Insulated Panel Co. v. INDUSTRIAL COM'N

743 N.E.2d 1038, 252 Ill. Dec. 882
CourtAppellate Court of Illinois
DecidedJanuary 5, 2001
Docket2-00-0404 WC
StatusPublished
Cited by2 cases

This text of 743 N.E.2d 1038 (Insulated Panel Co. v. INDUSTRIAL COM'N) 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
Insulated Panel Co. v. INDUSTRIAL COM'N, 743 N.E.2d 1038, 252 Ill. Dec. 882 (Ill. Ct. App. 2001).

Opinion

743 N.E.2d 1038 (2001)
318 Ill.App.3d 100
252 Ill.Dec. 882

INSULATED PANEL COMPANY, Appellant,
v.
The INDUSTRIAL COMMISSION et al. (Harold J. Cuttie, Jr., Appellee).

No. 2-00-0404 WC.

Appellate Court of Illinois, Second District, Industrial Commission Division.

January 5, 2001.

*1040 Kevin J. Reid, Garofalo, Schreiber & Hart, Chtd., Chicago, for Insulated Panel Co.

John W. Hallock, Chairman, Industrial Commission of Illinois, Chicago, for Illinois Industrial Commission.

Charles E. Cronauer, Law Offices of Charles E. Cronauer, Sycamore, Kenneth D. Peters, Cronin & Peters, Chicago, for Harold J. Cuttie Jr.

Presiding Justice McCULLOUGH delivered the opinion of the court:

Respondent employer, Insulated Panel Company, appeals from the order of the circuit court of De Kalb County confirming a decision of the Illinois Industrial Commission (Commission). The arbitrator denied compensation to claimant, Harold J. Cuttie, Jr., but the Commission found claimant's injury "arose out of" and "in the course of" his employment (820 ILCS 305/2 (West 1998)) and awarded claimant $680.71 per week for 76 6/7 weeks for temporary total disability (TTD), $396.89 per week for 100 weeks for 50% loss of use of the right leg, and $3,938.87 medical expenses. 820 ILCS 305/8(a), (b), (e)(12) (West 1998).

The issues on appeal are whether (1) the circuit court committed an abuse of discretion in ordering the parties to limit briefs to 10 pages and considering only the first 10 pages of respondent employer's 50-page brief; (2) the Commission's finding that an accidental injury "arose out of" and "in the course of" claimant's employment with respondent (820 ILCS 305/2 (West 1998)) was contrary to law or against the manifest weight of the evidence; (3) the Commission's finding as to the average weekly wage was against the manifest weight of the evidence; and (4) the Commission's finding of partial permanent disability (PPD) to the extent of 50% loss of the leg was against the manifest weight of the evidence. We affirm.

Claimant fell and broke his leg while on a day-long sightseeing excursion on the island of Maui, Hawaii. At that time, he was traversing lava rocks. He and two other employees of respondent, including respondent's president, were in Hawaii on business to install an industrial freezer. The arbitrator found that claimant, in traversing the rocks, was taking an unreasonable risk not foreseeable to respondent and, therefore, the accidental injury did not "arise out of" and "in the course of" employment. 820 ILCS 305/2 (West 1998). The Commission disagreed, finding it was reasonable and foreseeable to anticipate that claimant would engage in some type of recreational activity and that the type of activity claimant was engaged in when injured was reasonable and foreseeable recreational activity.

The first issue is whether the circuit court committed an abuse of discretion in ordering the parties to limit briefs to 10 pages and considering only the first 10 pages of respondent employer's 50-page brief. Claimant argues that respondent has not preserved this issue for review by this court because the circuit court order limiting pages in the parties' briefs was not referred to in the notice of appeal. An order limiting the pages of briefs is a step in the procedural progression of the ultimate order affirming the Commission and is reviewable. See Jiffy Lube International, Inc. v. Agarwal, 277 Ill.App.3d 722, 726, 214 Ill.Dec. 609, 661 N.E.2d 463, 467 (1996).

The circuit court has an inherent power to control its own docket, and the ruling limiting briefs to 10 pages was not an abuse of discretion. See Bodine Electric v. City of Champaign, 305 Ill.App.3d *1041 431, 435, 238 Ill.Dec. 368, 711 N.E.2d 471, 474 (1999) (defining abuse of discretion). Additionally, we note that the parties at oral argument agreed that the trial court did not limit oral argument before making its decision.

We next consider whether the Commission's finding that an accidental injury "arose out of" and "in the course of" claimant's employment with respondent (820 ILCS 305/2 (West 1998)) was contrary to law or against the manifest weight of the evidence. It is undisputed that claimant was a traveling employee when he was injured.

"Under a traveling employee analysis, determination of whether an injury arose out of and in the course of the employee's employment depends on the reasonableness of the employee's conduct at the time of the injury and whether the employer could anticipate or foresee the employee's conduct or activity. Johnson [v. Industrial Comm'n], 278 Ill.App.3d [59] at 64 [214 Ill.Dec. 802, 662 N.E.2d 156]; Bailey [v. Industrial Comm'n], 247 Ill.App.3d [204] at 208 [187 Ill.Dec. 97, 617 N.E.2d 305]; Howell Tractor & Equipment Co. [v. Industrial Comm'n], 78 Ill.2d [567] at 574 [38 Ill.Dec. 127, 403 N.E.2d 215]. See Wright [v. Industrial Comm'n], 62 Ill.2d [65] at 70 [338 N.E.2d 379]; David Wexler & Co. [v. Industrial Comm'n], 52 Ill.2d [506] at 510 [288 N.E.2d 420]; Ace Pest Control [v. Industrial Comm'n], 32 Ill.2d [386] at 388-89 [205 N.E.2d 453]; Chicago Bridge & Iron [v. Industrial Comm'n], 248 Ill.App.3d [687] at 694 [188 Ill.Dec. 573, 618 N.E.2d 1143]. Under this approach, Illinois courts have repeatedly held that, even though the recreational activities of a traveling employee fall outside the scope of employment, any injuries incurred during those activities are compensable under the Act as long as the recreational activity and the employee's conduct were reasonable and foreseeable. Howell Tractor & Equipment, 78 Ill.2d at 574 [38 Ill.Dec. 127, 403 N.E.2d 215]; Wright, 62 Ill.2d at 71 [338 N.E.2d 379]; Johnson, 278 Ill.App.3d at 64 [214 Ill.Dec. 802, 662 N.E.2d 156]; Bailey, 247 Ill.App.3d at 208 [187 Ill.Dec. 97, 617 N.E.2d 305]. See also David Wexler & Co., 52 Ill.2d at 510-11 [288 N.E.2d 420]. This added protection is afforded under the Act because [i]t is expected that an employee working out of town will seek some type of recreational activity on his days of rest' (Wright,

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743 N.E.2d 1038, 252 Ill. Dec. 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/insulated-panel-co-v-industrial-comn-illappct-2001.