Divittoria v. Industrial Comm'n

Industrial Commission
September 29, 1998

No. 1-97-1862WC

SALVATORE DIVITTORIO, d/b/a ) Appeal from the Circuit
Salvatore's Painting, ) Circuit Court of
) Cook County.
Appellant, )
)
v. )
)
THE INDUSTRIAL COMMISSION )
et al. (Kristen Firtik, a Minor, )
Through Her Mother and Best )
Friend, Kathy Buhle-Blake, ) Honorable
) John A. Ward,
Appellee). ) Judge Presiding

JUSTICE RAKOWSKI delivered the opinion of the court:

In order for a child to be entitled to the workers'
compensation benefits of her injured father who died from causes
unrelated to his injury, she must prove that she was his
"dependent." This appeal addresses the circumstances under which
a child is considered a "dependent" pursuant to section 8(e)(19)
of the Workers' Compensation Act (Act) (820 ILCS 305/8(e)(19)
(West 1996)). Is claimant a dependent where she was owed a legal
right of support from her father, where she received actual
support for an extended period of time, and where she could
reasonably rely on future support? We think so. We also find
that it was proper for claimant to be substituted in place of her
deceased father before arbitration commenced and that her
father's leg injury had reached a state of permanency before he
died. Therefore, we affirm the trial court's confirmation of the
Industrial Commission's (the Commission) decision.
I. FACTS
While working for Salvatore Divittorio, d/b/a Salvatore's
Painting (employer), decedent, Kenneth Firtik, fell into a sewer
hole and injured his left hip. Decedent was diagnosed with an
intertrochanteric fracture and ultimately underwent two
surgeries. During the first surgery, decedent's doctor, Dr. T.
Huang, implanted a four-hole plate into decedent's hip and
affixed a guidepin to the femur shaft. Although decedent had an
excellent recovery, Dr. Richard Shermer, State Farm's medical
expert, opined in a written report that decedent exhibited "a
mild permanent residual associated with the surgery and the
subsequent plate fixation." In other words, claimant had a mild
restriction when flexing his hip. In hopes of relieving his
chronic pain, decedent underwent a second surgery to remove the
hardware on February 4, 1992.
No expert opinion was presented regarding decedent's
recovery after the second surgery, but Marie Firtik, decedent's
mother, did testify about his behavior and appearance after the
second surgery. She stated that he had difficulty getting in and
out of chairs and putting on his shoes. She also testified that
he alleviated his pain by taking pain medication at least once a
day and that it seemed his pain and leg injury made him
depressed.
On August 14, 1992, decedent died from chronic alcoholism.
Because decedent's claim had not reached arbitration, claimant,
Kristen Firtik, and Marie Firtik filed another application for
adjustment of claim before the Commission.
Claimant was born on September 30, 1986, and on December 10,
1987, decedent was adjudged to be her biological father. The
circuit court of Cook County entered an order against decedent,
requiring him to support claimant and to reimburse the Illinois
Department of Public Aid for monies expended on behalf of
claimant. However, no amounts were ever determined for support
payments or for reimbursement to the Illinois Department of
Public Aid.
Claimant's mother, Kathy Buhle-Blake, testified that
decedent provided support until claimant reached age three.
Decedent visited about four times per month, and on each visit,
he gave her between $5 and $30 for claimant's support. On
claimant's birthdays, decedent also gave her $20 to $30 for
claimant's benefit, or he bought claimant small gifts. She also
testified that Marie Firtik gave her two bonds, which named
decedent as the beneficiary, worth $70 each. She estimated that
claimant cost about $120 per week to support.
The arbitrator found that decedent's injuries arose out of
and were sustained in the course of his employment and that
decedent was entitled to temporary total disability benefits
totaling $219.34 per week for a period of 42 6/7 weeks.
Additionally, the arbitrator determined that, under section
8(d)(2) of the Act, decedent suffered a 16% permanent disability
of the person as a whole and awarded decedent $197.40 per week
for 80 weeks. 820 ILCS 305/8(d)(2) (West 1996). Finding that
claimant and Marie Firtik were survivors pursuant to section 8(h)
of the Act, the arbitrator awarded decedent's benefits to them in
equal shares. 820 ILCS 305/8(h) (West 1996).
