| Notice Decision filed 09/26/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. |
No. 1-01-4223WC
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
INDUSTRIAL COMMISSION DIVISION
| MARY McCOY, Widow of Arthur Matthews, | ) | Appeal From The |
| Decedent, and IRENE PARKER, as guardian for | ) | Circuit Court of |
| Anthony Hampton, | ) | Cook County |
| ) | ||
| Appellants, | ) | |
| ) | ||
| v. | ) | |
| ) | ||
| THE INDUSTRIAL COMMISSION, et al., | ) | |
| (CERES TERMINALS, INC., | ) | Honorable |
| ) | Alexander White, | |
| Appellee). | ) | Judge Presiding. |
JUSTICE GREIMAN delivered the opinion of the court:
Mary McCoy, the surviving spouse of Arthur Matthews (decedent), and Irene Parker, asguardian for Anthony Hampton, appeal from the circuit court's order confirming a decision of theIndustrial Commission (Commission) denying their consolidated claims for benefits under theWorkers Compensation Act (820 ILCS 305/1 et seq.(West 1996)) against the decedent's employer,Ceres Terminals, Inc. (Ceres). The Commission based its denial of the claims upon its finding thatit lacked jurisdiction to hear them. For the reasons which follow, we reverse the circuit court's orderand remand to this cause to the Commission for further proceedings.
On October 21, 1998, McCoy filed an application for adjustment of claim under the Act,seeking benefits from Ceres. That same day, Irene Parker, as guardian for Anthony Hampton,alleged to be the decedent's son, also filed an application for adjustment of claim under the Act,seeking benefits from Ceres. Subsequently, after DNA testing excluded the possibility that thedecedent fathered Hampton, Parker amended her claim and proceeded upon the theory that thedecedent stood in loco parentis to Hampton. The two claims were consolidated. The following factsare taken from the evidence presented at the arbitration hearing conducted in connection with theconsolidated claims.
Robert Leonard testified that he is a longshoreman and a business agent for Local 19 of theInternational Longshoreman Association, of which the decedent was a member. A longshoreman'sduties include loading and unloading ships. When an employer needs longshore workers, it callsLocal 19 and requests them. Jobs are assigned on the basis of seniority and type of skills.
On September 25, 1998, the decedent was working for Ceres, a stevedoring company. Onthat date, Valerie Barber, an employee of A&R Security, was assigned to provide security for a shipdocked in Lake Michigan in the vicinity of 95th Street & Ewing Avenue. Barber's evidencedeposition was introduced into evidence at the hearing.
Barber testified that, around 4 p.m., the decedent was on the dock at the stern of the ship, ina squatting position, untying the ship's lines from a cleat as the ship was about to leave. The ropeswere tangled up around the cleat, and the decedent was trying to untangle them. In the incidentreport she submitted to her employer, dated October 1, 1998, Barber stated that, while the decedentwas squatted down attempting to untangle the ropes, his foot slipped beneath him and he fell intothe water. At her deposition, Barber testified that, as the decedent was attempting to untangle therope, members of the ship's crew were pulling in the rope, and the decedent fell face down into thewater. Asked what caused the decedent to fall into the water, Barber responded:
"I think when they [were] pulling the rope back up on the ship they had - therope was loosened and as they [were] pulling the rope around the thing he was tryingto untangle the rope and his leg had slipped and they [were] pulling it and that is howhe went down in that water."
Upon further questioning, Barber again testified that the decedent did not get tangled in the ropesat all. She testified that, as the decedent was attempting to untangle the ropes from the cleat, peopleon the ship were winding up the ropes "and as they *** [were] pulling it up, he slipped and fell." Barber acknowledged that, on March 25, 1999, counsel for the claimants interviewed her regardingthe incident. Based on her statements, counsel asked her if he could add the following handwrittensentence to her typewritten incident report: "The line from the freighter pulled him [the decedent]into the water, I saw it happen." Barber acquiesced and initialed the change. Barber testified thatthe statement which she allowed counsel to add to her incident report is true. Later, when asked ifthe rope dragged the decedent into the water, Barber stated: "I think if they wouldn't have beenpulling the rope back to the ship he would have been still up there."
Barber testified that she did not know whether the decedent hit anything as he fell into thewater. After falling in the water, he surfaced "head up fighting for his life." According to Barber,the decedent was not wearing a life jacket and appeared to be unable to swim. The post-mortemexamination report and the death certificate both list the cause of the decedent's death as drowning.
On July 14, 2000, the arbitrator issued a decision in which he found that the Longshore andHarbor Workers' Compensation Act (33 U.S.C.