Appeal from Circuit Court of Greene County No. 98MR29 Honorable James W. Day, Judge Presiding.
The opinion of the court was delivered by: Justice Rarick
Industrial Commission Division
Claimant, Jeffrey Pinkerton, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries sustained while in the employ of Cropmate Company (Cropmate). Claimant worked for his uncle, William Pinkerton (Pinkerton), who was erecting a pole building for Cropmate. On August 15, 1994, while working on the roof of the building, claimant slipped and sustained a severe laceration to his right forearm.
Pinkerton contracted with Cropmate to erect a chemical containment building on Cropmate's property in Whitehall, Illinois, as required by the Environmental Protection Agency (EPA) and the Illinois Department of Agriculture. The building was to be used for the storing, loading, and unloading of materials utilized by Cropmate in its business. Cropmate was in the business of manufacturing, selling, delivering, and applying pesticides and insecticides.
Cropmate solicited bids for the erection of the structure and received a bid from Pinkerton of $7,000. Half was to be paid when Pinkerton began the work and half would be paid upon completion. Initially, the agreement was verbal. Several weeks after starting the project, Pinkerton requested the first $3,500. At that time, Pinkerton was asked to sign a written contract. He was provided a form contract by Marla Droves, Cropmate's secretary. Although the contract contained various boilerplate clauses, none of the particular terms were filled in. Pinkerton went ahead and signed the contract. Included in the boilerplate language was a provision that the contractor, Pinkerton, would obtain workers' compensation insurance. The contract appears to be dated August 3, 1994, but it is unclear.
Cropmate obtained the funds to erect the building from its parent company, ConAgra. Cropmate hired Larry Houston, an environmental coordinator, to provide plans and blueprints, which were approved by ConAgra. Larry Meyer, comanager of Cropmate, testified that the building would be considered a capital asset and that Cropmate received benefits from the building. He further testified that Cropmate would not be in compliance with environmental and Department of Agriculture regulations unless the building was built. He also testified that the materials to be stored in the containment building were not toxic, but some were hazardous.
Pinkerton testified that both Meyer and Richard Meaks, Cropmate's other comanager, inquired as to whether he had workers' compensation insurance. He told them that he did not. Meyer and Meaks told him he had to obtain workers' compensation insurance before they would tender final payment to him. Pinkerton further testified that at no time did any agent of Cropmate tell him to stop erection of the structure. Pinkerton stated that, at the time of the accident, he was in the process of obtaining workers' compensation insurance but had not done so.
Meyer testified that he knew Pinkerton did not have workers' compensation insurance at the time Cropmate accepted Pinkerton's bid, and Meyer made no attempt during the erection of the structure to verify that Pinkerton had obtained workers' compensation insurance. Meaks testified that he discussed insurance, but not necessarily workers' compensation insurance, with Pinkerton. He stated that at no time prior to or during the erection of the structure did he make any attempt to verify whether Pinkerton had workers' compensation insurance. Both Meyer and Meaks denied telling Pinkerton that he would not receive final payment until he obtained workers' compensation insurance.
Pinkerton testified that Cropmate provided the materials to build the structure, consisting of a prefabricated building, and that Meyer and Meaks provided a floor plan for the structure and were present at the worksite on a daily basis, conferring with Pinkerton on the progress on erecting the structure and on compliance with EPA and Department of Agriculture regulations.
On August 15, 1994, claimant, who was right-handed, fell from the top rafters of the structure, nearly severing his right arm. He was taken to Passavant Hospital and then to Memorial Medical Center, where he came under the treatment of Dr. Richard Brown. Claimant underwent extensive reconstructive surgery, including the reattachment of the totally severed radial nerve and brachial artery. He subsequently underwent 18 months of follow-up care, including physical therapy. Claimant also saw Dr. K. Buescher, who treated him for nightmares and coping problems. On September 30, 1994, Dr. Brown told claimant he should seek other employment. Claimant was released from Dr. Brown's care in December 1995, with instructions to return as needed. Claimant undertook a job search. Although unsuccessful at first, he ultimately found work as a general laborer on December 15, 1995.
A functional capacity evaluation revealed a significant loss of grip strength, sensation, and motion. Dr. Brown testified that this condition was permanent. Claimant testified that the loss of sensation has resulted in his inability to use various tools.
The arbitrator ruled that claimant was a statutory employee of Cropmate pursuant to section 3 of the Act (820 ILCS 305/3 (West 1994)). The arbitrator found that Cropmate owned the building in question, the building was required by environmental regulations, and it was a necessary and essential enterprise from which Cropmate derived substantial revenue. The arbitrator further found that Pinkerton was an uninsured contractor and that agents of Cropmate knew prior to and during the erection of the building that Pinkerton did not have workers' compensation insurance.
The arbitrator also concluded that claimant's condition of ill-being was causally connected to his work-related accident. This conclusion was based upon Dr. Brown's testimony to that effect and the lack of any prior injuries to the arm.
The arbitrator found that claimant had sustained a permanent loss of use of the right arm to the extent of 70% thereof. The arbitrator also found that claimant was entitled to 69 5/7 weeks of temporary total disability (TTD) benefits, for the period from August 15, 1994, through November 6, 1997. The arbitrator's decision was affirmed and adopted by the Industrial ...