Employer appealed to the Commission. The Commission
affirmed the arbitrator's award of temporary total disability.
However, the Commission vacated the arbitrator's finding that
decedent suffered a permanent disability pursuant to section
8(d)(2) and instead found that decedent suffered a specific loss
pursuant to 8(e) in that decedent lost 40% of the use of his left
leg. 820 ILCS 305/8(e) (West 1996). The Commission awarded
$197.40 a week for 80 weeks, the same award that the arbitrator
rendered under section 8(d)(2).
The Commission also found that Marie Firtik was not entitled
to decedent's award under section 8(e)(19) because she failed to
show that she was dependent upon decedent. Nonetheless, the
Commission concluded that claimant was a dependent under section
8(e)(19). The Commission based its decision on the fact that the
circuit court entered an order stating that decedent was
claimant's father, decedent was under a duty to support claimant,
and that decedent was obligated to reimburse the Illinois
Department of Public Aid for any support rendered to claimant.
Employer appealed to the circuit court of Cook County, which
confirmed the Commission's findings. We have jurisdiction
pursuant to Supreme Court Rule 301. 155 Ill. 2d R. 301.
II. DISCUSSION
A. Dependency under Section 8(e)(19) of the
Workers' Compensation Act
Section 8(e)(19) delineates the means by which a specific
loss award is distributed upon a worker's death from causes
unrelated to the compensated injury. 820 ILCS 305/8(e)(19) (West
1996). Unlike similar provisions within the Workers'
Compensation Act, section 8(e)(19) does not automatically entitle
the deceased worker's children, or children to whom the decedent
owed a legal obligation to support, to receive the worker's
benefits. Compare 820 ILCS 305/8(e)(19) (West 1996) (providing
benefits for widows, widowers, or dependents), with 820 ILCS
305/7(a) (West 1996) (providing benefits for widows, widowers, or
children and defining child to include "a child whom the deceased
employee was legally obligated to support") and 820 ILCS 305/8(h)
(West 1996) (including "child" in the list of beneficiaries).
Section 8(e)(19) provides in pertinent part:
"19. In a case of specific loss and the
subsequent death of such injured employee
from other causes than such injury leaving a
widow, widower, or dependents surviving
before payment or payment in full for such
injury, then the amount due for such injury
is payable to the widow or widower and, if
there be no widow or widower, then to such
dependents, in the proportion which such
dependency bears to total dependency."
(Emphasis added.) 820 ILCS 305/8(e)(19)
(West 1996).
Apparent from the language of section 8(e)(19) is that only
widows and widowers of the deceased worker are expressly entitled
to the worker's benefits. All others, including decedent's
children, must prove that they were dependent upon decedent to be
entitled to receive decedent's specific loss payments. As
defined within the context of the Act, dependency
"[I]mplies a present existing relation
between two persons where one is sustained by
the other or looks to or relies on the aid of
the other for support or for reasonable
necessaries consistent with the dependent's
position in life. [Citation.] The decisive
test is whether the contributions were relied
upon by the applicant for his means of
living, judging by his position in life, and
whether he was to a substantial degree
supported by the employee at the time of the
latter's death." In re Estate of Hardaway,
26 Ill. App. 2d 493, 496 (1960).
See also Diss v. Industrial Comm'n, 52 Ill. 2d 339, 341 (1972).
In the instant case, the evidence shows that the circuit
court ordered decedent to support claimant and to repay the
Illinois Department of Public Aid for any monies expended on
claimant's behalf. Claimant's mother also testified that
decedent provided approximately $5 to $30 for claimant's support
about two to four times per month up until claimant was three
years old. After age three, however, decedent was restrained
from seeing claimant and her mother and no longer contributed to
her support. The Commission concluded that claimant was a
dependent and entitled to decedent's award solely on the fact
that decedent owed claimant a legal obligation of support.
