NO. 4-02-1044WC

IN THE APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

Industrial Commission Division

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Claimant, Christopher Sleeter, sought benefits pursuant tothe Workers' Compensation Act (Act) (820 ILCS 305/1 through 30 (West1994)) for injuries he sustained to his "back, legs, and other partsof his body." Claimant alleged he suffered an accident during thecourse of his employment with employer, Cabinetland Discount, Ltd.,on June 10, 1994. Following a hearing, the arbitrator found claimantproved he sustained accidental injuries arising out of and in thecourse of his employment with employer and awarded claimant benefits.

On review, the Industrial Commission (Commission) reversedthe decision of the arbitrator, finding claimant failed to prove hesustained accidental injuries arising out of and in the course of hisemployment with employer. Claimant sought judicial review of theCommission's decision in the circuit court of McLean County, whichconfirmed the Commission's decision.

Claimant appeals, arguing that (1) the Commission'sfinding that claimant failed to prove he sustained accidental injuries arising out of and in the course of his employment with employeron June 10, 1994, is against the manifest weight of the evidence, and(2) the Commission's decision is void because Robert Madigan, anecessary member of the panel that rendered the decision, was notqualified to serve as a commissioner. We affirm.

On October 13, 1994, claimant filed an application foradjustment of claim under the Act, alleging he suffered an accidenton June 12, 1994, and while working for employer. Claimant testifiedthat he worked as a "warehouse worker" for employer. On June 10,1994, claimant "f[e]ll over backwards" while carrying a large boxweighing approximately 80 pounds. Claimant testified:

"On that date I was rotating stock in the warehouse, I stepped backwards with my left footwhile holding a box, my left foot hit a two byfour rung on the floor. I planted my left footbackwards, I was still off balance, picked myleft up again to regain balance, hit a box behind me. At that point I started to fall overbackwards. My hips landed on a box. At thatpoint my hips twisted to the righthand side. Ithrew the box off and stood back up."

Medical records dated November 11, 1994, provide details of anaccident at work on approximately June 10, 1994, and are like thedetails claimant provided at hearing on August 3, 2000.

Following the hearing, the arbitrator found claimantproved he sustained accidental injuries arising out of and in thecourse of his employment with employer and awarded claimant benefits. On review, the Commission reversed the decision of the arbitrator,finding claimant failed to prove he sustained accidental injuriesarising out of and in the course of his employment with employer. The Commission found claimant not credible stating, "[claimant's]testimony both as to the date of the accident as well as to themechanics of the accident do not coincide with the contemporaneousmedical histories taken by the treating physicians shortly after thealleged date of accident." Claimant sought judicial review of theCommission's decision in the circuit court of McLean County, whichconfirmed the Commission's decision. This appeal followed.

Claimant argues the Commission's finding that claimantfailed to prove he sustained accidental injuries arising out of andin the course of his employment with employer on June 10, 1994, isagainst the manifest weight of the evidence.

In a workers' compensation case, the claimant has theburden of establishing, by a preponderance of the evidence, that hisinjury arose out of and in the course of his employment. O'Dette v.Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221, 223 (1980). It is the function of the Commission to decide questions of fact,judge the credibility of witnesses, and resolve conflicting evidence. O'Dette, 79 Ill. 2d at 253, 403 N.E.2d at 223-24. The Commission'sdetermination on a question of fact will not be disturbed on reviewunless it is against the manifest weight of the evidence. Orsini v.Industrial Comm'n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005, 1008 (1987).

The Commission exercises original rather than appellatejurisdiction and is in no way bound by the arbitrator's findings. Paganelis v. Industrial Comm'n, 132 Ill. 2d 468, 483, 548 N.E.2d1033, 1040 (1989). We reject the argument that an extra degree ofscrutiny must be applied to a decision of the Commission whichreverses the decision of an arbitrator. Wagner Castings Co. v.Industrial Comm'n, 241 Ill. App. 3d 584, 594, 609 N.E.2d 397, 404(1993).

The Commission found claimant's testimony at hearing"grossly inconsistent with the more trustworthy contemporaneousmedical histories." Claimant sought treatment in the emergencydepartment on June 12, 1994. Claimant complained of pain in his hipfor approximately two weeks. Claimant did not reference an accidentsuffered at work on June 10, 1994. Approximately five days later,claimant sought treatment with Dr. Jane Leonardson, Carle ClinicAssociation, complaining of back and hip pain. Claimant reported hehad suffered pain in the "crural fold" for approximately six months,after moving railroad ties. Claimant reported he was lifting in awarehouse five days earlier, on June 12, 1994, and not on June 10,1994. At hearing, claimant testified he did not injure himselflifting railroad ties and had not experienced "discomfort in the foldaround [his] hip" for approximately six months. Although claimanttestified at hearing he provided each of the medical care providersdetails of an accident at work on June 10, 1994, the record does notshow claimant provided details of a June 10, 1994, accident at workuntil November 11, 1994, approximately five months following thealleged accident, and approximately one month after filing an application for adjustment of claim, alleging he suffered an accident onJune 12, 1994, and not on June 10, 1994. Although claimant arguesthe date-of-accident evidence presented is not inconsistent, theCommission's determination is supported by the record. As to claimant's credibility, the record, with respect to his participation, orlack thereof, in a work-hardening program, his failure to cooperatewith the therapists, and the report of Dr. Thomas W. Diller, MedicalDirector, BroMenn Occupational, Preventative, and RehabilitationServices, further supports the Commission's finding as to lack ofcredibility. Diller's report stated the impression that claimant hadother agendas and tended to interpret things upon his own terms, andDiller's concern was that claimant "could possibly set us up forsomething." The Commission's determination that claimant failed toprove accidental injuries arising out of and in the course of hisemployment on June 10, 1994, is not against the manifest weight ofthe evidence.

