Beecher Wholesale Greenhouse, Inc. v. Industrial Commission

524 N.E.2d 750, 170 Ill. App. 3d 184, 120 Ill. Dec. 720, 1988 Ill. App. LEXIS 825
CourtAppellate Court of Illinois
DecidedJune 7, 1988
Docket3-87-0629WC
StatusPublished
Cited by6 cases

This text of 524 N.E.2d 750 (Beecher Wholesale Greenhouse, Inc. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beecher Wholesale Greenhouse, Inc. v. Industrial Commission, 524 N.E.2d 750, 170 Ill. App. 3d 184, 120 Ill. Dec. 720, 1988 Ill. App. LEXIS 825 (Ill. Ct. App. 1988).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Chester Mark Kozlowski, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), for a work-related injury which occurred on July 24, 1984, at the premises of Beecher Wholesale Greenhouse, Inc. (respondent). Claimant alleged that he had been struck by lightning while making a business call and, as a result, had suffered debilitating brain damage. On April 3, 1986, the arbitrator found claimant was permanently and totally disabled under the Act. Both the Industrial Commission (Commission) and the circuit court of Will County affirmed the decision. We affirm.

The relevant facts are as follows. Claimant was working as a salesman for the respondent, a wholesale greenhouse. He had worked there since 1977, initially employed in a high school work-study program, and after graduation, as a full-time employee.

On July 24, 1984, claimant was sitting in respondent’s office making telephone calls to clients. At approximately 11 a.m., he was talking to Helen DeVries (DeVries) of Momence Produce, a concern which was located about 20 miles from respondent’s facilities. DeVries testified that at the time of the call, a rainstorm was producing significant thunder and lightning. After talking with DeVries about an order, DeVries suddenly realized that she was not talking with him. There had been no disconnection on the telephone line; claimant simply was “not there.” DeVries further stated that she previously had talked to claimant a number of times and noticed nothing unusual about him with respect to his mental capabilities.

Phillip Nuccio (Nuccio), a co-employee of claimant, testified that at 11 a.m. he was putting plants in trays in respondent’s greenhouse. A storm was creating a great deal of thunder and lightning. Nuccio heard a “boom, crash, or something” in the immediate vicinity. His employer, James Dancik (Dancik), called him to the greenhouse office. In the office, Nuccio saw claimant setting before his desk in a state of “shock.” Along with Dancik, he attempted to snap claimant out of his dazed condition. An ambulance was called, and Nuccio went with claimant to the hospital, where he noticed red marks on claimant’s right palm and right ear.

Michael Klugo, another co-employee of claimant, stated that on the date and time in question, he was called to the office by his employer. Claimant was entirely limp and unresponsive to efforts to rouse him. The telephone. receiver was off its cradle, and lying next to claimant.

Claimant’s mother, Velva Kozlowski, testified that claimant attended both regular and special eduction classes at high school, from which he graduated in 1980. Prior to July 24, 1984, claimant had a good memory and a positive outlook on life. Following the disputed incident, claimant had difficulty remembering recent events, and his mood was often depressed. Claimant suffered from continuing weakness and lethargy and pains in his right ear and right arm.

Mrs. Kozlowski was told by Dancik that claimant had been talking on the phone when Dancik heard a loud pop and saw claimant put the phone receiver down very slowly. Thereafter, claimant sat dazed and unresponsive.

Claimant testified that he remembered coming to work at 6 a.m. About 9 a.m. he began calling clients and taking orders. The next thing he recalled was waking up in the hospital. Claimant stated that since the accident he experienced a lot of pain and generally felt weak. He suffered from pain in his right ear, severe headaches, and has difficulty both concentrating on and comprehending what he reads.

Dr. Stephen Trobiani, a neurologist, and Lawrence Egel, a clinical psychologist, testified for claimant. After examining claimant at length, each determined that he was permanently and totally disabled. Edward Steffan, a certified vocational rehabilitation counselor, testified that claimant was a poor candidate for employment and should be considered for a possible placement in a noncompetitive sheltered workshop setting.

Paul Hansen, an electrical engineer, stated that the conditions in the greenhouse increased the likelihood of injury due to a lightning strike.

For the defendant, Dr. David Shenker, a neurologist, testified that he could not objectively attribute claimant’s current problems to the alleged injury. Dr. Shenker opined that claimant was capable of being employed in some capacity.

On appeal, respondent raises two issues: (1) the decision of the Commission is against the manifest weight of the evidence; and (2) lightning strikes are not compensable as a matter of law.

Respondent initially argues that the Commission’s decision was against the manifest weight of the evidence. Specifically, it contends that both the finding of an occurrence of a lightning strike and that defendant is permanently and totally disabled are against the manifest weight of the evidence. It is axiomatic that a reviewing court will not disturb the Commission’s decision unless it is against the manifest weight of the evidence. Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106.

Respondent asserts that there is nothing in the record which supports the Commission’s conclusion. We disagree. The record before us is replete with compelling circumstantial evidence that claimant was struck by lightning on the date in question. At approximately 11 a.m., claimant was on the phone talking with a customer. There is substantial evidence that there was an electrical storm of significant magnitude occurring at that time. Employees of the respondent heard a loud crash of lightning in the immediate vicinity. They were immediately summoned by their employer to help claimant, who was dazed and totally unresponsive to them. One fellow employee noticed red marks on claimant's right hand and right ear. The customer with whom claimant was talking stated that claimant stopped talking to her despite the fact that the line between them had not been disconnected. Since that time claimant has suffered from an organic brain syndrome which has seriously affected his short-term memory. An electrical engineer found that the telephone system at respondent’s warehouse substantially increased the risk of a lightning-related injury. The fact that no one saw an electrical charge entering claimant’s body through the telephone receiver or that claimant cannot describe what occurred does not lessen the importance of the above-cited circumstantial evidence. Moreover, respondent suggests no alternative interpretation of the events in question. There was more than enough evidence to support the Commission’s finding of a lightning strike.

Further, respondent argues that the Commission’s finding that claimant is totally and permanently disabled is based on erroneous evidence and contrary to the manifest weight of the evidence.

Respondent contends that claimant’s testimony that all he knew about the disputed episode was talking on the telephone and waking up in the hospital constitutes a judicial admission. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475.) Thus, he is bound by his sworn statement and Dr. Trobiani should not have been allowed to consider claimant’s history at all.

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Bluebook (online)
524 N.E.2d 750, 170 Ill. App. 3d 184, 120 Ill. Dec. 720, 1988 Ill. App. LEXIS 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beecher-wholesale-greenhouse-inc-v-industrial-commission-illappct-1988.