Employer, however, contends that the Commission erred by
deciding that claimant was a dependent. Employer argues that the
provision's language in conjunction with the usage of the term
"dependent" in the context of the Act precludes claimant from
receiving her father's award because she was not actually
dependent upon decedent when he died. Under employer's argument,
a child is a dependent only where the worker is providing her
with the necessities of life when he dies. Although we agree
that a child is a dependent under those circumstances, we do not
believe that dependency is necessarily foreclosed where such
facts do not exist.
Our research reveals that Illinois courts have yet to
determine whether a child under claimant's circumstances should
be considered a dependent under the Act. Nonetheless, our
research does reveal that other jurisdictions in cases similar to
the one sub judice find dependency where a child proves that the
deceased worker owed her a legal obligation of support and that
there was a reasonable expectation of support at the time of the
worker's death. See 5 A. Larson & L. Larson, Larson's Workers'
Compensation Law 63.31, at 11-162 (1997); see, e.g., Lawhon Farm
Services v. Brown, 60 Ark. App. 64, 71, 958 S.W.2d 538, 541
(1997); Hoskins v. Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136, 139 (1997); James Gibbons Co. v. Hess, 44 Md. App.
216, 220-21, 407 A.2d 782, 785 (1979); Porter Seed Cleaning, Inc.
v. Skinner, 1 Ark. App. 230, 234-35, 615 S.W.2d 380, 382 (1981);
Hegwald v. Clarkson Construction Co., 7 Kan. App. 2d 375, 376-77,
642 P.2d 573, 574 (1982); Dolye's Concrete Finishers v. Moppin,
268 Ark. 167, 170, 594 S.W.2d 243, 245 (1980); Roach
Manufacturing Co. v. Cole, 256 Ark. 908, 913, 582 S.W.2d 268,
270-71 (1979); Kosmicki v. Aspen Drilling Co., 76 N.M. 234, 237-
38, 414 P.2d 214, 216 (1966); Bankston v. Prime West Corp., 271
Ark. 727, 732, 610 S.W.2d 586, 590 (Ark. App. 1981). This
approach allows the court to be cognizant of the realities of
familial relationships and the fact that children are entirely
subject to the whim of those who bear the responsibility of
supporting them. Although we are not bound by these
jurisdictions, we find their approach persuasive under the facts
of this case and believe that it complements our mandate
requiring us to give the Workers' Compensation Act a commonsense
and liberal construction, especially in determining questions of
dependency. American Steel & Wire Co. v. Industrial Comm'n, 411 Ill. 354, 357 (1952); see Plantation Manufacturing Co. v.
Industrial Comm'n, 294 Ill. App. 3d 705, 710 (1997).
To prove a "reasonable expectation" of support, a claimant
must show that there was a reasonable probability that decedent
would have fulfilled the obligation but for his death. See James
Gibbons Co., 44 Md. App. at 220-21, 407 A.2d at 785; Kosmicki, 76
N.M. at 236, 414 P.2d at 215. To determine whether there was a
"reasonable probability" that decedent would resume support, the
court looks to the totality of the circumstances existing before
decedent's death. See Roach Manufacturing Co., 256 Ark. at 912,
582 S.W.2d at 270. In essence, the court's task is to determine
whether the lapse in support is temporary or signifies a
permanent end of support. See James Gibbons Co., 44 Md. App. at
220, 407 A.2d at 785. Some facts to consider are the reasons for
and the length of the lapse in support, and the mutual attitudes
and financial abilities of the parties involved. See James
Gibbons Co., 44 Md. App. at 221, 407 A.2d at 785; Kosmicki, 76
N.M. at 236-37, 414 P.2d at 216; Roach Manufacturing Co., 256
Ark. at 913, 582 S.W.2d at 271.
In the instant case, we believe the evidence shows that a
reasonable expectation of support existed when decedent died.
Decedent's regular contributions to claimant's care before being
restrained from seeing claimant and her mother shows that
decedent was sincerely willing to aid in claimant's support. Up
until claimant was three years old, decedent visited her as often
as four times per month at which times he gave $5 to $30 for
claimant's support. Decedent also gave $20 to $30 to claimant's
mother on claimant's birthdays, or he bought claimant small
gifts. Claimant's mother also asserted that whenever claimant
needed anything, decedent gave her money. We find these facts
particularly compelling because they show that decedent took the
initiative to support his daughter without compulsion; claimant's
mother never secured a set amount of support under the court
order, nor did she ever enforce it.