Claimant next argues the Commission's decision is voidbecause Robert Madigan, a necessary member of the panel that renderedthe decision, was not qualified to serve as a commissioner. Specifically, claimant argues he could not find "discussion" of Madigan's"labor relations experience" in an Illinois Senate transcript, datedNovember 7, 2001, nor did various letters of appointment by formerGovernor George Ryan, "set[] forth" Madigan's "labor relationsexperience," and therefore, claimant argues Madigan was not qualifiedto serve as a commissioner. Claimant did not challenge Madigan'squalifications prior to this appeal.

Taken with the case are claimant's (1) motion for leave tosupplement the record on appeal, and (2) motion to strike the affidavit of Robert A. Madigan and motion to strike the supplementalinformation attached to the brief of the employer-appellee. Claimantoffers photocopied documents "regarding *** information on ***Madigan's appointment by Governor Ryan to the *** Commission," selectpages from the Illinois Blue Book 2000, and a Senate transcript datedNovember 7, 2001. In response, employer offers an affidavit preparedby Madigan and detailing his labor relations experience. We grantclaimant's motion for leave to supplement the record on appeal anddeny claimant's motion to strike the affidavit of Robert A. Madiganand motion to strike the supplemental information attached to thebrief of the employer-appellee.

The Act provides:

"There is created an Industrial Commissionconsisting of 7 members to be appointed by theGovernor, by and with the consent of the Senate***. One of the *** members *** shall be designated by the Governor as Chairman. ***

The Commissioner candidates, other than theChairman, must meet one of the following qualifications: (a) licensed to practice law in theState of Illinois; or (b) served as an arbitrator at the Illinois Industrial Commission for atleast 3 years; or (c) has at least 4 years ofprofessional labor relations experience. TheChairman candidate must have public or privatesector management and budget experience, asdetermined by the Governor." 820 ILCS 305/13(West 2000).

The Act provides a commissioner be appointed by theGovernor, by and with the consent of the Senate. Here, Governor Ryanappointed Madigan as a commissioner on June 27, 2001. On November 7,2001, Madigan's nomination was transmitted to the Senate, and onNovember 14, 2001, his nomination was confirmed by the Senate.

We do not find persuasive claimant's argument that becausehe could not find "discussion" of Madigan's "labor relations experience" in an Illinois Senate transcript, dated November 7, 2001, anddid not find Madigan's labor relations experience set forth in thevarious letters of appointment by the former Governor, that Madigandid not possess the required "labor relations experience" to serve asa commissioner. Claimant does not cite to authority for a required"discussion" in the Senate or for a requirement that the variousletters of appointment prepared by the Governor set forth the Commissioner candidate's labor relations experience.

Further, we note the Act specifically provides that aCommission Chairman candidate's "experience" be determined by theGovernor. We find it equally appropriate that a commissioner candidate's experience also be determined by the Governor. The mere factthat a claimant suggests on appeal that a commissioner may not havebeen qualified to render a decision not favorable to claimant doesnot make it so. Moreover, there is nothing in the record before thiscourt that suggests Madigan was not qualified to serve as a commissioner.

Citing Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 775N.E.2d 936 (2002), claimant argues "the procedures for appointment ofCommissioners must be strictly adhered to in order to maintain thebalance of membership on the Commission." The Act provides a commissioner be appointed by the Governor, by and with the consent of theSenate. Here, Governor Ryan appointed Madigan as a commissioner andhis nomination was confirmed by the Senate. Claimant does not arguethe appointment threatened "the balance of membership on the Commission."

Further, we note differing "procedures for appointment." In Daniels, the supreme court examined the Commission Chairman'spower to designate successor acting commissioners, a power granted tothe Chairman by the legislature. "The Governor neither appointed nornominated replacements *** as specified in the Act." Daniels, 201Ill. 2d at 163, 775 N.E.2d at 938. Here, we examine the Governor'spower to "appoint all officers whose election or appointment is nototherwise provided for," a power granted the Governor by the IllinoisConstitution. Ill. Const. 1970, art. V,