Gruszeczka v. Ill. Workers' Comp. Comm'n
| Decision Date | 09 October 2013 |
| Docket Number | NO. 2-10-1049WC,2-10-1049WC |
| Citation | 2013 IL App (2d) 101049 |
| Parties | MARK GRUSZECZKA Appellant, Cross-Appellee v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Alliance Contractors, Appellee/Cross-Appellant). |
| Court | United States Appellate Court of Illinois |
NOTICE
Decision filed 10/09/13 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.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
McHenry County.
Honorable
Thomas A. Meyer
Judge, presiding.
¶ 1 Held: The Commission's determination that the claimant did not sustain injuries that arose out of and in the course of his employment is not against the manifest weight of the evidence.
¶ 2 The claimant, Mark Gruszecka, filed an application for adjustment of claim against his employer, Alliance Contractors, seeking workers' compensation benefits for injuries to his back caused by an alleged work related accident. The claim proceeded to an arbitration hearing under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). The arbitrator found that the claimant did not sustain injuries that arose out of and in the course of employment. The claimant appealed to the Illinois Workers' Compensation Commission (Commission), which affirmed and adopted the arbitrator's decision. The claimant filed a petition for review in the circuit court of Dekalb County. The employer filed a motion to dismiss for lack of subject matter jurisdiction and a motion to transfer venue. The motion to dismiss was denied, and the motion to transfer venue was granted. The matter was transferred to McHenry County. The circuit court confirmed the Commission's decision, and the claimant appealed. The employer filed a cross-appeal.
¶ 3 Initially, a majority of this court held that the mailbox rule does not apply to appeals from the Commission to the circuit court. Although the claimant mailed his action for judicial review of the Commission's decision within 20 days of receipt of the Commission's decision by the claimant's attorney, the documents were not received within the 20-day period required by 820 ILCS 305/19(f)(10 (West 2008). Accordingly we held that the circuit court lacked subject-matter jurisdiction, vacated the judgment of the circuit court, and dismissed the claimant's appeal. Gruszeczka v. Illinois Workers' Compensation Comm'n, 2012 Il App (2d) 101049WC, 966 N.E.2d 356. The supreme court allowed the claimant's petition for leave to appeal, and reversed, holding that the mailbox rule applies when a party appeals a decision of the Commission to the circuit court. Gruszeczka v.Illinois Workers' Compensation Comm'n, 2103 IL 114212, ___N.E.2d ___. The court remanded the cause to us for consideration of the other issues raised by the parties that we did not previously address. After consideration of the additional issues raised by the parties, we affirm the order of the circuit court that confirmed the decision of the Commission.
¶ 5 The claimant testified that he was injured on July 21, 2004, while working for the employer. He stated that on that date, he was called by the Laborers Union Local 32 to work for the employer at the union scale rate. He met with an individual named Rudy, who he believed was the foreman, and filled out some paperwork. The claimant testified that when completing the questionnaire, he wrote that he was not on any type of prescription medication. He stated that on a form attached to the tax forms, he wrote that he was taking Vicodin and Valium. He testified that prior to showing up for work on July 21, 2004, he took medication including Vicodin and Valium.
¶ 6 The claimant testified he started work at 7:00 a.m. pouring curbs and gutters. He stated that it started to rain so he covered the newly poured concrete with plastic. When that was complete, he was instructed to pull some pins holding the string lines that were placed approximately three feet from the curb. He testified that as he pulled a pin that was stuck in the mud, it gave way, his "feet went out," and he landed on top of the curb. He stated that he fell "backwards and up in the air." He landed on his lower back. The claimant testified that while he fell into concrete that had been poured at some point during that morning, he did not make an impression in it.
¶ 7 The claimant testified that another union employee, Tony Lasoya, witnessed the accident. At between 11 a.m. and 11:15 a.m., 10 minutes after the accident occurred, the claimant informed Rudy that he fell on concrete while pulling pins. He told Rudy that he needed to go to a doctor or the hospital. He stated that Rudy "just kind of shook his head and drove off." The claimant testified that Rudy acted as if he did not understand him, so he asked Mr. Lasoya to tell Rudy in Spanish about the accident. The claimant reported that Mr. Lasoya told Rudy, and Rudy said to tell the claimant there was nothing wrong with him and to be at work at 7:00 the next morning.