We also note that, under Illinois law, claimant's mother was
never foreclosed from seeking modification of the court order.
750 ILCS 45/16 (West 1996). This is especially pertinent
considering that claimant's expenses will naturally increase as
she grows older and that claimant's mother may not be able to
maintain claimant at her accustomed mode of living. See Roach
Manufacturing Co., 256 Ark. at 913, 582 S.W.2d at 271
(considering whether the mother could maintain the child in her
"accustomed mode of living" as the child's "necessary expenses
would naturally increase as she grew older"). In light of these
facts, we believe that there was a reasonable probability that,
if prompted to, decedent would have fulfilled his support
obligation if he had not died; as such, we find that a reasonable
expectation of support existed when decedent died. Therefore,
considering that there was a reasonable expectation of support,
and that decedent owed claimant a legal obligation of support, we
conclude that claimant was a dependent under the Act.
B. Substitution of Parties Before and During Arbitration

Employer argues that claimant should not have been
substituted in place of her deceased father under section
8(e)(19). Specifically, employer argues that section 8(e)(19)
permits substitution of parties only after arbitration
proceedings have concluded and not before proceedings have
commenced. Employer reasons that the proceedings must be
concluded before substitution occurs to prevent awards from being
based on speculation and conjecture. Initially, we note that
this argument was not raised below, and, as such, it has been
waived. Doe v. Lutz, 253 Ill. App. 3d 59, 66 (1993); Ruffino v.
Hinze, 181 Ill App. 3d 827, 832 (1989). Moreover, waiver
notwithstanding, we disagree with employer's assertions and find
them meritless.
"The primary rule of statutory interpretation is that a
court should ascertain and give effect to the intention of the
legislature." Robbins v. Board of Trustees of the Carbondale
Police Pension Fund, 177 Ill. 2d 533, 539 (1997). The court
should seek the legislative intent primarily from the statute's
language. Robbins, 177 Ill. 2d at 539. "Where the language of
the act is certain and unambiguous the only legitimate function
of the courts is to enforce the law as enacted by the
legislature." Robbins, 177 Ill. 2d at 539.
Although employer's arguments might have had merit before
1975, such is no longer the case. Before the 1975 amendment to
section 8(e)(19), it read as follows:
"19. In a case of specific loss other
than by amputation under the provisions of
this paragraph the amount of which loss has
been determined in proceedings before the
Commission or an Arbitrator thereof under the
provisions of this Act, or in a case of
specific loss by amputation under the
provisions of this paragraph, and the
subsequent death of such injured employee
from other causes than such injury leaving a
widow or lineal dependents or both surviving
before payment in full for such injury, then
the balance remaining due for such injury is
payable to such dependents, in the proportion
which such dependency bears to total
dependency." (Emphasis added.) Ill. Rev.
Stat. 1973, ch. 48, par. 138.8(e)(19).
See also Pub. Act 79-79, 1975 Ill. Laws 224, 257. At present,
section 8(e)(19) reads:
"19. In a case of specific loss and the
subsequent death of such injured employee
from other causes than such injury leaving a
widow, widower, or dependents surviving
before payment or payment in full for such
injury, then the amount due for such injury
is payable to the widow or widower and, if
there be no widow or widower, then to such
dependents, in the proportion which such
dependency bears to total dependency. 820
ILCS 305/8(e)(19) (West 1996).
We find that the clear and unambiguous language of the
present version of section 8(e)(19) does not prevent the
substitution of parties before arbitration proceedings have
commenced. If the General Assembly intended to do such, it
easily could have added language requiring arbitration hearings
to be complete or at least in progress before substitution is
allowed. Instead, the language of section 8(e)(19) plainly
allows substitution anytime before the worker has been fully
compensated for the injury. 820 ILCS 305/8(e)(19) (West 1996).
