D. J. Masonry Co. v. Industrial Comm'n
State: Illinois
Court: 1st District Appellate
Docket No: 1-96-4131
Case Date: 03/24/1998
March 24, 1998
No. 1--96--4131WC
IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
Industrial Commission Division
D.J. MASONRY CO., ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellant, )
)
v. ) No. 95L50307
)
THE INDUSTRIAL COMMISSION, )
(Chuck Botta), ) Honorable
) George Smith,
Respondent-Appellee. ) Judge, Presiding.
JUSTICE COLWELL delivered the opinion of the court:
Claimant, Chuck Botta, filed an application for adjustment of
claim pursuant to the Workers' Compensation Act (820 ILCS 305/1 et
seq. (West 1994)) (Act) for injuries he sustained while working for
D.J. Masonry Company (D.J. Masonry). The arbitrator awarded Botta
temporary total disability for 98-1/7 weeks and $2,500 in penalties
under section 19(l) of the Act. See 820 ILCS 305/19(l) (West
1994). The Commission modified the arbitrator's award by
increasing the average weekly wage. The Commission also awarded
Botta penalties and attorney fees pursuant to section 19(k) and
section 16 of the Act. See 820 ILCS 305/16, 19(k) (West 1994).
The circuit court confirmed the Commission's decision, but remanded
the cause to the Commission for a re-calculation of the attorney
fees and penalties.
On appeal, D.J. Masonry contends that the state of Indiana,
not the state of Illinois, has jurisdiction over this accident.
Further, D.J. Masonry argues that the Commission's average weekly
wage calculation is erroneous and that the Commission erred in
awarding TTD benefits beyond November 30, 1993. Finally, D.J.
Masonry maintains that no penalties should be awarded in this case.
We affirm in part and reverse in part.
The record shows that in November 1988 Botta was unemployed
and living in South Holland, Illinois. Tom Goralka, a friend of
Botta's, called Botta one day in November and told him that he
currently worked for D.J. Masonry, which was located in Indiana.
Goralka told Botta that D.J. Masonry might have a job for him and
gave him the owner's phone number.
Botta immediately telephoned the owner, Richard Devries, who
lived in Indiana. Botta told Devries that he was a friend of
Goralka and that he was an experienced laborer looking for work.
Devries told Botta to go to a job site in Crete, Illinois, the
following morning and to speak with him.
Botta visited the Crete job site the next morning. He
introduced himself to Devries and Devries commented on Botta's
possessing his own tools. Devries told Botta to talk to the labor
foreman and to tell the foreman that he was going to be given a
trial. After speaking with the foreman, Botta worked the remainder
of the day scaffolding and tending to the bricklayers. At the end
of the day, around 4:00 p.m., Botta spoke with Devries. Devries
told Botta that he did a good job and that, as far as he was
concerned, Botta had a job. Devries then gave Botta tax forms to
complete. Botta completed the forms that evening and gave them to
Devries at the job site the next day.
Botta worked for D.J. Masonry through December 22, 1992. On
December 22, Botta was injured when a scaffold fell on top of him
while he was working at a job site in Indiana. There is no dispute
between the parties that Botta was injured during the course of his
employment.
At the arbitration hearing, Botta testified that he felt
immediate pain in his leg, head, and back after the scaffold fell
on top of him. While he waited for the paramedics, he noticed that
his head was bleeding. The paramedics took Botta to the hospital.
At the hospital, Botta had stitches over his eyes and in the back
of his head. Botta went home that night. He did not return to
work the next day.
Botta visited his family physician, Dr. Richard S. Kijowski,
on December 24, 1992. On January 5, 1993, Botta noticed lower back
and left leg pain. He reported to Dr. George S. Miz, a spinal
surgeon. Dr. Miz ordered a MRI and physical therapy.
On February 18, 1993, Botta returned to Dr. Kijowski.
According to Dr. Kijowski's medical records, Botta had not had any
improvement with his "persistent severe left leg pain." Dr.
Kijowski recommended surgery and discussed with Botta the
possibility that he may not be able to return to work as a laborer.
On March 8, 1993, Botta had back surgery. He was discharged
on March 9. Botta testified that, after the surgery, his back did
not hurt as much, but that his left leg pain remained. Botta
returned to physical therapy. In addition, he completed a work-
hardening program. Botta stated that his left leg did not respond
to the work hardening or the physical therapy.
On August 31, 1993, Dr. Miz prescribed an MRI. The MRI was
conducted on September 17, 1993. According to the radiologist's
report, degenerative changes in Botta's back had occurred, but no
disc herniation was detected.
In November 1993, Dr. Miz recommended an additional lumbar
myelogram and post-myelogram CT scan. The tests were performed on
January 18, 1994. According to the medical records, the tests
revealed a small herniation and a mild generalized bulge.
