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October 28, 1994


Appeal from Circuit Court of Cook County. No. 93-L-50067. Honorable Randye Kogan, Judge Presiding.

Rehearing Denied January 25, 1995.

Rarick, McCULLOUGH, Rakowski, Woodward, Slater

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Claimant, Louis Benz, sought benefits pursuant to the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1988, ch. 48, par. 138.1 et seq.) for injuries he sustained while in the employ of respondent, Hunter Corporation (Hunter). Benz was employed as a journeyman boilermaker at Commonwealth Edison's State Line Power Generating Station (State Line) in Hammond, Indiana. Commonwealth Edison had contracted with Hunter to make certain repairs at the State Line facility. Hunter had hired Benz through Local Union # 1 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (Local 1), of which Benz was a member since 1974.

On November 7, 1988, while working at the State Line facility, Benz sustained an injury to his groin and low back as a result of lifting a box that weighed approximately 40 pounds.

Pursuant to union rules, union members could not seek employment on their own, but were required, as a condition of their unionmembership, to seek employment through their local union. Likewise, contractors wishing to employ Local 1 members do so through a referral system. This referral system is set forth in the Local Joint Referral Rules (Referral Rules) which are part of a labor agreement between Local 1 and the Boiler and Tank Contractors of Illinois and such other companies that became a signatory thereto. Hunter was a signatory to this agreement.

An arbitration hearing was held on May 30, 1991. John Skermont, president of Local 1, testified that if a company that is a signatory to the union agreement wishes to employ a member of Local 1, it will call Local 1 and request workers with the necessary skills. Local 1 maintains a list of workers with various skills and qualifications. Upon requesting a worker, the contractor is assigned the next qualified person on the referral list. Skermont also testified that pursuant to section 7.2.2 of the Referral Rules, the contractor retained the right to reject any applicant referred to it. Such rejection could be based upon physical incapacity or a lack of qualifications. Skermont testified that if Local 1 referred an individual to an employer and that employer had no work, the individual in question would receive two hours' pay plus travel expenses.

Skermont further testified that although Local 1 had its offices in Illinois, the geographic area over which it had jurisdiction covered that portion of Indiana where the State Line facility was located. Accordingly, Local 1 had the right to refer its members to contractors working at that facility.

William W. Segiet, manager of Field Operations for the Boiler Division of Hunter Corporation, testified that upon being awarded the job at State Line, Hunter determined how many boilermakers it would need and a call was then placed to Local 1 requesting that number of workers. Upon reporting to work at the job site, each worker was required to fill out various forms, including an Employment Record, state and Federal tax forms.

Benz testified that on October 24, 1988, he received a call from John Shue, the referral officer at Local 1 and was told to report to Hunter at the State Line facility in Indiana. Benz filled out the required paperwork and began working.

Benz worked from October 14, 1988, through November 6, 1988, without incident. The following day, he was attempting to lift a box weighing approximately 40 pounds when he felt a sharp pain in his groin. Benz reported the incident to the shop steward, the general foreman, and the superintendent, and was then taken to the emergency room at South Chicago Community Hospital. At the hospital, Benz complained of pain in his right inguinal area and right lumbar area. Benz subsequently saw his family physician, Dr. Buzzano, who initially prescribed medication for lumbar strain and acute right inguinal muscular strain. Dr. Buzzano later recommended physical therapy and that Benz remain off work.

Benz's condition did not improve, and on January 12, 1989, Dr. Buzzano referred him to Dr. Robert Sawchyn, an orthopedic surgeon. Dr. Sawchyn first saw Benz on January 23, 1989. Dr. Sawchyn diagnosed a lumbosacral strain and recommended medication, back exercises, and utilization of back support. A CT scan and an EMG were subsequently performed. The CT scan was normal and the EMG disclosed a possible early S1 radiculopathy. Benz also started physical therapy, and on April 5, 1989, received injections of Marcaine and Celestone. Dr. Sawchyn released Benz to return to work on April 24, 1989.

Benz also saw Dr. Barry Fisher, who found loss of forward flexion and backward extension, as well as lateral bending. At Hunter's request, Benz saw Dr. Marshal Matz on March 29, 1989. Dr. Matz ...

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