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Divittorio v. Industrial Commission

September 29, 1998


The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Circuit Court of Cook County.

Honorable John A. Ward, Judge Presiding

In order for a child to be entitled to the workers' compensation benefits of her injured father who died from causes unrelated to his injury, she must prove that she was his "dependent." This appeal addresses the circumstances under which a child is considered a "dependent" pursuant to section 8(e)(19) of the Workers' Compensation Act (Act) (820 ILCS 305/8(e)(19) (West 1996)). Is claimant a dependent where she was owed a legal right of support from her father, where she received actual support for an extended period of time, and where she could reasonably rely on future support? We think so. We also find that it was proper for claimant to be substituted in place of her deceased father before arbitration commenced and that her father's leg injury had reached a state of permanency before he died. Therefore, we affirm the trial court's confirmation of the Industrial Commission's (the Commission) decision.


While working for Salvatore Divittorio, d/b/a Salvatore's Painting (employer), decedent, Kenneth Firtik, fell into a sewer hole and injured his left hip. Decedent was diagnosed with an intertrochanteric fracture and ultimately underwent two surgeries. During the first surgery, decedent's doctor, Dr. T. Huang, implanted a four-hole plate into decedent's hip and affixed a guidepin to the femur shaft. Although decedent had an excellent recovery, Dr. Richard Shermer, State Farm's medical expert, opined in a written report that decedent exhibited "a mild permanent residual associated with the surgery and the subsequent plate fixation." In other words, claimant had a mild restriction when flexing his hip. In hopes of relieving his chronic pain, decedent underwent a second surgery to remove the hardware on February 4, 1992.

No expert opinion was presented regarding decedent's recovery after the second surgery, but Marie Firtik, decedent's mother, did testify about his behavior and appearance after the second surgery. She stated that he had difficulty getting in and out of chairs and putting on his shoes. She also testified that he alleviated his pain by taking pain medication at least once a day and that it seemed his pain and leg injury made him depressed.

On August 14, 1992, decedent died from chronic alcoholism. Because decedent's claim had not reached arbitration, claimant, Kristen Firtik, and Marie Firtik filed another application for adjustment of claim before the Commission.

Claimant was born on September 30, 1986, and on December 10, 1987, decedent was adJudged to be her biological father. The circuit court of Cook County entered an order against decedent, requiring him to support claimant and to reimburse the Illinois Department of Public Aid for monies expended on behalf of claimant. However, no amounts were ever determined for support payments or for reimbursement to the Illinois Department of Public Aid.

Claimant's mother, Kathy Buhle-Blake, testified that decedent provided support until claimant reached age three. Decedent visited about four times per month, and on each visit, he gave her between $5 and $30 for claimant's support. On claimant's birthdays, decedent also gave her $20 to $30 for claimant's benefit, or he bought claimant small gifts. She also testified that Marie Firtik gave her two bonds, which named decedent as the beneficiary, worth $70 each. She estimated that claimant cost about $120 per week to support.

The arbitrator found that decedent's injuries arose out of and were sustained in the course of his employment and that decedent was entitled to temporary total disability benefits totaling $219.34 per week for a period of 42 6/7 weeks. Additionally, the arbitrator determined that, under section 8(d)(2) of the Act, decedent suffered a 16% permanent disability of the person as a whole and awarded decedent $197.40 per week for 80 weeks. 820 ILCS 305/8(d)(2) (West 1996). Finding that claimant and Marie Firtik were survivors pursuant to section 8(h) of the Act, the arbitrator awarded decedent's benefits to them in equal shares. 820 ILCS 305/8(h) (West 1996).

Employer appealed to the Commission. The Commission affirmed the arbitrator's award of temporary total disability. However, the Commission vacated the arbitrator's finding that decedent suffered a permanent disability pursuant to section 8(d)(2) and instead found that decedent suffered a specific loss pursuant to 8(e) in that decedent lost 40% of the use of his left leg. 820 ILCS 305/8(e) (West 1996). The Commission awarded $197.40 a week for 80 weeks, the same award that the arbitrator rendered under section 8(d)(2).

The Commission also found that Marie Firtik was not entitled to decedent's award under section 8(e)(19) because she failed to show that she was dependent upon decedent. Nonetheless, the Commission concluded that claimant was a dependent under section 8(e)(19). The Commission based its decision on the fact that the circuit court entered an order stating that decedent was claimant's father, decedent was under a duty to support claimant, and that decedent was obligated to reimburse the Illinois Department of Public Aid for any support rendered to claimant.

Employer appealed to the circuit court of Cook County, which confirmed the Commission's findings. We have jurisdiction pursuant to Supreme ...

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