Silica Sand Transport, Inc. v. Industrial Commission

554 N.E.2d 734, 197 Ill. App. 3d 640, 143 Ill. Dec. 799, 1990 Ill. App. LEXIS 608
CourtAppellate Court of Illinois
DecidedApril 30, 1990
Docket3—89—0134WC, 3—89—0146WC cons.
StatusPublished
Cited by7 cases

This text of 554 N.E.2d 734 (Silica Sand Transport, 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
Silica Sand Transport, Inc. v. Industrial Commission, 554 N.E.2d 734, 197 Ill. App. 3d 640, 143 Ill. Dec. 799, 1990 Ill. App. LEXIS 608 (Ill. Ct. App. 1990).

Opinion

JUSTICE LEWIS

delivered the opinion of the court:

An application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) was filed by Herman Miller, the claimant, for injuries sustained to his back on December 7, 1984, in the course of his employment with Frieders Trucking, Inc. (Frieders). The claimant had also filed two other claims for workers’ compensation against Frieders for back injuries which were incurred while in the course of his employment on July 8, 1983, and on June 12, 1984. All three adjustments for claims were filed on December 17, 1985. Subsequently, on January 30, 1987, the claimant filed a separate adjustment of claim against Silica Sand Transport, Inc. (Silica), for the same injuries incurred by him on December 7, 1984.

The arbitrator considered all of the claimant’s claims at a hearing held on April 6, 1987. The arbitrator found that the claimant’s current condition of ill-being was primarily the result of the claimant’s accident of December 7, 1984, awarded the claimant temporary total disability benefits (TTD), and determined that this award did not bar a further hearing for a determination of additional TTD and of permanent disability. The arbitrator found that Frieders was the loaning employer and Silica was the borrowing employer of the claimant at the time of the claimant’s injury, and that Silica, in its lease agreement with Frieders, had agreed to provide workers’ compensation insurance for employees borrowed by Silica from Frieders. However, the arbitrator held that, because Frieders failed to comply with a condition precedent of the lease agreement, Frieders was only entitled to 50% reimbursement from Silica for the benefits paid to the claimant. The arbitrator further held that the notice of the accident was timely given to Frieders and that this notice served as notice to Silica. In addition to awarding the claimant TTD, the arbitrator imposed section 19(1) penalties (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(7)) in the sum of $2,500 and attorney fees, pursuant to section 16 (Ill. Rev. Stat. 1985, ch. 48, par. 138.16), up to $5,000 against Silica.

A review of the arbitrator’s decision was sought before the Industrial Commission. Prior to the review hearing, Frieders filed a petition for reimbursement which was considered by the Commission at the hearing on review. The Commission affirmed the arbitrator’s determination that an employer/employee relationship existed between the claimant and both Frieders and Silica on December 7, 1984, and that Silica had borrowed the claimant from Frieders. The Commission determined that the claimant was a loaned employee, notwithstanding Frieders’ failure to obtain Silica’s prior approval of the claimant as was required under the lease agreement, and Silica’s lack of knowledge of the substitution of the claimant for an approved employee. The Commission affirmed the arbitrator’s finding that timely notice of the claimant’s accident to Frieders served as notice to Silica, and that Silica was not prejudiced by the lack of actual notice. The Commission increased Frieders’ reimbursement from Silica from 50% and determined that Frieders was entitled to be wholly reimbursed for payments to the claimant for workers’ compensation benefits and for medical expenses. The Commission also found that Frieders was entitled to reimbursement for its expenses and reasonable attorney fees, but because Frieders failed to present evidence upon which to make a determination of attorney fees, the Commission did not award an amount for the attorney fees. The Commission reversed the arbitrator’s award of section 19(7) penalties and attorney fees pursuant to section 16 against Silica. Lastly, the Commission determined that this cause should be remanded to the arbitrator for further proceedings for a determination of the claimant’s entitlement to permanent disability in accordance with the holding of Thomas v. Industrial Comm’n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322.

On appeal, the circuit court confirmed the Industrial Commission’s decision. Separate appeals were filed in this court by Frieders and by Silica and, upon the motion of the parties, these appeals were consolidated for consideration. The issues raised by Silica on appeal are whether the Industrial Commission’s determination that a loaned employee relationship existed between Silica and the claimant was against the manifest weight of the evidence, and whether Silica was given timely notice of the claimant’s accident. The issue raised by Frieders on appeal is whether the Industrial Commission erred in denying Frieders reimbursement for its reasonable attorney fees.

At the hearing before the arbitrator, the claimant testified that on December 7, 1984, he was employed by Frieders as a truck driver. He had been hired by Frieders in April 1983, and prior to that time, he had been employed by Silica. When the claimant went to work for Frieders, he was given a preemployment physical which showed that he had no preexisting back problems.

On July 8, 1983, while unloading his truck, the claimant suffered a back injury. The claimant reported his injury to Frieders. As a result of this injury, the claimant was off work for a week and was prescribed pain pills and muscle relaxants. When he returned to work a week later, his back appeared to be normal.

The claimant testified that on June 21, 1984, he again hurt his back while unloading empty pallets at Frieders’ garage. He did not consult a doctor for this injury, but he took the remaining pain pills previously prescribed for his prior back injury. He did not miss any work as a result of this accident.

On December 7, 1984, the claimant came into Frieders’ garage to wash his truck. Joseph Frieders asked the claimant if he would “make a run,” since Jack Ellis, who normally was scheduled to do the job, was unavailable because of personal reasons. The claimant agreed and drove to the Indiana/Illinois border, where he picked up Ellis’ truck. The claimant drove the truck to Michigan City, Indiana, and obtained a load of sand which he transported to Grand Rapids, Michigan. After the claimant unloaded the sand with a 20-foot product hose, the claimant attempted to dislodge the hose from the snow and gravel where it had become caught. When the claimant pulled the hose, he fell to his knees with a severe pain in his back. The' claimant managed to drive his truck back to Frieders’ garage, and when he arrived home, he notified Joseph Frieders of his accident. Subsequently, the claimant underwent an unsuccessful chemonucleolysis on his spine in 1985, and, in 1986, a laminectomy was performed. The claimant had not worked since December 8, 1984.

The claimant admitted that, although he drove the truck on December 7, 1984, he signed Jack Ellis’ name to the bill of lading. The claimant had been advised to sign Ellis’ name to avoid inner-office problems. However, the claimant was paid for the trip.

Marilyn Risch, president of Silica, testified that a one-year lease agreement between Silica and Frieders was in effect on December 7, 1984, and that the lease agreement was substantially similar in its provisions to other contracts entered into by Frieders and Silica in the past.

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Bluebook (online)
554 N.E.2d 734, 197 Ill. App. 3d 640, 143 Ill. Dec. 799, 1990 Ill. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silica-sand-transport-inc-v-industrial-commission-illappct-1990.