin came into claimant's office to discuss a children's museum permit agreement. According to claimant, Halprin threw the agreement on his desk, cursed at him, and told him to redo the agreement and not to put in any provision regarding handicapped access. Forty-five minutes later, claimant found a memorandum from the Federal government indicating that the handicapped provision was necessary. He walked into Halprin's office and told him it would be necessary to put in the provision for the handicapped. Halprin began screaming and using profanity toward him and claimant then screamed back at him, saying, "You're not a lawyer. You think you're a lawyer." Halprin told claimant to "get the hell out" and then he punched claimant in the chest. According to claimant, Halprin kept slapping him and hitting him as he tried to leave the room. Halprin pursued him as he left the office and kept hitting him around the body, and claimant then felt like he blacked out. Bob Donovan, the first assistant general attorney, grabbed Halprin away from claimant and directed him back to his office.
Paramedics were called and claimant went home after a coupleof hours. He saw his physician the next day and returned to work on the following Monday, September 23. After he returned he had difficulty concentrating and he would get physically sick when he saw Halprin. He eventually went to a psychiatrist, Dr. Bloch, in November of 1985. Claimant continued working while receiving psychiatric care from Dr. Bloch. Claimant tried to limit his contact with Halprin whenever possible. In February of 1986, Halprin left and Michael Hennessey became general counsel. Claimant still experienced psychological difficulties after Halprin left, but he was "able to do a little more" and felt he was "getting back on [his] feet." Halprin would come into the office periodically and claimant became agitated whenever this occurred or when he thought it might occur.
In June of 1986, claimant and Bob Donovan were having lunch when Donovan mentioned that Halprin was in the office and it was rumored that he would be returning as general counsel. Claimant became extremely upset, left the restaurant and went to employer's medical department. Claimant informed the company doctors he was ill and he did not return to work after that date. Employer's personnel records show claimant was on sick leave as of July 1, 1986.
On October 20, 1986, George Gallard, employer's acting general counsel, advised claimant that his position had been written out of the 1987 budget and that his employment would be terminated as of January 1, 1987. Claimant filed a Workers' Compensation claim after he received this notification. Claimant received his last psychiatric treatment from Dr. Bloch on December 9, 1986. He did not obtain any further care from Dr. Bloch because of financial difficulties.
On cross-examination, claimant testified that at the time of the incident he was five feet nine inches tall and he weighed approximately 225 pounds. Halprin weighed considerably less, perhaps 160 pounds. Claimant stated that he did not attempt to hit Halprin. He acknowledged that someone had written a "D-minus" on a letter that he had prepared and he was irritated by it. This was the document that Halprin had thrown on his desk. Claimant identified joint Exhibits 1 through 26 as representing his signature on work which he had performed subsequent to September 19, 1985, and he verified his signature on the documents, including correspondence and other legal forms and exhibits. When asked to describe his activities on a typical day, claimant stated that he would "eat, watch television and sulk." He would also do errands such as going to the grocery store and bank and he could perform household chores and repairs. Although claimant testified that he was unable to work, he admitted that he had not looked for work.
Rick Halprin testified that he was general counsel for the ChicagoPark District between July of 1982 and February of 1986. He regarded claimant's work as unsatisfactory. On September 19, 1985, claimant appeared at his door shouting in a loud voice something like, "D-minus, D-minus, that is what you think of my work?" Halprin asked him to calm down and finally asked him to leave his office, but he refused to leave and, instead, came further into the office and moved toward him with his hands up even with his shoulders. Halprin grabbed claimant by the shirt and slapped him twice and claimant ran from the office screaming that Halprin had struck him. According to Halprin, it was Jack Matthews, the treasurer of the Park District, who had written "D-minus, not acceptable" on claimant's document. Halprin stated that at the time of the altercation he was wearing a full body cast as a result of a spinal fusion. He did not intend to hit claimant but he was trying to protect himself and he felt that claimant was going to shove him. He denied that the altercation was related to inserting a handicapped access provision into the museum permit. He also denied that he changed claimant's assignments after the altercation. Halprin noticed nothing unusual about claimant after the incident. Claimant's duties and performance did not change before or after September 19, 1985, and he did not at any time urge claimant to testify regarding the alleged incompetence of a lawyer in the department.
Priscilla Hallberg, the office nurse, examined the claimant shortly after the incident. She did not observe any bruises or redness, but claimant complained of tingling in his hand and soreness in his shoulder. Claimant's blood pressure was slightly elevated, but an EKG was normal. Claimant told Hallberg that he had been attacked by Halprin, who struck him, pushed him and attempted to strangle him.
Bob Donovan testified that on the day of the incident he heard loud talking coming from Halprin's office. When claimant and Halprin came out of the office, claimant had his arms by his side and Halprin had his fists clenched and was circling around claimant. Donovan did not see Halprin hit claimant. Donovan grabbed Halprin and walked him into his office.
Judith Somogyi, Rick Halprin's secretary, testified that her desk was located within six feet of Halprin's office. On September 19, 1985, claimant walked rapidly past her and into Halprin's office. Claimant looked upset and he was red in the face. Somogyi heard yelling back and forth and she then heard claimant say, "You hit me." Claimant backed ...