Chidichimo v. Industrial Com'n
| Decision Date | 08 March 1996 |
| Docket Number | No. 1-94-2570WC,1-94-2570WC |
| Citation | 662 N.E.2d 611,214 Ill.Dec. 1045,278 Ill.App.3d 369 |
| Parties | , 214 Ill.Dec. 1045 Concetta CHIDICHIMO, Widow of Martin Chidichimo, Deceased, Appellant, v. The INDUSTRIAL COMMISSION, et al. (University of Chicago Press, Appellee). |
| Court | United States Appellate Court of Illinois |
Appeal from the Circuit Court of Cook County; Randye A. Kogan, Judge Presiding.
Barry A. Spevack, Steven J. Seidman, Monico, Pavich & Spevack, Chicago, for Appellant.
Kane, Doy & Harrington, Ltd., Chicago, for Appellee.
Concetta Chidichimo (claimant), widow of Martin Chidichimo (decedent), filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1994)), alleging her husband sustained a fatal heart attack on March 18, 1983, which arose out of and in the course of his employment with University of Chicago Press (employer). The arbitrator denied benefits, finding there was no accidental injury that arose out of or in the course of employment. Claimant presented additional evidence on review to the Industrial Commission (Commission), consisting of claimant's third subpoena issued on February 8, 1984, which requested decedent's time tickets, and correspondence from employer's counsel dated February 21, 1984, which denied the request. The Commission affirmed and adopted the decision of the arbitrator; however, it failed to the address additional evidence presented on review. On that basis, the circuit court remanded the case to the Commission. After considering the entire record and additional evidence presented on review, the Commission affirmed the decision of the arbitrator, finding that claimant failed to prove decedent sustained an accidental injury arising out of and in the course of his employment. The circuit court confirmed the Commission's decision. We affirm.
On March 18, 1983, decedent suffered a fatal heart attack while working as a linotype operator for employer. Claimant contends her husband's heart attack was caused as a result of his lifting and moving 25- to 35-pound print magazines that day. Employer denies the claim, arguing that decedent's department was slow that day; hence, there was nothing for him to lift or move. Furthermore, employer contends decedent suffered the heart attack during the lunch break.
On August 23 and December 20, 1983, claimant served subpoenas on employer seeking decedent's employment records. Employer responded to both subpoenas, noting the materials provided "are the only records in my/our possession or control relating to the [subpoena]." On February 8, 1984, claimant served another subpoena, which specifically asked for "employee daily time tickets." Employer objected to the subpoena on the basis that there is no Commission rule that provides for pretrial discovery.
In February 1988, the arbitration hearing began. Claimant called Gerald Davy, general manager of the printing department in 1983, who testified that decedent's job normally required him to lift and carry 25- to 30-pound print magazines to his machine in order to change the type size. Davy stated that on the date of decedent's death, there was less work to be done because employer was phasing out decedent's department. Therefore, the majority of decedent's work as a linotype operator would likely have consisted of sitting at the machine punching keys. Davy did not know whether decedent actually carried and lifted magazines on the date he died, however, he testified that decedent's daily time ticket would indicate which jobs he performed. It was procedure for the employees to fill out their time tickets during the course of the day. Each day, the time tickets were sent to the accounting department where the information was loaded into a computer. Employer would keep the records on a computer for two years and then destroy them. In accordance with this procedure, decedent's March 18, 1983, time records had been destroyed prior to the 1988 arbitration hearing.
Glenn Schwolow, foreman, acknowledged that decedent's ordinary duties consisted of lifting 30-pound magazines about five or six times per shift. He stated, however, that March 18, 1983, was a slow day because employer was phasing out the department; thus, decedent did not have to change a single magazine. Rather, on that date decedent worked on a sociology journal, which did not provide any occasion for changing the magazine. Schwolow also testified that during the lunch break (between 11:30 a.m. and 12 noon), decedent began complaining of terrific headaches. Shortly thereafter, decedent had trouble breathing. The paramedics were called to take decedent to the hospital, where he later died.
Claimant's medical expert, Dr. William Fitzsimmons, testified that decedent died from an acute cardiac incident brought on by physical or emotional stress. He stated, however, that if decedent did not lift or move heavy magazines on the day he died, then work was probably not the cause of decedent's heart attack.
Employer's expert, Dr. William Buckingham, opined based on a hypothetical question that decedent's death was not work related. He also stated that even if decedent had changed a 35-pound magazine that day, it would not have triggered the heart attack "[b]ecause the weight of the magazine would not be sufficient to induce any changes in the hemodynamics of his circulation that could in any way be considered as a factor."
As stated above, in accordance with routine procedure, employer destroyed decedent's time records of March 18, 1983, prior to the arbitration hearing. Throughout the hearing, claimant asserted a claim for a presumption that the time sheets would show that decedent worked with heavy magazines on the date he died. The arbitrator denied claimant's request, stating in the decision that claimant's attorney never subpoenaed the specific records. 1 The arbitrator also noted:
On review, the Commission was presented with additional evidence, including claimant's February 8, 1984, subpoena, which requested decedent's daily time tickets, and employer's response dated February 21, 1984, which denied the request on the basis there is no pretrial discovery in workers' compensation cases. The Commission adopted and affirmed the arbitrator's decision denying benefits. With regard to the subpoena and claimant's request for a presumption in her favor, the Commission concluded:
"Section 7030.50 of the Commission Rules [ (50 Ill.Adm.Code § 7030.50 (1994)) ] governs subpoena practice. Regarding use of subpoenas, it provides that:
Unless otherwise agreed by the parties, witnesses or documents may only be subpoenaed to appear or be produced at the time and place set for hearing of the cause.
* * * * * *
The Commission finds that the subpoena introduced on Review clearly violated § 7030.50 because on its face it did not request production of the documents at a time and place of hearing. [Employer] refused compliance based on this fact, noting that it was essentially a discovery request.
The Commission concludes [claimant] is not entitled to a favorable presumption and [employer] is not subject to sanctions based on destruction of documents. The first subpoena did not request machine production documents; the second subpoena was improper. [Claimant] did not seek enforcement of the second subpoena and further failed to take necessary steps to protect the existence of documents from routine deletion."
On review, the circuit court noted the difference between workers' compensation cases and civil cases, which have imposed sanctions and/or injunctions where a party has notice that the other is seeking certain documents. The court also noted that in this case there was no evidence that employer acted outside the scope of routine procedure in destroying decedent's time records. Accordingly, the court denied claimant's request to impose a sanction or presumption in her favor based on employer's failure to produce or at least preserve decedent's time records for purposes of arbitration.
On appeal, claimant argues that the destruction of decedent's March 18, 1983, time records should give rise to a presumption in her favor that decedent had been lifting heavy magazines on that date. Before employer purged the records, claimant subpoenaed all employment records of decedent, including but not limited to daily time sheets. While claimant admits the rules of the Commission do not provide for pretrial discovery, she argues that because employer voluntarily responded to two out of three of the subpoenas, she had a right to believe that all relevant documents had been produced. She also asserts employer knew that whether decedent had been lifting magazines on the date he died was a crucial aspect of the case. As such, employer had an obligation to either tender or preserve the time sheets.
Claimant's argument is vitiated by the fact that employer specifically returned the third subpoena, stating "under the provisions of the Illinois Workers Compensation Act there is no provision for pretrial discovery and we will, therefore, not be complying with this purported subpoena." Employer in no way misled claimant into believing that the time tickets would be produced. Rather, employer...
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