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October 28, 1994


Appeal from Circuit Court of Cook County. NO. 93WC50007. Honorable Alexander P. White, Judge Presiding.

Released for Publication December 16, 1994.

Woodward, McCULLOUGH, Rakowski, Slater, Rarick

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

The employer, Lakeside Architectural Metals, appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Industrial Commission (Commission) awarding benefits to the claimant, Laurie Schneider, widow of the deceased employee, Mark Schneider (Mark).

On appeal, the employer raises several contentions which can be consolidated into the following issues: whether the Commission's decision that the accidental injuries resulting in Mark's death arose out of and in the course of his employment was against the manifest weight of the evidence and whether the Commission erred in admitting OSHA records into evidence.

By way of background, Mark had worked for the employer since 1979 and at the time of his death was a caulking superintendent. As part of his duties, he trained other employees on how to work on scaffolding. On April 20, 1991, Mark was killed when he fell 48 stories between the scaffolding and the building he was working on.

Kevin Hemp, who was working with Mark on the day of the accident, testified that Mark and he were caulking windows on the 48th floor of a condominium building. They had started about 7 a.m. The procedure to access the scaffold was to place the window at a 45 degree angle and slide out feet first until the feet touched the scaffold and then climb out the rest of the way. Once out, the workers would attach their safety belts.

According to Kevin, at about 11:30 a.m. on April 20, 1991, Mark and he went to a McDonald's restaurant for lunch. They returned around 12:15 p.m. at which time, Mark pulled out a marijuana cigarette; they each took about 10 puffs from it. About 12:30 p.m., Mark and he returned to work. Kevin observed that Mark appeared "different" in that he was smiling. Kevin acknowledged that he was "high" and did not notice anything about Mark. He thought that Mark was "high too" because they had smoked the same amount.

About 12:30 p.m., Mark and he arrived back at the 48th floor to continue work. Kevin crawled out of the window and onto the scaffolding; he admitted being a little scared. There was a gap between the building and the scaffolding. Mark handed him a five-gallon bucket containing caulk through the window and then attempted to climb through the window onto the scaffolding. Kevin, whose back was turned, heard a sound like shoes scuffling or scraping. He turned around to see Mark's body going between the scaffolding and the building; then he saw Mark strike the pavement below.

Kevin acknowledged that, initially, he did not tell the police the same version of the accident as he was now testifying.

On cross-examination, Kevin testified that the safety belts were tied on after the workers were on the scaffolding. On the morning of the accident, the scaffolding was attached to the building with wire so that the wind did not blow the scaffold around.

The marijuana cigarette that Mark and he smoked was three inches in length and 1/4 inch in circumference. It took 5 to 10 minutes to smoke it.

Kevin did not remember whether he himself had any trouble accessing the scaffolding after lunch. He admitted he did not have a good recollection of the events from the lunch break until Mark's accident. He was not sure about the size of the marijuana cigarette. The safety belts could be reached from the inside of the building.

Jesse Ortiz, a marble helper, testified that he was working in the same building as Mark and Kevin on April 20, 1991. He observed Mark caulking on the scaffolding about six or seven times on the morning of the accident. He did not notice anything unusual about Mark. He also spoke to him and noticed nothing unusual about his speech, his face or his eyes. He also saw Mark one time after lunch at approximately 12:40 p.m. on that date. He observed nothing unusual about him at that time. They spoke for about four to five minutes. ...

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