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Insulated Panel Co. v. Industrial Commission

January 05, 2001

INSULATED PANEL COMPANY,
APPELLANT,
V.
THE INDUSTRIAL COMMISSION ET AL.
(HAROLD J. CUTTIE, JR., APPELLEE).



Appeal from the Circuit Court of De Kalb County. No. 99MR46 Honorable John W. Countryman, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

Respondent employer, Insulated Panel Company, appeals from the order of the circuit court of De Kalb County confirming a decision of the Illinois Industrial Commission (Commission). The arbitrator denied compensation to claimant, Harold J. Cuttie, Jr., but the Commission found claimant's injury "arose out of" and "in the course of" his employment (820 ILCS 305/2 (West 1998)) and awarded claimant $680.71 per week for 76 6/7 weeks for temporary total disability (TTD), $396.89 per week for 100 weeks for 50% loss of use of the right leg, and $3,938.87 medical expenses. 820 ILCS 305/8(a), (b), (e)(12) (West 1998).

The issues on appeal are whether (1) the circuit court committed an abuse of discretion in ordering the parties to limit briefs to 10 pages and considering only the first 10 pages of respondent employer's 50-page brief; (2) the Commission's finding that an accidental injury "arose out of" and "in the course of" claimant's employment with respondent (820 ILCS 305/2 (West 1998)) was contrary to law or against the manifest weight of the evidence; (3) the Commission's finding as to the average weekly wage was against the manifest weight of the evidence; and (4) the Commission's finding of partial permanent disability (PPD) to the extent of 50% loss of the leg was against the manifest weight of the evidence. We affirm.

Claimant fell and broke his leg while on a day-long sightseeing excursion on the island of Maui, Hawaii. At that time, he was traversing lava rocks. He and two other employees of respondent, including respondent's president, were in Hawaii on business to install an industrial freezer. The arbitrator found that claimant, in traversing the rocks, was taking an unreasonable risk not foreseeable to respondent and, therefore, the accidental injury did not "arise out of" and "in the course of" employment. 820 ILCS 305/2 (West 1998). The Commission disagreed, finding it was reasonable and foreseeable to anticipate that claimant would engage in some type of recreational activity and that the type of activity claimant was engaged in when injured was reasonable and foreseeable recreational activity.

The first issue is whether the circuit court committed an abuse of discretion in ordering the parties to limit briefs to 10 pages and considering only the first 10 pages of respondent employer's 50-page brief. Claimant argues that respondent has not preserved this issue for review by this court because the circuit court order limiting pages in the parties' briefs was not referred to in the notice of appeal. An order limiting the pages of briefs is a step in the procedural progression of the ultimate order affirming the Commission and is reviewable. See Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722, 726, 661 N.E.2d 463, 467 (1996).

The circuit court has an inherent power to control its own docket, and the ruling limiting briefs to 10 pages was not an abuse of discretion. See Bodine Electric v. City of Champaign, 305 Ill. App. 3d 431, 435, 711 N.E.2d 471, 474 (1999) (defining abuse of discretion). Additionally, we note that the parties at oral argument agreed that the trial court did not limit oral argument before making its decision.

We next consider whether the Commission's finding that an accidental injury "arose out of" and "in the course of" claimant's employment with respondent (820 ILCS 305/2 (West 1998)) was contrary to law or against the manifest weight of the evidence. It is undisputed that claimant was a traveling employee when he was injured.

