Continental Drilling Co. v. Industrial Com'n of Illinois

• Decision Date: 03 June 1987
• Docket Number: No. 5-86-0440,5-86-0440
• Citation: 155 Ill.App.3d 1031,508 N.E.2d 1246,108 Ill.Dec. 669
• Parties: , 108 Ill.Dec. 669 CONTINENTAL DRILLING COMPANY, Respondent-Appellant, v. INDUSTRIAL COMMISSION OF ILLINOIS, (and Jessie Ross, Petitioner), Appellees. WC.
• Court: United States Appellate Court of Illinois

Page 1246

508 N.E.2d 1246

155 Ill.App.3d 1031, 108 Ill.Dec. 669

CONTINENTAL DRILLING COMPANY, Respondent-Appellant, v. INDUSTRIAL COMMISSION OF ILLINOIS, (and Jessie Ross Petitioner), Appellees.

No. 5-86-0440 WC.

Appellate Court of Illinois,

Fifth District,

Industrial Commission Division.

June 3, 1987.

Donald L. Smith, Hoagland, Maucker, Bernard & Almeter, Alton, for respondent-appellant.

G. Richard Jones, Carr, Korein, Kunin, Schlichter, Montroy & Brennan, East St. Louis, for Jessie Ross.

Presiding Justice BARRY delivered the opinion of the Court.

The petitioner, Jessie Ross, was injured in an industrial accident while he was working in West Virginia for the respondent company, Continental Drilling (the company). He applied for benefits under the Workmen's Compensation Act (the Act). (Ill.Rev.Stat.1977, ch. 48, par. 138.1 et seq.) The arbitrator found that the petitioner was permanently and totally disabled and awarded temporary total benefits, medical expenses, and permanent total disability under section 8(f) of the Act. Both the petitioner and the company sought review. The Industrial Commission (the Commission), also awarded temporary total and permanent total disability. It found the petitioner's average weekly wage to be lower, and awarded additional medical benefits. On the company's review, the circuit court increased the Commission's finding regarding the petitioner's average weekly wage and otherwise confirmed.

The company's instant appeal raises the following questions: (1) whether the Commission had jurisdiction over this claim; (2) whether the petitioner's claim was barred by the statute of limitations; (3) whether the petitioner had elected a West Virginia remedy so as to preclude an award under the Act; (4) whether the circuit court properly considered and determined the petitioner's average weekly wage; and (5) whether the Commission's findings of causal connection and permanent total disablement are against the manifest weight of the evidence. We affirm.

On September 13, 1977, the date of the accident, the petitioner was an itinerant construction worker, specifically an operating engineer/driller. He was 41 years old, had a 9th grade education, and had always done manual labor.

He had been hired by the company in Chicago in July of 1974. He had no written employment contract but had worked only for the company after his July 1974 hiring. He supervised various drilling projects for the company, operating out of his Chicago labor union local. He worked at job sites in various states, working as he accepted jobs that became available.

At his various job sites, the petitioner was paid official wages at the work site's scale. However, with the company's subsidies, the petitioner always was paid the union's Chicago wage rate. Additionally, on the petitioner's behalf the company regularly paid into the Chicago local's vacation, health, and welfare funds.

The accident occurred when the petitioner fell approximately 30' down a sloped entrance to a mine shaft in Beckley, West Virginia. The petitioner's major treatment was begun by Dr. Alfredo Velasquez of the General Hospital, Charleston, West Virginia. In September and October of 1977, Dr. Velasquez treated the petitioner for concussion and muscle strain. Dr. Velasquez's diagnosis included paranoid schizophrenia. The petitioner disapproved of Dr. Velasquez's treatment and sought other assistance. Thereafter, he had four surgeries: in February of 1979 a lumbar laminectomy by Dr. John Noonan, in June of 1980 a lumbar laminectomy by Dr. Cully Cobb, in April of 1981 a decompressive lumbar laminectomy and discectomy by Dr. Cobb, and in January of 1983 Dr. Cobb's reopening of a prior laminectomy. The petitioner also had on-going physical therapy. He continually complained of pain and sensory loss.

On October 2, 1977, while he was initially hospitalized following the accident, the petitioner signed an application for compensation from West Virginia's Workmen's Compensation Fund (the Fund). West Virginia had no hearing on the petitioner's claim, but the Fund paid the petitioner temporary total disability from September 13, 1976 to May 13, 1980, and paid his medical bills up to August 15, 1983. Additionally, pursuant to a West Virginia doctor's January 30, 1980 examination, the West Virginia Fund awarded the petitioner permanent partial disability for 35% of the whole man. That award was paid to the petitioner in weekly amounts from May 13, 1980 to January 17, 1983.