At the request of D.J. Masonry, Botta was examined by Dr.
Marshall Matz, a board-certified neurosurgeon, on November 30,
1993. According to Dr. Matz's December 1, 1993, report, Botta had
good strength, normal reflexes, and walked without a limp. Also,
Botta squatted only about a third of the usual range because,
according to Botta, his left leg would not bend anymore.
In an evidence deposition, Dr. Matz testified that the results
of the examination showed that Botta did not have a pinched nerve.
In addition, Dr. Matz explained that Botta's pain in his leg was
not radiating behind his knee. Therefore, his knee was simply a
"localized area of discomfort." Then, Dr. Matz opined that Botta
was not in need of further treatment. Dr. Matz explained that the
neurological examination did not reveal any objective evidence of
root involvement. Consequently, Botta could return to active
employment with "common sense limitations and restrictions with
prudent use of the lower back."
Dr. Matz next commented on Botta's September 17, 1993, MRI.
Dr. Matz stated that the MRI's result of there not being any disc
herniation supported his opinion. Further, the January 18, 1994,
myelograms were "normal" in that they did not reveal that there was
a herniated disk, root compression, or spinal stenosis. Dr. Matz
explained that, taking into consideration his examination and these
tests, there was no objective evidence that Botta "was suffering
from any derangement about the lower back that required further
treatment."
On March 25, 1994, Dr. Joseph G. Thometz, an associate of Dr.
Miz, examined Botta. According to Dr. Thometz's report, Botta's
flexion was limited. Further, the report indicates that Botta was
in need of continued treatment and that he should not return to his
construction duties.
Dr. Matz examined Botta again on March 30, 1994. Dr. Matz
testified that, on that date, Botta's reflexes were normal and that
he had good strength. Dr. Matz then expressed again his opinion
that there was no objective evidence of low back derangement that
necessitated further treatment. Further, Dr. Matz opined that a
diskogram would not be beneficial in evaluating Botta's complaints.
Instead, the tests already conducted, the MRI and the myelograms,
could better detect any problem.
On cross-examination, Dr. Matz acknowledged that he does not
prescribe diskograms for his patients unless they are required as
part of a protocol for spinal tapping because he believes
diskograms are outdated and "almost always" show that surgery
should be performed. Dr. Matz stated that he disagreed with Dr.
Miz's and Dr. Slack's diagnosis of left leg sciatica (nerve root
compression). However, assuming a person did have left leg
sciatica, he would impose legitimate work restrictions, including
a restriction from heavy manual labor.
An April 14, 1994, letter from Dr. Miz to D.J. Masonry's
insurance company states that Botta should receive further
treatment for his leg. The report indicates also that Dr. Miz
disagrees with Dr. Matz's opinion that Botta had reached maximum
medical improvement.
In May 1994, Botta treated with Dr. Charles M. Slack.
According to a letter to Dr. Slack from Botta's attorney, Botta was
to be examined by Dr. Slack, by agreement of both parties, for
purposes of his evaluation and treatment recommendations. The
letter indicates that Botta's post-operative medical care is at
issue in litigation, and that Dr. Miz recommends a diskogram, while
Dr. Matz recommends no further treatment.
According to Dr. Slack's medical report, Botta was
experiencing leg pain at the time of his visit. The report
recommends that, because Botta's pain was persistent, Botta should
undergo a lumbar diskogram and post diskogram CT "in an attempt to
further delineate some of the [degenerative] changes" noted in the
MRI. The report states that if a surgical lesion was not noted
after the additional study, Botta should proceed with a functional
capacity evaluation and work conditioning. Dr. Slack's report adds
that Botta should "remain temporarily totally disabled."
At the arbitration hearing, Botta explained that, although he
attempted to undergo the diskogram, the test had not been done
because D.J. Masonry's insurance company refused to pay for it.
Further, Botta explained that, in the four years that he worked for
D.J. Masonry, he never visited the company's main office at its
Cedar Lake, Indiana, location. Instead, he worked only at the
various job sites. Botta stated that the majority of the job sites
were in Illinois, but that about 25% of the job sites were in
Indiana.
Finally, Botta testified to the current condition of his leg.
Botta stated that he cannot sit or stand for long periods, and that
he cannot walk for a long period. Botta said that his leg hurts if
he takes a long stride or if he attempts to climb stairs. His leg
hurts also when he bends over and tries to pick up something.
Overall, the pain in his leg is sharp, and it travels from his
buttocks down to the back of his kneecap.
On cross-examination, Botta acknowledged that he visited a
chiropractor "[o]nce or twice" in 1992 regarding his back. Botta
then testified to the frequency of his work. Botta explained that,
when the weather permitted and the work was available, Botta
averaged a forty-hour week. Botta stated, however, that there were
several times during the year when work was unavailable, or when
they were unable to work due to the weather. Finally, Botta
acknowledged that he had not sought work of any kind anywhere since
the accident.
