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December 28, 1995


Appeal from the Circuit Court of Cook County. Honorable Leonard Levin, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, S., JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

This consolidated appeal arises from a $129,212 jury verdict in favor of the plaintiff, Mario Natalino, against the defendants, JMB Realty Corporation ("JMB"), Inland Construction Company ("Inland") and Kelley Steel Erectors ("Kelley"), for negligence under the Structural Work Act. On appeal, the plaintiff requests a new trial on the issue of damages charging that the verdict is inconsistent because jurors awarded him lost earnings, medical expenses and pain and suffering, but nothing for disability and disfigurement. He further contends that several trial errors served to prejudice him thereby requiring a new trial as to damages. All defendants filed cross-appeals claiming that the Occupational Safety and Health Act of 1970 ("OSHA") preempts the Illinois Structural Work Act ("Act"), and thereby precluding the plaintiff from pursuing a cause of action under the Act. JMB and Inland also argue that the verdict should be set aside because they did not willfully violate the Structural Work Act. Finally, Kelley filed a third-party appeal against the plaintiff's employer, J.A. Jones Construction Company ("Jones"), arguing that the trial court erroneously dismissed its complaint seeking contribution as untimely. For the reasons which follow, we determine that the plaintiff's claims concerning the verdict and the alleged trial errors are without merit. With respect to the cross-appeal, we determine that OSHA did not preempt the Structural Work Act. Further, the jury's decision that JMB and Inland willfully violated the Act was not against the manifest weight of the evidence. Finally, we affirm the trial court's order dismissing Kelley's complaint against Jones as untimely. Therefore, we affirm the trial court's judgments in all respects.

On August 21, 1986, the plaintiff, Mario Natalino, sustained a head injury while working on a construction site when a steel clamp fell through scaffolding striking him on the head and neck. Jones, the plaintiff's employer, had been retained by JMB, the owner of the site, as a general contractor on the project located at 900 North Michigan Avenue in Chicago. On the day of the accident, Kelley workers were erecting steel columns above the area where the plaintiff worked.

Following his injury, the plaintiff received treatment at the Northwestern Memorial Hospital ("Northwestern") emergency room for a laceration on the back of his head. Emergency room records show that the plaintiff denied loss of consciousness, a headache, numbness or visual changes, and he was found neurologically normal. The plaintiff received follow-up care at Northwestern on August 23, 1986, and the emergency room report reflects no neurological complaints. On August 28, 1986, the plaintiff again returned to the emergency room for follow-up care accompanied by his son, Peter Natalino. The hospital record shows that the plaintiff experienced a headache, slight dizziness and pain on the left side of his neck. The record further shows that the emergency room physician estimated that the plaintiff would be off of work for two weeks.

At trial, William Stone, a Kelley ironworker, testified that he and his crew knocked a clamp off of scaffolding where they were working. He stated that when he looked down into the excavation below, he observed the plaintiff on his hands and knees, attempting to stand up.

Charles Porter, a JMB construction manager, testified that he was physically present on the jobsite during construction and that he had visited the excavation prior to August 21, 1986. His responsibilities included ensuring that the general contractor and subcontractors met JMB's expectations.

Next, George Ecklund and John Lingevitch, both Inland superintendents, testified. They indicated that Inland superintendents were present at the construction site on the date of the plaintiff's injury. They further stated that Inland's responsibilities included ensuring that the construction workers performed their jobs safely. Any deficiencies observed by Inland were to be reported to Charles Porter of JMB. Ecklund admitted that on August 21, 1986, he knew Jones employees were working at the below-ground excavation, as Kelley employees worked on steel construction at street level. Ecklund confirmed that the placement of Kelley and Jones workers on top of one another could result in a "very, very dangerous condition."

Two physicians also testified for the plaintiff. Dr. Jules Koveleski, a neurologist who treated the plaintiff, diagnosed him as suffering from chronic post-concussion syndrome, which he defined as a "constellation of symptoms" associated with a head injury. The plaintiff complained of dizziness, pain in the area of the injury, ringing in his ears, fatigue, difficulty sleeping and general weakness.

Initially, Dr. Koveleski prescribed Elavil, an antidepressant, for the plaintiff and eventually he prescribed a physical therapy program for him. He saw the plaintiff on three separate occasions in 1986, in December of 1989 and in March of 1993. His diagnosis of post-concussion syndrome remained the same for all visits. Dr. Koveleski believed that the plaintiff's condition was directly related to his injury on August 21, 1986, and that it disabled him from returning to work.

Dr. Koveleski agreed that patients normally recover from post-concussion syndrome in about four to six months. He further acknowledged that the plaintiff's subjective complaints formed the basis for his diagnosis. Dr. Koveleski admitted that the plaintiff informed him that he had lost consciousness after the accident, but that the emergency room report indicates the contrary.

At trial, Dr. Koveleski reviewed some of the plaintiff's medical records from Dr. Marchi, the plaintiff's family physician. Dr. Koveleski further acknowledged that Dr. Marchi's notes from the plaintiff's visit on August 29, 1986, and September 4, 1986, do not contain a reference to headaches or visual disturbances. Dr. Koveleski did not encounter any objective evidence which corroborated the plaintiff's complaints and agreed that the plaintiff was normal from an objective viewpoint.

Dr. Grimm, a neuropsychologist, also testified on the plaintiff's behalf. He diagnosed the plaintiff as suffering from post-concussion syndrome and secondary psychological difficulties such as depression and anxiety. In his opinion, the plaintiff's condition constituted a permanent disability and rendered him incapable of working in the construction industry.

Dr. Grimm acknowledged that he derived his conclusion from the plaintiff's subjective complaints. He testified that based on the neurological tests performed, the plaintiff appeared to be more severely impaired than would be expected given his objective neurological status. He acknowledged that plaintiff gave inconsistent medical histories to different physicians. Finally, Dr. Grimm stated that one would not expect post-concussion syndrome from a scalp laceration such as the plaintiff's. However, he did not believe that the plaintiff was malingering.

At trial, the plaintiff's son, Peter Natalino, his daughter-in-law Rita Natalino, and his wife Lida Natalino, all testified concerning the plaintiff's physical, mental and emotional condition following the accident. They testified the plaintiff did not perform the same activities that he used to enjoy such as gardening and spending time with his family. They ...

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