The petitioner accepted all the West Virginia award payments. However, pursuant to West Virginia procedures, he objected in writing to the award. He apparently challenged the 35% disability finding. As of August 15, 1983, according to the deposition of the Fund's Correspondence Unit Chief, the Fund viewed the petitioner's award as a pending matter. Given the petitioner's formal objection it had not become final automatically upon the petitioner's award notice.

On October 29, 1980, the petitioner filed for Illinois benefits under the Act. The arbitrator awarded benefits on the petitioner's Illinois claim. On both parties' review, the Commission majority found jurisdiction and that there was no dispute about the company's $56,633.74 credit for prior payment. It awarded temporary total benefits. Also, based upon the testimony of Dr. Cobb, it awarded the petitioner benefits for total and permanent disability under section 8(f) of the Act. (Ill.Rev.Stat.1977, ch. 48, par. 138.8(f).) It awarded additional medical expenses and determined the petitioner's average weekly wage at $321.57.

The company sought review by the circuit court. The petitioner sought no review but argued to the court that the Commission had erred in its determination of the petitioner's average weekly wage. The court affirmed the Commission, excepting its determination of average weekly wage. The court referred to section 10(e) of the Act (Ill.Rev.Stat.1977, ch. 48, par. 138.10(e)), in modifying the wage to $353.35.

The company first argues that the instant facts do not establish a continuing contractual relation to provide jurisdiction under the Act. It notes that from his first, 1974 job for the company, the petitioner worked throughout the United States. It further suggests that all the petitioner's work was through a labor union and not subject to a contract with the company. It asserts that the controlling place of contract was either in West Virginia where the accident occurred or in Kentucky where the petitioner was working when called for the West Virginia job.

The Act provides for jurisdiction where the employee's work is outside Illinois but the contract of hire is made within Illinois. (Ill.Rev.Stat.1977, ch. 48, par. 138.1(b)(2).) Whether the contract of hire was made within Illinois is a question of fact for the Commission. United Airlines, Inc. v. Industrial Com. (1983), 96 Ill.2d 126, 70 Ill.Dec. 245, 449 N.E.2d 119.

The record includes ample evidence to support the Commission's finding that the accident occurred while the petitioner was working under a contract of hire which he entered in Illinois in 1974. It is clear that after his Illinois hiring by the company, the petitioner worked exclusively for the company, albeit in various states and with some time between projects. The company consistently paid into the petitioner's Illinois benefit funds and subsidized the petitioner's out-of-state wages so that he was effectively paid at his Illinois union wage.

The company argues secondly that by his election to accept West Virginia benefits, the petitioner was precluded from receiving benefits under the Act. The petitioner and the company agree that Long-Airdox Co. v. Industrial Com. (4th Dist.,1984), 128 Ill.App.3d 334, 83 Ill.Dec. 887, 470 N.E.2d 1307, states the relevant law on election of remedies. Long-Airdox, like the instant case, concerns a petitioner who had applied for compensation benefits both in Illinois and from the West Virginia Fund. It states that application of the doctrine of election of remedies depends upon whether double compensation to the petitioner is threatened, whether the company has been misled by the petitioner's conduct, and whether res judicata should apply. In the instant case, the company makes no claim that it has been misled by the petitioner's conduct or that double compensation is threatened. Thus, under the Long-Airdox test we need consider only res judicata.

The company asserts without authority that res judicata applies here because the petitioner has received his medical benefits, his temporary total disability benefits, and his final permanent partial award from West Virginia. According to the company, the only matter remaining open in West Virginia is the petitioner's additional medical expense. The petitioner asserts that res judicata does not apply as the West Virginia award is not final. He notes that the findings on the West Virginia claim are on appeal and that he has received additional medical treatment since notice of the West Virginia permanent partial award.

The doctrine of res judicata provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties and their privies are bound as to matters which either were determined or could properly have been raised and determined. (Hughey v. Industrial Com. (1979), 76 Ill.2d 577, 31 Ill.Dec. 787, 394 N.E.2d 1164.) The West Virginia statute provided that the petitioner's award would automatically become final unless objections were filed. As the petitioner timely filed objections to his West Virginia award and given the testimony from the West Virginia Fund's authority that the petitioner's West Virginia award is pending and not yet final, we find the company's unsupported reliance upon res judicata to be without merit. Further, we find no persuasive force in the company's reference to the West Virginia statute which provides...