Energy Erectors, Ltd. v. Industrial Commission

595 N.E.2d 641, 230 Ill. App. 3d 158, 172 Ill. Dec. 280, 1992 Ill. App. LEXIS 1004
CourtAppellate Court of Illinois
DecidedJune 22, 1992
Docket5-91-0259WC
StatusPublished
Cited by5 cases

This text of 595 N.E.2d 641 (Energy Erectors, Ltd. 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
Energy Erectors, Ltd. v. Industrial Commission, 595 N.E.2d 641, 230 Ill. App. 3d 158, 172 Ill. Dec. 280, 1992 Ill. App. LEXIS 1004 (Ill. Ct. App. 1992).

Opinion

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Following the death of John R. DeLong, the petitioner, Mary Lee DeLong, brought a claim for workers’ compensation. The arbitrator rendered a decision in favor of the respondent, ruling that Illinois had no jurisdiction over the claim. The Industrial Commission (Commission) reversed the arbitrator’s decision, finding that it had jurisdiction to hear the claim. The circuit court reversed the Commission’s decision. The petitioner appeals. We affirm.

The sole issue to be decided is whether the contract of employment occurred in Illinois, thereby allowing the petitioner’s claim to fall within the coverage of the Illinois Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). It is undisputed that John worked for the respondent, Energy Erectors, at the time of his death. However, the facts regarding where the employment contract was entered into are in dispute.

The record shows that John had been a lifelong resident of Illinois. He and LeRoy Olson, the respondent’s project supervisor, became friends while both were working on a coal mine construction site in Carmi, Illinois, although each worked for different companies. Olson testified that while working in Carmi, he told John, “if I got another job he could come to work for me.”

Thereafter, Olson went to work as project superintendent for the construction of an underground mine in Mavisdale, Virginia. Olson, as project superintendent, made the decisions whether to hire an applicant at the jobsite. When asked what an applicant would do when he arrived at the jobsite, Olson answered:

“[Y]ou got to make out your withholding statement, and we had a safety book they had to read — they had to sign a page in that safety book that they understood our safety laws. And we also had some laws on the job. You couldn’t drink on the job, lunch hours and so on. And they had to sign that.
They were also taken on a tour of the job site.”

He also testified that if an applicant came in and filled out an application but did not do one of these procedures, he would not be hired. With respect to the DeLongs and their telephone conversations, Olson testified:

“Mary would call my wife, you know, maybe once a week or whatever and ask if I could use Bob yet, and I would say, as soon as I can use Bob I’ll call you. So one day I told the wife to call Mary and tell Bob to come out and go to work.”

With respect to the telephone call to John to come to Virginia to go to work, Olson did not believe and could not recall whether he actually talked on the phone but he believed that his wife talked to Mrs. DeLong. He did testify, “I told my wife to tell Bob I can use him, ‘come out and go to work.’ May be that isn’t exact words. But as far as I can remember anyway.” In response to a question as to what John had to do to come out and get a job, Olson answered, “Just come out to the job and sign up.” He also testified that John would have to come out to Virginia if he wanted the job and that if he did not come to Virginia he would not get the job. He further testified that when John came to Virginia, he signed the tax forms, signed the safety book, and was processed in the same way as anyone else who wanted to come and work for Energy Erectors at the job in Virginia. In answer to the question whether there was any difference between the way John was hired as compared to anyone else hired at the job in Virginia, Olson answered “No.” He also testified that he could have rejected John if, for example, he showed up and had been injured and could not work. Olson testified that until John actually got out to Virginia and filled out the papers, he would not be hired as an employee.

Mrs. DeLong testified concerning a telephone conversation in which the Olsons initiated the call from Virginia to Carmi, Illinois. Mrs. Olson testified that Mr. Olson talked on the phone and said something to the effect, “He said something to the effect in his words, you know, I have a job for your old man, is he there, can I talk to him.” After this conversation, the DeLongs packed some of their belongings, left some of their belongings at his parents’ house, and went to the State of Virginia.

Gerald Swartout, general manager of Energy Erectors, testified. He was asked whether he was familiar with the manner and mode in which employees are hired by the company for the project and he answered yes. He also indicated that he participated from time to time in the hiring or firing of employees. When asked where was the decision made whether to hire a given applicant for the job, he testified, “At the job site.” Swartout also testified that the employee had to fill out payroll forms before going to work, specifically, the W-4, and that he had to go through the safety guidebook and read the rules and regulations and sign the back sheet which was torn out of the safety guidebook. He testified that after these forms are completed the person goes to work and his pay starts at the time he fills out the forms, if he is actually hired. With respect to the company’s policy that persons who want to work have to report to the jobsite, Swartout stated: “That is just a normal policy for hourly employees.” The benefit to the company in seeing the employee at the jobsite prior to being hired was: “Basically, one of the things we want to make sure the individual is capable, that there was [sic] no physical handicaps.” He stated that the job procedures as set forth in his superintendent’s field manual were not followed 100% of the time because some employees that were hired did not have to fill out a job application because they had worked for the company previously. They did indicate it was common practice to call and offer a person a job over the phone in many States, but they were not hired until they came to the jobsite. He gave an example that they would not be hired if they came to the job-site intoxicated.

From the foregoing, the arbitrator found that the last act necessary to form an employment contract occurred in Virginia rather than in Illinois. As such, he found that Illinois did not have jurisdiction over the claim. The Commission, with one dissenting commissioner, reversed the arbitrator’s decision. It found that the employment contract was formed in Illinois and, as such, the petitioner’s claim was covered by the Act. The circuit court reversed the Commission, finding as a matter of law that Illinois did not have jurisdiction over the claim.

On appeal, the petitioner argues that the circuit court erred in finding as a matter of law that the employment contract was not entered into in Illinois.

The question of where a contract of hire was made is a question of fact reserved for the trier of fact. (F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 514 N.E.2d 1147.) Only if the undisputed facts permit but a single inference can the question be characterized as one of law. Corrugated Metals, Inc. v. Industrial Comm’n (1989), 184 Ill. App. 3d 549, 540 N.E.2d 479.

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Bluebook (online)
595 N.E.2d 641, 230 Ill. App. 3d 158, 172 Ill. Dec. 280, 1992 Ill. App. LEXIS 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/energy-erectors-ltd-v-industrial-commission-illappct-1992.