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June 30, 1997


Appeal from Circuit Court of Sangamon County. No. 95MR116. Honorable Donald M. Cadagin, Judge Presiding.

As Corrected July 8, 1997. Rehearing Denied October 21, 1997. Released for Publication October 21, 1997.

Honorable William E. Holdridge, J., Honorable John T. McCullough, J. - Concur, Thomas R. Rakowski, J. - Concur, Honorable Michael J. Colwell, J. - Concur, Honorable Philip J. Rarick, J. - Concur. Justice Holdridge delivered the opinion of the court. McCULLOUGH, P.j., and Rakowski, Colwell, and Rarick, JJ., concur.

The opinion of the court was delivered by: Holdridge

The Honorable Justice HOLDRIDGE delivered the opinion of the court:

Respondent, City of Springfield, appeals from an order of the Industrial Commission (Commission) that awarded benefits to B.K. (claimant) for a psychological injury suffered after her supervisor forced her to engage in five acts of nonconsensual sexual intercourse over a five-month period of time. Claimant maintains she suffers from debilitating depression because of the assaults. Respondent maintains that the five encounters were consensual and that claimant suffered no physical trauma from which her present psychological condition could have arisen. At issue is whether the Commission erred in finding claimant established a compensable psychic injury under the "physical-mental injury" theory of compensability. See Pathfinder Co. v. Industrial Comm'n, 62 Ill. 2d 556, 563, 343 N.E.2d 913, 917 (1976). For the reasons discussed below, we affirm the decision of the Commission.

Because the parties and this court are familiar with the facts of this case, it is unnecessary to recite them at length. Only those facts necessary to an understanding of our disposition of this matter will be discussed.

Claimant testified that during the period August 1991 through January 1992, her supervisor made verbal and physical sexual advances toward her and forced her to engage in nonconsensual intercourse on at least five occasions at work and elsewhere. Claimant testified that although she resisted and told him "don't," he continued to grab her, pin her down, and pin her against walls. Claimant also testified that, on one occasion, while she was resisting his advances, he mentioned the name of another female coworker and implied that she could take claimant's job. Claimant stated that she did not report this conduct because she was afraid no one would believe her and she was afraid of losing her job.

In February 1993, after hearing that another female coworker had filed sexual harassment charges against the same supervisor, claimant reported her incidents to her supervisor's superiors. Thereafter, claimant became very emotional, could not sleep, and was frightened to be at work. After the incidents became public, she stated that she was isolated by coworkers, some of whom verbally and physically confronted her. She was made the subject of graffiti and made to sit next to her supervisor during certain meetings. Claimant was removed from the direct supervision of the supervisor who allegedly assaulted her.

Claimant testified that during March 1993, she had contemplated suicide. On April 15, 1993, claimant sought counseling from Kevin McAvoy, a clinical psychologist under contract to the respondent's employee assistance program. He diagnosed claimant as suffering from generalized anxiety disorder and post-traumatic stress disorder due to the sexual harassment and assaults at work.

McAvoy referred claimant to Mary Ossowski, a clinical social worker, who first counseled claimant on April 26, 1993. Ossowski treated claimant "for therapeutic issues arising from the personal trauma of being a victim of sexual harassment in her work place." Ossowski referred claimant to a psychiatrist, Dr. Joseph Bohlen, who gave an initial diagnosis of adjustment disorder with depressed mood. He treated her with antidepressants and placed her in group therapy for victims of sexual harassment. After further tests and consultations, Dr. Bohlen diagnosed major depression, single episode.

On June 29, 1994, claimant was demoted and reassigned to work under the supervision of the supervisor who allegedly assaulted her. Ossowski noted that claimant's demotion, coupled with the fact that she was forced to work again under that particular supervisor, caused undue emotional distress, and it would have created irreparable emotional harm to claimant if she stayed in such environment. Claimant has not reported to duty as ordered since June 29, 1994.

On July 18, 1994, Dr. Bohlen removed claimant from work due to her emotional state. He opined that there was a high likelihood that claimant's depression and anxiety were reactive, and their onset was caused by the sexual harassment she received at work, noting that as the conditions at work worsened, so did her depression. He opined further that claimant showed all the signs of adult sexual abuse, and the fact that she had been the victim of child abuse made the adult sexual abuse more debilitating. Dr. Bohlen explained that a position of authority is often used in place of physical force and may be more damaging. He believed claimant viewed her demotion as punishment for making the allegations against her supervisor and opined claimant could not return to work.

At the arbitration hearing, the respondent attempted to establish that the sexual encounters between claimant and her supervisor had been completely consensual. However, the supervisor alleged to have assaulted claimant did not testify at the arbitration hearing to refute claimant's allegations, and the Department failed to offer any rebutting medical evidence.

The arbitrator determined that claimant had failed to prove an accident arising out of and in the course of her employment and denied claimant benefits on that basis. The Commission, with one dissent, reversed the arbitrator, finding that claimant sustained accidental injuries arising out of and in the course of her employment on April 15, 1993, awarded her temporary total disability benefits in the amount of $712.92 per week for the period of June 24, 1994, through November 7, ...

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