Notwithstanding the plain language of the statute, both the
legislative history and a Governor's message regarding a related
amendment further confirm that substitution is allowed before
proceedings have commenced. Senator Knuppel asserted that the
purpose of the legislation is to entitle decedent's estate or
heirs to receive the benefits that the employee would have
otherwise received had the "matter gone to a full and complete
hearing." 79th Ill. Gen. Assem., Senate Proceedings, May 21,
1975, at 107. Furthermore, a message by Governor Daniel Walker
regarding Senate Bill 473 intimates that the 1975 amendment to
section 8(e)(19) (contained in Senate Bill 235) was designed to
allow heirs and dependents to pursue a deceased worker's benefits
even in circumstances where the worker died before filing for
such benefits. 1975 Ill. Laws Governor's message, at 2357-58
(stating that Senate Bill 473 allows heirs and dependents to
collect a deceased worker's benefits even though the worker dies
before filing for the benefits and that "Senate Bill 473 ***
should be read in a manner which makes it consistent with Senate
Bill 235").
Nonetheless, employer urges this court not to read the
statute in a manner that permits substitution before proceedings
have concluded, fearing that this policy somehow "allows the
pursuit of benefits based upon speculation and conjecture as to
the probable permanency of a deceased worker's injury." We
disagree.
Despite the removal of the requirement that an award be
determined before substitution, all claimants, whether
substituted parties or not, still must prove permanency by the
same burden of proof, namely, by a preponderance of the evidence.
Chicago Park District v. Industrial Comm'n, 263 Ill. App. 3d 835,
842 (1994). Furthermore, workers' compensation provisions
allowing substitution before proceedings begin are not uncommon
among workers' compensation acts. See 4 A. Larson & L. Larson,
Larson's Workers' Compensation Law 58.44, at 10-492.304 to 10-
492.306 (1997). Therefore, we conclude that substitution of
claimant in her deceased father's stead was permissible under
section 8(e)(19).
C. The Permanency of Decedent's Leg Injury

Employer contends that the evidence was insufficient to
prove that decedent suffered from a permanent injury.
Specifically, employer argues that when the claim was before the
arbitrator, the record showed that decedent had not been released
to return to work after his second surgery and that the medical
evidence failed to show that his leg injury reached a medically
stable plateau.
"A claimant has the burden of proving the extent and
permanency of his injury by a preponderance of the evidence;
liability cannot be premised upon imagination, speculation or
conjecture." Chicago Park District v. Industrial Comm'n, 263
Ill. App. 3d 835, 843 (1994). Determination of "[t]he extent and
permanency of a claimant's disability are question of fact, and
the Commission's factual determinations will not be overturned
unless they are against the manifest weight of the evidence."
Chicago Park District, 263 Ill. App. 3d at 843.
"It is the province of the Commission to
weigh and resolve conflicts in testimony,
including medical testimony, and to choose
among conflicting inferences therefrom.
[Citations.] It is only when the decision of
the Commission is without substantial
foundation in the evidence or its finding is
manifestly against the weight of the evidence
that the findings of the Commission should be
set aside." Dexheimer v. Industrial Comm'n,
202 Ill. App. 3d 437, 442-43 (1980).
When reviewing a decision by the Commission, the court "will
assess whether there was sufficient factual evidence in the
record to support the decision." Cassens Transport Co. v.
Industrial Comm'n, 262 Ill. App. 3d 324, 331 (1994). "The test
is not whether this or any other tribunal might reach the
opposite conclusion, but whether there was sufficient factual
evidence in the record to support the Commission's
determination." Beattie v. Industrial Comm'n, 276 Ill. App. 3d
446, 450 (1995). "A reviewing court cannot reject or disregard
permissible inferences drawn by the Commission because different
or conflicting inferences may also be drawn from the same facts
nor can it substitute its judgment for that of the Commission
unless the Commission's findings are against the manifest weight
of the evidence." Martin v. Industrial Comm'n, 227 Ill. App. 3d
217, 219 (1992). For a " 'finding to be contrary to the manifest
weight of the evidence, an opposite conclusion must be clearly
apparent.' " Drogos v. Village of Bensenvile, 100 Ill. App. 3d
48, 54 (1981), quoting In re Application of County Collector, 59
Ill. App. 3d 494, 499 (1978).