"Under a traveling employee analysis, determination of whether an injury arose out of and in the course of the employee's employment depends on the reasonableness of the employee's conduct at the time of the injury and whether the employer could anticipate or foresee the employee's conduct or activity. Johnson, 278 Ill. App. 3d at 64; Bailey, 247 Ill. App. 3d at 208; Howell Tractor & Equipment Co., 78 Ill. 2d at 574. See Wright, 62 Ill. 2d at 70; David Wexler & Co., 52 Ill. 2d at 510; Ace Pest Control, 32 Ill. 2d at 388-89; Chicago Bridge & Iron, 248 Ill. App. 3d at 694. Under this approach, Illinois courts have repeatedly held that, even though the recreational activities of a traveling employee fall outside the scope of employment, any injuries incurred during those activities are compensable under the Act as long as the recreational activity and the employee's conduct were reasonable and foreseeable. Howell Tractor & Equipment, 78 Ill. 2d at 574; Wright, 62 Ill. 2d at 71; Johnson, 278 Ill. App. 3d at 64; Bailey, 247 Ill. App. 3d at 208. See also David Wexler & Co., 52 Ill. 2d at 510-11. This added protection is afforded under the Act because '[i]t is expected that an employee working out of town will seek some type of recreational activity on his days of rest' (Wright, 62 Ill. 2d at 71) and that '"[i]t would be obviously unreasonable and contrary to the intendment of the [Workers'] Compensation Act and its purposes to say that a traveling employee has the protection of the Act only when in the physical act of performing [her] duties and only in the course of a normal business day"' (Wright, 62 Ill. 2d at 71, quoting Wexler, 52 Ill. 2d at 511)." Bagcraft Corp. v. Industrial Comm'n, 302 Ill. App. 3d 334, 338, 705 N.E.2d 919, 921-22 (1998).

In Bagcraft, the employee was injured while riding an all-terrain vehicle at the lodge in which he was staying after the conclusion of the business meeting he attended on that day. Bagcraft, 302 Ill. App. 3d at 337, 705 N.E.2d at 920-21. Respondent cites Jensen v. Industrial Comm'n, 305 Ill. App. 3d 274, 711 N.E.2d 1129 (1999), in which the employee was also injured while riding an all-terrain vehicle. In Bagcraft, as well as Jensen, we affirmed the Commission's decision. In this case, claimant, accompanied by the president of respondent and another employee, were on a sightseeing trip in Maui on their only day off since going there to install an industrial freezer. While walking toward a lagoon in an unrestricted area, they walked on lava rocks that formed the coastline. When claimant stepped on one of the lava rocks, it gave way and he fell about 20 feet.

The reasonableness and foreseeability of a traveling employee's recreational activities are facts to be determined by the Commission. Respondent argues that the facts are undisputed, creating a question of law. However, when divergent inferences may reasonably be drawn from undisputed facts, a question of fact is presented. Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373, 381, 666 N.E.2d 713, 718 (1996). Here, divergent inferences could have been drawn, and the factual determinations by the Commission are reviewed on the manifest weight of the evidence standard. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 449, 657 N.E.2d 1196, 1199 (1995).

The activity was reasonable and foreseeable to the respondent employer, particularly when claimant was invited to participate and was accompanied by the president of the company. Respondent's attempt to color the activity as unreasonable and unforeseeable because, as the lava rocks got bigger, claimant had to jump between them, does not require a different result. As this court stated in Beattie, "[t]he test is not whether this or any other tribunal might reach the opposite conclusion, but whether there was sufficient factual evidence *** to support the Commission's determination." Beattie, 276 Ill. App. 3d at 450, 657 N.E.2d at 1199. The Commission's finding that the activity was reasonable and foreseeable was not against the manifest weight of the evidence.

The third issue concerns the Commission's finding as to the average weekly wage. The four statutory methods for calculating average weekly wage were recently discussed by this court in Sylvester v. Industrial Comm'n, 314 Ill. App. 3d 1100, 1106-07, 732 N.E.2d 751, 756 (2000).

Based on respondent's exhibit No. 3, a wage statement, the Commission found claimant missed 49 days in the prior 52 weeks, and his compensation during that period was $43,089.04. Fifty-two weeks times five days equals 260 days. Subtracting 49 days from 260 days leaves 211 days, or 42.2 weeks. The Commission then divided $43,089.04 by 42.2 weeks and arrived at an average weekly wage of $1,021.07.

Respondent refers to the arbitrator's calculations. The arbitrator divided $43,089.04 by 51 weeks and arrived at an average weekly wage of $844.88. Respondent makes two contentions: (1) "overtime" pay should not be included in the calculation of the average weekly wage, and (2) the method of ...


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