¶ 8 The claimant testified that Rudy left the job site and the claimant called Local 32 business agent, Reidar Jakobsen. After speaking to Mr. Jakobsen, the claimant went to the emergency room. The emergency room nurse wrote that the claimant came in after falling backward while pulling up a stake at work. He was diagnosed with back strain and told to contact his personal physician, Dr. Harry Darland, if he did not improve in two days. He was told that he could not return to work for two days.
¶ 9 Antonio Lasoya testified by evidence deposition that he met the claimant on July 21, 2004. He and the claimant poured curbing for the employer. He said that because it was raining they had to stop pouring concrete and cover up what had been poured. He and the claimant were instructed to pull the pins. He was approximately 20 to 30 feet from the claimant when he saw the claimant pull a pin, fall on the curb, and hit his back. He stated that the claimant told the foreman about the accident, but the foreman did not understand English. Mr. Lasoya testified that he told the foreman in Spanish that the claimant was injured and wanted to go to the hospital. The foreman told him to tell the claimant to go homeand return the next day. He did not recall the foreman's name. The next day, the foreman asked Mr. Lasoya if the claimant was coming to work and he responded "no, because he told me yesterday he was going to see a doctor because his back hurt."
¶ 10 A letter dated September 1, 2004, from Reidar Jakobsen, Field Representative for Laborers' Local 32, to the claimant's attorney was admitted into evidence. In the letter, Mr. Jakobsen stated that, on August 20, 2004, the claimant was dispatched by Laborers' Local 32 to work for the employer. Mr. Jakobsen stated that, at about 11:00 that morning, he received a telephone call from the claimant informing him that the claimant had been in an accident and had hurt his back. The claimant informed Mr. Jakobsen that he told the foreman about the incident. Mr. Jakobsen stated that the claimant was told that, provided the foreman had been notified, he should seek medical advice if he thought it was necessary. Mr. Jakobsen testified by telephonic deposition that the accident occurred on July 21, 2004. When asked about the discrepancy in the dates, he stated that if August 20, 2004, "wasn't the proper date, then it was probably erroneously entered."
¶ 11 Jose Ontiveros testified that he worked for the employer for 20 years. At the time of the arbitration hearing, he had been working for the employer as a foreman, and he was the foreman on the job site where the claimant was working on July 21, 2004. He stated that he requested that the claimant complete paperwork that morning. Mr. Ontiveros testified that he did not witness the claimant fall or hurt himself in any way on July 21, 2004, that the claimant never requested that he be allowed to go to the hospital, and that the claimant never told him an accident occurred that morning or that he was injured performing his job duties. Due to the rain, the employees only worked half of a day on that date. Mr.Ontiveros testified that he saw the claimant leave and that he did not mention anything about a problem or being injured. Mr. Ontiveros did not see the claimant limp or rub his back. The claimant said "see you tomorrow" when he left. Mr. Ontiveros stated that on July 21, 2004, they poured curbing and that there was nothing unusual about the curbing that required repair the next day.
¶ 12 Rodney (Rudy) Hisel testified that he has worked for the employer for 27 years and has worked as the general superintendent for 13 years. He did not work on the crew the day the claimant worked. He stated that the employer has a standard new employee packet that each employee is given that includes tax forms and company policies. The packet has been in use for approximately 20 years. The emergency information form includes a question about whether the employee is on any medications. Mr. Hisel testified that, to his knowledge, there was no other form that asked what medications the employee was taking.
¶ 13 Mr. Hisel testified that, on July 22, 2004, he became aware that the claimant claimed he was injured while working for the employer. He stated that the other local laborer, Mr. Lasoya, told Mr. Ontiveros that the claimant would not be in because he injured his back the previous day. He contacted the claimant who stated he was injured stepping over the curb. Mr. Hisel asked Mr. Ontiveros if an accident was reported to him on July 21, 2004, and he responded negatively.
¶ 14 Mr. Hisel testified...
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