In this case, claimant presented sufficient testimony and
evidence for the Commission to find, by a preponderance of the
evidence, that decedent suffered from a permanent leg injury.
Decedent's accident caused him to suffer an intertrochanteric
fracture requiring surgery and fixation of hardware (consisting
of a plate and some screws) into his hip. After the surgery,
decedent underwent maximal rehabilitation, but still suffered
from pain and irritation. Consequently, on February 4, 1992,
decedent underwent a second surgery to remove the hardware.
After this surgery, decedent was referred to a physical therapy
work hardening program.
Before decedent's second surgery, Dr. Shermer prepared a
report of decedent's recovery for State Farm Insurance Company's
claim department. He noted in his report that decedent
complained that his hip ached during weather changes. Based upon
an examination of decedent, Dr. Shermer opined that decedent's
left hip still exhibited a 10 degree restriction when flexing, a
restriction that Dr. Shermer noted as being mild. Additionally,
Dr. Shermer reviewed an X ray of decedent's hip and found that
the hip fracture was well healed, but that there was a small
calcification at the tip of the greater trochanter. Although Dr.
Shermer's report states that decedent had an excellent recovery,
he nonetheless concluded that, "[i]n view of [decedent's]
excellent response to the surgery and the current clinical
findings, as well as the x-ray findings, a mild permanent
residual associated with the surgery and subsequent plate
fixation[] is indicated."
Marie Firtik, decedent's mother, also described decedent's
condition after his second surgery. She testified that in June
and July of 1992 she noticed that decedent had a bad limp and
that decedent seemed to have pain when getting in and out of
chairs as well as when he put on his shoes. She also asserted
that, during these months, decedent alleviated his pain by
consuming pain medication at least once a day.
Based on the above evidence, the Commission found sufficient
facts showing that decedent suffered from a permanent injury.
Although different inferences could be drawn from the above
evidence regarding the permanency of decedent's injury, an
opposite conclusion that decedent did not suffer from a permanent
injury is not clearly apparent. See Caterpillar Tractor Co. v.
Industrial Comm'n, 129 Ill. 2d 52, 60 (1989) ("It is well settled
that if undisputed facts upon any issue permit more than one
reasonable inference, the determination of such issues presents a
question of fact, and the conclusion of the Commission will not
be disturbed on review unless it is contrary to the manifest
weight of the evidence"). Not only did Dr. Shermer opine before
the second surgery that decedent's left leg had a permanent
reduction in flexing ability, but Marie Firtik testified that
decedent still exhibited immobility, a limp, and pain despite
approximately four months of recovery after the second surgery.
Moreover, the severity of decedent's injury and treatment alone
creates an inference that a person might never fully recover.

Nonetheless, employer argues that this court should "not
allow the Industrial Commission to make a finding that the
condition had reached a medically stable plateau or a condition
of permanency without [medical] evidence of the post-surgical
condition." To support this proposition, employer directs our
attention to Deichmiller v. Industrial Comm'n, 147 Ill. App. 3d
66 (1986). This case only supports employer's contention to the
extent it restates the well established rule that speculation
cannot be the basis of an award. Deichmiller, 147 Ill. App. 3d
at 74. Although medical evidence establishing permanency
collected after decedent's second surgery would have bolstered
claimant's case, it was not necessary to support the Commission's
determination that decedent suffered from a permanent disability.
See Howard v. Industrial Comm'n, 81 Ill. 2d 50, 57 (1980)
(Commission's determination of whether claimant's injury has
reached a state of permanency does not necessarily require
medical evidence for support). Whether claimant proffered such
evidence to the Commission affects the weight and quality of the
evidence. Again, it is the province of the Commission to weigh
the evidence, and "as long as there is sufficient factual
evidence in the record to support the Commission's
determination," this court will affirm the Commission's finding.
See Beattie, 276 Ill. App. 3d at 450. Having found that the
above evidence sufficiently supports the Commission's
determination, we affirm the Commission's decision that decedent
suffered from a permanent leg injury.
III. Conclusion
For the foregoing reasons, we affirm the trial court's
confirmation of the Industrial Commission's decision.
Affirmed.
McCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK, JJ.,
concur.