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10/19/95 ROSEMARY PARRO v. INDUSTRIAL COMMISSION ET

October 19, 1995

ROSEMARY PARRO, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (VERRO'S RESTAURANT, APPELLEE).



Appeal from the Industrial Commission Division of the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Alexander White, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

The claimant in this workers' compensation case, Rosemary Parro, filed an application for adjustment of claim seeking compensation for injuries she sustained when she fell down a flight of stairs on the premises of her employer, Verro's Restaurant. The arbitrator denied compensation, as did the Industrial Commission, concluding that intoxication was the sole cause of the accident. On judicial review, the circuit court of Cook County confirmed the decision of the Commission. The appellate court, Industrial Commission division, affirmed the judgment of the circuit court. (260 Ill. App. 3d 551, 630 N.E.2d 860, 1993 Ill. App. LEXIS 1069, 196 Ill. Dec. 695.) The appellate court later issued a certificate of importance pursuant to Supreme Court Rule 316 (134 Ill. 2d R. 316). We now affirm the judgment of the appellate court.

The accident involved here occurred on May 15, 1990, when the claimant, 50 years old at the time, fell down a flight of stairs at the restaurant where she was employed as a bartender. The claimant was severely injured as a result of the fall and remained in the hospital for nearly a month. Before the arbitrator, the claimant testified regarding her employment at Verro's Restaurant, in Chicago, where she had worked as a bartender for four years, and described the circumstances of her accident on May 15, 1990. The claimant said that she did not drink any alcohol that day until around 7 or 7:30 in the evening, when she and some others celebrated a customer's announcement that he was becoming a father. According to the claimant, she poured herself a bottle of beer, but she drank only two sips of it.

After the restaurant closed and the claimant completed her duties, she changed into pumps having 1 1/2-inch heels and put on her raincoat. The claimant then decided to use the restroom, which was located down a flight of stairs in the basement. The claimant explained that, as she began to descend the stairs, her right heel became caught in the hem of her coat and she tripped and fell. The claimant stated that she would use that flight of stairs, which also led to the kitchen and a storage area, perhaps a dozen times a day. In addition, the claimant said that the steps were greasy and slippery and that the stairwell was poorly lighted. In her testimony, the claimant could not recall with certainty the occasion when she had last consumed alcohol prior to her fall on May 15, but she believed it occurred before that month.

In the proceeding before the arbitrator, the claimant also presented the evidence depositions of four persons who were customers of the restaurant on the evening of the claimant's fall. Duane St. Pierre, a lawyer, stated in his deposition that he arrived at the restaurant shortly after 5 p.m. He estimated that the accident occurred about two hours or two hours and 15 minutes after his arrival. St. Pierre stayed at the restaurant until an ambulance arrived, which, according to St. Pierre, occurred around 7:10 or 7:20.

St. Pierre stated that he did not see the claimant consume anything alcoholic until the bar closed, when another customer, George Dykes, poured some beer for the claimant into a small glass for a toast to Dykes' recent wedding. According to St. Pierre, the claimant drank only a sip of the beer. After Dykes left, the claimant changed her shoes and said she was going to use the bathroom downstairs. St. Pierre then heard two loud noises, and he found the claimant lying at the foot of the stairs.

St. Pierre did not believe that the claimant was intoxicated at the time of the fall. When St. Pierre knelt by the claimant after she fell, he did not smell alcohol on her breath. According to St. Pierre, the claimant was able to perform her job duties on the night of the accident and did not appear to be intoxicated. He had known the claimant since she began working at the restaurant, and he was not aware that she had a drinking problem.

The claimant also presented the deposition testimony of George Dykes, a lawyer. Dykes said that he arrived at the restaurant around 5:10 on the evening of May 15, 1990, and left around 8 o'clock, before the claimant's accident occurred. According to Dykes, the claimant did not drink anything alcoholic until the end of the evening, when she consumed less than a bottle of beer. At that time, she and St. Pierre were toasting Dykes' recent wedding. According to Dykes, the claimant did not experience any difficulty in performing her work duties that evening and did not appear to be intoxicated. Dykes described the stairway where the claimant fell as "pretty treacherous" and said that it was long, steep, and dimly lighted.

Terry McLeran, who worked as a receptionist, testified that she was at the restaurant during the evening of May 15, 1990, for about an hour to an hour and a half, leaving around 7 o'clock that evening. McLeran stated that the claimant was able to perform her regular job duties and did not appear to be intoxicated. McLeran also stated that she did not see the claimant consume any alcohol. McLeran said that she hugged Parro before leaving and that she did not smell any alcohol on Parro's breath or notice that her eyes were bloodshot.

Albert Green, a judge of the circuit court of Cook County, also testified in the claimant's behalf through an evidence deposition. Judge Green stated that he customarily stopped by Verro's Restaurant several times a week after work. He would generally arrive around 6 or 6:15 and would stay about 30 minutes, visiting with the claimant and with other friends who might be there. Judge Green stated that he did not see the claimant drink anything alcoholic on the evening of the accident and that the claimant did not have any difficultly performing her job duties and did not appear to be intoxicated.

The employer presented testimony and other evidence in support of its defense that the claimant was intoxicated at the time of her accident and that the fall was caused by her intoxication. The employer introduced into evidence the records of the claimant's hospitalization and treatment following her accident. In addition, the employer presented the evidence deposition of Dr. James S. Wolf, a surgeon, who treated the claimant at Northwestern Memorial Hospital after her fall. Dr. Wolf stated that, according to the emergency room report, the claimant arrived at the hospital at 9:12 p.m. on May 15. The claimant was described in the records as an "intoxicated white female." A blood sample was taken from the claimant at 9:20 that evening, and a test revealed that her blood-alcohol level was 0.288. According to Dr. Wolf, a blood-alcohol level of that amount would result in motor and cerebral impairment. Dr. Wolf concluded from the blood results and the description of the claimant in the emergency room records that the claimant was intoxicated when she arrived at the hospital. Dr. Wolf also explained that the claimant, during her stay in the hospital, was suffering from pancreatitis as a result of her drinking. The hospital records showed that the claimant later told another doctor that she had been drinking heavily the week before her accident, contradicting her testimony before the arbitrator.

The claimant's employer also presented the deposition testimony of Dr. Scott A. Kale as an expert witness. Dr. Kale did not treat the claimant but he did review her medical records. From his examination of the pertinent records, Dr. Kale concluded that the claimant's blood-alcohol level at the time of her admission to the hospital was 0.288. Dr. Kale stated that a person with that amount of alcohol in her bloodstream would be lethargic, inattentive, and clumsy, and ...


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