The arbitrator determined first that Illinois had jurisdiction
over Botta's claim because "the contract for hire" occurred in
Illinois in that Devries hired Botta after Botta worked a day in
Crete, Illinois. Second, the arbitrator found that D.J. Masonry's
reliance on Dr. Matz as its basis for refusing to pay for the
diskogram was improper. The arbitrator stated that there was no
reasonable basis for D.J. Masonry to rely on Dr. Matz as its basis
for withholding TTD benefits. Therefore, the arbitrator awarded
Botta further compensation in the amount of $2,500 under 19(l).
Finally, the arbitrator determined that Botta was entitled to TTD
benefits for 98-1/7 weeks.
The Commission modified the arbitrator's average weekly wage
award from $506.06 to $575.90. The Commission also awarded Botta
additional compensation of $18,839.44 under section 19(k) of the
Act and attorney fees of $3,767.89 under section 16 of the Act.
The Commission otherwise adopted the arbitrator's findings.
The circuit court affirmed the Commission's decisions
concerning jurisdiction, Botta's average weekly wage, and the
period for which Botta was temporarily and totally disabled. The
court, however, found that the Commission erred in the calculation
of section 19(k) penalties. The court added that, because the
section 16 penalty award was based on the section 19(k) award, it
too had to be set aside. Consequently, the court remanded the case
to the Commission for calculation of the section 19(k) and section
16 awards.
On appeal, D.J. Masonry argues that Illinois is without
jurisdiction to hear Botta's claim. Further, D.J. Masonry contends
that the Commission's average weekly wage was computed contrary to
law and that TTD benefits were improperly awarded beyond December
1, 1993. Finally, D.J. Masonry maintains that the Commission
cannot award penalties and attorney fees in this case.
I.
We turn first to D.J. Masonry's contention that Illinois lacks
jurisdiction to hear Botta's claim. Under the Act, there are three
bases for acquiring Illinois jurisdiction: (1) the contract for
hire was made in Illinois; (2) the accident occurred in Illinois;
and (3) the claimant's employment was principally localized in
Illinois. See 820 ILCS 305/1(b)(2) (West 1994); Burtis v.
Industrial Comm'n, 275 Ill. App. 3d 840, 842 (1995). In this case,
the accident did not occur in Illinois; it occurred in Indiana.
Accordingly, we have jurisdiction only if the contract for hire was
made in Illinois, or Botta's employment is principally localized in
Illinois.
The place where a contract for hire was made is the place
where the last act necessary for the formation of the contract
occurred. Youngstown Sheet & Tube Co. v. Industrial Comm'n, 79
Ill. 2d 425, 433 (1980). Whether a contract for hire was made in
Illinois is a question of fact for the Commission to determine. F
& E Erection Co. v. Industrial Comm'n, 162 Ill. App. 3d 156, 168
(1987). We will not overturn the Commission's decision unless that
decision is against the manifest weight of the evidence. Ford
Aerospace and Communications Services, Inc. v. Industrial Comm'n,
262 Ill. App. 3d 1115, 1120 (1994). For a finding to be contrary
to the manifest weight of evidence, an opposite conclusion must be
apparent. Teska v. Industrial Comm'n, 266 Ill. App. 3d 740, 742
(1994). Indeed, a decision is contrary to the manifest weight of
evidence only when the court determines that no rational trier of
fact could have agreed with the agency's decision. Board of
Trustees of Southern Illinois University v. Knight, 163 Ill. App.
3d 289, 291 (1987).
The record shows that, in his conversation with Botta, Devries
told the claimant to report to a site in Illinois to meet with him.
Botta reported to the Illinois site and spoke with Devries.
Devries did not tell Botta that he had a job at that time.
Instead, he instructed Devries to tell the foreman that he was
going to be given a trial. Botta worked the entire day before
speaking with Devries again about the job. At that time, Devries
told Botta he had done a good job and gave him tax forms.
There is nothing in the record that disputes Botta's testimony
at the arbitration hearing. Further, there is no evidence that
Devries guaranteed Botta a job during his telephone conversation
with him. In addition, there is nothing in the record that
suggests that Devries gave Botta a job before Botta reported to the
site. Indeed, Devries gave Botta the tax returns after Botta
completed the day of work and after telling Botta that, as far as
he was concerned, Botta had a job. We find that these facts
support the Commission's finding that the contract for hire
occurred at the job site in Illinois.
D.J. Masonry contends that Devries offered Botta the job
during their phone conversation, and Botta's showing up at the
Illinois job site was merely an acceptance of the job offer.
Therefore, because the job offer was made from Indiana, the
contract for hire was made in Indiana, not Illinois. We disagree.
In Ford Aerospace and Communications Services, Inc., the
claimant, who lived in Chicago, sent a r
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies